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SUKHWASI versus STATE OF U.P.

High Court of Judicature at Allahabad

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Sukhwasi v. State Of U.P. - APPLICATION U/s 482 No. - 9297 of 2007 [2007] RD-AH 15712 (18 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

(reserved)

Reference No. of 2007

(Criminal Misc. Application No. 9297 of 2007)

***

Sukhwasi son of Hulasi Resident of 174-E, Village Bargadiya, E Block Panki , P.S. Panki District

Kanpur Nagar

Vs.

State of U.P.

***

Hon'ble R.C. Deepak ,J.

Hon'ble Barkat Ali Zaidi, J.

( By Hon'ble Barkat Ali Zaidi, J.)

1.The, following question, has been referred, for consideration;

"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 F.I.R. 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"?

2. Before, proceeding to discuss the pros and cons of the issue, it would not be out of place to mention that this controversy would have not arisen , if provisions of Section 156 (3) Cr.P.C. had been drafted in a more explicit manner. It could have been mentioned that the Magistrate in his discretion direct registration of the first information report or it could have been mentioned that he should direct registration of a first information report in an appropriate case. Francs Bienniom couplet comes to mind;

" I am the Parliamentary Draftsman.

I composed the country's Laws.

And of Half the litigation.

I am undoubtedly the cause".

3. Hon'ble Mr. Justice Vinod Prasad in Criminal Misc. Application No. 6152 of 2006, Smt. Masuman Vs. State of U.P. and 19 others, connected applications, has held that when an application under Section 156 (3) Cr.P.C. discloses a Commission of a cognizable offence , the Magistrate has no option except to direct registration and investigation. He is of the view that the Magistrate has not to apply his mind and has to act merely as a post office.

4. In the case of 'Ram Babu Gupta' [2001 (43) ACC, 201], it was held by the Full Bench of this Court that the Magistrate is supposed to exercise its discretion while acting on an application under Section 156 (3) Cr.P.C., and he is not supposed to pass an order in a routine manner, and he has to apply his mind. This naturally means that the Magistrate has an option of refusing for registration of the first information report. This will appear from the following observations made in para-17 of ' Supra' Full Bench judgment;

"In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate's order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter-XV of Cr.P.C. The first question stands answered thus".

5. It will further become clear from the following observations made in para- 40 of the Judgement:

"While resorting to the first mode in as much as directing the police for investigation he should not pass order in a routine manner. He should apply his judicial mind and on a glimpse of the complaint, if he is prima facie of the view that allegations made therein constituted commission of a cognizable offence requiring thorough investigation, he may direct the police to perform their statutory duties as envisaged in law".

6. The two learned judges Mr. Justice Vinod Prasad and Mr. Justice R.K. Rastogi were bound by the aforesaid Full Bench decision. Mr. Justice Vinod Prasad referred to this case, while referring to arguments, propounded by the counsel but did not elaborate, as to what the finding in the case and what the consequence of that finding was? He just skipped over the case, and made no reference, thereto. It was clearly untenable for a Single Judge to ignore the findings of the Full Bench. He did not even, say in his judgment that the Full Bench decision does not imply, that the Magistrate has a discretion in dealing with the application under Section 156 (3) Cr.P.C. He ignored the Full Bench decision, and thereafter gave references, to many Supreme Court decisions. It is a little unusual to observe that the Full Bench decision was sidelined.

7. It will also be noticed that the law was, and has always been, that if a cognizable offence is made out, the Police are bound to register the First Information Report. In case, the Police do not register the First Information Report, there is provision under Section 154(3) Cr.P.C. to send an application to Superintendent of Police, who shall direct the registration of a First Information Report, if a cognizable offence is disclosed. There was as such, no need for an authority in this regard being given to the Magistrate. That, this has been done and such authority as given to the Magistrate indicates, that this has been done, because the Magistrate will bring to bear upon the matter a judicial and judicious approach, which will by necessarily implication be selective. That gives a clear incling to the intention of the legislature, that the Magistrate may consider the feasibility and propriety, of passing an order of registration of the First Information Report.

8. The matter may be looked into from another angle, and that is, in Section 154(3) Cr.P.C. where the Superintendent of Police has been given the authority for registration of First Information Report, the word used is 'Shall'. Section 154(3) Cr.P.C. is as hereunder;

"154. Information in cognizable cases- (1) .................

(2) ..................

(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 sub-section (1) may send the substance of such information, in writing, and by post, to the Superintend 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 incharge of the police station in relation to that offence."

In Section 156(3) Cr.P.C., the word used is 'May' Section 156(3) Cr.P.C. is as follows;

156. Police officer's power to investigate cognizable case- (1)...................

(2)...................

(3)Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.

9. The use of the word 'Shall' in Section 154(3) Cr.P.C. and the use of word 'May' in Section 156(3) Cr.P.C. should make the intention of the legislation clear. If the legislature intended to close options for the Magistrate, they could have used the word 'Shall' as has been done in Section 154(3) Cr.P.C. Instead, use of the word 'May' is, therefore, very significant, and gives a very clear indication, that the Magistrate has the discretion in the matter, and can, in appropriate cases, refuse to order registration.

