Giriraj Rai vs State Of U.P. & Others
2013 Latest Caselaw 7363 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

1
 
AFR
 
Reserved
 
Court No. - 44
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 14275 of 2012
 
Petitioner :- Giriraj Rai
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Mohan Yadav
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Karuna Nand Bajpayee,J.

The present writ petition has been filed seeking the quashing of

the order dated 03.09.2012 passed by the Chief Judicial Magistrate,

Varanasi in Misc. Application No.2980 of 2012 u/s 156 (3) Cr.P.C., Giriraj

Rai Vs. Angad Tiwari as well as the order dated 10.09.2012 passed by the

I/C Session Judge, Varanasi in Criminal Revision No.330 of 2012 Giriraj

Rai Vs. State whereby the revision filed by the petitioner was dismissed and

the validity of the order passed by Chief Judicial Magistrate, Varanasi had

been upheld.

Counter affidavits on behalf of all the respondents and the

rejoinder in reply to them have been exchanged between the parties, and the

same have been taken on record.

The respective counsels representing the petitioner as well as

private respondents No.2, 3 and 4 have been heard at length along with the

learned A.G.A. who too made his submissions to assist the Court on points

of law. The record has been perused.

It appears that petitioner Giriraj Rai, who is a Sub-Inspector,

moved an application u/s 156(3) Cr.P.C. before the Chief Judicial

Magistrate, Varanasi in order to get a criminal case registered and

investigated against the respondents no.2 to 4 and also against one unknown

person with the allegation that a criminal assault was made on him by all of

them. The perusal of the application moved by the petitioner reveals the use

of vulgar invectives allegedly hurled by the respondents and also the

allegation that he was not only beaten by the respondents but attempt to

strangulate him was also made and also that one of the respondents fired at

him which missed the aim. According to the application the official attire of

the petitioner was torn away and he was subjected to gross humiliation. It

was further alleged that because respondent No.4 is Chief Development

Officer, Varanasi, the petitioner could not succeed to get the FIR registered

against him or the other respondents who are the members of his staff.

After receiving the aforesaid application the Chief Judicial

Magistrate, Varanasi vide its order dated 03.09.2012 sought a report from

the concerned police station and after hearing the counsel for the petitioner,

passed a speaking order whereby instead of directing the police to register

the case he decided to take the cognizance himself. The application moved

by the petitioner was registered as a complaint case and a date was fixed in

order to record the statement u/s 200 Cr.P.C. Feeling aggrieved by the

aforesaid order passed by the Chief Judicial Magistrate, Varanasi; the

petitioner preferred a revision against the same but the I/C Sessions Judge,

Varanasi after discussing the relevant law on the point, by a reasoned order

found no error in the course adopted by the Chief Judicial Magistrate and

consequently dismissed the revision. The aforesaid twin impugned orders

are under challenge before this Court.

The contentions raised by the petitioner's counsel are manifold.

According to him the application moved by the petitioner was with the

prayer to give direction to the police to perform its statutory duty and

investigate into the offence committed by the alleged accused persons. The

application sought the invocation of police powers which were not being

duly exercised. The application in question was not in the nature of a proper

complaint as contemplated under Criminal Procedure Code and the

petitioner/applicant neither desired nor intended to become the complainant

of a complaint case. The submission is that the application under Section-

156(3) Cr.P.C., not being a proper complaint as defined under the statutory

scheme, could not have been treated as a complaint. The Magistrate could

treat the application as complaint only if it was in the proper format of a

complaint with the proper prayer to take cognizance seeking the invocation

of powers under Chapter-XV of Criminal Procedure Code. Merely because

the application contained some grievances of the applicant it would not

acquire the legal status of a complaint under law. The dictionary meaning of

complaint and the legal import of the same word are two different

propositions. Every expression of grievance would not constitute 'complaint'

as defined in Criminal Procedure Code and therefore, argues the petitioner's

counsel, that the court fell in error when it took cognizance of the offence

itself, instead of directing the police to perform its statutory duty as prayed

in the application. The Magistrate by taking cognizance on it not only

transmuted the nature of application but also transgressed its jurisdiction.

