Court No. - 40
Case :- APPLICATION U/S 482 No. - 43271 of 2018 Applicant :- Ashok Kumar Pathak Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ali Hasan,Istiyaq Ali Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant and the learned A.G.A. for the State.
This application under section 482 Cr.P.C. has been filed for setting aside the the order dated 08.10.2018 passed by the Chief Judicial Magistrate, Sonbhadra in Criminal Misc. Case No. 709/2018 (Ashok Kumar Pathak v. Vinod Kumar Pandey) under section 156 (3) Cr. P. C, Police Station Robertsganj, district Sonbhadra, whereby application dated 17.07.2018 under section 156 (3) Cr.P.C. of the applicant has been registered as complaint by Chief Judicial Magistrate, Sonbhadra.
Learned counsel for the applicant submits that a perusal of the complaint filed by the applicant clearly discloses the commission of a cognizable offence, therefore, once the application filed by the applicant under Section 156 (3) Cr.P.C. disclosed the commission of a cognizable offence, the Magistrate has erred in law in directing to proceed with the application as a complaint case. He further submits that the applicant is proprietor of M/s Maa Siddheshwari Auto Sales at Urmaura, Sonbhadra who sales Eicher tractor and provide the service and repairing of the tractor in the workshop. The applicant has sold two Eicher tractor to R.K.Singh and Babua Ram. The model number of the tractor sold to R.K.Singh was 380, Chassis No.924513176286, Engine No.S325H07620 and Model number of the tractor sold to Babua Ram is 333, Chassis No.924414175337, Engine No.S324E21576 but the accused opposite party no.2 showing himself as proprietor of M/s Maa Sarde Auto Sales Audhi Turning, Beena Road Anpara, District Sonbhadra has prepared a forged sale certificate in respect of aforesaid two tractor and got registration of the same from A.R.T.O Sonbhadra in the name of other person Satya Narain in place of R.K.Singh and similarly the tractor sold to Babua Ram got registered as U.P. 64-AB4607, which was forged registration. It is further submitted that the applicant made a complaint before A.R.T.O Sonbhadra in which explanation was called for from Maa Sharde Auto Sales Audhi Turning, Been Road Anpara, District Sonbhadra vide notice dated 12.07.2017 but no explanation to the aforesaid notice was given. As per the case of the applicant, the aforesaid two tractors were neither sold by Maa Sharde Auto Sales Audhi Turning, Beena Road Anpara nor the billing of the said tractors are in the name of aforeaid Maa Sharde Auto Sales Audhi Turning, Beena Road Anpara, District Sonbhadra.The billing of the Eichere Tractor Company was issued to Firm of the applicant (M/s Maa Siddheshwari Auto Sales Urmaura, Robertsganj, district Sonbhadra). It is next submitted that right to sell both the aforesaid tractor was to the firm of applicant only but the accused-opposite party no.2 has prepared the forged documents and got registration of the same from A.R.T.O Sonbhadra only to cause loss to the firm of the applicant. It is next submitted that on the allegation made in the application under section 156(3) Cr.P.C. deep investigation and collection of the evidence are required, therefore, evidence in respect of the allegation made in the application cannot be adduced by the applicant in a proceeding of complaint case. The learned magistrate committed error in treating the application under section 156(3) Cr.P.C. of the applicant as complaint instead of directing the police registered FIR and investigate the case because without proper investigation by the police, the truth cannot be elicited under the facts and circumstances of the case. The learned counsel for the applicant has contended with vehemence that the court below has passed the impugned order in a mechanical manner and has ignored the judgement of the Apex Court rendered in the case of Lalita Kumari Vs. Government of U.P. and others reported in 2014 (2) SCC 1. It is also submitted the judgment mentioned in the impugned order dated 8.10.2018 is factually on different footing.
