Uttarakhand High Court
Waheed Hasan vs State Of Uttarakhand And Others on 21 September, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Miscellaneous Application No. 1453 of 2022
Waheed Hasan ...Applicant
Vs.
State of Uttarakhand and Others ...Respondents
Presence:
1. Mr. Lalit Sharma, learned counsel for the applicant.
2. Mr. Bhaskar Chandra Joshi, Mr. Pratiroop Pandey, learned
A.G.A. with Mr. Akshay Latwal, learned Brief Holder for the State.
Hon'ble Rakesh Thapliyal, J. (Oral)
The present application has been preferred under
Section 482 Cr.P.C. challenging the order dated 25.02.2021
passed by the 1st Additional Chief Judicial Magistrate, Dehradun
in Miscellaneous Case No. 301 of 2021 'Waheed Hasan vs.
Jameer Ahmad and Others' as well as the order dated 23.06.2022
passed by the 4th Additional Sessions Judge, Dehradun in
Criminal Revision No. 38 of 2021.
3. The brief facts of the case are that in respect of an
incident happened on 10.12.2020 at 9:00 AM a written complaint
was made to the S.H.O. by the present applicant by giving the
reference of the medical report issued from Government Doon
Medical College dated 10.12.2020. However, the FIR has not
been registered and subsequently the complaint was made to the
S.S.P., Dehradun, even then the FIR was not registered.
Thereafter, due to inaction on the part of S.H.O. and the S.S.P.,
Dehradun, the present applicant moved an application under
Section 156(3) of Cr.P.C., however, the same was rejected by
observing that from the contents of the application moved under
Section 156(3) of Cr.P.C. no prima-facie offence is made out.
4. Being aggrieved with the order passed by the 1st
Additional Chief Judicial Magistrate, Dehradun, dated
25.02.2021 by which the application moved under Section 156(3)
of Cr.P.C. was rejected a criminal revision was filed; however,
the same was also rejected by an order dated 23.06.2022.
5. It is submitted by the learned counsel for the
applicant that in respect of the same incident one Jameer Ahmad
made a complaint to the S.H.O., Patel Nagar, on 14.12.2020 at
1:00 PM at P.S. Patel Nagar, District Dehradun, which was
registered as FIR No. 0418 of 2020 for the offences punishable
under Sections 147, 323, 504 and 506 of IPC implicating the
present applicant and 7 other persons.
6. On perusal of the order passed by the Additional
Chief Judicial Magistrate by which the application moved by the
applicant under Section 156(3) of Cr.P.C. was rejected it appears
that the 1st Additional Chief Judicial Magistrate have not gone
through the injury report and in a very cursory and casual manner
rejected the application moved under Section 156(3) of Cr.P.C.
7. I also peruse the application moved under Section
156(3) of Cr.P.C., wherein, in paragraph-8 the reference of the
injury report is mentioned. The injury report is also placed on
record and on perusal of the injury report it reveals that injury no.
2 and 3 was caused by hard and blunt object. Apart from this in
paragraph 12 a reference has been made that the person against
whom the present applicant made a complaint are in hand in
glove with some highly influential political persons who want to
grab his land
8. It appears from the order passed by the Additional
Chief Judicial Magistrate that the injury report was completely
overlooked though that was the part of the application moved
under Section 156(3) of Cr.P.C.
9. Learned counsel for the applicant placed reliance on
the judgment passed by the Hon'ble Apex Court in the case of
Lalita Kumari vs. Govt. of U.P. (2013) 14 S.C.R. 713 and by
placing reliance on this judgment learned counsel for the
applicant submits that it was a fit case in which the first
information report should be registered. He submits that firstly
the allegations discloses commission of cognizable offence,
which is supported by the injury report, which was caused by
hard and blunt object. The Hon'ble Apex Court in the said
judgment issue certain directions, which are being extracted
hereinbelow:
"Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section
154 of the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is permissible in such
a situation. 120.2. If the information received does not disclose a
cognizable offence but indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only to ascertain whether
cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable
offence, the FIR must be registered. In cases where preliminary
inquiry ends in closing the complaint, a copy of the entry of such
closure must be supplied to the first informant forthwith and not later
than one week. It must disclose reasons in brief for closing the
complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering
offence if cognizable offence is disclosed. Action must be taken
against erring officers who do not register the FIR if information
received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to
be conducted will depend on the facts and circumstances of each
case. The category of cases in which preliminary inquiry may be
made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months' delay in reporting
the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused
and the complainant, a preliminary inquiry should be made time-
bound and in any case it should not exceed 7 days. The fact of such
delay and the causes of it must be reflected in the General Diary
entry.
120.8 Since the General Diary/Station Diary/Daily Diary is
the record of all information received in a police station, we direct
that all information relating to cognizable offences, whether
resulting in registration of FIR or leading to an inquiry, must be
mandatorily and meticulously reflected in the said diary and the
decision to conduct a preliminary inquiry must also be reflected, as
mentioned above."
10. As it appears from paragraph 120.4, the Hon'ble
Apex Court clearly observed that if there is an inaction on the
part of police officer in registering the offence then action must
be taken against the erring officers who do not register the FIR if
information received by him discloses a cognizable offence.
11. I perused the written complaint made to the S.H.O.
and the S.S.P. as well as the application moved under Section
156(3) Cr.P.C. as well as the injury report which prima-facie
discloses the commission of cognizable offence. Thus why the
FIR was not registered, the conduct of the police officials is also
required to be scrutinized because in respect of the same incident
the FIR was registered on 14.02.2020 on the complaint of those
persons against whom the present applicant made a complaint
though the applicant immediately after the incident made a
complaint on 10.12.2020.
12. Now this court will examine why in respect of the
same incident FIR was not registered on the complaint of present
applicant and why on the complaint of those against whom the
applicant made a written complaint the FIR was registered.
12. Learned Brief Holder for the State Mr. Akshay
Latwal informs to this court that in the FIR lodged against the
applicant on 14.02.2020 the charge-sheet has been filed.
13. Learned Brief Holder Mr. Akshay Latwal seeks only
three days' time to file counter affidavit.
14. Put up this matter on 03.10.2024.
(Rakesh Thapliyal, J.)
21.09.2024
PR
