Heard Sri Ajay Sengar, learned counsel for the appellant, learned A.G.A. and perused the record.
The challenge in this appeal is to the order dated 14.10.2019 of the Special Judge (SC & ST Act), Jalaun at Orai in Criminal Misc. Case No. 72 of 2019 Ram Sharan Jatav Vs. Sandeep Dixit and others Police Station Madhogarh, District Jalaun. By the impugned order the lower court rejected the application of the appellant under Section 156 (3) Cr.P.C. of the appellant.
Brief facts of the case are that the appellant Ram Sharan Jatav moved an application under Section 156 (3) Cr.P.C. before the Special Judge (SC & ST Act) Jalaun on 18.09.2019 along with affidavit that he is a resident of Village Bangara, P.S. Madhogarh, District Jalaun and is by caste 'Chamar' (scheduled caste). Sandeep Dixit the son of Gram Pradhan Brahmin by caste is a person of criminal nature. He exploits the weaker section persons and on protest abuses them and gives them threat of life. Because of his terror no one comes forward to file a suit or depose against him. On 07.09.2019 at 9.00 p.m. he was coming back from the market to his home along with Uday Singh, as soon as he reached in front of the house of the Village Pradhan and was purchasing something from the shop existing in the house of Village Pradhan, Sandeep Dixit along with his companion Prem Babu Pachori came there. Sandeep Dixit kicked him from the back. When he resisted both of them in furtherance of their common intention hurled caste based abuses and asked him why did he refuse to come on their call to work for them. Both of them assaulted and beat him badly with fists, blows and kicks. Mohit s/o Ram Swaroop, Udai Singh s/o Veer Singh and other persons standing thereby saved him. He submitted his complaint in the police station Madhogarh on 08th September, 2019 his report was taken but the same was not registered. He got himself medically examined on 09.09.2019 by his own and gave his complaint to the Circle Officer Madhogarh on 10.09.2019 and Superintendent of Police, Jalaun on 12.09.2019 by registered post but his report has not been lodged till now. The accused persons who are influential persons are giving threat not to let him live in the village, hence the officer incharge of police station concerned be directed to lodge the first information report and investigate the matter.
After receiving this application, the court concerned summoned the report from the police station Madhogarh. The witness Mohit filed an affidavit denying to witness the incident.
After perusal of the report of police station concerned and affidavit of witness, the officer concerned passed the impugned order and rejected the application of the appellant under Section 156 (3) Cr.P.C. on 14.10.2019.
The present appeal has been preferred against this rejection order dated 14.10.2019 passed on Misc. Application No. 72 of 2019 (Ram Sharan Jatav Vs. Sandip Dixit), P.S. Madhogarh, District Jalaun on the premise that the lower court has committed manifest error of law by not considering the case of the appellant. He being the member of scheduled caste community is exploited at the hands of opposite party nos. 2 and 3 and is compelled to do the forced labour. On 07.09.2019 at 9.00 p.m. he was assaulted with kicks and fists and abused by hurling caste base words by both the opposite party nos. 2 and 3. The cognizable offence has been committed but his report was not lodged in the police station concerned. The Circle Officer concerned and the Superintendent of Police also did not pay any heed so he was compelled to file the application under Section 156 (3) Cr.P.C. and that too has been rejected by the Court concerned after summoning a report from the police station concerned. The witness Mohit was compelled by the opposite party nos. 2 and 3 to give affidavit to the effect that he did not witness the incident. The police has submitted false report. Prima facie a cognizable offence is proved to be committed by the opposite party nos. 2 and 3. The Special Judge, SC/ST Act, Jalaun has reached at the wrong conclusion that there is party bandi in the village and the appellant is a member of party of Shivam Gurjar and upon instigation of Shivam Gurjar he is falsely implicating the opposite party nos. 2 and 3, who are witnesses of the crime committed by Shivam Gurjar. So the appeal be allowed, the impugned order be set aside and an F.I.R. be registered with regard to the cognizable offence committed against him.
On the date fixed, neither the opposite party nos. 2 and 3 or their counsel appeared nor any counter affidavit has been filed on their behalf.
Learned A.G.A. in his counter affidavit has stated that the eye witness in the application under Section 156 (3) Cr.P.C. has filed an application supported with an affidavit that he did not witness the incident as on the date of incident he was in Jaipur. After considering the said affidavit and each and every aspects of the mater, the lower court has rightly rejected the application moved by the appellant under Section 156 (3) Cr.P.C. The order impugned is perfect, just, legal and valid and does not suffer from any infirmity or illegality.
In support of his contentions the appellant has placed before this Court the copy of application under Section 156 (3) Cr.P.C., his injury report dated 09.09.2019, copy of complaint given to the Superintendent of Police, Jalaun, copy of complaint give to the Circle Officer, Madhogarh, enquiry report filed by the concerned police station, affidavit of witness Mohit along with his application and the impugned order dated 14.10.2019.
A perusal of the impugned order reveals the observation of the lower court that as one of the witnesses Mohit has refused to witness the occurrence by filing an affidavit and the report has been received from the concerned police station that in the village there are two parties one of Shivam Gurjar, who had murdered Hari Om Pachori on 13.06.2017 along with his companion and the case was registered in the matter. The present opposite party no. 2 Sandip Dixit and Prem Babu Pachori are the eye witnesses of the incident and thus belong to the rival party and the present appellant belongs to the party of Shivam Gurjar, so on the basis of this party bandi on false allegation the application under Section 156 (3) Cr.P.C. has been moved by the appellant. The lower court opined that as per injury report the injuries sustained by the applicant-appellant are of simple in nature and could be self inflicted and so placing reliance on the judgement in the case of Sukhvasi Vs. State of U.P., 2007 (59) ACC 739 Allahabad, the lower court rejected the application of the appellant under Section 156 (3) Cr.P.C. vide impugned order dated 14.10.2019.