Another limb of petitioner's argument is to the effect that the facts of the

present case were such that they could only be investigated through a proper

police investigation and the decision of the Magistrate to take cognizance

himself and to proceed in the matter as a complaint case is wholly inapt and

ill-suited. It has also been submitted that taking cognizance of the offence

and treating the application moved under Section-156(3) Cr.P.C. as a

complaint is a clear act of exercising a jurisdiction not vested in it and by

indulging into such an exercise the learned Magistrate has committed gross

error of law.

In order to buttress the aforesaid submission, learned counsel for

the petitioner has placed reliance on certain observations made by Hon'ble

R.K. Dash, J. in the Full Bench decision of Ram Babu Gupta Vs. State of

U.P. and others 2001(43) ACC 50 which are to the following effect:-

"40. ..........................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 provide 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."

Per contra the respondents' counsel while rebutting the

contentions raised on behalf of petitioner has submitted that the petitioner is

a Police Inspector while the opposite parties against whom the petitioner

seeks the registration of a police case include the Chief Development

Officer and some other members of his staff. The application u/s 156(3)

Cr.P.C. is a covert and calculated attempt made by the applicant to

somehow get a police case registered and bring the whole matter in the flank

of his own, where he being a police officer would himself be in a

predominant position to influence the result of the investigation. The real

object of the petitioner is to harass and humiliate the respondents as he has

an axe to grind against them. Wholly false and motivated allegations have

been made by the applicant because of some oblique reasons emanating

from the criminal proclivities of his son. According to the submission the

real story is entirely different from what meets the eye. It has been

contended that in fact respondent No.2 is the Driver of respondent No.4

while respondent No.3 is a Homeguard. The counsel for the respondent

submits that actually respondent No.2 and 3 themselves were brutally

assaulted by three unknown persons on dated 15.08.2012 resulting into

grievious injuries to respondent No.2 and a FIR regarding this criminal

assault was also lodged in Police Station-Cantt as Case Crime No.509 of

2012 u/s 323/504/506/307/337 I.P.C. Thereafter during the course of

investigation the complicity of petitioner's son Avnish Kumar Rai came to

the fore and it also surfaced that his son was involved in a number of other

criminal cases. On the charge of making the aforesaid criminal assault on

respondents, the son of petitioner was arrested and sent to jail and could

come out of it only after a fortnight. The contention is that it is for this

reason that the petitioner in order to wreak vengeance has concocted all the

aforesaid allegations against the respondents which are nothing but a vicious

tissue of lies. The counsel also has drawn my attention to the averments

made in the counter affidavits filed on behalf of respondents No.2 and 3 in

this regard. According to the contention raised on behalf of respondents the

Magistrate has acted well within his jurisdiction and there is neither any

error of law nor that of fact in the order passed by the lower court whereby

it took cognizance itself and proceeded in the matter as a complaint case.

I have carefully cogitated upon the rival submissions pressed

before the court and have also gone through the record including affidavits

and counter affidavit filed on behalf of parties.

To me the controversy raised on behalf of the applicant appears to

be a laboured controversy. The Hon'ble Supreme Court as well as this High

Court through benches of different strengths have expatiated upon this

matter authoritatively and the matter is res-integra no more. So far as the

question whether in a given case an application u/s 156 (3) Cr.P.C. can also

be termed as a 'complaint' as defined under Criminal Procedure Code is

concerned, the Full Bench decision of Ram Babu Gupta itself has delved

into this issue and concluded the same. It may also be recalled that at one

point of time a Devision Bench of this Court in the case of Suraj Mal, ACC

1993, 81 had taken a view similar to the contention of the petitioner's

counsel that where the Magistrate has been requested by the applicant only

to exercise the powers u/s 156(3) Cr.P.C., such an application cannot be

termed as 'complaint' in legal parlance within the meaning of Section-2 of

Criminal Procedure Code. The relevant extract of Suraj Mal's case may be

usefully quoted herein below:-

"a perusal of the application moved by the respondent No.2 clearly

shows that his grievance before the learned Magistrate was against

the police as on being approached his report was not recorded

under Section 154 of the Code. After stating the injustice caused to

him he prayed before the learned Magistrate that police be

directed to register his case and investigate the same. The

contention of the learned Counsel for the petitioners that the

application moved by respondents No.2 was a complaint thus is not

correct. As it was not a complaint, there was no occasion for the

learned Magistrate to adopt the procedure provided under Chapter

XV of the Code."

