Nar Singh @ Nar Singh Yadav vs State Of U.P. Thru. Prin. ...
2017 Latest Caselaw 2994 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 14
 

 
Case :- U/S 482/378/407 No. - 5005 of 2017
 

 
Applicant :- Nar Singh @ Nar Singh Yadav
 
Opposite Party :- State Of U.P. Thru. Prin. Secy.(Home), Civil Sectt. & 12 Ors
 
Counsel for Applicant :- Surendra Singh
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Sheo Kumar Singh-I,J.

1. Heard learned counsel for the applicant as well as learned AGA for the State.

2. By means of present petition under Section 482 Cr.P.C., the applicant has challenged the order dated 11.07.2017 passed by Chief Judicial Magistrate, Lakhimpur Kheri, in Case No.860 of 2017.

3. Learned counsel for the applicant has submitted that an application under Section 156(3) Cr.P.C. was moved before the Chief Judicial Magistrate, Lakhimpur Kheri, who, in light of the law laid down in the case of Sukhwasi vs. State of U.P. reported in ACC 2007 (59) 739, treated his application as a complaint case and fixed the case for recording the statement under Section 200 Cr.P.C. Aggrieved by the order, present petition has been filed.

4. The main question that falls for consideration in this petition is as to 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) of the Code of Criminal Procedure.

5. 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.

6. Placing reliance on Smt. Masuman vs. State of U.P. & others 2007 ALJ 221, it was vehemently contended by the learned counsel that a Magistrate, 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. as a cognizable 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 state 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 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 the 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 the 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.:-

"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"?

8. After having considered the full Bench decision of the 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. 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."

9. 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. In the case of Rajendra Singh Katoch vs. Chandigarh Administration & others 2008 (60) ACC 347, 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."

10. 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).

11. 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.

12. In the case Father Thomas Vs. State of U.P and Anr. 2011 Crl. Law Journal 2278 though the matter was that an application under Section 156(3) Cr.P.C. was allowed and when revision came before court for decision, the court was of the view that the accused has no locus standi to challenge an order passed, and an order directing investigation is purely interlocutory in nature in view of statutory bar contain under section 397(2) of the Code.

13. In the case of Ajay Malviya V State of U.P. and others 2000(41) Allahabad Law Journal 2730; in which has been held by Division Bench that under Section 156(3) Cr.P.C. is a judicial order. Hence any FIR registered on the basis cannot be challenged by means of writ petition, learned Single Judge raised doubts about the correctness of the decision of Division Bench Ajay Malviya V State of U.P and others and the matter was referred before the Larger Bench. While referring the matter to the Larger Bench, learned Single Judge formulated following questions for consideration:‑

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

(B) Whether an order made under Section 156(3) Code of Criminal Procedure is an interlocutory order and remedy of revision against such order is barred under Subsection (2) of Section 397 of the Code of Criminal Procedure, 1973?

(C) Whether the view expressed by a Division Bench of this Court in the case of Ajay Malviya v. State of U.P and Ors.(XLI) 2000 ACC 435, that as an order made under Section 156(3) of the Code of Criminal Procedure is amenable to revision, no writ petition for quashing an ELR. registered on the basis of the order will be maintainable, is correct?

14. While answering the three questions the Full Bench has held in para 65 is that;

65. A. The order of the Magistrate made in exercise of powers under Section 156(3) Code of Criminal Procedure directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued.

B. An order made under Section 156(3) Code of Criminal Procedure is an interlocutory order and remedy of revision against such order is barred under Subsection (2) of Section 397 of the Code of Criminal Procedure, 1973.

15. The Full Bench while giving opinion to this Question B has answered in a very categorical term that an order passed under Section 156(3) Cr.P.C. is an interlocutory order and remedy is revision is barred.

"An order made under Section 156(3) Cr.PC." clearly includes an order rejecting the application under Section 156(3) Cr.P.C. otherwise the Full Bench would not have answered the Question 'B'.

16. Learned counsel for the applicant argued on the strength of the decision of Apex Court in Raghu Raj Singh Rousha v. Shiva Sundaram Promoters Private limited and Anr. MANU/SC/0357/2009 : (2009) 1 SCC 801 (AIR 2008 SC Supplementary 706) that criminal revision is maintainable against an order rejecting the application under Section156(3) Cr.P.C.

