Smt. Masuman W/O Sri Faiz Mohd. vs State Of Uttar Pradesh And Ors. on 25 September, 2006

Smt. Masuman W/O Sri Faiz Mohd. vs State Of Uttar Pradesh And Ors. on 25 September, 2006

CITATION	Cr. Misc. Application No. 6152 of 2006
DATE  OF JUDGMENT	25 September 2006
COURT	Allahabad High Court
CASE  TYPE	Writ Petition Criminal Misc.Application No.6152 of 2006
APPELLANT	Smt. Masaman, wife of Faiz Mohd.
RESPONDENT	State of Uttar Pradesh and others
BENCH	V Prasad
REFERRED	Section 156 (3) Cr. P.C, Section 376/511/354/323/504/506 I.P.C

FACTS  OF  THE  CASE

• Smt. Masuman, who is an applicant in this case, was the wife of Faiz Mohammad; they were a resident of the village Rasoolpur.
• There in the village she lives with her family her husband who was very old and fragile, her elder son named was Mister while her younger son’s name was Iqrar, and she also has a daughter and a granddaughter named her daughter was  Iskiman and a granddaughter Afsana the family leave happily there in the village and earns its livelihood by laboring.
• They were the only Mohammadan family in the village.
• There in the village Pradhan election was going on and her family supported the candidature of one Rajjan Singh who is that election had defeated the opposition headed by Sanjai.
• So the defeat of Sanjai had given rise to the feeling of revenge in the minds of the alleged persons they are  Kallu Pal, Ram Pal, Raju, Munshi Lal, Vipin, Suresh, Jaggi Lal Kushwaha, and Chunna these all are either relatives or the well-wishers of aforesaid Sanjai.
• Thirsting for revenge, on 7^th September 2005 at 8 P.M  when all the members of the applicant’s family were present in their house in the village except Iqrar her younger son he was not present there at that time the aforementioned persons surrounded the house of the applicant Masuman and started abusing and cursing the family.

•  When this happened Faiz Mohd. her husband and Mister, her elder son protested against such abuses then in retaliation to that protest they were assaulted by those raiders. Seeing all these things Masuman, the applicant, her daughter Iskiman and granddaughter Afsana started to hide to save themselves from those raiders in doing so  Iskiman was thrown on the ground by the alleged accused Kallu, Raju, and Chunna they caught hold of her hands and then Juggi Lai came and by sliding her clothes which she was wearing above her waist he attempted to rape her.
• Afsana was also molested and sexually harassed by one of the accused named Munshi Lal who pressed her breasts and after putting his hands on her private parts tried to lift her. On this hue and cry were being raised by the victim’s family later on by this they were saved by the co-villagers who had collected there. after seeing the gathering of the villagers for their help the accused left the place of the incident by threatening the family with dreadful consequences.
• Then the very next morning when Masuman was going to register an FIR against those accused persons then in her way she got surrounded by the malefactors and was threatened for her life so because of this she could not get her FIR registered.
• Then later on her husband and son were picked up by those alleged accused persons and they were incriminated in a false case of theft. While the injured Iskiman and Kumari Afsana were taken to the hospital to  get medically examined in Ursala Hospital, district Kanpur Nagar 
• The filing of an F.I.R in the police station showed no response and was rejected then later on the application of the applicant to the Senior Superintendent of Police, Kanpur Nagar, dated 13.9.2005 yielded no results and therefore the applicant approached the Chief Judicial Magistrate, Kanpur Dehat, through an application under Section 156(3) Cr.P.C. against the respondents alleged accused to get her FIR registered for offenses under Sections 376/511/354/323/504/506 IPC and get it investigated by the police.
• She attached the medical reports of the two injured girls that are her daughter’s and granddaughter’s reports, her affidavit, and a copy of her application to SSP, Kanpur Nagar along with her application which is filed as annexure No. 1, 2, and 3 to the affidavit filed in support of this application.
• Then the aforesaid application of the applicant that was filed under Section 156(3) Cr.P.C. was however rejected by the Chief Judicial Magistrate, Kanpur Dehat by the impugned order dated 9.11.2005 (Annexure No. 4) by passing an order as if, he was deciding the case finally. 
• Then later on the  revision was considered by Masuman being Criminal Revision No. 145 of 2005,  that too got rejected by the lower revisional court with its impugned order dated 24.2.2006 (Annexure No. 6)
• Hence again the application was filed to this court under Section 482 Cr.P.C. by the applicant for quashing both the impugned orders and pleaded for a direction for fresh consideration of her application under Section 156(3) Cr.P.C. by the Chief Judicial Magistrate, Kanpur Dehat.

