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2008 DIGILAW 2318 (ALL)

RAJJAN PRASAD v. STATE OF U. P.

2008-11-21

VIJAY KUMAR VERMA

body2008
JUDGMENT Hon’ble Vijay Kumar Verma, J.—“Whether the Magistrate, who has no jurisdiction to take cognizance of the offence, can pass the order for investigation under Section 156(3) of the Code of Criminal Procedure (in short, the Cr.P.C.’)?” is the main question that falls for consideration in this revision, which has been preferred against the judgment and order dated 21.12.2004 passed by Addl. Sessions Judge, Fast Track Court No. 2, Hamirpur in criminal revision No. 75 of 2004 (Namo Narayan Tiwari v. State of U.P. and another). 2. By the impugned judgment, the lower Revisional Court has set-aside the order dated 7.6.2004 passed by the Addl. Chief Judicial Magistrate, Hamirpur, whereby the application moved by the Revisionist under Section 156(3), Cr.P.C. was allowed and S.O. P.S. Sumerpur was directed to investigate the case after registration of the F.I.R. 3. Shorn of unnecessary details, the facts emerging from the record leading to the filing of this revision, in brief, are that the Revisionist Rajjan Prasad had moved an application under Section 156(3), Cr.P.C. in the Court of Addl. Chief Judicial Magistrate, Hamirpur impleading Constable Namo Narayan Tiwari and Home Guard Daljit (opposite party No. 2 and 3 herein) as accused. It was prayed in that application that S.O. P.S. Sumerpur be directed to register the FIR and investigate the case. That application was allowed by the Addl. Chief Judicial Magistrate, Hamirpur vide his order dated 7.6.2004, whereby S.O. P.S. Sumerpur was directed to register the FIR and investigate the case. That order was challenged by the prospective accused Constable Namo Narayan Tiwari and Home Guard Daljit by means of Criminal Revision No. 75 of 2004. The learned lower Revisional Court vide impugned judgment dated 21.12.2004 allowed the revision and set-aside the order dated 7.6.2004 passed by the Addl. Chief Judicial Magistrate Hamirpur on the ground that the Magistrate had no jurisdiction to pass the order for investigation and registration of F.I.R. in present case, as the allegations contained in the application moved by the applicant Rajjan Prasad under Section 156(3), Cr.P.C., prima facie discloses the commission of scheduled offence under U.P. Dacoity Affected Areas and hence the Special Court constituted under that Act could only pass the order on that application. Hence, this revision. 4. I have heard arguments of Sri Vijay Bahadur Shivhare, learned counsel for the revisionist and learned AGA for the State. 5. Hence, this revision. 4. I have heard arguments of Sri Vijay Bahadur Shivhare, learned counsel for the revisionist and learned AGA for the State. 5. Since the prospective accused (Constable Namo Narayan Tiwari and Home Guard Daljit in the present case) have no right to challenge the order of registration of FIR and its investigation, hence notices of this Revision have not been issued to them. Reference in this regard may be made to the cases of Prof. Ram Naresh Chaudhary and another v. State of U.P. and another, 2008(60) ACC 476 and Gulam Mustafa @ Johhar v. State of U.P. and others, 2008 (61) ACC 922. 6. It was contended by the learned counsel for the revisionist that order under Section 156(3), Cr.P.C. can be passed only by the Magistrate and Special Judge under U.P. Dacoity Affected Area Act has no jurisdiction to pass the order on the application under Section 156(3), Cr.P.C. and hence, the impugned judgment being illegal should be set-aside, so that investigation of the case may be made after registration of the FIR on the basis of the application moved by the Revisionist under Section 156(3), Cr.P.C. 7. The learned AGA on the other hand submitted that the allegations made in the application moved by the Revisionist under Section 156(3), Cr.P.C., prima facie discloses the commission of scheduled offence under U.P. Dacoity Affected Areas Act (hereafter to be referred as “the Act”) and since District Hamirpur is covered by that Act, hence the order on that application could be made only by the Special Court constituted under that Act. The contention of learned AGA was that only that Magistrate or Court can pass the order under Section 156(3), Cr.P.C., which has jurisdiction to take cognizance of the offence under Section 190, Cr.P.C. and since by virtue of Section 7 of U.P. Dacoity Affected Areas Act, Addl. Chief Judicial Magistrate, Hamirpur, who passed the order on 7.6.2004 on the application moved by the Revisionist under Section 156(3), Cr.P.C., has no jurisdiction to take cognizance of scheduled offence, hence the learned lower Revisional Court did not commit any illegality in setting aside that order. 