Reserved on 10.11.2020 Delivered on 07.01.2021
Court No. - 3
Case :- CRIMINAL REVISION No. - 1906 of 2020 Revisionist :- Sewaram Opposite Party :- State Of Up And 4 Others Counsel for Revisionist :- Kamlesh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Ravi Nath Tilhari,J.
1. Heard Sri Prit Pal Singh, Advocate, holding brief of Sri Kamlesh Kumar Singh, learned counsel for the revisionist, Sri Pankaj Saxena, learned A.G.A. appearing for the State and perused the material brought on record.
2. This revision has been filed by the revisionist under Section 397/401 Code of Criminal Procedure (Cr.P.C.) challenging the judgment and order dated 12.10.2020, passed by the Judicial Magistrate, Faridpur, in Misc. Application No.03 of 2020 (Complaint Case No.1482 of 2020) (Inre Sewaram Vs. Jagpal and others), under Section 156(3) Cr.P.C., Police Station Faridpur, District Bareilly, whereby his application under Section 156(3) Cr.P.C. has been treated as a complaint case with direction to the revisionist for recording of his statement under Section 200 Cr.P.C.
3. Briefly stated facts of the case as stated are that the revisionist purchased abadi land by way of sale deed dated 28.05.1979 in which the residential house of the revisionist is now situated. In front, thereof, an appurtenant land, area about 44 Sq. Yard, is lying and is being used as a passage for ingress and egress by the revisionist. The accused-opposite parties manipulated and manufactured forged and fabricated documents and thereby about 1/3rd area of the appurtenant land was included in their sale deed dated 11.05.2017. The applicant moved various applications before the police station concerned, but the FIR was not lodged. Consequently, he moved an application under Section 156(3) Cr.P.C. on 01.01.2020 before the learned Magistrate, upon which the order dated 12.10.2020 was passed.
4. Learned counsel for the revisionist submits that the application under Section 156(3) Cr.P.C. discloses commission of cognizable offence and as such the Magistrate must have directed for registration of first information report and the investigation by police. The Magistrate has no jurisdiction to treat the application under Section 156(3) Cr.P.C. as a complaint case. He has placed reliance on the judgment in the case of 'Lalita Kumari Vs. Government of India and others', 2014(2) SCC 1.
5. Learned AGA submits that the Magistrate has the jurisdiction to treat the application under Section 156(3) Cr.P.C. as a complaint case and direct the complainant/applicant for recording the statement under Section 200 Cr.P.C. and to proceed as per the procedure prescribed under Chapter XV Cr.P.C. for the complaint case.
6. I have considered the submissions as advanced by the learned counsel for the revisionist and the learned State counsel and perused the material brought on record.
7. In the cases of Suresh Chandra Jain vs State of M.P. and another (2001) 2 SCC 628; Mohd. Yousuf Vs. Smt. Afaq Jahan & another another (2006) 1 SCC 627; Ram Babu Gupta Vs. State of U.P. & others [2001 (43) ACC 50 (FB); Sukhwasi Vs. State of U.P. & others [2007 (9) ADJI (DB) & Ram Dev Food Products Vs. State of Gujarat (2015) 6 SCC 439 it has been laid down that the Magistrate empowered under section 190 Cr.P.C. may order an investigation by police under section 156 (3) but he need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance he has to follow the procedure envisaged in Chapter XV of the code. The magistrate should apply judicial mind while exercising his powers under Section 156 (3) Cr.P.C. He could not act in a mechanical or casual manner and go on with the complaint after getting the report. The course adopted by the Magistrate i.e. direction to the police for registration of FIR and making investigation or to treat the application as a complaint case, must be supported by reasons. The order must also reflect that the Magistrate on relevant considerations has adopted one of these two modes open to him.Mere mention in the order that he has gone through the complaint and the police investigation is not required or otherwise, would not be sufficient compliance of application of judicial mind while deciding application under Section 156(3) Cr.P.C.
8. In the case of Lalita Kumari Vs. Government of India and others reported in 2014 (2) SCC 1 the Hon'ble Supreme Court has held as under:
"120) 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."
