Smt. Premwati vs State Of U.P.
2013 Latest Caselaw 7448 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									Court No. 3										
 
Criminal Revision No. 3381 of 2013
 

 
Smt. Premwati           Vs.               State of U.P.
 

 
AND 
 

 
Criminal Revision No. 3410 of 2013
 

 
Smt. Radhika Devi           Vs.                State of U.P.
 

 
Hon'ble Mushaffey Ahmad, J.

These two criminal revisions have been preferred against the orders passed by the Magistrates on the applications moved under Section 156 (3) Cr.P.C. Since a common question is involved in both the revisions, they are taken up together.

In the first case, the Judicial Magistrate, Mainpuri by order dated 3.11.2013 treated the application of the applicant as complaint, where the complainant had alleged against Opp. Party offences of criminal house trespass, mishandling and committing rape on her under threat. In the second case, complainant Radhika Devi alleged against the Opp. Party the offences of cheating and forging of documents in respect of agricultural land, but The Chief Judicial Magistrate, Mainpuri by order dated 20.9.2013 rejected the application.

Learned A.G.A. makes preliminary objection to the maintainability of the revision against these orders on the strength of this Court's Full Bench decision rendered in the case of Father Thomas Vs. State of U.P. and others, reported in (2011) 1 U.P. L.B.E.C. 1.

Learned counsel for the revisionists, on the other hand, press for admission of and full fledged hearing on the revisions.

Thus, we are called upon to see if the revisions arising from the orders under Section 156 (3) Cr.P.C. are barred in the light of father Thomas Case ( Supra).

The Full Bench was constituted to consider and decide three questions referred to by Hon'ble J.C. Gupta J, as His Lordship then was, and those three questions were;

(A) Whether the order of the Magistrate made in exercise of power under Section 156 (3) Cr.P.C. directing the police to register and investigate it is open to revision at the instance of a person against whom neither cognizance has been taken nor any process has been issued?

(B) Whether an order made under Section 156 (3) Cr.P.C. is an interlocutory order and remedy of revision against such an order is barred under sub section (2) of section 397 Cr.P.C., 1973?

(C) Whether the view expressed by a Division Bench of this Court in the case of Ajai Malviya Vs. State of U.P. and others, reported in 2000 (41) A.C.C. 435 (D.B.) that an order made under section 156 (3) Cr.P.C. is amenable to revision, no writ petition for quashing of first information report registered on the basis of the order will be maintainable, is correct?

The applications under Section 156 (3) Cr.P.C. are either allowed and police concerned is directed to register and investigate the case as alleged in the applications, or they are rejected.

The Full Bench of this Hon'ble Court in the case of Father Thomas (Supra) discussed a catena of case laws based on the question whether prospective accused can be heard at the time of disposal of the application under Section 156 (3) Cr.P.C. and held that such a person is not entitled to any hearing before or at the time of disposal of application under Section 156 (3) Cr.P.C. and, therefore, the Full Bench held that no revision lay against such an order. The decision to this effect has been based upon the premise that the order passed under Section 156 (3) Cr.P.C. directing the police concerned to register a case and investigate it does not affect the rights of the accused, and therefore it is purely an interlocutory in nature. The conclusions of the Court have been based upon a number of case laws discussed.

The cases such as one in Revision No. 3381 of 2013, where a woman of a weaker section has alleged the offence of rape on her more than once against persons not on convenient terms with her husband, as the Magistrate has mentioned it in the order, with incessant deterioration in the social and moral set up, shall strain the concept that the rights of perspective accused are not affected by order passed under Section 156(3) Cr.P.C.

But there is another situation, and that is when an application disclosing a cognizable offence is rejected, a valuable right of the aggrieved to get justice by bringing the accused to book through agency of the State is infringed. This aspect of the matter, though directly agitated before the Full Bench, seems to have not received concentrated attention. On the rights of the aggrieved complainant to have justice through machinery of the State, the Hon'ble Court in para-40 of the judgment observed as follows:-

"An order under section 156(3) Cr.P.C. passed by the Magistrate directing the police officer to investigate a cognizable case on the other hand is no such order of moment, which impinges on any valuable rights of the party. Were any objection to the issuance of such a direction to be accepted (though it is difficult to visualize any objection which could result in the quashing of a simple direction for investigation), the proceedings would still not come to an end, as it would be open to the complainant informant to move an application under section 154(3) before the Superintendent of Police (S.P.) or a superior officer under section 36 of the Code. He could also file a complaint under section 190 read with section 200 of the Code. This is the basic difference from the situations mentioned in Madhu Limaye and in Amar Nath's cases, where acceptance of the objections could result in the said accused being discharged or the summons set aside, and the proceedings terminated. Also the direction for investigation by the Magistrate is but an incidental step in aid of investigation and trial. It is thus similar to orders summoning witnesses, adjourning cases, orders granting bail, calling for reports and such other steps in aid of pending proceedings which have been described as purely interlocutory in nature in Amar Nath (supra)".

In para-42 of the judgment, the Hon'ble Court has compared powers under Section 156 (3) Cr.P.C. to be of the same nature as the powers under Section 156 (1) Cr.P.C. i.e. where the police officer incharge of a police station refuses to register a case, the aggrieved have further opportunity of approaching the Superintendent of police concerned under section 154(3) Cr.P.C. for a direction for investigation, such powers may also be exercised by any officer superior in rank to officer incharge of a police station under Section 36 of the Code. The Hon'ble Full Bench has further observed in the same para that it would be illogical to suggest that the Courts have no jurisdiction to interfere in the criminal revision or other judicial proceedings with the decision of the police officer incharge of the police station to lodge the first information report under Section 154 (1) Cr.P.C. by superior officer under Section 154(3) or the actual investigation conducted by the police under the aforesaid provision.

