Court No. - 44
Case :- APPLICATION U/S 482 No. - 27771 of 2018 Applicant :- Narendra Kumar Sharma And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pradeep Kumar Rai,Saurabh Trivedi Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Pradeep Kumar Rai, learned counsel for the applicants along with Mr. Saurabh Trivedi, Advocate and learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed challenging the order dated 11th July, 2018 passed by the Additional Sessions Judge, Court No.1, Amroha in Criminal Revision No. 58 of 2016 (Shaukat Ali vs. State of U.P. & Another), whereby the revisional court has allowed the aforesaid criminal revision filed by the complainant-opposite party no.2 herein and remanded the matter to the Magistrate for decision afresh.
3. From the record, it appears that the complainant-opposite party no.2 filed an application dated 29th July, 2015 under Section 156 (3) Cr.P.C. before the Chief Judicial Magistrate, Amroha praying therein that a direction to the Station House Officer of the concerned Police Station to register a first information report in respect of the criminality alleged in the application dated 29th July, 2015. On this application the Magistrate passed an order dated 20th February, 2016, whereby it was directed that the application filed by the complainant- opposite party no.2 shall be treated as a complaint and accordingly tried as a complaint case. Aggrieved by the aforesaid order, the complainant-opposite party no.2 filed a criminal revision, which was registered as Criminal Revision No. 58 of 2016 (Shaukat Ali vs. State of U.P. & Another). The revisional court allowed the aforesaid criminal revision vide order dated 11th July, 2018 and remanded the matter before the Magistrate for decision afresh. Feeling aggrieved by this order of remand, opposite parties i.e. the accused named in the complaint have now come before this Court by means of the present application under Section 482 Cr.P.C.
4. Learned counsel for the applicants in challenge to the aforesaid remand order has submitted that no illegality can be said to have been committed by the Magistrate in passing the order dated 20th February, 2016, whereby the Magistrate directed that the application dated 29th July, 2015 filed by the complainant-opposite party no.2 under Section 156 (3) Cr.P.C. shall be treated as a complaint and accordingly tried as a complaint case. The remand made by the revisional court is, therefore, manifestly illegal as the revisional court instead of considering the legality or otherwise of the order dated 20th February, 2016 has considered the facts and circumstances of the case and has formed an opinion necessitating the lodging a first information report. He, thus submits that in view of the observations made in the impugned revisional order, there are every chances that a direction may be issued by the Magistrate to lodge a first information report.
5. Before proceeding to consider the veracity of the submissions made by the learned counsel for the applicants, it is appropriate to have a scheme of the Criminal Procedure Code and Law as laid down by the Apex Court in the case of Lalita Kumari Vs. Government of U.P. and others reported in 2014 (2) SCC 1.
6. Sections 154 and 156 Cr.P.C. provide procedure for registration and investigation of complaint. The same are quoted 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.:
[Provided that if the information is given by the woman against whom an offence under section 326A, Section 326B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that -
(a) in the event that the person against whom an offence under section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of Section 164 as soon as possible].
(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.
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."
7. 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.
8. A Division bench of this Court in the case of ''Sukhwasi v. State of U.P., reported in 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".
11. However, the said judgement does not provide any reason as to why First Information Report should not be registered in respect of a cognizable offence.
9. However, the said judgement does not provide any reason as to why First Information Report should not be registered in respect of a cognizable offence.
10. Subsequently, the matter with regard to the nature of power under Section 156 (3) Cr.P.C. as well as the exercise of power under the aforesaid section was referred to a Full Bench of this Court. The Full Bench in the case of Ram Babu Gupta and another Vs. State of U.P. and others reported in 2001 (43) ACC 50. Paragraphs 17, 18, 19, 42, 43 and 48 of the aforesaid judgement are relevant for the controversy in hand which are reproduced hereunder:
“17. In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate's order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter XV of Cr P.C. The first question stands answered thus.
18. 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-sections (1) and (2) of S.. 156, Cr. P.C. confer right on an aggrieved person to reach the police, Section 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. This Court can do no better than refer to the following observations in Suresh Chand Jain : 2001CriLJ954 The position is thus clear. Any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code...could take further steps contemplated in Chapter XII of the Code only thereafter.
