Jaduveer Singh And Others vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 4605 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 27
 

 
Case :- APPLICATION U/S 482 No. - 689 of 2023
 

 
Applicant :- Jaduveer Singh And Others
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. U.P.Civil Secrt. Lko. And Another
 
Counsel for Applicant :- Anoop Vajpayee,Atul Kumar Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shree Prakash Singh,J.

Sri Karunakant Gupta, learned counsel for opposite party no.2 has filed counter affidavit along with his Vakalatnama on behalf of opposite party no.2 and the same is taken on record.

Counter affidavit dated 13.02.2023 filed on behalf of the State, is taken on record.

Vide order dated 24.01.2023, the Investigating Officer was directed to file personal affidavit and to remain present before this Court to explain that even after the order dated 10.12.2021 passed by the Division Bench of this Court in Miscellaneous Bench No.22114 of 2021, he has filed the charge sheet.

In compliance of the order aforesaid, Sunil Kumar Singh, Investigating Officer is present before this Court.

Heard learned counsel for the applicant, Shri Aniruddha Kumar Singh, learned AGA-I for the State, Sri Karunakant Gupta, learned counsel for opposite party no.2 and perused the record.

Instant application under Section 482 Cr.P.C has been filed to quash the Criminal Case No.27003 of 2022, State versus Jaduveer Singh and others, arising out of Case Crime No.353 of 2021, under Section 420 IPC, Police Station - Lonar, District - Hardoi, pending in the court of Judicial Magistrate-I, Hardoi and impugned summoning order dated 10.11.2022 as well as impugned charge sheet dated 09.11.2021.

Learned counsel appearing for the State submits that, in fact, Investigating Officer had prepared the charge sheet prior to the order passed by this Court and it was sent to the Office of Circle Officer but when the order was passed on 10.12.2021 with respect to the charge sheet, the Assistant of the office of the Circle Officer, has submitted the charge sheet to the trial court. He submits that as soon as this fact came to the knowledge of police authorities, the departmental inquiry has been initiated vide order dated 11.02.2023 which has been annexed as C.A-5, affidavit dated 13.02.2023. He thus submits that the Investigating Officer has no fault and the person who was committed fault, has been put under the disciplinary proceedings.

Learned counsel appearing for the applicant has drawn attention towards the order passed by the Sub-Divisional Magistrate directing the S.H.O., Lonar to lodge an FIR under the relevant section and further directed to do needful. He submits that the Sub-Divisional Magistrate has no jurisdiction to make any direction for lodging of an FIR. He added that such direction is impermissible in law as the Sub-Divisional Magistrate was not exercising power under Section 156(3) of the Criminal Procedure Code, thus, the criminal proceeding instituted on the basis of orders dated 08.09.2021 and 12.09.2021 are erroneous and unlawful and the criminal proceeding arising out of Case Crime No.353 of 2021 may be quashed.

In support of the contentions, learned counsel for the applicant has placed reliance on the judgment rendered in case of Naman Singh alias Naman Pratap Singh and another versus State of Uttar Pradesh and others reported in (2019) 2 SCC 344 and has referred paragraphs 7 to 9 of the aforesaid judgment which reads as hereunder:

"7. It is therefore apparent that in the scheme of the Code, an Executive Magistrate has no role to play in directing the police to register an FIR on basis of a private complaint lodged before him. If a complaint is lodged before the Executive Magistrate regarding an issue over which he has administrative jurisdiction, and the Magistrate proceeds to hold an administrative inquiry, it may be possible for him to lodge an FIR himself in the matter. In such a case, entirely different considerations would arise, A reading of the FIR reveals that the police has registered the FIR on directions of the Sub-Divisional Magistrate which was clearly impermissible in law. The Sub-Divisional Magistrate does not exercise powers under Section 156(3) of the Code. The very institution of the FIR in the manner done is contrary to the law and without jurisdiction.

8. Nothing prevented Respondent 4 from lodging an FIR herself before the police under Section 154 of the Code or proceeding under Section 154(3) if circumstances so warranted. Alternately the respondent could have moved the Magistrate concerned under Section 156(3) of the Code in the event of the refusal of the police to act. Remedy was also available to the respondent by filing a complaint under Section 200 of the Code before the jurisdictional Magistrate,

9. In view of the scheme of the Code as discussed, we have purposely refrained from going into the merits of the case so as not to prejudice either parties and also keeping in mind the nature of the jurisdiction under Section 482 of the Code. Any application by Respondent 4 hitherto under the Code will therefore have to be considered by the appropriate authority or forum in accordance with law. For the reasons discussed, the impugned order is held to be unsustainable and is set aside. The first information report therefore also stands quashed for the reasons discussed, but with liberty as aforesaid."

Referring the aforesaid, he submits that it has categorically been held by the Apex Court that the Sub-Divisional Magistrate has no power to direct the police authorities to lodge FIR.

On the other hand, learned counsel appearing for opposite party no.2 has vehemently opposed the contention aforesaid and submits that the present applicant is a harden core criminal and there is a criminal history of the applicant, which has been mentioned in the first information report though he has admitted the fact that the Sub-Divisional Magistrate has no jurisdiction under Section 156(3) of Cr.P.C. to direct the S.H.O. concerned to lodge the first information report.

He further submits that if this Court pleases to quash the criminal proceeding against the applicant instituted/directed by the Sub-Divisional Magistrate while giving liberty to the complainant to move application under Section 156(3) of Cr.P.C. or a complaint case before the Magistrate having the jurisdiction or an application under Section 154 of Cr.P.C.

Learned counsel appearing for the State has also admitted the fact that the Sub-Divisional Magistrate has no jurisdiction to direct the police for lodging an FIR.

Considering the submissions of learned counsel for the parties and after perusal of the record, it is evident that the criminal proceeding of Case Crime No.353 of 2021 has been initiated by a direction issued by the Sub-Divisional Magistrate, Lonar, wherein he has directed the S.H.O., Lonar to lodge the FIR; the procedure prescribed in Cr.P.C. for making complaint either under Section 154, 156(3) or compliant case but the instant criminal proceeding has been initiated on an order passed by the Executive Magistrate, which is without jurisdiction; this Court has further noticed the fact that the Hon'ble Apex Court while deciding the issue in the case of Naman Singh (supra) has very categorically held that an Executive Magistrate has no role to play in directing the police to register an FIR on the basis of private complaint and the recourse open to the Magistrate was that if he found correctness in the compliant, he could have himself lodged an FIR but he could not have directed the police authority/S.H.O. to lodge an FIR as if assuming the jurisdiction under Section 156(3) of Cr.P.C.

In view of the aforesaid submissions and discussions, the criminal proceeding arising out of Case Crime No.0353 of 2021 including summoning order dated 10.11.2022 as well as impugned charge sheet dated 09.11.2021, are hereby quashed.

The opposite party no.2 is at liberty either to lodge an FIR himself before the police under Section 154 of the Cr.P.C. or adopt the recourse under Section 156(3) to institute a complaint case.

The instant application is allowed.

The personal appearance of the Investigating Officer, who is present today before this Court, is hereby exempted.

The observations made hereinabove will not make any effect over the further trial proceeding, if initiated at the instance of the opposite party no.2.

Order Date :- 13.2.2023

KR