LALARAM VS. THE STATE OF U.P. AND 13 OTHERS (2020 ALL 743)
| 1. citation | 2020 ALL 1611 |
| 2. Date of judgement | 18 dec 2020 |
| 3. Case no | 743 |
| 4. Court | High court of Allahabad |
| 5 .Case type | Criminal revision no 1611 |
| 6. Revisionist | Lalaram |
| 7. Opposition party | State of u.p. and 13 others |
| 8. Bench | Hon’ble Ravi Nath Tilhari,J. |
| 9. referred | Section 154, 156, 173, 190, 200, 202, 203 of cr.p.c |
Facts of the case.
Briefly stated facts of the case as per the revision/petition are that the opposite party nos.2 to 14 demolished the foundation in front of the door of the revisionist/applicant on 02.07.2020 at about 10.00 A.M. for constructing a path, to which the revisionist objected in view of the pendency of a Civil Suit No.279 of 2020 in the Court of learned Civil Judge (Senior Division), Kanpur Dehat. On 07.07.2020 at about 8.00 A.M., the opposite party nos. 2 to 14 entered the house of the revisionist and mercilessly beat him with lathi-danda & foot. They also snatched Rs.1600/- from the purse in the pocket of the revisionist and thereafter ran away by extending threat to face dire consequences. The revisionist immediately informed the concerned police station but his case was not registered and he was told to go for a medical examination first. On the next day i.e. on 08.07.2020 the revisionist went to the District Hospital Akbarpur, Kanpur Dehat for his medical examination and was referred to the Dentist for further examination. The revisionist informed the whole incident to the Superintendent of Police Kanpur Dehat by way of an application through registered post on 16.07.2020, but no action was taken thereon and consequently he filed an application under Section 156(3) Cr.P.C. before the Judicial Magistrate Ist Kanpur Dehat on 14.08.2020, alongwith the injury report dated 08.07.2020, X-ray report dated 16.07.2020 and other documents, according to which the revisionist had sustained grievous injuries caused by hard and blunt object. The learned Magistrate by order dated 26.03.2020 treated the application as a complaint case.
Issues raised.
The points which arise for consideration are:-
i) Whether in each and every case, where an application under Section 156(3) Cr.P.C. is made to the Magistrate disclosing commission of a cognizable offence, the Magistrate is legally bound to direct registration of the FIR and investigation by police or the Magistrate has also the power and jurisdiction to pass order for registration of the application as a complaint case.?
ii) On what considerations the Magistrate should take a decision for investigation by police or to proceed with as a complaint case?
iii) What is the nature of an investigation by the police in pursuance of the direction of the Magistrate issued under Section 156(3) Cr.P.C. and the investigation by the police in pursuance of the direction of the Magistrate issued under Section 202(1) Cr.P.C. ?
iv) Whether the order passed by the Magistrate in the present case deserves to be maintained or not?
Arguments.
The full bench answered the first question by holding that on receiving a complaint ,the magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. But if the magistrate takes cognizance , he proceeds to follow the procedure provided in the chapter 15 of C.R.P.C. it was further held that the order of the magistrate must indicate the application of mind.
The divisional bench answered the reference by holding that it cannot be said that the magistrate is bound to order registration of a first information report in all cases , where a cognizable offence is disclosed . It is not incumbent upon a magistrate to allow an application under section 156[3] crpc.and there is no such legal mandate . The magistrate may or may not allow the application in his discretion .he has a discretion to treat an application under section 156[3]crpc as a complaint.
IN ‘’ANIL KUMAR V . M.K AIYAPPA[2013] 10 SCC 705, the hon’ble supreme court also examined if the magistrate ,while exercising powers under section 156[3]crpc.could act in a mechanical or casual manner and go on with the complaint after getting the reports and held that where jurisdiction is exercised on a complaint filed in terms of section 156 [3] or section 200 crpc ,the magistrate is required to apply his mind by the magistrate should be reflected in the order .THE mere statement that he had gone through the complaint ,documents and heard the complainant ,as such as reflected in the order ,will not be sufficient .
JUDGEMENT
The Supreme Court observed that the power to order a police investigation under Section 156 (3) is distinct from the power to direct an investigation under Section 202 (1). Section 156 (3) is at the pre-cognizance stage, Section 202 is at the post-cognizance stage. Moreover, once a magistrate has taken cognizance and has adopted the procedure under Chapter XV, it is not open to him then to go back to the pre-cognizance stage and avail of Section 156 (3). Investigation by the police under Section 156 (3) is in exercise of the plenary power to investigate offences which begins with collection of evidence and ends with a report under Section 173 (2). The investigation, on the other hand, which Section 202 contemplates, is of a different nature and is for the purpose of enabling the magistrate to decide whether or not there is sufficient ground for proceeding. The Supreme Court observed as follows:
SECTION 156[3] OCCURS IN Chapter XII, under the caption: “Information to the Police and their powers to investigate”; while Section 202 is in Chapter XV which bears the heading “Of complaints to Magistrates”. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre cognizance stage, the second at the post-cognizance stage when the magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order
made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section, an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding “. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the magistrate in completing proceedings already instituted upon a complaint before him.” (emphasis supplied).
CONCLUSION;
IN view of the aforesaid discussion, we hold;
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 .
2. if the information received doesnot 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 .
3. if the inquiry discloses the commission of a cognizable offence ,the FIR must be registered .
4. The police officer cannot avoid his duty of registering an offence if a cognizable offence is disclosed.
5. 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 ,e.g ,over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay .
References
1.THE CODE OF CRIMINAL PROCEDURE BY S.N MISHRA
2.https://www.casemine.com.
THIS ARTICLE IS WRITTEN BY ANIKA SHAFI DAR OF VITASTA LAW COLLEGE ,INTERN AT LEGAL VIDHIYA.