Learned A.G.A. on the other hand has supported the impugned order and has pointed out that the grievance of the applicant- revisionist has not gone unattended by the court below. The court below after taking into consideration the entire gamut of the facts and circumstances of the case has rightly concluded to treat the application filed by the applicant-revisionist under Section 156 (3) Cr.P.C. as a complaint. The applicant- revisionist shall still have an opportunity to prove his case before the court below.
Perusal of the impugned order shows that considering the nature of allegation made by the applicant/complainant in his application under section 156(3) Cr.P.C. dated 17.07.2018, proper investigation by the police is required to elicit the truth. The reason given by the learned magistrate in the impugned order dated 8.10.2018 for treating the application under section 156 (3) Cr.P.C. of the applicant as complaint is not sustainable because the main allegation of the applicant against the opposite party no.2 is to prepare forged documents and on the basis of the same procuring forged registration of the tractors, which was not sold by him.
Learned counsel for the applicant submits that in view of the nature of the allegations made by the applicant in the application filed in terms of Section 156 (3) Cr.P.C., the Chief Judicial Magistrate, Sonbhadra, ought to have allowed the application and directed the police of Police Station Robertsganj to investigate into the matter and thereafter submit a report.
Section 154 and 156 Cr. P. C. provides for the registration and investigation of complaint. The same are reproduced herein under:-
"154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."
Section 156 Cr.P.C. is quoted herein below:-
"156. Police officer' s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."
From the perusal of the aforesaid provision as well as Section 154 Cr.P.C., it is evident that the police can investigate into matters relating to commission of 'cognizable offences' brought to its notice under section 154 CrPC. Officer-in-charge of police station has power to investigate U/S 156(1) in such case. Magistrate has power to take cognizance u/s 190 CrPC on receiving the 'complaint'. Thus the matter relating to section 156 (3) relates to power of Magistrate to order investigation by police in matters relating to cognizable offences brought before it through complaint. Complaint has been defined in section 2(d) CrPC of as follows : "complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include a Police report." Code of Criminal Procedure has given different type of powers to deal with such matters relating to commission of cognizable offences when brought before it. A Division bench of this Court in the case of ''Sukhwasi v. State of U.P., 2007(59) ACC 739' held as under:
"Applications under section 156(3) Cr.P.C. are coming in torrents. Provisions under section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice which warrants a direction to the Police to register a case. Such application should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of section 156(3) Cr.P.C.
The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application section 156(3) Cr.P.C. and there is no such legal mandate."
However, the said judgement does not provide any reason as to why FIR should not be registered in respect of a cognizable offence.
Learned counsel for the applicant has placed reliance upon the judgement of the Apex Court in the case of Lalita Kumari Vs Goverment of Uttar Pradesh and another, reported in 2014 (2) SCC 1. He has relied upon paragraph 111 of the aforesaid judgement, which is reproduced herein under:-
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."
Considered the rival submissions made by the learned counsel for the parties.
A perusal of the impugned order shows that no sufficient reason has been disclosed, on the basis of which, the Magistrate has proceeded to treat the application under section 156(3) Cr.P.C. as a complaint.
In view of the aforesaid, the order dated 8.10.2018 passed by the Chief Judicial Magistrate, Sonbhadra cannot be sustained.
The reason given in the order dated 8.10.2018 by the learned Magistrate cannot be said to be a sound reason under the facts and nature of allegation levelled by the applicant in this case. Accordingly, the present application succeeds and is allowed at the admission stage without issuing notice to the prospective accused persons as they have no right to be heard at pre-cognizance stage. The order dated 08.10.2018 is consequently set aside.
The Chief Judicial Magistrate, Sonbhadra is directed to exercise his discretionary power and decide afresh the application dated 17.7.2018 under section 156(3) Cr.P.C. moved by the applicant and to pass appropriate order in accordance with law keeping in view the observations made by this court, within a period of one month from the date of production of a certified copy of this order.
With the aforesaid directions, the present application under Section 482 Cr.P.C. is allowed.
Order Date :- 30.11.2018 SKD