The order directing investigation may be an incidental step in aid of investigation and trial and may be compared to orders summoning witnesses, adjourning case, granting bail, calling for report, etc. But once the application for direction to register and investigate the case is rejected, a poor and resourceless aggrieved complainant loses last hope to get justice when remedy of revision is denied to him. It is termed the last hope because he moves the application with an affidavit or copies of application showing the police had not responded to his request. It is the last hope because even the writ petition does not lie against the refusal of direction for investigation as it has been observed in para-58 of the Full Bench judgement, 'Even where the informant's plea for a direction for investigation under section 156(3) Cr.P.C is refused by the Magistrate, as held by the three judge bench of the Supreme Court in Aleque Padamsee v. Union of India, AIR 2007 SC (Supp) 684, the remedy for the informant lies not in filing a writ petition, but in filing a complaint under section 190 (1)(b) read with section 200 of the Code. The legal position after review of the authorities as noted in Aleque Padamsee in paragraph 7 was as follows: "The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that a cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code'.

It is the last hope because the order under Section 156 (3) has been declared interlocutory as a whole, as the Bench answers the question-B, the petition under Section 482 Cr.P.C. would not lie to circumvent the express ban under Section 397(2) Cr.P.C.

No doubt, a person aggrieved by the rejection of his application under Section 156 (3) Cr.P.C. may file a complaint and undertake to fee the counsel, and bear the burden of collecting and producing evidence at his own expenses.

The State has the first constitutional mandate to secure justice and that too with a directive to provide justice ensuring that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities ( Art. 39-A of the Constitution of India).

To elucidate the point: where a son of a maid servant, who had gone to demand his wages from doctors in a nursing home on the occasion of those doctors' daughter's marriage is found drowned in a pond and the body discovered had the blood oozing from the mouth and nostrils and the Magistrate on the application under Section 156(3) Cr.P.C. refuses to order registration and investigation of the case, Can the maid servant be expected to get justice by lodging a private complaint and collecting evidence against the influential doctors. Similarly, where in an open assault, the husband of the complainant is felled and killed at the spot, the victim being the near relation of the accused, say brother of the accused, the widow having been first withheld from going to police station to lodge a report and when after some time she reaches the police station, the police turning her away and not registering a case and when the women resorts to her parental house and then moves an application alongwith post mortem report under Section 156 (3) Cr.P.C. and the Magistrate treats the same as complaint, Can the lady be expected to collect evidence from village where she is not residing, against the persons who are powerful and resourceful ( both the illustrations cited happen to be the real cases which came to my notice while working as District and Sessions Judge).

The provision for revision having been barred by the case law, which is the handy remedy with the locals, the magistracy is testing absolutism, and some times not without complaint.

We, therefore, hold that the rejecting of the application in such many similar cases not only affects the legal right of the aggrieved to get justice but the rejection order amounts to denial of justice to them. The provision of revision would not add to but could stem the rising numbr of writ petitions and petitions under Section 482 Cr.P.C., as discountenanced by the Hon'ble Apex Court in the cases in the case of Aleque Pademsee Vs. Union of India , A.I.R. 2007 S.C. ( Suppl.) 684 and Sakhiri Vasu Vs. State of U.P. and others, A.I.R. 2008 S.C. ,907. It appears that the Hon. Full Bench ruled out the right to revision against the order under Section 156 (3) Cr.P.C. on a partial reading of Hon. Apex Court decision in the case of Aleque Pademsee (Supra). The Hon'ble Apex Court observed in that case that where the first information report is not registered by the police, the complainant has remedy under Section 190(1) (a) read with Section 200 of the Code. The Hon'ble Full Bench has instead read in ,' 'Even where the informant's plea for a direction for investigation under section 156(3) Cr.P.C is refused by the Magistrate, as held by the three judge bench of the Supreme Court in Aleque Padamsee (Supra)'.

The Hon'ble Apex Court had not discussed or considered the scope of application under section 156(3) or the impact of the order passed under Section 156 (3) Cr.P.C. on the aggrieved complainant on the rejection of the application. Similarly in the case of Sakhiri Vasu (Supra), the Hon'ble Court did not forbid the maintainability of revision against the order passed under section 156(3) Cr.P.C. The court simply observed that if the first information report was not registered, the aggrieved might, instead of rushing to the High Court to file writ petition or a petition under Section 482 Cr.P.C., utilize the remedy under Sections 36, 154(3) and 156(3) Cr.P.C. or by filing a criminal complaint under Section 200 Cr.P.C. Thus, it appears the Hon'ble Apex Court never meant to shut the door for the aggrieved to agitate the order of rejection under Section 156 (3) Cr.P.C. in a revision. Therefore, the conclusion of the Full Bench on question-B that an order made under Section 156(3) Cr.P.C. is an interlocutory order, remedy of revision against such an order is barred by sub section (2) and Section 397 Cr.P.C. requests further consideration by a Larger Bench.

Record of this case be placed before Hon'ble the Chief Justice with the request that if it is found proper and expedient the matter be referred to a Larger Bench for consideration of the question,

" Whether an order made under Section 156 (3) Cr.P.C. is an interlocutory order and remedy of revision against such an order is barred under sub Section (2) of Section 379 Cr.P.C."

The maintainability of the revisions filed shall abide by the judgment of the Court after reference.

Dated: 13.12.2013

n.u.