17. The Full Bench of this High Court discussed the matter of Raghu Raj Singh Rousha's case and held para 28 as under:‑

28. It may be noted that the backdrop of Raghu Raj Singh Rousha's case was that the complainant company had filed a complaint petition accompanied by an application under Section 156(3) of the Code before the Metropolitan Magistrate alleging commission of offences under Sections 323, 382, 420, 465, 471, 120-B, 506 and 34 IPC against the accused. The Magistrate refused to direct investigation in terms of Section 156(3) Code of Criminal Procedure but directed the complainant to lead pre-summoning evidence. The High Court however in a criminal revision against the order of the Magistrate, where only the State was impleaded, without giving any opportunity to the accused to be heard set aside the order of the Magistrate and directed the Magistrate to examine the matter afresh after calling for a police report The High Court's order was set aside by the Apex Court on two counts. One that there was an infringement of Section 401(2) of the Code as the right of hearing to an accused, or any other person who may be aggrieved mandated by the aforesaid provision, was denied to the aggrieved party as a result of the High Court's order. Two, according to the Apex Court the initial order of the Magistrate, who declined to entertain the application under Section 156(3) of the Code, but directed that the procedure of a complaint case be followed, and that the witnesses be examined under Section 200 and 202 Code of Criminal Procedure indicated that cognizance had been taken, hence a right of hearing had accrued to the accused. That would not have been the case, if only a pre-cognizance order of the Magistrate refusing to issue a direction under Section 156(3) Code of Criminal Procedure had been challenged in the High Court by the informant, where right of hearing had been denied to the accused in a Criminal Revision. These are the two basic distinctions from a direct order by a Magistrate to the police to investigate an offence. Here the direction under Section 156(3) Code of Criminal Procedure has not been issued consequent to any direction by the High Court in a criminal revision at the instance of the informant where only the State is made a party, and the aggrieved accused is denied the opportunity of hearing contemplated under Section 401(2) Code of Criminal Procedure. Also it is a pre-cognizance order only containing a direction of the Magistrate for investigation by the police, where no valuable right has accrued to the prospective accused, which is distinct from the post cognizance order in Rousha's cases, where the Magistrate had decided to follow the procedure of a complaint case under Section 200 and 202 Code of Criminal Procedure. We therefore find that Rousha's case is no authority for the proposition that any right of hearing accrues to a prospective accused or that any criminal revision is maintainable against an order of the Magistrate simply directing the police officer in-charge of a police station to investigate a case in exercise of powers under Section 156(3) of the Code.

18. In the case of Aleque Padamsee and Ors. Vs. Union of India (U01) and Ors. 2007 Criminal Law Journal 3729; the Apex Court has held that Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether an order can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that 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.

19. In the case of All Institute of Medical Sciences Employees Union Vs. Union of India 1996 (4) Crimes 189 (Supreme Court), the Apex Court has held Para 4:

"4. When the information is laid with the police but no action in that behalf was taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Megistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/ evidence recorded prima facie disclosesoffence, he is empowered to take cognisance of the offence and would issue process to the accused."

20. Similarly, the Apex Court has again in the Case of Hari Singh Vs. State of U.P 2006 Criminal Law Journal 3283 held that para 4:

"4. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg) through its President v. Union of India and Ors. MANU/SC/1769/1996 : (1996)115CC582 . It was specifically observed that a writ petition in such cases is not to be entertained. The above position was again highlighted recently in Gangadhar Janardan Mhatre v. State of Maharashtra MANU/SC/0830/2004 : 2004CriLJ4623 and in Minu Kumari and Ant v. State of Bihar and Ors. MANU/SC/8098/2006: 2006CriLJ2468."

21. Learned counsel for State has submitted that opposite parties 2 to 13 are public servants and they were doing their duty and the facts of the case as narrated in the petition relate to their official duty. Thus, for initiation of any inquiry or registration of case the provision for necessary sanction of the competent authority is required. Further the proceedings which were initiated by the consolidation authorities were said to be forged or irregular or illegal proceedings. The order and proceeding can be challenged before the immediate competent court having jurisdiction to decide the appeal or revision.

22. The resolutions of the meetings were said to be issued by way of forged signatures, though there are various signatories and out of them only one signature has been challenged, that is why the Chief Judicial Magistrate was of the view that it requires a prima facie case and for that purposes the proceedings for recording the statement of the witnesses under Section 200 and 202 Cr.P.C. have been initiated. Thus, there is no illegality, irregularity or infirmity in the order impugned.

23. Learned counsel for the applicant has relied upon Bahadur Singh v. State of U.P. - 2005 Law Suit (All) 324 and Anil Kumar vs. State of U.P. - 2005 Law Suit (All) 427 and has contended that if on the basis of inquiry a prima facie case is made out against the accused and the allegations are of such nature which require investigation by the police then in those circumstances the Magistrate is obliged to pass an order for investigation of the case.

24. Perusal of the citations relied upon by learned counsel for the applicant reveal that the facts of the case are different from the facts of the present case. In the referred cases the Court was of the view that a prima facie cognizable offence is made out against the accused while facts of the present case reveal that no prima facie case is made out which is to be investigated by the police in the satisfaction of the Magistrate concerned. Thus, learned Magistrate was not obliged nor justified to pass an order to investigate the case.

25. In light of above facts, this Court is of the view that no interference is required in the order impugned. The petition lacks merit and deserves to be dismissed. It is accordingly dismissed.

Order Date:04.08.2017

A. Katiyar