HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Criminal Revision No. 1689 of 2007
Vishwanath @ Bande...................Revisionist
vs.
State of U.P. & others................Opposite parties
********************
Hon'ble Vijay Kumar Verma, J.
"Is the Magistrate 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) of the Code of Criminal Procedure (in short 'the Cr.P.C.), containing allegations of commission of a cognizable offence?" is the main question that falls for consideration in this revision, by means of which the order dated 31.05.2007, passed by the Spl. Judge (Dacoity Affected Area) Jhansi in case No. 298 of 2007, (Vishwanath Pandey @ Bande vs. Rahees and others), has been challenged.
2. By the impugned order, the application moved by the revisionist under section 156(3) Cr.P.C. has been rejected.
3. The facts leading to the filing of this revision, in brief, are that an application was moved by the applicant/revisionist under section 156(3) Cr.P.C. in the court of Spl. Judge (D.A.A.) Jhansi, on 28.05.2007 impleading (1) Rahees (2) Shiv Shanker @ Babloo (3) Udai Narayan (4) Ram Kumar (opposite parties Nos. 2 to 5 herein) and one unknown person as accused: Annexure 2 is the copy of that application. The averments made in the application, in brief, are that about three months ago, the accused Rahees etc. had made murderous attack on the applicant by firing and causing injuries to him. A report of that incident was lodged by the applicant under section 307 IPC against opposite parties No. 2 to 5. It is alleged that on 23.05.2007 at about 7.00 p.m., when the applicant was present at his house, the accused Rahees, Shiv Shankar, Udai Narayan, Ram Kumar and one unknown person, armed with lathi, farsa, axe and tamancha, entered into his house and hurling abuses, they began to cause mar-peet with him. The accused Rahees fired from a tamancha on the applicant but he escaped narrowly. Thereafter, all the accused persons began to commit robbery in the house and they looted Rs. 25,000/- in cash, golden chain, two pair payal, one silver belt and five gold coins from the box. The said incident was witnessed by Shisupal and Mukesh etc. After calling for the report on the application under section 156(3) Cr.P.C. from the P.S. concerned, the learned special Judge, holding that no cognizable offence is made out, rejected the application vide impugned order, hence this revision.
4. I have heard arguments of Sri Ashwini Kumar Ojha, learned counsel for the revisionist and learned AGA for the State and also perused the record.
5. Before proceeding further, it is worthwhile to mention that District Jhansi was declared to be a Dacoity Affected Area for the purpose of U.P. Dacoity Affected Areas Act by U.P. Government Notification No. 8111-P/VIII-3-31, dated 5th November, 1981 and a special court under section 5(2) of the said Act was constituted in Jhansi, vide Nyaya (Adhinastha Nyayalaya) Anubhag, Noti. No.8394/VII-A-N.,dated 4th December 1981. According to section 7(1) of U.P. Dacoity Affected Areas Act, the Special court constituted under this act in a Dacoity Affected Area has been authorised to take cognizance of any scheduled offence. Section 156 (3) Cr.P.C. provides that any Magistrate empowered under section 190 Cr.P.C. may order an investigation of any cognizable case. The power of the Magistrate to take cognizance under section 190 Cr.P.C. has been embedded in section 7(1) of U.P. Dacoity Affected Area Act. Therefore, the application under section 156 (3) Cr.P.C. in instant case was moved in the court of Spl. Judge Dacoity Affected Area Jhansi, because the allegations made therein contained the allegations of commission of a cognizable scheduled offence within the meaning of U.P. Dacoity Affected Areas Act.
6. Placing reliance on Smt. Masuman vs. State of U.P. & others 2007 ALJ 221, it was vehemently contended by the learned counsel for the applicant that acting as a Magistrate, the learned Spl. Judge Jhansi was bound to pass an order for registration of the FIR and its investigation by the police on the application under section 156 (3) Cr.P.C. moved by the revisionist against the opposite parties No. 2 to 5, as a cognizable scheduled offence of serious nature requiring investigation is made out on the basis of averments made in that application. The contention of the learned counsel for the revisionist was that if the application under section 156 (3) Cr.P.C. contains the allegations of commission of a cognizable offence, then the Magistrate is under obligation to direct investigation after registration of the FIR in each and every case.
7.The learned AGA on the other hand, submitted that the Magistrate is not bound to pass an order for registration of the FIR and its investigation by the police on each and every application containing the allegations of commission of a cognizable offence and in appropriate cases, the application under section 156 (3) Cr.P.C. can be treated as complaint and can also be rejected, if the allegations made therein are found without any substance.
