Santosh Kumar Gautam vs. State Of U.P. Thru. Home Secy…. on 18 March, 2021

Santosh Kumar Gautam vs. State Of U.P. Thru. Home Secy…. on 18 March, 2021

Citation	2021:AHC-LKO:37154-DB
Date of Judgment	18TH March 2021
Court	High Court of Judicature at Allahabad, Lucknow Bench
Case Type	Criminal Appeal No.547 of 2021
Appellant	Santosh Kumar Gautam
Respondent	State of Uttar Pradesh through Home Secretary
Bench	Hon’ble Mr. Justice Virendra Kumar-II
Referred	Section-154, 156(3), 190, 200, 202,203of Criminal Procedure Code,1973

BACKGROUND OF THE CASE –

Santosh Kumar Gautam, the appellant, was convicted by the trial court for the offense of murder under Section- 302 of the Indian Penal Code (IPC) and sentenced to life imprisonment.

The appellant had filed an appeal before the Allahabad High Court for Criminal Misc. under Section-156(3) of the criminal procedure Code,1973 which has been dismissed at pre-cognizance stage and discretion has not been exercised in favour of the complainant.

The case revolves around an incident that occurred on 10th May 2016, where the appellant allegedly murdered his neighbor, Ramesh Kumar, over a property dispute. The prosecution’s case was based on eyewitness testimony and circumstantial evidence. The trial court found the appellant guilty based on the evidence presented and convicted him for murder.

This appeal was based on the Criminal Misc in which the complaint instituted by the appellant under Section 156(3)  of the Cr.P.C. has been dismissed at pre-cognizance stage and judgment has not been exercised in the favour of the complainant.

FACT OF THE CASE –

The case revolves around an incident that occurred on 10th May 2016, where the appellant allegedly murdered his neighbor, Ramesh Kumar, over a property dispute. The prosecution’s case was based on eyewitness testimony and circumstantial evidence. The trial court found the appellant guilty based on the evidence presented and convicted him for murder.

The appeal was presented under Section 14-A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to the ‘Act, 1989’) has been preferred assailing the impugned order dated 16.12.2020 passed by the court for Criminal Misc, by which the complaint instituted by the appellant under Section 156(3)  of the Cr.P.C. has been dismissed at pre-cognizance stage and judgment has not been exercised in the favour of the complainant.

ISSUE OF THE CASE – 

1. Whether under Section 154 of the Cr.P.C., a police officer is bound to register a FIR when a cognizable offence is made or he (police officer) has an option of discretion or latitude of conducting some kind of preliminary enquiry before registering the FIR.

ARGUMENTS OF THE CASE –

Appellant’s Arguments:

The appellant challenged the trial court’s judgment, contending that there were several inconsistencies and contradictions in the prosecution’s case. He argued that the eyewitness testimony was unreliable and lacked corroboration. The appellant further claimed that he had an alibi and was not present at the crime scene when the incident took place. He also alleged that there were procedural irregularities during the investigation and trial, which violated his right to a fair trial.

It is the primary duty of the Station House Officer of the concerned Police Station to record First Information Report (F.I.R.) regarding the cognizable offence. If the Police Officer does not record the F.I.R. then the Magistrate having jurisdiction to hear the criminal case of the concerned Police Station under Section-156(3) of the Cr.P.C.

Section 154 of the Code of Criminal Procedure, 1973 held that the provision related to the Information in cognizable cases – 

1. If the information is provided verbally to a police officer in charge of a police station, that official is required to reduce it in writing. The informant should then read it over and sign it thereafter. The information obtained in this way must be entered in a book called the “book of records” that has been approved by the state administration.
2. The informant must receive a free copy of the information that was recorded.
3. The aggrieved party may send the information to the Superintendent of Police if the officer in charge refuses to record it. If the Superintendent of Police is satisfied that the cognizable offence has been committed, he or she will either conduct the investigation himself or instruct a subordinate police officer to do so. In relation to the relevant offence, this police officer will have all the authority of an officer in command of the police station.

Section 156 of the Code of Criminal Procedure, 1973 deals with the provision of a Police officer’s power to investigate cognizable cases.

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.

Section 190 of  the Code of Criminal Procedure, 1973 deals with the provision Cognizance of offences by Magistrates.—

1. Subject to the provisions of this Chapter, any   Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section(2), may take cognizance of any offence—

1. upon receiving a complaint of facts which constitute such offence;
2. upon a police report of such facts;
3. upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed
4. The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

Following are the case law decided by the Hon’ble Supreme Court on Section 156(3) of Cr.P.C –

The Supreme Court held in the case of R. R. Chari Vs. State of U.P., that there are three condition initiated in the section when the magistrate takes cognizance of an offence, which are –

• The first is in the respect of non-cognizable offences as the complaint of an aggrieved person. 
• The second is on a police report.
• The third is when the Magistrate himself takes.

