Court No. - 44
Case :- CRIMINAL REVISION No. - 1768 of 2018 Revisionist :- Jitendra Kumar Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Siya Ram Verma,Deepak Kumar Verma Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Siya Ram Verma, learned counsel for the revisionist, and the learned A.G.A. for the State.
This criminal revision has been filed by the revisionist challenging the order dated 19.3.2018 passed by the Chief Judicial Magistrate, Kanpur Dehat, whereby the application dated 2.2.2018 filed by the revisionist in terms of Section 156 (3) Cr.P.C. has been directed to be treated as a complaint.
Learned counsel for the revisionist submits that the allegations made in the application disclose the commission of cognizable offence. He, therefore, submits that in view of the law laid down by the Apex Court in the case of Lalita Kumari Vs Goverment of Uttar Pradesh and another, reported in 2014 (2) SCC 1, the Magistrate ought to have allowed the application and direct the Station House Officer of the concerned Police Station to register the F.I.R. and investigate the same.
Learned A.G.A. on the other hand opposed the prayer prayed for by the revisionist.
The learned A.G.A. submits that interest of justice have already been served as the Magistrate has not rejected the application but has directed to proceed as a complaint case. Even in a complaint case, conviction of the opposite party is possible, and therefore, the failure on the part of the Magistrate in not allowing the application under Section 156 (3) Cr.P.C. by directing the registration of an F.I.R., is not illegal. He has relied upon the Division Bench judgement of this Court in the case of Sukhwasi Vs. State of U.P. reported in 2007 (59) ACC 739.
From the record, it transpires that an application dated 24.1.2018 was submitted by the revisionist with the Police of Police Station Akbarpur, Distrct Kanpur Dehat. On account of the aforesaid, it is alleged that the criminality was conducted by the opposite party upon the revisionist on 28.1.2018. Thereafter the revisionist was medically examined on 29.1.2018, wherein the Doctor who conducted the medical examination of the revisionist found three injuries on the body of the revisionist. In the light of the aforesaid, the revisionist submitted an application dated 2.2.2018 before the Chief Judical Magistrate, Kanpur Dehat praying therein that in respect of the criminality committed by the opposite parties on 28.1.2018, directions be issued to the Station House Officer of Police Station Akbarpur, District Kanpur Dehat to register the F.I.R. and consequently investigate the same. This application was however, directed to be treated as a complaint by means of the impungned order dated 11.3.2018. Feeling aggrieved, the revisionist has now come to this court by means of the present criminal revision.
Learned counsel for the revisionist submits that in view of the nature of the allegations made by the revisionist in the application filed in terms of Section 156 (3) Cr.P.C., the Chief Judicial Magistrate, Kanput Dehat ought to have allowed the application and directed the police of Police Station Akbarpur, Kanpur Dehat to investigate into the matter and thereafter submit a report. 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 revisionist 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."
In view of the aforesaid, the order dated 19.3.2018 passed by the Magistrate cannot be sustained. Accordingly, the revision succeeds and is allowed. The order dated 19.3.2018 is consequently set aside.
The Chief Judicial Magistrate, Kanpur Dehat is directed to exercise his discretionary power and decide afresh the application under section 156(3) Cr.P.C. moved by the revisionist 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 criminal revision is allowed.
Order Date :- 29.5.2018 Arshad