As the application of appellant under Section 156 (3) Cr.P.c. has been rejected so let us see what are the requirements to move an application under Section 156 (3) Cr.P.C. Section 156 Cr.P.C. can be reproduced as under:-
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.
As per this Section 156 (3) Cr.P.C. as the Magistrate is empowered under Section 190 Cr.P.C. to order such investigation. So section 190 Cr.P.C. is also to be looked into, which runs as under:-
190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.
According to this section, the Magistrate is empowered to take cognizance of any offence upon receiving a complaint of facts which constitute such offence, upon a police report of such facts and upon information received from any person.
The complaint is defined under Section 2 (d) of Cr.P.C., which reads as under:-
Section 2(d) of The Code Of Criminal Procedure, 1973
(d) " 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. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;
Thus, the Magistrate is empowered to take cognizance when an application under Section 156 (3) Cr.P.C. is moved before him.
The lower court has placed reliance on the judgement of Sukhvasi (supra), wherein the Court has opined as under:-
"Applications under section 156 (3) Cr.P.C. are comig 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."
While in this regard the appellant has placed reliance on the judgement in Har Prasad Vs. State of U.P., 2006 (10) ADJ 412, wherein the coordinate Bench of this Court allowed the revision of the revisionist and hold that if the application under Section 156 (3) Cr.P.C. discloses the commission of cognizable offence and at the stage of Section 156 (3) Cr.P.C., which is a pre-cognizance stage, once cognizable offence is disclosed through an application it was the duty of the concerned court to order for registration and investigation of the offence as crime detection and crime prevention are the foremost duty of the police and not of the court.
The reliance has also been placed on the judgement in Seema Devi Vs. State of U.P. & 3 others, 2018 (3) All. Crl. Rulings 3294 (Criminal Appeal No. 1647 of 2018 decided on 24.09.2018) wherein the coordinate Bench of this Court held that if the averments of the complaint are trustworthy or these are found so after preliminary inquiry, then the Magistrate under Section 156 (3) Cr.P.C., 1973 may direct the S.H.O. to register F.I.R. and conduct investigation on the basis of averments of the complaint.
However, the findings of the Constitution Bench of the Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and another, reported in 2014 (2) SCC 1, can be looked into. Paragraph-111 of the aforesaid judgement, is reproduced herein:-
"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."
Section 154 Cr.P.C. runs as 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 376AB, section 375B, section 376C, section 376D, section 376DA, section 376DB,] section 376E or section 509 of the Indian Penal Code 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 354, section 354A, section 354B, section 354C, section 354D, section 376, [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB] section 376E or section 509 of the Indian Penal Code 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 aninterpreter 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 such-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.
Thus, from the findings of the Apex Court and the provisions mentioned above, it is clear that the registration of first information report is mandatory under Section 154 Cr.P.C. if the information discloses the commission of cognizable offence and no preliminary inquiry is permissible in such a situation. However, if the information received does not disclose the commission of cognizable offence but indicates necessity for inquiry the preliminary inquiry may be conducted in order to ascertain whether cognizable offence is disclosed or not. Though in sub-para 5 of para-111 of the judgement Lalita Kumar (supra) it is mentioned that 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, though, in which case preliminary inquiry may be made, has also been mentioned in sub-para 6 of para-111 of the judgement. It is clear from the above findings that the preliminary inquiry is needed only when the information does not disclose the cognizable offence.
In the application under Section 156 (3) Cr.P.C. moved by the appellant, he has mentioned that the "opposite party nos. 2 and 3 hurled caste based abuses and beaten him with kicks and fists." It makes clear that in the application itself commission of cognizable offence has been mentioned so as per judgment of the Apex Court in Lalita Kumari (supra) no preliminary inquiry was needed by the Magistrate. The only need was to summon the report whether the case had been registered or not in the police station concerned regarding the complaint. The fact is admitted by the concerned court in the impugned order that the purpose of summoning the police report was only to ascertain the fact as to whether an F.I.R. in the matter had been registered in the police station or not and in the report of police station it is clearly mentioned that no first information report has been registered in the police station concerned regarding allegation made in the application under Section 156 (3) Cr.P.C.
The lower court after perusing the application under Section 156 (3) Cr.P.C. was aware of the fact that commission of cognizable offence is reported in the application under Section 156 (3) Cr.P.C. and in the report of police station also it was mentioned that some incident took place on the date and time mentioned in the application under Section 156 (3) Cr.P.C. Though, in the report it is mentioned that the applicant-appellant was hurling abuses and after hearing the noise the opposite party nos. 2 and 3 came out of their houses pursuaded the applicant and sent him to his home but after some time the applicant-appellant again came to the shop and again started hurling abuses. Both the opposite party nos. 2 and 3 holding his hands then brought the applicant-appellant to his home. The report also discloses that to pressurize Sandip Dixit and Prem Babu Pachori this false application has been given.
Thus, from the report itself it is clear that on 07.09.2019 at 9.00 p.m. some incident took place and what was that incident it was not to be inquired by the police at the stage of pre-cognizance as the application under Section 156 (3) Cr.P.C itself discloses the commission of cognizable offence. Thus, on the basis of judgement in Lalita Kumari (supra) it was incumbent upon the Magistrate concerned to order the registration of first information report as the application itself disclosed the commission of cognizable offence and in that situation no preliminary inquiry was permissible.
In view of above, I am of the view that the lower court has misinterpreted the provisions and has wrongly relied upon the report of police station concerned, hence the appeal is allowed. The impugned order dated 14.10.2019 is hereby set aside.
The file be sent to lower court where the parties shall appear on 04th January, 2022.
Order Date :- 17.12.2021 gp