In case of Lalita Kumari v. Govt. of U.P. (2014)  a Constitutional Bench of Supreme Court held the guidelines as follows: –

1. It is mandatory to register the F.I.R. under Section-154 of the Cr.P.C., if the information reveals the commission of its cognizable offence.
2. The copy of F.I.R. must be supplied to the informant/complainant. 
3. Cases in which preliminary enquiry alone done by the Police Officer –
   1. Matrimonial offence 
   2. Commercial offence
   3. Medical negligence offence
   4. Corruption cases
   5. Cases when there are abnormal delay in initiating criminal prosecution
4. The completion of preliminary enquiry must not exceed 7 days and the same shall be recorded in General Diary.

Respondent’s Arguments:

The State argued that the trial court had correctly appreciated the evidence and arrived at a just conclusion. It contended that the eyewitness testimony was consistent and credible, pointing out that the witnesses had no motive to falsely implicate the appellant. The State further argued that the appellant failed to establish his alibi and that the procedural irregularities alleged were minor and did not affect the overall fairness of the trial.

In case  H. S. Bains, Director, Small Saving-cum-Dy. Secy. Finance v. State (Union Territory of Chandigarh), (1980),  Hon’ble Supreme Court  held that the magistrate has power to dismiss the case under section-203 of the Cr.P.C. if there is no sufficient grounds for proceeding  and also may issue a process under Section-204 of the Cr.P.C.

In case Tula Ram v. Kishore Singh, held that on receiving a complaint the magistrate can order an investigation under Section 156(3). The Police submitted a report to the magistrate which indicating that there are no case

has been made against the accused person. However, the court recorded the statements of the

complainant and the witnesses and issued the process against the accused person. It was clear that the

Magistrate acted without jurisdiction in taking cognizance of the case as if upon a complaint when

the police had submitted a report that no case had been made out against the accused. This Court

held that the Magistrate acted within his powers and observed that the complaint did not get

exhausted as soon as the Magistrate ordered an investigation under Section 156(3). We are,

therefore, unable to agree with the submission of Shri Sibal that the Magistrate acted without

jurisdiction in taking cognizance of the offence and issuing process to the accused notwithstanding

the fact that the police report was to the effect that no case had been made out.

On the provisions of Section- 156(3) of the Cr.P.C. and precedents of the Hon’ble Supreme Court and of Allahabad High Court, on the  institution of written complaint regarding commission of cognizable offence it is cleared under the law that the concerned Magistrate has the following two options:-

1. At the pre-cognizance stage–                              he may direct to concerned police station to register F.I.R. 
2. At the post cognizance-                                          after taking cognizance, he may adopt procedure of complaint cases given under Section- 200 and 202 of the Cr.P.C. 

Rejection of a complaint at the pre-cognizance stage -under Section-156(3) of the  Cr.P.C. does not debar

institution of second regular complaint.

It would be post-cognizance stage, 

• if the Magistrate takes cognizance on the original complaint or after rejection at pre-cognizance stage, if second complaint is filed by the complainant then in genuine cases, if the claim of the complainant are true and trustworthy or these are found so after preliminary inquiry, then the Magistrate under Section-156(3) of the Cr.P.C. may direct the S.H.O. to register F.I.R. and conduct investigation on the basis of claims of the complaint.

The Magistrate may dismiss the complaint under Section- 156(3) of the Cr.P.C. If by way of instituting a complaint, defence version is created to absolve the complainant from the case registered earlier or on the basis of allegations made in the complainant, if dispute is purely of civil nature or the Magistrate considers that the complaint is false and frivolous. The Magistrate has the power to test the truth of the allegations made against the accused persons and if there is no substance in the claims of the complainant then at pre-cognizance stage, the complaint may be dismissed under Section-156(3)  of the Cr.P.C.

On the basis of above discussions, this appeal is liable to be dismissed.

JUDGMENT–

The court has observed that the ingredients of offence punishable under the provisions of the S.C./S.T. Act were also not found after perusal of complaint. Therefore, the complaint of the complainant was rejected at the               pre-cognizance stage under Section 156(3) of the Cr.P.C. for lodging the F.I.R. and investigation by the police officer of the concerned police station.

It is relevant to mention here that the impugned order dated 16/12/2020 has been passed by the

trial court after considering the facts given in the complaint and it was not found proper that

F.I.R. should be registered and investigated by the police officer. The impugned order passed at pre-cognizance stage does not bar the filing of regular complaint before the competent Magistrate.

Dismissed accordingly. 

Order Date :- 18/3/2021 

written by Padmawati intern under legal vidhiya.