By means of the present revision, the revisionist has challenged the order dated 20.3.2010 passed by the learned Chief Judicial Magistrate, Ghaziabad whereby the application of the revisionist under section 156(3) Cr.P.C for the registration and investigation of the criminal case, has been rejected.
The brief facts giving rise to the present revision are that the revisionist Smt Suneeta Panchal moved an application under section 156 (3) Cr.P.C. before the Chief Judicial Magistrate, Ghaziabad against R.K. Singh S.O. Police Station Modinagar and other unknown police officials with the request for registration and investigation of the Criminal Case. The facts mentioned in the application, in brief were that on 16.1.2010 at about 9:00 P.M. S.O. Modinagar R.K. Singh along with some other police officials trespassed into her house. The Station Officer assaulted the complainant/revisionist as she declined to disclose the whereabouts of her husband, a nominated accused in the murder case. Further that the police officials destroyed the house-hold articles and also snatched away cash and valuable articles from the house. Thereafter, the complainant was taken to the police station and after being assaulted, she was challaned in a false case under Section 216 IPC bearing crime no. 39 of 2010. After getting bail in that case, she was released on 3.2.2010 and thereafter she moved an application before the CJM, Ghaziabad with the request for registration of the criminal case. The application was supported by an affidavit. Having received the application, the Magistrate summoned the injury reports of the present revisionist and other persons allegedly assaulted, from district jail Ghaziabad. The report was also called for, from the police station concerned. The police report revealed that Dinesh Panchal, the husband of the present revisionist and his son along with three others had murdered Sunil Kumar by firing on him. The report was lodged on 16.1.2010 at 8.30 P.M. The background for the commission of the muder was also disclosed that the brother of Sunil Kumar namely Arun Kumar was earlier murdered by Sandeep Panchal, the other son of the revisionist. This case ended in conviction of the accused. Thereafter a threat was extended by Sandeep Panchal, the son of the revisionist to the complainant Sunil Kumar for compromising the case. Since Sunil Kumar declined, Sandeep Panchal along with his associates made a murderous assault on him on 13.7.2006. In this case the accused persons were convicted for a sentence of four years each along with the stipulation of fine. For this case Sandeep Panchal the son of the complainant revisionist is serving the sentence. Lateron, on 16.1.2010, Dinesh Panchal the husband of the complainant revisionist along with his sons joined by others murdered Sunil for which the murder case was registered on 16.1.2010. It was also reported that with this background mentioned above, when the police made a raid in the house of Sunita Panchal in the intervening night of 17/18.1.2010, Sunita Panchal was arrested for harbouring the offenders and crime no. 39 of 2010 under section 216 was registered and she was sent to jail. In order to take revenge from the police party the present false case has been registered.
Having received this report, the learned Magistrate rejected the application under section 156(3) Cr.P.C by the impugned order giving rise to the present revision.
Heard learned counsel for the revisionist and learned A.G.A. for the the State and perused the record.
It has been argued on behalf of the revisionist that from the contents of the application under section 156 (3) Cr.P.C., a cognizable offence was made out hence, the Magistrate was bound and has no other option but to order for the registration of the criminal case. In the alternative the magistrate could have ordered for treating the application as compliant, but in no case the application could have been dismissed. Hence, the impugned order is illegal and has been passed transgressing the jurisdiction vested with the magistrate.
Learned A.G.A for the State has argued that the application in question has been moved with malafide object. The Magistrate held all the right and jurisdiction to reject the application. There is no illegality in the impugned order.
In support of his contention the learned counsel for the revisionist has relied upon the case law, which shall be dealt with at proper place in the body of Judgment.
Putting any person to face trial whether by way of application under section 156 (3) Cr.P.C or by summoning order under section 204 Cr.P.C was considered to be a matter of serious concern by the Apex Court, in the case of Pepsi Food Limited Vs Sub Judicial Magistrate and others 1998 (5) Supreme Court Cases 749. It has also been held that the Criminal law cannot be set into motion as a matter of course .
The Apex Court by its subsequent Judgment in the case of Maqsood Sayyad Vs. State of Gujarat and others 2008(2) SCC(Crl) 749, has laid down as follows:
Whether a jurisdiction exercised on a compliant petition while in terms of section 156 (3) or 204 Cr.P.C, the Magistrate is required to apply his mind. summoning of an accused in a criminal case is a serious matter. The criminal law cannot be set into motion as a matter of course.