8. Having given my thoughtful consideration to the rival submissions made by the learned counsel for the parties, I find force in the aforesaid submission made by learned AGA. 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 not 'res-integra' now, as this controversy has been settled by the Division Bench of this Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. In the case of Smt. Masuman vs. State of U.P. & others 2007 (1) ALJ 221 and some other cases, the single judges of this Court had taken a view that if the application under section 156 (3) Cr.P.C. discloses the commission of a prima-facie cognizable offence, then it is obligatory for the magistrate to direct investigation after registration of the FIR on the basis of that application. Disagreeing with this view, the following question was referred to the larger Bench for decision in the case of sukhwasi vs. State of U.P. (supra):-
"Whether the Magistrate is bound to pass an order on each and every application under section 156(3) Cr.P.C. containing allegations of commission of a cognizable offence for registration of the 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"?
9. After having considered the full Bench decision of this 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 in paragraph 23 of the report 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."
10. Therefore, in view of the law laid down by the Division Bench in the aforesaid case, the above mentioned contention of the learned counsel for the revisionist has got no force. I may refer the case of Rajendra Singh Katoch vs. Chandigarh Administration & others 2008 (60) ACC 347, in which the Hon'ble Apex Court has made the following observation in para 8 of the report at page 348:-
"Although the officer-in-charge of a police station is legally bound to register a first information report in terms of section 154 of the Code of Criminal Procedure, if the allegations made by them gives rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned; the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not." (underline is mine)
11. From the aforesaid observations made by the Hon'ble Apex Court, this fact is borne out that before lodging the FIR, the competent police officer can make a preliminary enquiry in order to find out as to whether the first information sought to be lodged had any substance or not. If the police officer is competent to make a preliminary enquiry in a given case in order to find out as to whether the first information sought to be lodged had any substance or not, then how the Magistrate can be bound to direct registration of FIR and its investigation on each and every application under section 156 (3) Cr.P.C. containing allegations of commission of a cognizable offence without applying its mind to find out whether the allegations made on the application have any substance or not. In my considered opinion, the Magistrate is required to apply its mind to find out whether the first information sought to be lodged by the applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appear to be without any substance, then in such case the Magistrate can refuse to direct registration of the FIR and its investigation by the police, even if the application contains the allegations of commission of a cognizable offence. In such case, the Magistrate is fully competent to reject the application. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint, as held by the Division Bench in the case of Sukhwasi vs. State of U.P. (supra). After the judgment of Division Bench in this case, the law laid down by the Hon'ble Single Judge of this Court in the case of Smt. Masuman vs. State of U.P. (supra) and similar other cases is no more a binding precedent.
12. In view of the law laid down in aforesaid cases, there is no room for any doubt that in appropriate cases, the application under section 156(3) Cr.P.C. can be treated as complaint, but before passing the order to treat the application under section 156(3) Cr.P.C. as complaint, the Magistrate must keep in the mind the observations made in para 40 of the report at page 59 by the Full Bench of this Court in the case of Ram Babu Gupta and others vs. State of U.P. 2001 (43) ACC 50, on which reliance has been placed by the Division Bench in the case of Sukhwasi vs. State of U.P.(supra). The following observation made in para 40 of Ram Babu Gupta case (supra) are worth noticing:-
"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 safeguards 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."
13. Therefore, having regard to the afore cited observations made by the Full Bench, the Magistrates should not shirk their legal responsibility to pass an order for registration of the FIR and its investigation by the police on the applications under section 156 (3) Cr.P.C. in the cases where on the basis of the averments made therein and the material, if any, brought on record in support thereof, prima facie cognizable offence of serious nature requiring police investigation is made out and in such cases the aggrieved person should not be compelled to collect and produce the evidence at his cost to bring home the charges to the accused by passing an order to treat the application under section 156 (3) Cr.P.C. as complaint thereby forcing the aggrieved person to proceed in the manner provided by chapter XV Cr.P.C.
14. Coming to the facts of the instant case, although the application moved by the revisionist under section 156 (3) Cr.P.C. on 28.05.2007 in the court of Spl. Judge (D.A.A.) Jhansi, contains the allegations of commission of cognizable scheduled offence, but the averments made therein appear to be devoid of any substance. Five persons are said to have entered into the house of the applicant/revisionist having lathi, farsa, axe and tamancha and they are also said to have caused mar-peet with the revisionist, but even an abrasion was not caused to him. It shows that the allegations made in the application under section 156 (3) Cr.P.C. about causing mar-peet by the accused persons with the applicant/revisionist after entering into his house are on the face of it false and without any substance. The story of committing dacoity by the accused persons at about 7.00 p.m. without concealing their identity is also not worthy of reliance, as known persons belonging to the same village, who are not hardened criminals and habitual offenders of committing such crimes, would not come to commit dacoity at such hour without concealing their identity by covering their faces. Therefore, in such circumstances, the learned court below did not commit any illegality in rejecting the application under section 156(3) Cr.P.C. Hence no interference is required to be made by this Court in the impugned order.
15. Consequently the revision, being devoid of any merit, is hereby dismissed.
Dated: 18th July 2008.
v.k.updh.