Subsequently it so happened that the aforesaid Suraj Mal's case

came up before the Full Bench in Ram Babu Gupta's case and Their

Lordships presiding in the Full Bench after delving into this matter

formulated the following legal issue :-

" Is the observation of the Division Bench in Suraj Mal (supra)

correct when it says that when an applicant before a Magistrate

prays only for registration and investigation of a case, such an

application will not become "complaint" as defined in Section 2 of

the Cr.P.C.?"

After going through various case laws cited before it and

expatiating on this issue at length what was observed by the Full Bench is as

follows :-

"18. 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-sections

(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

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........................"

"19. In view of the aforesaid discussion, the observations in the

two paragraphs noted above in Suraj Mal (supra), cannot be said

to be laying down correct law, therefore, those observations shall

remain confined to the decision in Suraj Mal. The second point

formulated above stands answered thus."

(emphasis supplied)

In the light of answer given by the Full Bench on the aforesaid

legal question there is scarcely any scope left for this bench to reopen the

issue and the contention of the applicant on this score stands completely

negatived.

So far as the legality or the legal permissibility of taking

cognizance on an application u/s 156(3) Cr.P.C. as a complaint case is

concerned, once again the same Full Bench also deals with this issue

comprehensively and there does not seem to remain any scope to doubt the

legal sanctity of such an order. I may again refer back to some of the

observations made in Ram Babu Gupta's case which shall be pointedly

germane to comprehend the issue involved and agitated before the court.

The relevant extract is quoted herein below:-

"...................So when a report, either oral or written

made to the officer in charge of a police station discloses

commission of a cognizable offence, it is obligatory on him to

register a case and proceed with the investigation. In the event, he

refuses to receive the report and shows indifference to perform

statutory duties, the only alternative course available to the

aggrieved person is to approach the Court of law. He makes a

complaint giving detail narration of the incident terming it either a

petition under Section 156(3) of the Code or a regular complaint.

On receiving of such complaint, different courses are open to the

Magistrate, he may with the aid of power conferred by Section

156(3) direct the police to register a case and investigate in the

manner as provided in Chapter XII or he may treat the same as a

complaint and proceed in the manner contemplated in Chapter

XV of the Code. While resorting to the first mode inasmuch 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. On the other

hand, if he adopts the second mode in terms of Chapter XV, his

decision cannot be faulted with for not acceding to the request of

the complainant for an investigation by the Police.. ...................."

(emphasis supplied)

Above mentioned observation is conclusive on the point involved

and there is therefore again no question to doubt or to be skeptic about the

legality or the legal permissibility of the course adopted by the learned

Magistrate in the present case. The contention raised by the petitioner's

counsel in this regard is in complete ignorance of the aforesaid view taken

by the Full Bench in Ram Babu Gupta's case. In fact, if one scans through

the history of judicial decisions given by our High Court in this regard one

witnesses an important and notable phase that came subsequent to the Full

Bench pronouncement when a Single Judge Bench of this Court expressed

some such views which, when placed before another Single Judge Bench

appeared to it not in consonance with other binding authorities on this point.

The aforesaid controversy arose in the case of Sukhwasi Vs. State of U.P. in

which a Single Judge Bench once again referred some legal issues to the

larger bench. The reference encompassed many aspects including the legal

permissibility of taking cognizance on an application u/s 156(3) Cr.P.C. and

treating it as a complaint case. It may be apt, therefore, to extract the

question of reference formulated in Sukhwasi's case :-

"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 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'?

The Division Bench which was constituted to answer the

aforesaid points of reference in Sukhwasi's case, discussed the issues

comprehensively and took into account catena of judicial precedents on the

points involved including the aforesaid Ram Babu Gupta's full bench

decision and also the pronouncements given by the Apex Court in the case

of Suresh Chandra Jain Vs. State of Madhya Pradesh 2001 (42) ACC 459

and Gopal Das Sindhi and others Vs. State of Assam- AIR 1961 SC 986.

Thereafter, the Division Bench in Sukhwashi's case held as under :-

"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."

The specific answer given on this issue by the Division Bench in

Sukhwasi's case should in my view put a period to this controversy and

there does not seem to be any valid reason or vindication to resurrect

the same again only for the sake of argument. The learned A.G.A.

has also cited many cases to elucidate the same aspects of law. Some of

them are Chandrika Singh Vs. State of U.P. and others 2007 (58) ACC 777;

Swayam Prabha Vs. State of U.P. 2012 (1) ALJ 264; decision in Criminal

Misc. Application No.7484 of 2004 Mohan Shukla and others Vs. State of

U.P. and the decision in Misc. Application No.671 of 2007 Ram Shabad Vs.

