CHANDRIKA SINGH SON OF LATE KALI V/S STATE OF UTTAR PRADESH, STATION HOUSE, (2007) CriLJ3169

FACTS OF THE CASE

This case was a Criminal Revision Application against Judicial Magistrate Azamgarh’s order. The case was before the Judicial Magistrate between Chandrika versus Sritam Ram and another.

• Chandrika Singh was the Principal of an inter-college named Kaptanganj which is under the district of Azamgarh.
• The application was filed under Section 156(3) of the CrPC to register and start the investigation process.
• The application was against Sritam Ram and Tirathiraj Singh. Sritam Ram was the head clerk and Tirathiraj Singh was a suspended Manager of the institution.
• They both started Inter(Science) classes under unfinanced approval. They collected fees from students and the amount was deposited in the Bank account (District Cooperative Bank Kaptanganj) of teachers the Sritam Ram managed. He was responsible for the record which was under maintenance.
• Sritam was interrogated in an inquiry and demanded the record but he blamed Tirathiraj. Lastly, they both misplaced the record. Embezzlement of huge amounts of fees was committed by these accused persons. These accused had committed misconduct in the discharge of their duties and also caused loss to the institution.
• The information was furnished to the police but they did not take any action against it. They approached the senior Police officer through an application which was sent by the registered post. So they proceeded to appear before the magistrate by filing an application to register the case and to start the investigation process by the police.
• Thus Judicial Magistrate Azamgarh passed an order to register the case and proceed with the statement recording under Section 200 of CrPC of the revisionist-applicant.

ISSUES

The issue raised was-

• Whether the Judicial Magistrate always has a duty to pass an order for investigation and registration of FIR in a case on receipt of an application under Section 156(3) of CrPC?
• Whether the Judicial Magistrate is competent to give an order under the registration of FIR and investigation process within their Judicial discretion of the case?

ARGUMENTS

The counsel side of the revisionist argued that when an application was put forth before the Magistrate under Section 156(3) of CrPC of cognizable offence. The Magistrate has to pass an order to investigate the matter as there is no option for the Magistrate either to reject the application or consider the application as a compliant case because it is a fact of a cognizable offence. Section 156(3) of CrPC is a pre-cognizance stage whereas Section 202 of CrPC is a post-cognizable stage. Therefore, the counsel of the revisionist contradicted Magistrate by arguing that Magistrate had committed gross illegality which is seen on the face of the record in refusing to direct investigation in the matter of pre-cognizance without providing a reason. The counsel curtailed the argument by justifying that Magistrate has no legitimate right for getting an investigation in the matter of independent agency and also there is no need for an investigation process by the police.

Some serious contentions were placed by the opposite party that forgery had been committed by the Head Clerk and the Ex-Manager and further they committed the misappropriation and embezzlement of a huge amount done in the institution. The investigating officer should collect evidence against the accused persons to prove the charge against them. The revisionist was not able to collect the evidence against the guilt caused by the accused persons as it was with the possession of the opposite party. The investigating officer has to collect the evidence. The argument made by this counsel stated that the Magistrate’s order was not impugned. Magistrate has the discretion to pass an order to register the case of investigation and to treat the application as a complaint case. As per the Magistrate’s order, it is proper to treat the application as a complaint case and to proceed with the conducting enquiry under Chapter XV.

CASES REFERRED

Kumari Farmida alias Sona v. State of UP, (2007)

In this case, it has been held that an application was sent to the Magistrate by a revisionist under Section 156(3) of CrPC. An allegation was made for a commission of rape offence. This application was rejected by the Magistrate on the ground of delay of complaint. Magistrate has to look into the offence whether it is cognizable or not including disclosing the facts or not. Thus, delay of a complaint is not a consequence of rape. The application has been remitted.

Yousuf v. Afaq Jahan. (2006)

In this case, the Hon’ble Apex Court held that an application which was filed before the Magistrate by the appellant. This case was about the accused who has forged the signature by getting help from Bank Manager in the documents showing him as a guarantor. The Magistrate directed the police to register the FIR and investigate the case on same. after the investigation process, a charge sheet was filed by the police the respondent who filed an application under Section 482 of CrPC for quashing FIR, the charge sheet and the order given by the Magistrate which had been taken as cognizable and the order was directed to police to investigate the case under Section 156(3) of CrPC. The High Court quashed the order given by the Magistrate and considered it an impugned order. The Court also quashed the charge sheet on the ground that the Magistrate had no power to order the registration of the case. the case was appealed to Supreme Court which held that FIR. The Court held that there is nothing wrong in registering a case by the Magistrate as registration of the FIR brings the process of entering into investigation relating to the cognizable offence committed by the accused and a book must be kept in charge of the police station. Thus, there is no wrong with ordering to file an FIR and prepare for the investigation process by the Magistrate was decided by the Supreme Court.

PROVISION INVOLVED

Section 156 of the CrPC deals with the power of police officials to investigate cognizable cases. Under this Section, it depicts that any officer who is in charge of a police station can proceed with the investigation without the order of the Magistrate related to the cognizable offence. It can be done within the local limits of such a station that has the power to inquire. If the police do not take any action regarding the investigation or registration of an FIR, then a layman has a remedy to approach the Magistrate. So that the Magistrate can make orders relevant to an investigation or filing of an FIR. This provision has given the power to the Magistrate to pass an order for investigation and registration of an FIR in the case where a cognizable offence was committed.

Section 2(c) of CrPC is about the definition of cognizable offence which is a serious offence where a police officer can arrest without a warrant for the time being. By this definition, a Police officer has the authority to arrest the accused without a warrant who has committed a cognizable offence.

Section 190 of CrPC, Magistrate can take up the case by receiving complaints that constitute a cognizable offence or by a police report, or by the information received from any person other than a police officer or under Magistrate’s knowledge when an offence is committed. But under this case, Section 190(1)(a) of CrPC has been fulfilled as the Magistrate took up the case by the facts received by a person which included cognizable offence.

JUDGEMENT

A magistrate is fully competent to pass an order to register a case and investigate an application under Section 156(3) of CrPC may be treated as a complaint and in the circumstances, the magistrate should follow the procedure in Chapter XV CrPC. This judgment of the Full Bench has not been set aside. Magistrate has the power to register the case and proceed with the statement under Sections 200 and 202 of CrPC. There appears no illegality and impropriety in the order of the Magistrate. Thus Judicial Magistrate had perfectly played their role within the judicial role and under their power to treat the application under Section 156(3) CrPC as a complaint case. There is no illegality or impropriety in the order. The revision has been made as devoid of merit and is liable to be dismissed. Thus the revision is dismissed. The order given by the judicial magistrate is not an impugned order.

REFERENCES

• https://indiankanoon.org/doc/1983319/
• https://www.indiacode.nic.in/bitstream/123456789/15272/1/the_code_of_criminal_procedure%2C_1973.pdf

This Article is written by B. Michael Shriney of Sathyabama Institute of Science and Technology, Intern at Legal Vidhiya.