MOHD. YOUSUF  v  AFAQ JAHAN & ANR

FACTS OF THE CASE

• The notice received to the appellant from the Union Bank of India, Raebareli asking him to pay back the loan amount with interest.
• The appellant was the shocked to receive the notice as he had never stood as guarantor for any loan
• After the enquiry from bank, he got to know that Respondent – 1 had forged some documents in plotting with her husband, Zahirul Islam.
• An affidavit purported to have been signed by the appellant was filed with the bank to make him the second guarantor.
• Appellant had never signed any document and his signature on document was forged.
• An appellant had filed an application before learned CJM alleging commission of offences by the name accused person. The learned CJM direct the police to register an FIR and asked to do investigation in the case.
• As per the direction of the CJM, the FIR was registered by police in which the appellant complained that the accused person conspired with the bank with the bank manager, made his forged signature in the agreement form. And also made forged affidavit to show him as a guarantor.
• After the investigation charge sheet was filed by the Police Officer.
• The Respondent – 1 filed an application under section  482 of code of criminal procedure for quashing an FIR , the charge sheet and the order of learned CJM by which he had taken cognizance and also the order 156 (3) of code of criminal procedure which directed the police officer to register the case .
• By the order the Allahabad High court quashed the charge sheet and other above mentioned directions which was passed by CJM on the ground that the Magistrate had no power to order registration of the case. 

ISSUE RAISED

• The scope of 156(3)of code of criminal procedure
• Whether the power of Magistrate under section 156(3) code of criminal procedure is there or not?

CONTENTION BY APPELLANT :

• The petitioner appeal before the apex court that the order of High Court is explicitly contradictory to law and on misreading of the provisions contained in section 156(3) of code of Criminal procedure.
• The order passed by CJM is absolute valid and in scope of law under section 156(3) code of criminal procedure.

CONTENTIONS BY RESPONDENT:

• The respondent asserted that the High Court order absolutely valid and CJM had not any power to direct under section 156 code of criminal procedure.
• The respondent contended that the true scope and ambit of section 156(3) of the code has been kept in view by the High Court and the impugned order does not suffer from any infirmity.

JUDGEMENT

In order to appreciate rival submissions section 156 of the code of criminal procedure needs to be quoted

1. Any officer in charge of a police station may without the order of a Magistrate , investigate any cognizable case which court having jurisdiction over a local area within a limits of such station would have power to inquire 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                                                                                                                                                        

The court held that it is clear to understand, that any Judicial Magistrate, before taking cognizance of any offence can direct police for investigation under section 156(3) of code of criminal procedure.

If he does so, he is not to ascertain the complainant on oath because he was not taking cognizance of any offence therein.

The Magistrate can direct the police to register an FIR, for the purpose of investigation.

The court held, it is the duty of the police officer of the respective station to register an FIR, of an cognizable offence disclosed by the complaint because that police officer could take steps which stated in chapter XII of the code of criminal procedure only thereafter.

CONCLUSION

The scope of section 156(3) of code of criminal procedure is not bound to the power of police The 156(3) stated that any magistrate empowered under section 90 may order such an investigation.

The apex court held that, the magistrate does have power to direct the police officer to register an FIR for the further process of investigation.

It made explicitly clear that any judicial Magistrate may order an investigation under section 156(3) before it becomes aware of an offence.

If he does so, he is not going to examine the plaintiff on oath because he did not recognize any offence in it.

Magistrate has the power to order the police to register and FIR, for the commencement of investigation

The magistrate while using the power not going beyond its scope or jurisdiction.

The FIR registration process comprise of entering a book kept by the police station officer as explicitly mentioned in section 154 of code of criminal procedure , the substance of the information given relating to the commission of the cognizable offence .

Though , it is the duty of the police office in charge of the police station to register an FIR , regarding the cognizable offence disclosed by the complaint even if Magistrate not utter a word , while directing investigation under section 156(3) of the code that an FIR registered .

written by PRAGATI GAUTAM MAHRISHI DAYANAND UNIVERSITY – CPAS , GURUGRAM LL.B,3YEARS,(2^NDYEAR,4^THSEMESTER)