1. List has been revised. None is responding on behalf of revisionist.
2. Learned A.G.A. for the State is present.
3. On 07.08.2019 this Court has passed the following order:
"List revised. None appears for the revisionist. Learned A.G.A. is present for the State.
List on 27.08.2019.
Learned counsel for the revisionist has to argue this revision on the next date of listing, otherwise, it shall be decided in accordance with law."
4. Heard learned A.G.A. and perused the record.
5. This revision has been preferred assailing order dated 28.10.2014 passed by Chief Judicial Magistrate, Sitapur in Case No. 837 of 2014: Rameshwar Dayal Vs. Manna and others, under Section 156 (3) Cr.P.C. Police Station Maholi, District Sitapur.
6. The learned trial Court of C.J.M. Sitapur has allowed complaint instituted under Section 156 (3) Cr.P.C. and directed the Station House Officer, Maholi to register First Information Report and conduct investigation.
7. It is contended by the revisionist that illegal, arbitrary, unjust and improper impugned order has been passed by learned trial Court. The revisionist has falsely been implicated in this crime. A complaint of Case Crime No. 282 of 2014 of the same incident has been lodged by the revisionist. The complainant of present matter was not arrested by the local police under his influence. On the basis of taking of forcible possession of land, Uma Shanker, Ram Niwas, Shiv Govind, Tota Ram, Permnand, Anurag and revisionist were having dispute regarding the aforesaid land. The revisionist prohibited them to take forcible possession, then the complainant and his associates attacked the revisionist and his brother in presence of witnesses Pappu and his friend Mool Chand.
8. I have perused the impugned order dated 28.10.2014.
9. Learned trial Court on perusal of complaint found that the complainant on 11.08.2014 at 7.00 p.m. was informed by his uncle (mausa) Prahlad on phone that his brother was murdered at 5.30 p.m. in village Chathiya. The witnesses Dinesh Kumar, Ram Bahore, Manoj Kumar and other villagers apprised the complainant that opposite party nos. 1 to 3 including the revisionist fired shots on the deceased. Learned trial Court has recorded finding that a cognizance offence appeared to be committed by the revisionist and co-accused persons. Therefore, learned trial Court exercised jurisdiction/discretion at pre-cognizance stage and directed the Station House Officer to register F.I.R. and conduct investigation of the case. It may be defence version of revisionist that complaint under Section 156 (3) Cr.P.C. was instituted against him and co-accused persons in counter blast of the earlier F.I.R. of Crime No. 284 of 2014.
10. Hon'ble Supreme Court in the case of Suresh Chand Jain v. State of M.P., reported as (2001) 2 SCC 628 observed as under-
Chapter XII of the Code contains provisions relating to "information to the police and their powers to investigate", whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code.
But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code.
The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
11. A Full bench of this Court in the case of Ram Babu Gupta v. State of U.P., 2001 SCC OnLine All 264 (decided on April 27,2001 )has observed as under:
15-"The position is thus clear. Any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an First Information Report. There is nothing illegal in doing so. After all registration of an First Information Report involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in-charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an First Information Report should be registered, it is the duty of the officer-in-charge of the police station to register the First Information Report regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
18.It is futher held that Coming to the second question noted above it is to be at once stated that a provision empowering a court to act in a particular manner and a provision creating a right for an aggrieved person to approach a Court or authority, must be understood distinctively and should not be mixed up. While Sections 154, 155 sub-section (1) and (2) of 156, Cr.P.C. confer right on an aggrieved person to reach the police, 156(3) empowers a Magistrate to act in a particular manner in a given situation. Therefore, it is not possible to hold that where a bare application is moved before Court only praying for exercise of powers under Section 156(3) Cr.P.C., it will remain an application only and would not be in the nature of a complaint. It has been noted above that the Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers under Section 156(3) Cr.P.C. In this connection it may be immediately added that where in an application, a complainant states facts which constitute cognizable offence but makes a defective prayer, such an application will not cease to be a complaint nor can the Magistrate refuse to treat it as a complaint even though there be no prayer seeking trial of the known or unknown accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all practical purposes even such an application would be a complaint.
In paragraph 45, Hon'ble Full Bench has also held that-
45. It is clear from the scheme of Chapter XII of the Code that it is obligatory upon the police to investigate cognizable offence and book the offender, if any. Therefore where the police fails in its duty to register and investigate a cognizable offence, the aggrieved person may complain to the concerned Magistrate. Where the Magistrate receives a complaint or an application which otherwise fulfils the requirements of a complaint--envisaged by Section 2(d) of Cr.P.C. and the facts alleged therein disclose commission of an offence, he is not always bound to take cognizance. This is clear from the use of the words ''may take cognizance' which in the context in which they occur in Section 190 of the Code cannot be equated with ''must take cognizance'. The word ''may' gives a discretion to the Magistrate in the matter. Two courses are open to him. He may either take cognizance under Section 190 or may forward the complaint to the police under Section 156(3) Cr.P.C. for investigation. Once he takes cognizance he is required to embark upon the procedure embodied in Chapter XV. On the other hand, if on a reading of complaint he finds that the allegations therein clearly disclose commission of a cognizable offence and forwarding of complaint under Section 156(3) Cr.P.C. to the police for investigation will be conducive to justice and valuable time of Magistrate will be saved in inquiring into the matter which was the primary duty of police to investigate, he will be justified in adopting that course as an alternative to take cognizance of the offence himself.
An order under Section 156(3) Cr.P.C. is in the nature of a reminder or intimation to the police to exercise their full powers of investigation under Section 156(1) Cr.P.C. such an investigation begins with the collection of evidence and ends with a report or charge-sheet under Section 173. It is obvious that power to order investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The power under Section 156(3) is exercisable at a pre-cognizance stage while the other at post-cognizance stage. Once the Magistrate has taken cognizance of the offence, it is not within his competence to revert back to pre-cognizance stage and invoke Section 156(3) Cr.P.C. A great care is, therefore, to be taken by the Magistrate while deciding the course to be adopted. That discretion has to be exercised cautiously with application of judicial mind and not in a routine and mechanical manner.
12. In the above circumstances, learned trial Court was having option/jurisdiction at pre-congizance stage to direct the Station House Officer to register F.I.R. and conduct investigation.
13. There is no ground to interfere in impugned order dated 28.10.2014. The revision lacks merit.
14. Accordingly, dismissed.
15. Learned trial Court be informed accordingly.
Order Date :- 27.8.2019 Arvind