10. In the case of State of West Bengal Vs. Union of India AIR 1963 SC 1241 it was observed by the Supreme Court that the intention of the legislature can best be ascertained "by directing it's attention not merely to the clauses construed, but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs".

11. Let us take an example to make things clear. If somebody wants to file a First Information Report, that the District Judge of the concerned District came to his house at 1.20 O'clock in the day, and fired upon him, with the country made pistol and he ducked and escaped being hurt, and the District Judge is, therefore, liable for an offence under Section 307 Indian Penal Code. The Magistrate knows that the District Judge was in his court room, at that time, and the concerned staff also knowns that. Is the Magistrate still bound to order registration of a First Information Report because the application discloses a cognizable offence? It is obvious that the answer has to be in negative and it cannot, therefore, be said that the Magistrate is bound to order registration of a First Information Report in all cases, where a cognizable offence is disclosed.

12. The next point, which remains for consideration is, the question whether the Magistrate can treat an application under Section 156 (3) Cr.P.C. as a complaint?

13. It is clear from the judgment of the Supreme Court in the case Suresh Chandra Jain Vs. State of Madhya Pradesh and another, 2001 (42) A.C.C. 459, that a Magistrate has the authority to treat an application under Section 156 (3) Cr.P.C. as a complaint. This will become clear from the reference in the said report to the case of Gopal Das Sindhi and others Vs. State of Assam and another, A.I.R. 1961 S.C. , 986, in which the following observations were made:

"If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and 'Take' cognizance of a cognizable offence."

14. It becomes clear from the said underlined portion that the Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint. Hon'ble Mr. Justice Vinod Prasad has also referred to the case of Suresh Chand Jain 'Supra' and has extracted the following portion therefrom in order to take a different view:-

"Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable offences. True, Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code."

It has been further held by the Apex Court in the same judgment. " But the significant point to be noticed is when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance." Emphasis Mine).

It has been held by the Apex Court in case of Madhu Bala Vs. Suresh Kumar and others (1997) Supreme Court Cases 476 as follows:-

Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable "case" and the Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case and then investigate into the same." (Emphasis Supplied)

Thus from the above it is clear that the Magistrate by not directing investigation under section 156(3) Cr.P.C. gives a long rope to the police to act on it's whims and caprices and fosters illegality of inaction by the police in registration of information of cognizable offences. It is not permissible for any Magistrate under the code to act contrary to the provisions of the code."

15. It is hardly possible to infer from the aforesaid observations that the Magistrate cannot treat an application under Section 156(3) Cr.P.C. as a 'Complaint'. Even a nebulous of far fetched interpretation will not lead to that inference. The inference drawn by Hon'ble Vinod Prasad, J. is not logical.

16. The Hon'ble Judge has also referred to the case of State of Haryana and others Vs. Bhajan Lal and others : JT 1990 (4) SC 650 and has extracted the following observations:-

"At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon any enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer-in-charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 157 of the Code to investigate, subject to the proviso to Section 157 (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the insuing part of this judgment, we do not propose to deal with those sections in extenso in the present context).`

In case an offence incharge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offene reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.

Be it noted that in Section 154 (1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non -qualification of the word " information in Section 154 (1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer-in-charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every complaint' preferred to an officer-in-charge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154,155,157 and 189(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence."

"It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid therefore, officer-in-charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed from, that is to say, to register a case on the basis of such information". (emphasis mine)

17. As in the earlier case, a completely irrational and egregiously erroneous inference has been drawn from the aforesaid observation. The observations relate to the registration of a case by a police officer as will appear from the last paragraph with emphasis and they have nothing to do with the order passed by the Magistrate under Section 156 (3) Cr.P.C.

18. It will not be out of place to note that even for registration of a case by a police officer, the condition is that he must have reason to suspect the commission of an offence as will appear from the following quotations extracted from the case of Ramesh Kumari Vs. State NCT of Delhi and others: JT 2006 (2) S.C., 548 the following are the words extracted:-

"The true test is whether the information furnished provides a reasons to suspect the commission of an offence which the concerned police officer is empowered under section 156 of the code to investigate. If it does he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolve of his duty to investigate the case and discover the true facts, if he can."

19. In a recent pronouncement, Hon'ble Mr. Justice Shiv Charan Sharma in the case of Chandrika Singh Vs. State of U.P. and others [2007(58) ACC, 777] has held that a Magistrate can treat an application under Section 156 (3) Cr.P.C. as a complaint. The Hon'ble Judge referred to various cases in his judgment and has come to this conclusion thereafter. It was observed by Shiv Charan, J. as follows:

" In view of this judgment of Full Bench, the Magistrate is fully competent to pass an order to register a case and investigate on an application under Section 156 (3) Cr. P.C., all the application under Section 156(3) Cr.P.C. may be treated as complaint and in the circumstance, the Magistrate shall follow the procedure as provided in Chapter XV Cr.P.C. This judgment of Full Bench has not been set aside. Hence, in view of the Apex Court and Full Bench of this Court the Magistrate is fully competent to treat an application under section 156 Cr.P.C. as a complaint and in the present case the Magistrate passed an order in the circumstances of the case that it may be registered as a complaint case and proceed to record the statement under Sections 200 and 202 Cr.P.C. There appears no illegality and impropriety in the order of the Magistrate.