9. The case of Lalita Kumari (supra) came to be considered in Ramdev Food Products Private Ltd. Vs. State of Gujarat (2015) 6 SCC 439 the first question as framed therein was "whether the discretion of the Magistrate to call for a report under Section 202 Cr.P.C. instead of directing investigation under Section 156(3) Cr.P.C. is controlled by any defined parameters? The Hon'ble Supreme Court answered the first question by holding that the direction under Section 156(3) Cr.P.C. is to be issued only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds that a case is made out to proceed forthwith, direction under the provision is issued. In other words, where on account of credibility of information available or weighing the interest of justice it is considered appropriate to straightway direct investigation, such a direction is issued. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate is yet to determine existence of sufficient ground to proceed. The category of cases falling under para 120.6 in Lalita Kumari may fall under section 202 Cr.P.C. Subject to these broad guidelines available from the scheme of the Court, exercise of discretion by the Magistrate is guided by interest of justice from case to case. Para Nos. 22 to 22.3 of Ramdev Food Products (P) Ltd. (supra) is being reproduced as under:
"22. Thus, we answer the first question by holding that:
22.1. The direction under Section 156 (3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed". Category of cases falling under para 120.6 in Lalita Kumar may fall under Section 202 Cr.P.C..
22.3. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case."
10. It would also be appropriate to refer to the judgment of this Court in the case of Gulab Chand Upadhyay Vs State of U.P. and others 2002 SCC OnLine All 1221 in which this Hon'ble Court has held as under:
"20. In these circumstances, the question arises that when a Magistrate is approached by a complainant with an application praying for a direction to the police under Section 156 (3) to register and investigate an alleged cognizable offence, why should he
(A) grant the relief of registration of a case and its investigation by the police under Section 156 (3) Cr.P.C. and when should he
(B) treat the application as a complaint and follow the procedure of Chapter XV of Cr.P.C.
21. The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some investigation is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police under whom statute has conferred the powers essential for investigation, for example
(1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or
(2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or
(3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.
22. But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202 (1) Cr.P.C. order investigation, even thought of a limited nature (see para 7 of JT (2001) 2 (SC) 81: ((2001) 2 SCC 628: AIR 2001 SC 571)."
11. The order passed by the Magistrate shows that it assigns good reasons for treating the application under section 156 (3) as a Complaint Case. It has been mentioned that the dispute is a family dispute regarding partition/distribution of jewelery. All the the facts are in the knowledge of the applicant and the necessary evidence can be led by him for which any police investigation is not required. The order shows application of judicial mind for the course adopted by the Magistrate, which is also reflected in the order. The dispute is purely personal having no impact on the society. The names and addresses of the accused persons and the witnesses are known to the applicant, all the facts are in his knowledge of which evidence can be given by him. The Magistrate has also considered the injury report, according to which as per the opinion of the doctor, no fresh external injury was seen on her body. The exercise of discretion by the magistrate is judicious and not arbitrary. The Order passed by the Magistrate is in conformity with law and calls for no interference in the exercise of jurisdiction under Section 482 Cr.P.C.
12. Learned counsel for the revisionist could not establish as to how the order under challenge suffers from any illegality, perversity, abuse of process of the Court or does not secure the ends of justice. Magistrate is himself making inquiry after taking cognizance. The order does not cause any prejudice to the applicant.
13. The submission of the learned counsel for the revisionist that as cognizable offence was made out, the Magistrate must have directed for registration of the FIR, is misconceived in view of the judgments referred to above in which it has been laid down that the Magistrate has also the jurisdiction to treat the application as a complaint case.
14. It is, however, clarified that if on the course of proceedings of the complaint case the Magistrate finds it a fit case for investigation by the police or such other person as he thinks fit under Section 202 (1) Cr.P.C. for the limited purpose of satisfying himself for proceeding against the accused persons for their summoning, the dismissal of this petition or the order under challenge, herein, would not come in the way of exercise of such power by the Magistrate concerned under Section 202 (1) Cr.P.C.
15. The revision lacks merit and is hereby dismissed with the observations made herein above.
16. No orders as to costs.
Order Date :- 07.01.2021 (Ravi Nath Tilhari,J.) VKG