Krishn Kumari vs State Of U.P.
2017 Latest Caselaw 5333 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 11
 
Case :- APPLICATION U/S 482 No. - 25802 of 2017
 
Applicant :- Krishn Kumari
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- B.N.Singh,Manish Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shailendra Kumar Agrawal,J.

1. Supplementary Affidavit filed on behalf of applicant today, is taken on record.

2. Heard learned counsel for the applicant and leaned AGA for the State. 

3. The instant application under Section 482 Cr.P.C has been filed by the applicant with the prayer to quash the order dated 18.07.2017 passed by the Chief Judicial Magistrate, Hamipur in Criminal Misc. Application No.119/11 of 2017, Krishn Kumari Vs. Pradeep and others moved under section 156(3) Cr.P.C, Police Station Jariya District Hamirpur.

4. The brief facts of the case are that the complainant had gone to take green grass in her field on 12.01.2016. at 5.30 P.M. Pradeep S/o Karan Singh resident of her village having Tamancha (country made pistol) came and threatened her with dire consequences and committed rape on her. She resisted, thereafter, he promised her to marry. Even after that he committed rape with her many times and always promised to marry. He took her to Gujarat in connivance of  Sanju S/o Kishore and in the end on 15.03.2017 both left the village. She along with her father went to police station on 16.03.2017 to lodge the report but his report was not lodged. Then this application under Section 156 (3) Cr.P.C was moved on 15.5.2017 in the Court of Chief Judicial Magistrate, Hamirpur with the prayer to lodge First Information Report ( hereinafter called 'FIR') and investigate the matter. Learned Chief Judicial Magistrate, Hamirpur after getting report from the Police Station, in which it was reported that no case has been registered in police station, without going into the record and considering the facts and evidence, wrongly treated it as complaint case vide order dated 18.07.2017.

5. It has been argued on behalf of the applicant that when FIR was not lodged by the police with regard to commission of cognizable offence, Magistrate had no power to pass such impugned order except to direct the police to register the case and investigate the matter and no other option was with the Magistrate either to reject the application or to treat the application as a complaint case in respect of the fact that a cognizable offence is made out.

6. Learned AGA disputed the argument of the counsel for the applicant and stated that the Magistrate on receipt of application under Section 156(3) Cr.P.C. has got a discretion either to pass an order to register the case for investigation or to treat the application as a complaint case. On perusal of the facts of the case the Magistrate was of the opinion that in the circumstances of the case it will be proper to treat the application as a complaint case and proceed to conduct inquiry as provided in Chapter XV whereby the applicant was directed to appear for recording the evidence under section 200 Cr.P.C.

7. I have considered the submissions of the counsel for the applicant, learned A.G.A. and perused the entire material on record and law on this point.

8. The main point to be decided in the case is that whether the Magistrate is always duty bound to pass an order for investigation in a case on receipt of application under section 156(3) Cr.P.C., if a cognizable offene is made out or whether the Magistrate also has got the discretion to apply his mind and to pass an order for rejection of the application or to treat the application as a complaint.

9. Here it will not be out of the context to mention that the law was, and has always been, that if a cognizable offence is made out, the Police is bound to register the FIR. In case, the police do not register the FIR, there is provision under Section 154(3) Cr.P.C to send an application to Superintendent of Police, who shall direct the registration of FIR, if a cognizable offence is disclosed. In section 154(3) Cr.P.C. it is mentioned that 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 Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence "shall" either investigate the case himself or direct and 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.

10. 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 F.I.R, the word used is 'shall'. In this case, the applicant has not disclosed anywhere that when the concerned police refused to register her F.I.R she complied the requirement of section 154(3) Cr.P.C.

11. The law is clear so far as investigation in a matter where a cognizable offence is made out is concerned and if the police failed to register the case for investigation in the matter then the aggrieved person may approach the Magistrate under sub section (3) of section 156 Cr.P.C. It has been provided by section 156 Cr.P.C-

" 156. Police officer's power to investigate cognizable case- (1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 Cr.P.C may order such an investigation as above mentioned."

12. In Section 156 (3) Cr.P.C., the word used is "May". 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.

13. Here 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 FIR or it could have been mentioned that he should direct registration of an FIR 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".