19. In view of the aforesaid discussion, the observations in the two paragraphs noted above in Suraj Mal (supra), cannot be said to be laying down correct law, therefore, those observations shall remain confined to the decision in Suraj Mal. The second point formulated above stands also answered thus.
42. Duties of police and their power to investigate are enumerated in Chapter XII of the Code under caption 'information to the police and their powers to investigate.' So when a report, either on oral or written made to the officer-in-charge of a Police Station discloses commission of a cognizable offence, it is obligatory of him to register a case and proceed with the investigation. In the event, he refuses to receive the report and shows indifference to perform statutory duties, the only alternative course available to the aggrieved person is to approach the Court of law. He makes a complaint giving detail narration of the incident terming it either a petition under Section 156(3) of the Code or a regular complaint. On receiving of such complaint, different courses are open to the Magistrate he may with the aid of power conferred by Section 156(3) direct the police to register a case and investigate in the manner as provided in Chapter XII or he may treat the same as a complaint and proceed in the manner contemplated in Chapter XV of the Code. While resorting to the first mode inasmuch as directing the police for investigation he should not pass order in a routine manner. He should apply his judicial mind and on a glimpse of the complaint, if he is prima facie of the view that allegations made therein constituted commission of a cognizable offence requiring thorough investigation, he may direct the police to perform their statutory duties as envisaged in law. On the other hand, if he adopts the second mode in terms of Chapter XV, his decision cannot be faulted with for not acceding to the request of the complainant for an investigation by the police. However, it is always to be kept in mind that it is the primary duty of the police to investigate in cases involving cognizable offences and aggrieved person cannot be forced to proceed in the manner provided by Chapter XV and to produce his witnesses at his cost to bring home the charge to the accused. It is the duty of the State to provide safe guards to the life and property of a citizen. If any intrusion is made by an offender, it is for the State to set the law into motion and come to the aid of the person aggrieved.
43. Exercise of power under Section 156(3) of the Code by the Magistrate may be viewed from another angle. Direction for further investigation can be given even after the investigation culminates in submitting a report under Section 173. To state precisely, the Code enjoins a duty upon officer-in-charge of a Police Station to register in FIR if the report reveals commission of a cognizable offence. Thereupon, he shall proceed with the investigation in such manner as provided in the Code and on close of investigation submit a report which may either be in the nature of 'charge-sheet' or 'final report.' If the investigation ends with final report, different courses are open to the Magistrate. He may either accept the final report and close the proceedings or he may take the view that the said report is not based on complete investigation, in which case he may in exercise of power conferred by Section 156(3), direct the police concerned to make further investigation. The third course open to him is that he in not agreeing with the views of the Investigating Officer, may on scrutiny of the case diary take cognizance of the offence (See : 1968CriLJ97 ; Abhinandan Jha v.Dinesh Mishra). These are, in essence, the scope and ambit of power of the Magistrate under Section 156(3) of the Code.
48. 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 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 48. 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 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(3), 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.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(3), 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.”
11. Learned counsel for the applicant has placed reliance upon the judgement of the Apex Court in the case of Lalita Kumari (Supra). 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."
12. In light of the pronouncement of the judgment of the Apex Court in the case of Lalita Kumari (Supra), it can be no longer to be argued that the registration of a first information report in respect of a cognizable offences is no longer mandatory.
13. To the contrary, the Apex Court has now held that the lodging of a first information report in respect of a cognizable offence is a must. The Constitution Bench Judgment of the Apex Court in the case of Lalita Kumari (Supra) was reconsidered in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others reported in (2015) 6 SCC 287, wherein following has been observed in paragraph nos. 27 to 30:
“27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.
28. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No.1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No.1. We are only stating about the devilish design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned.
29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”
14. However, it may be noted that the Apex Court in the case of Lalita Kumari (Supra) has itself taken note of the precarious condition in respect of certain categories of offences and therefore, appropriate for holding a preliminary enquiry in terms of Section 201 Cr.P.C.
15. From the discussions made herein above the conclusion drawn by the revisional court whereby the matter has been remanded to the Magistrate to consider the application filed by the complainant-opposite party no.2 in terms of Section 156 (3) Cr.P.C. cannot be said to be illegal, arbitrary or in-excess of the jurisdiction.
16. Thus, the present criminal misc. application fails and is, accordingly, dismissed.
(Rajeev Misra, J.) Order Date :- 20.8.2018 Sushil/-