Court No. - 44
Case :- CRIMINAL REVISION No. - 1780 of 2018 Revisionist :- Lais Muhammad Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Ganesh Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Ganesh Kumar, 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 9.3.2018 passed by the Chief Judicial Magistrate, Basti, in Criminal Misc. Case No. 471/12 of 2017 (Lais Muhammad Vs. Shrikant Gaur and others) under Section 156 (3) Cr.P.C., Police Station Kalwati, District Basti, whereby the application under 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 opposite party No.2 who is the village Pradhan got a Khadanja road constructed in survey plot no. 1270 in Village Vairagal, Police Station Dubauliya, District Basti. According to the revisionist, the said construction amounts to embezzlement of Government fund to the tune of Rs. 29,000/-. In the light of the aforesaid facts, the revisionist filed an application dated 9.8.2017 in terms of section 156 (3) Cr.P.C., on which the order dated 8.3.2018 was passed by the Magistrate directing that the application under secton 156(3) Cr.P.C. shall be treated as complaint. Feeling aggrieved by the said order, the revisionist has now approached this court by means of the present 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, Basti ought to have allowed the application and directed the police of Police Station Kalwati, Basti 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."
The issue which is troubling the court is whether the construction of Khadanja road amounts to embezzlement of Government fund or not. There is no pleading in the entire affidavit filed in support of the said application along with the memo of the criminal revision that no resolution has been passed by the Gaon Sabha for the construction of Khadanja Raod or there is no approval accorded by any authority for the construction of road. In the absence of any such pleading or document brought on record, it is difficult to accept the contention of the petitioner that the opposite party Nos. 2 and 3 have embezzled a sum of Rs. 29,000/- . Therefore, the submission of the learned counsel for the revisionist that the application under section 156 (3) Cr.P.C. discloses the commission of cognizable offence, is not acceptable.
In view of the aforesaid, no illegality can be said to have been committed by the Magistrate in treating the application filed by the applicant under section 156 (3) Cr.P.C. as complaint. Consequently, the revision fails and is, accordingly, dismissed.
Order Date :- 29.5.2018 Arshad