This controversy must come to an end that an application under section 156(3) Cr.P.C. can only be treated as an application for passing an order for registration of the case and investigation cannot be treated as a complaint case. The Magistrate is not bound in each and every case to pass an order to register a case and investigate if cognizable offence is made out. The Magistrate is fully competent to use this judicial direction in the matter. This is wrong notion that if an application has been moved under section 156(3) Cr.P.C. that the only order can be passed for registration in the matter. The magistrate has got direction under Section 190 Cr.P.C. to take the cognizance directly or to pass an order that the police to investigate and then take cognizance on submissions of a report under Section 173 Cr.P.C. The Magistrate is also expected to act under some guidelines and it should not be left at the arbitrary discretion of the Magistrate to pass an order or not to pass an order to register the case and investigation under Section 156(3) Cr.P.C. In Gulab Chandra Upadhyaya Vs. State of U.P. Hon'ble Single Judge of this Court laid down the guidelines for the guidance of Magistrate while deciding the application under Section 156(3) Cr.P.C. and the guidelines cannot be said against any provision of law or check on the judicial direction of the Magistrate. Even Hon'ble Apex Court also held that the Magistrate has got a direction to pass an order to register the case and investigation under Section 156(3) Cr.P.C. or to treat an application as a complaint case.

In the law laid down by Hon'ble the Apex Court and various judgments of this Court clearly laid down that the Magistrate is not always bound to pass an order to register a case and investigation when application under Section 156(3) Cr.P.C. is moved. It will not be proper to deal with this hypothetical position that if the Magistrate is of opinion that false and frivolous allegation has been made in application than he may reject the application or it is for the investigating officer to decide the truthfulness of the story and if found false then launch prosecution against the applicant. But it is discretion of the Magistrate to be used judiciously while disposing of the application.

For the reasons mentioned above, I am of the opinion that the Magistrate is not always bound to pass an order for register of the case and investigation after receipt of the application under Section 156(3) Cr.P.C. disclosing a cognizable offence. The Magistrate may use his discretion judiciously and if he is of the opinion that in the circumstances of the case, it will be proper to treat the application as a complaint case then he may proceed according to the procedure provided under Chapter XV of Cr.P.C. I am also of the opinion that it is not always mandatory in each and every case for the Magistrate to pass an order to register and investigate on receipt of the application under Section 156(3) Cr.P.C. In the present case, the Magistrate is perfectly within the judicial power to treat the application under section 156(3) Cr.P.C. as a complaint case. There is no illegality or impropriety in the order. The revision is devoid of merit and is liable to be dismissed".

20. The Full bench decision of Ram Babu Gupta's case ' Supra' also lays down that the Magistrate can treat an application under Section 156 (3) Cr.P.C. as a complaint. This will appear from the following observations :-

" Coming to the second question noted above, it is to be at once stated that a provision empowering a Court to Act in a particular manner and a provision creating a right for an aggrieved person to approach a Court or authority, must be understood distinctively and should not be mixed up. While sections 154, 155 sub-section (1) and (2) of 156, Cr.P.C. confer right on an aggrieved person to reach the police, 156 (3) empowers a Magistrate to act in a particular manner in a given situation. Therefore, it is not possible to hold that where a bare application is moved before Court only praying for exercise of powers under Section 156 (3) Cr.P.C., it will remain an application only and would not be in the nature of a complaint. It has been noted above that the Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers under Section 156 (3) Cr.P.C. In this connection, it may be immediately added that where in an application, a complainant states facts which constitute cognizable offence but makes a defective prayer, such an application will not cease to be a complaint nor can the Magistrate refuse to treat it as a complaint even though there be no prayer seeking trial of the known or unknown accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all practical purposes even such an application would be a complaint. This court can do no better than refer to the following observations in Suresh Chand Jain ( Supra):-

" The position is thus clear. Any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code .......could take further steps contemplated in Chapter XII of the Code only thereafter.

21. Hon'ble Mr. Justice Amar Saran in Criminal Misc Application No. 7484 of 2004 Mohan Shukla and others Vs. State of U.P., Hon'ble Mr. Justice Alok Singh in Criminal Misc Application No. 671 of 2007 Ram Sabad Vs. Sessions Jude, Bahraich and others have also held that the Magistrate is empowered under Section 156(3) Cr.P.C. to treat an application as a 'Complaint'.

22. Applications under Section 156(3) Cr. P.C. are now 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 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 Section 156(3) Cr.P.C.

23. 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.

24. Hon'ble Justice V. Prasad has ordered for circulation in subordinate courts of his aforesaid judgment. Since the view propounded by him has not been upheld by the Division Bench, it is necessary that the subordinate courts are informed about the same, so that they may not be misled. For this purpose, it is essential, that the copy of this judgment, be circulated in all the subordinate courts.

Dt: 18th September, 2007

n.u.


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