14. Now it will be material to decide that whether an application under section 156(3) Cr.P.C can be treated as a complaint for the purpose of a procedure as provided under Chapter XV or the applicant is at liberty to allege that if an application under section 156(3) is moved then the Magistrate must pass an order for registration of the case and investigation when a cognizable offence is made out and specially when no prayer has been made in the application under section 156(3) Cr.P.C to treat the application as a complaint and it has not been filed in the format of the complaint then the application under section 156(3) Cr.P.C cannot be treated as complaint. I disagree with this position. An application under section 156(3) Cr.P.C can be treated as a complaint as has been held by Hon'ble Apex Court in Mohd. Yousuf v. Afaq Jahan and another, 2006 (54) ACC 530 (SC). In this context Full Bench decision of this Court is also relevant. The Full Bench of this Court in Ram Babu Gupta and another v. State of U.P. and another, 2001(43) ACC 50 H.C. has laid down that the Magistrate may direct the police to register a case and investigate- Or he may treat the same as a complaint and proceed in matter contemplated in Chapter XV of Code- He should apply his judicial mind- Magistrate if takes cognizance, may proceed to follow the procedure provided in Chapter XV of Code- Magistrate may either take cognizance under section 190 or may forward the complaint to police under section 156(3) for investigation."

15. In the case of Sukhwasi v. State of Uttar Pradesh, reported in 2008(1) JIC 792 (All), wherein this Court has held that the Magistrate is not bound to order for registration of an FIR in all cases where a cognizable offence has been disclosed and the Magistrate has authority to treat it as complaint.

16. It is also clear from the judgment of the Supreme Court in the case Suresh Chandra Jain V. State of Madhya Pradesh and another, 2001(42) ACC 459 (SC), that a Magistrate has the authority to treat an application under section 156(3) Cr.P.C as a complaint.

17. Learned counsel for the applicant cited the order of this Court passed on 4.10.2017 in application moved U/s 482 Cr.P.C No.26046 of 2017, Mangla Prasad Vs. State of U.P and others, whereby the order of learned Chief Judicial Magistrate, in which he treated the application of complainant, moved under section 156(3) Cr.P.C. as complaint, was quashed and he was directed to pass an appropriate order.

18. I have perused the order dated 4.10.2017 as quoted. As the facts are always different in each case from the other and each case is to be weighed on its own merit. In the above case, it was held that concerned Magistrate was to apply its mind while disposing of the application under section 156 (3) Cr.P.C, where on account of credibility of information available, or weighing the interest of justice, it was considered appropriate to straightaway direct investigation. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine " existence of sufficient ground to proceed."

19. In that case, offence was said to be cognizable offence and the Magistrate had not to determine existence of sufficient ground to proceed as there were prima facie sufficient material facts in complaint itself, therefore, Magistrate was directed to send the matter to the police for registration of the case and to investigate the same. In this case, prima facie there are no other corroborative material facts on record, Magistrate has yet to determine "the existence of sufficient ground to proceed." Therefore, the applicant cannot take the advantage of the order passed by the Court on 4.10.2017 in Application No.26046 of 2017.  

20. Even referring the matter for investigation, the court has to apply its mind and satisfy itself as to whether the complaint has sufficient material facts so as to constitute the alleged offence. It is not mandatory in all cases to direct the investigation of the offence blindly without having sufficient material facts "P.R. Venugopal Vs. S.M. Krishna, 2004 Cr.LJ ( NOC) 32.

21. In view of the observations made by Hon'ble Apex Court in many of the judgments, it is clear that law is that on receipt of an application under section 156(3) Cr.P.C the Magistrate may pass an order outright for taking cognizance in the offence and proceed in view of the procedure laid down in Chapter XV Cr.P.C. But if the Magistrate is not intending to take cognizance of the offence then he may pass an order for register and investigation of the offence by the police. On receipt of an application under Section 156(3) Cr.P.C both the options are open to the Magistrate.

22. 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 and it cannot be treated as 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 his judicial discretion in the matter. This is wrong notion that if an application has been moved under section 156(3) Cr.P.C, the only order which can be passed is, for registration of a case in the matter. The Magistrate has got discretion 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 submission of a report under section 173 Cr.P.C. But 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 Chand Upadhyaya v. State of U.P., 2001 (44) ACC 670 (H.C.), this Court had laid down the guidelines for the guidance of Magistrate while deciding the application moved under section 156(3) Cr.P.C and the guidelines cannot be said against any provision of law or check on the judicial discretion of the Magistrate. Even Hon'ble Apex Court also held that the Magistrate has got a discretion 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. 

23. For the reasons mentioned above, I am of the opinion that the Magistrate is not always bound to pass an order for registration 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 circumstance 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. 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 impugned order. The application is devoid of merit and is liable to be dismissed. The application moved under Section 482 Cr.P.C. is hereby dismissed.

24. This Court has not touched the merit of the case. Learned Magistrate shall not be prejudiced by any of the views expressed above. Views expressed here are only regarding judicial discretion of the Magistrate in reference to Section 156(3) Cr.P.C.

Order Date :- 11.10.2017

SFH