The arguments as it has been raised on behalf of the revisionist that the Magistrate did not have the jurisdiction to dismiss the application under Section 156(3) Cr.P.C., if it discloses the commission of a cognizable offence, was under consideration before the Division Bench of this Court in the case of Sukwasi vs. State of Uttar Pradesh 2007 (59) ACC Page 739. The Division Bench was formed to decide the following question:
"Whether the Magistrate is bound to pass an order on each and every application under section 156 (3) Cr.P.C containing allegation of commission of cognizable offence for registration of FIR and its investigation by the police even if those allegations, prima facie do not appear to be genuine and do not appeal to reason or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases.
While considering the question, the Court has observed that the application under section 156 (3) Cr.P.C are now coming to torrents Provisions under section 156 (3) Cr.P.C should be used sparingly. They should not be used unless there is something unusual and extraordinary like miscarriage of justice which warrants a direction to the police to register a case. Such applications 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 Sec.156(3) Cr.P.C.
With these observations the question referred to the Court was replied in the following manner:
"The reference is therefore on served in the manner does not incumbent upon a Magistrate to allow the application under section 156 (3) Cr.P.C. and there no such legal mandate. He may or may not allow the application in his discretion. The second leg of 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"
In para 11 of the judgment the Court has mentioned that, "It can not be said that the Magistrate is bound to order for the registration of a first information report in all cases, where a cognizable offence is made out."
Thus it is quite evident that the Magistrate has got all the jurisdiction in suitable cases to dismiss an application under Section 156(3) Cr.P.C. even if the facts enshrined therein makes out a cognizable case.
Learned counsel for the revisionist while relying upon the case of Smt. Mona Pawar vs. High Court of Judicature at Allahabad 2011 74 ACC Page 216 has vehemently argued that the Magistrate while entertaining the application under section 156 (3) Cr.P.C did not have any jurisdiction to reject the application. It could have treated the application as complaint or could have ordered for the registration of the criminal case. Relevant portion of the judgment need to be quoted:
"When the complaint was presented before the appellant, the appellant had mainly two options available to her. One was to pass an order as contemplated by section 156 (3) of the Code and second one was to direct examination of the complainant upon oath and the witnesses present, if any, as mentioned in Section 200 and proceed further with the matter as provided by section 202 of the Code"
The plain reading of this para makes it abundantly clear that the Hon'ble the Apex Court has used the word "mainly" and not "only", which categorically connotes that there may be cases in which the Magistrate may not go for either of the two options provided. What are these cases , have been taken note of in the case of Sukhwasi (Supra) whereby it has been provided that the Magistrate may dismiss the application under section 156 (3) Cr.P.C even if the facts mention therein make out a cognizable offence.
Thus it is evident that in suitable cases the application under Section 156(3) Cr.P.C. can be dismissed even if tells of the commission of a cognizable offence.
Thus the arguments advanced on behalf of the revisionist that Magistrate does not have any jurisdiction to dismiss the application under section 156 (3) Cr.P.C does not gather force.
The line of action for the Magistrate on receiving the application u/s 156(3) Cr.P.C. may be summarised as under.
After receiving an application under Section 156(3) Cr.P.C. the Magistrate is expected, not to pass order in a routine way. He shall first consider as to whether from the contents of the application, a cognizable offence is made out or not. If it arrives at the conclusion that no cognizable case is made out, he shall be obliged to dismiss the application. On the contrary if the conclusion of the magistrate is about the existence of the cognizable offence, he has all the three options open, to wit.
1.order for the registration of criminal case and investigation thereupon;
2.order for treating the application with request under section 156(3) Cr.P.C. as complaint and thereby to proceed under the provisions of chapter XV Cr.P.C..
3.In suitable cases, the Magistrate can dismiss the complaint.
While applying the above derivation to the present set of facts, the situation arises that the complainant/revisionist, whose son and the husband are involved in repeated commission of offences like murder and attempt to murder against the same family has lodged the case of Dacoity against the investigator of the offence. The learned Magistrate has arrived at the finding that the cognizable offence is not made out. Even otherwise it is not a fit case in which the order for registration of the criminal case and investigation should have been made. On the face of the case it the prosecution case does not appear to be genuine and appears to have been lodged to hamper the investigator in the fair investigation of the case.
The court does not find any irregularity, illegality in the impugned order. The revisionist has no merits and is liable to be dismissed.
The revision is hereby accordingly dismissed. No order as to costs.
Order Date :- 6.7.2012 Sumaira