Rahul Rajpurohit vs State Of Rajasthan
2022 Latest Caselaw 14495 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 7455/2022

Rahul Rajpurohit S/o Lt. Sh. Dhansingh Ji, Aged About 35 Years, B/c Rajpurohit, R/o Inside Sivanchi Gate, Near Police Station, Jodhpur, Rajasthan - 342006

----Petitioner Versus State Of Rajasthan, Through P.P.

                                                                        ----Respondent


    For Petitioner              :    Mr. Aman Maheshwari
    For Respondent              :    Mr. Mahipal Bishnoi, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reportable

09/12/2022

1. This Criminal Misc. Petition under Section 482 Cr.P.C. has

been preferred claiming the following reliefs:

"It is, therefore, prayed that this misc. petition of the petitioner may kindly be allowed and the above-mentioned impugned order dated 17.10.2022 passed by Learned Additional Chief Judicial Magistrate Cum Metropolitan Magistrate No.1, Jodhpur, in Criminal Misc. Case No. 28/2022 may kindly be quashed and set-aside and accordingly application filed by the petitioner may kindly allowed.

Any other relief, which this Hon'ble Court may deem just and proper in the facts and the circumstance of the case may kindly be passed in favour of the petitioner."

2. Brief facts of the case, as placed before this Court by the

learned counsel for the petitioner are that on 02.09.2022, the

petitioner received a phone call from his neighbour, Sh.Umaid

(2 of 10) [CRLMP-7455/2022]

Singh, that few people obstructed a public road unlawfully i.e.

without the requisite permissions, shifted an electricity wireline on

towards the petitioner's home; upon receipt of such information,

the petitioner rushed back to his home, and found that

Mohammed Salim Chhipa, Mohammed Usman Chhipa, Mohammed

Azharruddeen, and Ahmed Shah, along with some other people

were cutting down a 200 year old peepal tree, without requisite

permissions.

2.1 In the aforesaid factual backdrop, the petitioner along with

certain other persons went to Police Station, Khandafalsa to lodge

a complaint and register an F.I.R. however, the FIR was not

registered by the concerned police authorities. That also the

petitioner sent a written complaint to the concerned Police

Commissioner for registration of an F.I.R., but despite the same,

no F.I.R. was registered nor was any action taken against the

perpetrators.

2.2. On 01.10.2022, the petitioner filed an application under

Section 156(3) Cr.P.C. before the Metropolitan Magistrate No. 1,

Jodhpur for registration of an F.I.R. against the perpetrators,

however, the learned Court below vide order dated 17.10.2022

rejected the said application, and initiated an inquiry under

Section 200 Cr.P.C.

3. Learned counsel for petitioner submits that the act of the

perpetrators is an unlawful and illegal act, not only against the

petitioner himself, but also against the public at large. And,

therefore, the learned Court below has committed a grave error

of law, in not forwarding the complaint to the concerned police

authorities, under Section 156(3) Cr.P.C., for the necessary

investigation.

(3 of 10) [CRLMP-7455/2022]

For the sake of brevity the said Section 156(3) is reproduced as

hereunder:

"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 may order such an investigation as above-mentioned."

4. Learned counsel for the petitioner further submits that the

interpretation of the word "shall", as used in Section 154 (1) of

Cr.P.C., makes it mandatory to register an F.I.R. when the

offences are cognizable offences; in support of such submission,

reliance was placed on the judgment rendered by the Hon'ble

Apex Court in the case of Lalita Kumari Kumari vs. State of

U.P & Ors. (2014) 2 SCC 1.

5. Learned counsel for the petitioner also submits that while

the words "may take cognizance" are used in Section 156(3)

Cr.P.C., the discretion of the Magistrate in forwarding a

complaint under Section 156(3) CrP.C., must be exercised after

duly looking into the facts and circumstances of a case, with the

intent to do complete justice. Reliance in this regard was placed

on the judgments rendered by the Hon'ble Apex Court in the

(4 of 10) [CRLMP-7455/2022]

cases of Devarapalli Lakshminarayana Reddy v.

