1. This application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 21.12.2019 passed by learned Sessions Judge, Lalitpur in Criminal Revision No. 133 of 2019 (Smt. Panchamraja Vs. State of U.P.) as well as Order dated 10.10.2019 passed by Chief Judicial Magistrate, Lalitpur in application No. 864 of 2019, under Section 156(3) Cr.P.C., under Sections 147, 148, 452, 324, 323, 307, 504 506 of IPC, Police Station Bar, District Lalitpur
2. Heard learned counsel for applicant and learned AGA for State.
3. It has been argued by learned counsel for applicant that applicant has moved an application under Section 156(3) Cr.P.C., which discloses commission of cognizable offence but the prayer for investigation has been rejected by the Court below vide order dated 10.10.2019 in an arbitrary manner and the application was registered as a complaint case. Applicant has preferred a revision against order dated 10.10.2019 but it was also dismissed by the Sessions Judge, Lalitpur vide order dated 21.12.2019. It was submitted that there were allegations against private respondents that they, being armed with various weapons, dragged the son of applicant Smt. Pancham Raja namely Chandan Singh and Charli Raja @ Maharaj Singh from her house and that they caused injuries to him. It was stated that both the injured persons have sustained multiple injuries and that Charli Raja has sustained injuries at his head and due to injuries his mental balance has also been affected but in spite of all these facts and nature of injuries, the court below has refused to pass an order for investigation by police. The revisional Court has also dismissed the revision in an arbitrary manner without considering the relevant law. In support of his contentions, learned counsel for applicant has referred case of Balwant Vs. State of U.P., 2005(3) JIC 530 (AII) and Samar Bahadur Vs. State of U.P. and another, passed by this Court in Application u/s 482 Cr.P.C. 27781 of 2018.
4. Learned AGA has submitted that there is no illegality or impropriety in the impugned orders and that the application of applicant has already been registered as a complaint case and that applicant has full knowledge of all the facts related to incident and thus, she can lead her evidence in the complaint case.
5. The issue whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156 (3) Cr.P.C. containing allegation of commission of a cognizance offence is no more 'res-integra', as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. After having considered the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi vs. State of U.P. (supra) has answered the question referred to it, in paragraph 23 of the judgment as under:-
"The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under section 156(3) Cr. P . C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under section 156(3) Cr.P.C. as a complaint."
6. Thus, it is apparent that Magistrate is not bound to pass order of investigation by police, even if such application discloses cognizable offence but the Magistrate is required to apply its mind to find out whether the first information sought to be lodged by applicant had any substance or not. Thus, though, in appropriate cases, learned Magistrate can make a direction for police to investigate the matter however, this jurisdiction has to be exercised cautiously and such order cannot be passed in a routine manner.
7. In case Mrs. Priyanka Srivastava and another vs. State of U.P. and others;2015 AIR(SC)1758, the Hon'ble Apex Court held as under:
"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."
8. In Case of Samar Bahadur (supra) relied by learned counsel for applicant, after referring the provisions of Sections 154 and 156 Cr.P.C., the court has observed as under:
From the perusal of the aforesaid provisions, 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 applicants 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."
In view of the aforesaid, the orders dated 09.07.2018 passed by Additional Chief Judicial Magistrate, Jaunpur and 21.07.2018 passed by the Session Judge, Jaunpur cannot be sustained. Accordingly, the present criminal misc. application succeeds and is allowed at the admission stage without issuing notice to the prospective accused persons as they have no right to be heard at pre-cognizance stage. The orders dated 09.07.2018 and 21.07.2018 are consequently set aside.
9. In case of Balwant Vs. State of U.P. (supra) it has been held as under:
This application is finally disposed of on the agreement between counsel for the applicant and learned A.G.A. It appears that the Magistrate and learned District Judge have rejected the application on misleading of the judgment in the case of Gulab Chand Upadhyay (Supra). In fact this Court had followed the case of Suresh Chand Jain Vs. State of M.P., 2001 (1), JIC 740 (SC): 2001 (42) ACC 459. It was concluded by the Apex Court that the Magistrate has two options (i) he can direct the police to register the case and investigate the matter and (ii) he can also proceed under Chapter XV of Cr.P.C. The court had only discussed that there are circumstance where the proceedings under Chapter XV can not fulfil the requirement and three circumstances were given in paragraph 22 of the judgment. This Court has not imposed a complete bar in lodging of the first information report. In the circumstances, I set aside the orders dated 30.5.2005 and 17.6.2005 and direct the learned Magistrate to decide the application under Section 156(3) Cr.P.C. afresh. It is for the Magistrate to decide whether a first information report should be registered or in the event there is no necessity for the police to enter the realm of investigation or inquiry then he can proceed under Chapter XV of the Code. The Magistrate shall decide afresh in accordance with law.
10. Considering the above stated position of law, in the instant case, it may be observed that the C.J.M., Lalitpur has registered the application of applicant under Section 156(3) Cr.P.C. as a complaint case by merely observing that applicant is well aware of all facts and evidence. Except that no discussion at all was made regarding factual aspect of the matter or about injuries sustained by injured persons. In such cases, the mere fact that applicant is aware with all the facts relating to incident, cannot be a sole ground to reject the prayer of applicant for investigation by police. No doubt in appropriate cases the Magistrate can treat an application under Section 156(3) Cr.P.C. as a complaint case but, as stated above, dealing with an application under Section 156(3) Cr.P.C. Magistrate is required to apply its mind to find out whether the first information report sought to be lodged by applicant, had any substance or not. In the instant matter, the approach of learned C.J.M. seems some what mechanical and superficial and the impugned order does not reflect requisite judicial deliberation. Learned Sessions Judge has also failed to consider that the impugned order dated 10.10.2019 does not reflect application of mind and the revision was dismissed vide impugned order dated 21.12.2019.
11. In view of aforesaid, the impugned order dated 10.10.2019 passed by C.J.M. Lalitpur and impugned order of revisional Court dated 21.12.2019 cannot sustain and thus, the same are set aside.
12. Learned C.J.M., Lalitpur is directed to consider and decide the application of applicant afresh in accordance with law keeping in view the observations made by this Court in this matter.
13. The instant application is, accordingly allowed.
Order Date :- 8.1.2021 Mohit