Sessions Judge, Behraich and others. I eschew any elaborate discussion on

the aforesaid case laws as most of these single bench decisions have already

been considered in Sukhwasi's case. I do not propose to enter any further

into this issue as the same seems to be quite unnecessary in the backdrop of

the Full Bench and also the Division Bench decisions of this Court.

The third limb of the petitioner's argument is regarding the

advisability or suitability of adopting the course of treating the application

u/s 156(3) Cr.P.C. as a complaint. In order to persuade this Court about nonadvisability

of the course adopted by the lower court whereby it chose to

take cognizance itself and proceeded in the matter as a complaint case,

learned counsel for the petitioner has pressed into service some observations

made by Hon'ble R.K. Dash, J. in Ram Babu Gupta's case which have

already been referred in earlier part of this order and is therefore not being

repeated again.

To me this question is more a question of fact than a question of

law. If a court has two courses of action open before it, both having the

sanction of law, then how, when and under what circumstances shall it

adopt which course must always depend upon the peculiar circumstances of

that case. Magistrate or the court concerned has to apply its judicial mind

and advert to the given set of circumstances revealed in the application or

complaint and has to decide the feasibility and appropriateness of the course

which ought to be adopted in that given case. No straight jacket formula

valid for all times in all circumstances can be prescribed by the higher

courts of law. It is a matter of judicial discretion which has to be exercised

with utmost judicial care and perspicacity. The observations made in Ram

Babu Gupta's case which have been relied upon by the petitioner's counsel,

are in the nature of guiding principles to be kept in mind by the concerned

courts while exercising their judicial discretion, and shall definitely help the

courts to arrive at correct decisions. But because it is the primary duty of the

police to investigate into cognizable offences and because the powers vested

in the Magistrates u/s 156(3) Cr.P.C. to direct the investigation in a given

case are in the nature of a mandatory reminder to the police about their

plenary powers to register and investigate into cognizable offences, it should

not be construed to mean that whenever an application u/s 156(3) Cr.P.C. is

moved by the complainant the Magistrates shall be under compulsion to

order the registration of FIR or to order the police to investigate into the

case. The right of an applicant to move an application u/s 156(3) Cr.P.C.

does not denude the court from its power to exercise its discretion according

to its judicial wisdom. If the observations made in Ram Babu Gupta's case

are to be given such an extreme interpretation as suggested by the

petitioners' counsel, it shall be tantamount to divesting the Judicial

Magistrates of their power to exercise a judicial discretion conferred and

vested in them by the statute.

It is perhaps because of the same reason that Hon'ble R.K. Dash,

J. himself had held in Ram Babu Gupta's case that:

"if the Magistrate adopts the second mode in terms of Chapter-XV

his decision cannot be faulted with for not acceding to the request

of the complainant for an investigation by the police"

(emphasis supplied).

The concerned Magistrate has to take an over all view of the

matter and while weighing the appropriateness of the postulated option it

has to decide which course shall be more conducive to justice in the

particular circumstances of that case. In this context the Hon'ble Apex

Court's decision of Mona Panwar vs. High Court of Judicature at Allahabad

through its Registrar and others (2011) 3 SCC 496 may be very usefully

referred to.

In Mona Pawar's case an application u/s 156(3) Cr.P.C. was

moved by a lady containing the allegations against her father-in-law that he

entered her room, scratched her breasts, forcibly breeched cloth in her

mouth and committed rape on her. The concerned Magistrate instead of

ordering the police to register and investigate into the offence, himself took

cognizance and proceeded in the matter as a complaint case. The lady

feeling aggrieved by the Magistrate's decision approached the High Court.

After hearing the matter the High Court did not approve the course adopted

by the concerned Magistrate, as in the view of the High Court such a matter

ought to have been more appropriately investigated by the police. The

concerned Magistrate was even censured by the High Court for her refusal

to order investigation into the case. Feeling aggrieved by the stringent

remarks the Magistrate approached the Hon'ble Apex Court. The Hon'ble

Supreme Court while dealing with the grievance of the Magistrate also

made certain observations which shall be relevant for the purpose of

deciding the issue at hand. The Hon'ble Apex Court has observed as under :-

"........................................................................................................