V.Narayan & Ors. (1976) 3 SCC 252 and Srinivas Gundluri

and Ors. v. SEPCO Electric Power Construction

Corporation & Ors. (2010) 8 SCC 206.

6. Learned counsel for the petitioner further submits that

once the Magistrate takes cognizance under Chapter XV Cr.P.C.,

he is not entitled to revert back to the pre-cognizance stage

and avail the remedy under Section 156(3) Cr.P.C. Reliance in

this regard was placed upon the judgment rendered by the

Hon'ble Apex Court in the case of Tula Ram & Ors. v. Kishore

Singh (1977) 4 SCC 459.

7. Learned counsel for the petitioner also submits that the

use of the word "may" implies that while the Magistrate has

discretion in directing the concerned police authorities to

investigate a case or proceeding with the case as a complaint

case, such discretion cannot be exercised arbitrarily and must

be guided by judicial reasoning. Reliance in this regard was

placed upon the judgment rendered by the Hon'ble Apex Court

in the case of XYZ vs. State of Madhya Pradesh & Ors.

(Criminal Appeal No.1184 of 2022) decided on 05.08.2022.

8. Learned counsel for the petitioner further submits that

the registration of FIR is mandatory under Section 154 Cr.P.C. if

the information discloses commission of a cognizable offence

and no preliminary inquiry is permissible in such a situation.

Reliance in this regard was placed upon the judgments of a

Coordinate Bench of this Hon'ble Court in the cases of Sakhi

Mohammed vs. State of Rajasthan & Ors. (S.B. Criminal

(5 of 10) [CRLMP-7455/2022]

Misc. Petition No. 2386 of 2018) decided on 07.09.2020;

Mathura Devi vs. State of Rajasthan (S.B. Criminal Misc.

Petition No. 5195 of 2021) decided on 06.01.2022 and;

Bhudev Awasthi vs. State of Rajasthan (S.B. Criminal

Misc. Petition No. 8355 of 2021) decided on 11.02.2022.

Reference was also made to the judgment rendered by the

Hon'ble High Court of Judicature at Allahabad in the case of

Ram Sharan Jatav vs. State of U.P. & Ors. 2021 SCC

OnLine All 878.

9. On the other hand, learned Public Prosecutor opposes the

submissions made on behalf of the petitioner, and submits that

the learned Court below has rightly passed the impugned order,

dated 17.10.2022, after looking into the overall facts and

circumstances of the present case, and the evidences placed on

the record before it. He further submits that the learned court

below has rightly exercised his discretion in the present case,

and therefore the petitioner does not deserve any indulgence of

this Court in the present case.

10. Heard learned counsel for both parties as well as perused

the record of the case, alongwith the judgments cited at the

Bar.

11. This Court observes that the power under Section 156(3)

Cr.P.C is discretionary in nature, and the Magistrate may

exercise such power based on the nature of offences as well as

the requirement of investigation by the concerned police

authorities. The Magistrate may forward such application for

registration of an F.I.R. only when the complaint discloses the

(6 of 10) [CRLMP-7455/2022]

commission of any cognizable offence(s), and warrants

necessary investigation by the concerned police authorities;

otherwise, the initiation of proceedings under Section 200

Cr.P.C. is justified.

For the sake of brevity the said Section 200 is reproduced as

hereunder:

"200. Examination of complainant.--

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."

12. This Court further observes that the precedent laws of

Lalita Kumari (Supra) and Srinivas Gundluri (Supra)

clearly lay down that the Magistrate has wide powers under

Section 156(3) which ought to be exercised towards meeting

the ends of justice. It was held in Lalita Kumari (Supra) that

the scope of preliminary inquiry is not to verify the veracity of

the information received, but to merely ascertain whether such

(7 of 10) [CRLMP-7455/2022]

information reveals the commission of any cognizable

offence(s). In XYZ vs. State of M.P. (Supra) also, it was

observed that not only when the Magistrate finds the

commission of a cognizable offence(s) on a prima facie reading

of the complaint but also when such facts are brought to the

notice, which clearly indicate the need for an investigation by

the concerned police authorities, and then the Magistrate must

issue requisite direction(s) under Section 156(3) Cr.P.C.

