Court No. - 44
Case :- MATTERS UNDER ARTICLE 227 No. - 6072 of 2018 Petitioner :- Abhishek Garg Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Sundeep Shukla Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Sundeep Shukla, learned counsel for the petitioner and learned A.G.A. for the State.
This petition under Article 227 of the Constitution of India has been filed challenging the order dated 27th February, 2017 passed by the Additional Chief Judicial Magistrate, Court No.8, Meerut in Case No. 4094 of 2016 (Abhishek Garg vs. Dr. P.K. Mehrotra & Others), under Section 156 (3) Cr.P.C., Police Station Medical, District Meerut, whereby the aforesaid case has been dismissed.
The petitioner has also challenged the order dated 12th July, 2018 passed by the Additional District and Sessions Judge, Court No.4, Meerut in Criminal Revision No. 163 of 2017 (Abhishek Garg vs. State of U.P. & Others), whereby the aforesaid criminal revision preferred against the order dated 27th February, 2017 has been dismissed.
Learned counsel for the petitioner in challenge to the impugned orders has submitted that the concerned Magistrate has acted in excess of his jurisdiction, inasmuch as he has not given due care of the statement of the complainant as well as witnesses adduced on behalf of the complainant, whose testimonies were recorded under Sections 200 and 202 Cr.P.C. respectively. The Revisional Court also committed jurisdictional error in not considering the aforesaid and therefore, both the impugned orders are liable to be set aside by this Court.
The Apex Court in the case of Lalita Kumari versus Government of U.P. & Others reported in 2014 (2) SCC 1 in paragraph 111 has categorically observed as follows:
"111) In view of the aforesaid discussion, we hold:
"i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
When the case in hand is examined in light of the observations made by the Apex Court in the case of Lalita Kumari (Supra), it is apparent that the concerned Magistrate before passing the impugned order had got preliminary enquiry conducted. During the course of the preliminary enquiry, the concerned Police Officer examined the complainant i.e. the applicant herein. The examination is reflected from the report submitted by the Police Station Medical, District Meerut, which is at page 127 of the paper book. Upon perusal of the same, it is explicitly clear that the complainant himself was unable to prove the case set up by him in the complaint filed before the concerned Magistrate. Taking note of the aforesaid as well as the caution issued by the Apex Court in the case of "M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others reported in 1998 UPCrR 118, the concerned Magistrate dismissed the complaint filed by the applicant herein, which has been affirmed by the Revisional Court under the orders impugned. The Revisional Court has also not committed any jurisdictional error in dismissing the revision.
In view of the aforesaid, I do not find any illegality in the orders passed by the courts below.
The present petition fails and is, accordingly, dismissed.
(Rajeev Misra, J.) Order Date :- 13.9.2018 Sushil/-