6. The Appellant referred to the principles of law laid down by the

Allahabad High Court in Gulab Chand v. State of U.P. MANU/UP/

1350/2002 : 2002 Cr.L.J. 2907, Ram Babu Gupta v. State of U.P.

2001 (43) ACC 50, Chandrika Singh v. State of U.P. 2007 (50)

ACC 777 and Sukhwasi S/o Hulasi v. State of U.P. 2007 (59) ACC

739 and after taking into consideration the principles laid down in

the above referred to decisions the Appellant was of the view that

this was not a fit case to be referred to the police for investigation

under Section 156(3) of the Code and, therefore, directed that the

application submitted by the Respondent under Section 156(3) of

the Code be registered as complaint and further ordered the

Registry to present the file before her on August 28, 2009 for

recording the statement of the Respondent No. 3 i.e. the original

complainant under Section 200 of the Code.

..........................................................................................................

.........................................................................................................

"18. 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. ......................................"

........................................................................................................

.........................................................................................................

"22. The judicial discretion exercised by the Appellant was in

consonance with the scheme postulated by the Code. There is no

material on the record to indicate that the judicial discretion

exercised by the Appellant was either arbitrary or perverse. There

was no occasion for the learned Single Judge of High Court to

substitute the judicial discretion exercised by the Appellant merely

because another view is possible. The Appellant was the

responsible judicial officer on the spot and after assessing the

material placed before her she had exercised the judicial

discretion. In such circumstances this Court is of the opinion that

the High Court had no occasion to interfere with the discretion

exercised judiciously in terms of the provisions of Code."

23. ............................. If on a reading of a complaint the

Magistrate finds that the allegations therein disclose a cognizable

offence and forwarding of the complaint to the police for

investigation under Section 156(3) of the Code will not be

conducive to justice, he will be justified in adopting the course

suggested in Section 200 of the Code."

24. Here, in this case the Respondent 3 had averred in the

application submitted before the Appellant that the Officer-incharge

of the Nakur Police Station had refused to register her

complaint against her father-in-law regarding alleged rape

committed on her and that no action was taken by the Senior

Superintendent of Police though necessary facts were brought to

his notice. Under the circumstances, the judicial discretion

exercised by the Appellant, to proceed under Section 200 of the

Code in the light of principles of law laid down by the Allahabad

High Court in various reported decisions could not have been

faulted with nor the Appellant could have been subjected to severe

criticism as was done by the learned Single Judge.

........................."

It is clearly deducible from the above quoted observations made

by Hon'ble Supreme Court that like all other matters where the exercise of a

judicial discretion is involved, the higher courts should always pay due

regard to it and should not be quick to substitute the lower court's discretion

by its own unless of course it is found that the same has been so exercised

that it sounds perverse or that it is likely to defeat the ends of justice.

Now reverting to the facts of the present case it transpires that

there are allegations and counter allegations between the rival parties

wherein on one side is the Sub-Inspector of Police while on another side is

the Chief Development Officer, Varanasi, his official Driver and a Home

guard. The contents of the application u/s 156 (3) Cr.P.C. could not help the

court to understand any comprehensible reason for the respondents to

commit the alleged offences in such a weird manner. If the concerned

Magistrate in order to move the criminal law into motion has chosen to take

cognizance itself, I do not see anything erroneous, much less than perverse,

in adopting such a course, specially keeping in view the submission placed

before the court by the respondents that the application u/s 156 (3) Cr.P.C.

had been moved only as a ploy to get an upper hand in the matter and to

create an opportunity to humiliate and disgrace a high ranking executive

officer of the district.

Be that as it may, I abstain to give any observation which might

have a prejudicial effect on the merits of the case, but in the light of

aforesaid discussions the petition seems to be meritless and deserves to be

dismissed as such.

The impugned order passed in criminal revision upholding the

validity of Judicial Magistrate's order too does not suffer from any illegality

whatsoever and there is no reason to interfere with the same.

There is nothing so erroneous or objectionable in either of the

impugned orders which may persuade this Court to exercise its extraordinary

jurisdiction under Article 226 of the Constitution of India in order

to set them aside. Petition therefore stands dismissed.

Order Date : 10.12.2013

M. Kumar/