12.1 In the present case, there is nothing on record to indicate

such a need of any police investigation, and neither is there a

need for F.S.L. report, call details, medical examination, nor

collection of any other evidence through police investigation;

even on the basis of facts and circumstances of the present

case, there is nothing on record which reveals the commission

of any kind of a cognizable offence.

12.2 This Court also observes that in XYZ vs. State of M.P.

(Supra), the power under Section 156(3) Cr.P.C. is to be

exercised by the Magistrate, especially in cases alleging

sexual harassment, sexual assault or any similar criminal

allegation wherein the victim has possibly already been

traumatized, while in the present case, no such offence/act

has been committed, neither is there anything on record which

reveals the commission of cognizable offence(s).

Relevant portion of the aforesaid judgment reads as under: -

"24. Therefore, in such cases, where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint but also such facts are brought to the Magistrate's notice which

(8 of 10) [CRLMP-7455/2022]

clearly indicate the need for police investigation, the discretion granted in Section 156(3) can only be read as it being the Magistrate's duty to order the police to investigate. In cases such as the present, wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation.

25. Especially in cases alleging sexual harassment, sexual assault or any similar criminal allegation wherein the victim has possibly already been traumatized, the Courts should not further burden the complainant and should press upon the police to investigate. Due regard must be had to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint. It may not be possible to arrive at the truth of the matter in the absence of such evidence. The complainant would then be required to prove her case without being able to bring relevant evidence (which is potentially of great probative value) on record, which would be unjust.

26. In this backdrop, we are clearly of the view that the JMFC ought to have exercised jurisdiction under Section 156(3) of CrPC to direct the police to investigate

13. This Court further observes that the judgments rendered in

the cases of Devarapalli Lakshminarayana Reddy (Supra)

and Tulsi Ram (Supra), dealt with the commission of offences

of a serious nature, offences which were against the human

body, and triable by a Court of Sessions; whereas in the present

case, the offences are against property and of a less serious

nature.

14. This Court also observes that the case of Sakhi Mohmmed

(Supra) dealt with the situation wherein the complaint itself

(9 of 10) [CRLMP-7455/2022]

revealed commission of cognizable offences and it was

therefore necessary to examine the credibility of commission of

the offences through the registration of an F.I.R. and

investigation by the concerned police authorities.

14.1 In the present case, the facts and circumstances do not

reveal any such thing, requiring the Magistrate to forward the

complaint under Section 156(3) Cr.P.C. The complaint of the

petitioner does not reveal the commission of cognizable

offences, and the complaint only reveals an offence pertaining

to the cutting of a tree.

14.2 This Court further observes that in Mathura Devi

(Supra), the Magistrate had already initiated proceedings and

the statement of the complainant was recorded under Section

200 Cr.P.C.; allegations were regarding the commission of a

cognizable offence and electronic evidence was also produced

which necessitated police investigation. Similarly, in Ram

Sharan Jatav (Supra), the complaint was regarding hurling of

caste based abuses, and physical assault.

14.3 In the present case, the nature of allegations are different

and therefore stands on a different footing altogether.

14.4 Similarly, the case of Bhudev Awasthi (Supra) also does

not apply in the factual matrix of the present case.

15. This Court finds that the power of Magistrate to forward

complaint under Section 156(3) for investigation is

discretionary in nature, and must be exercised looking into the

nature of the alleged offences, and also whether the case

(10 of 10) [CRLMP-7455/2022]

necessitates an investigation by the police. If the nature of the

alleged offences is cognizable, but if upon a reading of the

complaint, the Magistrate does not find a need for any

investigation by the concerned police authorities, then the

Magistrate may exercise the discretion accordingly. It is

necessary that the complaint must prima facia reveal the

commission of cognizable offence(s), clearly indicating the need

for investigation by the concerned police authorities.

16. As an upshot of the above discussion, and looking into the

factual matrix of the present case, especially the complaint and

nature of the offences in question, this Court does not find any

legal infirmity in the impugned order passed by the learned court

below, so as to warrant any interference therein, at this stage.

17. Consequently, the present petition is dismissed. All

pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

249-SKant/-

Powered by TCPDF (www.tcpdf.org)