ARGUMENTS

Petitioner ‘s Contentions

• The petitioner side contended that from the facts of the case, it is very clear that there is a comity of prayer which is engulfing the case.
• The application is filed by the victim who had earlier approached the concerned Magistrates under Section 156[3] Cr. P.C for getting their F.I.R registered by the police but the said prayer has been spurned by the concerned Magistrates and lower revisional courts

• The Learned Counsel for the applicants contended with force that the order passed by the Magistrate is wholly against the law they don’t have the power to pass such an order. They contended that the application which was filed under Section 156(3) Cr.P.C. discloses the commission of cognizable offenses and hence the Magistrate had no jurisdiction to refuse to pass an order for registration and investigation of the FIR. The counsels contended that the Magistrate has to act according to law and he cannot act beyond the scope of the power, which has been conferred on him under Section 156(3) Cr. P.C…
• They further by referring the decision of the full bench of the said court in the case of Ram Babu Gupta vs State of U.P contended that there is nowhere mentioned that if a cognizable offence is disclosed the Magistrate even then can refuse to direct the registration of  FIR and after that investigation of the case and further that Magistrate can by self convert an application under section 156(3) CR.P.C into one as Complaint.in support of the contentions the petitioner side relied upon many judgements that had been passed by the Supreme Court.

• They further contended that the Magistrate who is not in a position to deal with the cases already pending before him further saddled himself to inquire into the matter. They urged that the Magistrate has acted on his own by passing such an impugned order.
• the learned counsels concluded their arguments by submitting that the impugned orders passed by the concerned Magistrate are wholly illegal and deserve to be set aside by the court and they – the Magistrate in all these cases deserve a direction from this court to reconsider the application of the applicants under Section 156(3) Cr.P.C. afresh following the law and decide the same within a stipulated period.

Respondent’s Contensions

• Learned AGA  who was from the opposite side contended that in all the cases theMagistrate thought that it is essential to not to for an investigation  therefore, the order can not be faulted with. He contended that the Magistrate have the power to n treat the application under Section 156(3) Cr.P.C. as a “Complaint”. He further contended that the Magistrate felt that there isn’t any or requirement of investigation as per the the law that is laid down in Ram Babu Gupta and Gulab Chand Upadhyay, therefore he has passed this impugned order which should must be upheld . He further contended that the Magistrate under Section 156(3) of the code on his own can order the registration of an application under that section as a “complaint” and that power vests in him.
• The counsels further argued that no justice has been done by the Magistrates, by passing such an impugned order not only this but by passing such an order he has given a further blow to the victim, the injured and aggrieved which is nothing but adding insult to their injury. The counsels further contended that the Magistrate has made himself a party to the litigation by starting the litigation under chapter XV against the mandate of law ignoring the definition clause of the “complaint” under Section 2(d) Cr.P.C. 

JUDGEMENT

With all the contentions that were made from both the rival sides the court said that it is very clear that all those contentions that were raised by both the sides mainly revolve around the controversy as to what is the scope of section 156(3) of CR.P.C and what are the powers there were given to the Magistrate upto what extend they can exercise their power and by going through the provisions of section 156(3) of CR.P.C court described it and then it also described about the complaint and referred to many cases which is suggesting that prayer made before the Magistrate by an aggrieved person of any other kind or with the prayer to direct the police to register the case and a investigation is not a Complaint.

Further going through the facts of this criminal miscellaneous Application the court held that the impugned order that is passed by the concerned magistrate and the lower revisional court are quashed and the court ordered the concerned magistrate to take up the application under Section 156(3) Cr. P.C. that is filed by the applicant afresh and decide it following the law within one month from the receipt of the copy of the judgment by them.

This article on case analysis is written by Hidatul Fatima law student at Aligarh Muslim University centre Murshidabad and a legal intern at legal Vidhiya.