8. Having given my thoughtful consideration to the rival submissions made by the parties’ counsel, I find force in the aforesaid contention of the learned AGA. 8. Having given my thoughtful consideration to the rival submissions made by the parties’ counsel, I find force in the aforesaid contention of the learned AGA. Before proceeding further, it would be proper to have a look on the allegations made in the application under Section 156(3), Cr.P.C., which was moved by the Revisionist in the Court of Addl. Chief Judicial Magistrate, Hamirpur. Annexure 1 to the accompanying affidavit is the copy of that application. The following main allegations have been made in the application : fuosnu gS fd izkFkhZ Fkksd mPNk dLck o Fkkuk lqesjiqj ftyk gehjiqj dk fuoklh gS o cSykgh cktkj ds ikl lM+d ds fdukjs ydM+h dh nqdku fd;s gsSA fnukad 28-04-2004 dh jkf= djhc 9-00 cts Fkkuk lqesjiqj esa rSukr flikgh ueksukjk;u frokjh o mlds lkFk gksexkMZ nythr tks xzke HkkSfu;k Fkkuk lqesjiqj dk jgus okyk gS izkFkhZ dh ydM+h dh nqdku ij vk,A nksuksa gkFk esa MaMk fy, FksA dka0 ueksukjk;u frokjh us izkFkhZ ls 6 xqVdk o 4 r[rs ydM+h ds ekaxs rks izkFkhZ us r[rk dh dher crkbZ rks dak0 ueksukjk;u frokjh xkyh xykSt djus yxk vkSj nksuksa yksx nks&nks r[rs ysdj pyus yxs rks izkFkhZ us euk fd;k] ml ij nksuksa yksx izkFkhZ dks cqjh&cqjh xkfy;ka nsrs gq, ykr ?kqalks o MaMksa ls ekjus yxs vkSj dgk fd lkys iSls nawxk gh ugha vkSj tcju izkFkhZ dh tsc ls rykkh ysdj 55 :i;k gksexkMZ nythr us o fnu Hkj dh fcØh dk :i;k tks xksyd esa j[kk eq0 2250 :i;k dka0 ueksukjk;u us tcjtLrh fudky fy;k vkSj nksuksa yksx cqjh&cqjh xkfy;ka nsrs gq, fdlh laxhu vijk/k esa Qalkus dh /kedh nsrs gq;s r[rs ysdj pys x;sA mijksä ?kVuk dks eqgYys esa ekStwn Hkxoku flag o vej flag o vU; cgqr ls yksxksa us ns[kk gSA izkFkhZ ds ekjihV ls dkQh pksVsa vk;h gSA dka0 ueksukjk;u us /kedh fn;k fd ;fn ftUnk jguk gS rks pqipki jgukA lqesjiqj dk Fkkuk izHkkjh eq>s gh ekuksA dksbZ dqN ugha lqusxkA 9. The above mentioned allegations made in the application under Section 156(3), Cr.P.C., prima facie discloses the commission of a scheduled offence under U.P. Dacoity Affected Areas Act. Scheduled offence has been defined in the Act under Section 2(b) as under : (b) “scheduled offence” in relation to a dacoity affected area means an offence, specified in the schedule to this Act, being an offence committed by a scheduled offender.” 10. Scheduled offence has been defined in the Act under Section 2(b) as under : (b) “scheduled offence” in relation to a dacoity affected area means an offence, specified in the schedule to this Act, being an offence committed by a scheduled offender.” 10. According to Section 2(c) of the Act, ‘scheduled offender means a person who commits or has committed or is accused of committing or attempt to commit dacoity or robbery as such or being so connected with scheduled offence as to form part of the same transaction, whether such offence has occurred at the same time and place or at different times and places.’ 11. A schedule has been given at the end of the Act. The offences punishable under Sections 392 and 394 are also included in the schedule offences. Therefore, keeping in view the definition of ‘scheduled offence’ and ‘scheduled offender’ and having regard to the allegations made in the application under Section 156(3), Cr.P.C., which have been mentioned herein-above, prima facie scheduled offence is disclosed in the present case. 12. By virtue of U.P. Govt. Notification No. 8111-P/VIII-3-31 dated November 5, 1981, the Districts Jhansi, Etawah, Hamirpur, Jalaun, Banda, Kanpur Dehat, Etah, Mainpuri, Farrukhabad, Agra, Badaun and Lalitpur were declared to be dacoited affected areas for the purpose of U.P. Ordinance No. 16 of 1981. Special Court was constituted in these Districts in exercise of the powers under sub-section (1) of Section 5 of U.P. Ordinance No. 16 of 1981. Thereafter, U.P. Dacoity Affected Areas Act, 1983 was enacted, which received the assent of the President of India on 12.10.1983 and published in U.P. Gazette Extraordinary dated 13.10.1983. Section 7 of the Act reads thus : “7. Procedure and powers of Special Courts.—(1) A Special Court may take cognizance of any scheduled offence,— (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon its own knowledge that such offence has been committed : Provided that all cases triable by a Special Court under this Act, pending before any Court immediately before the date of commencement of this Act in a dacoity affected area, shall stand transferred to the Special Court having jurisdiction over such cases and shall be dealt with and disposed of in accordance with the provisions of this Act.” 13. Section 156(3), Cr.P.C. reads thus : “156. Police officer’s power to investigate cognizable case.—(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.” 14. As would appear from sub-section (3) of Section 156, Cr.P.C., only that Magistrate can pass the order for investigation, who is empowered under Section 190, Cr.P.C. to take cognizance of the offence. In view of Section 7 of the Act, Addl. Chief Judicial Magistrate or any other Magistrate has no jurisdiction to take cognizance of any scheduled offence and only the special Court constituted under this Act can take cognizance of any scheduled offence. Therefore, the learned lower Revisional Court is perfectly right in holding that the Addl. Chief Judicial Magistrate, Hamirpur had no jurisdiction to pass the order for investigation on the application moved by the applicant Rajjan Prasad under Section 156(3), Cr.P.C. 15. This Court has held in the case of Mahendrapal Jha v. Ram Avtar Sharma and others, 2001 (42) ACC 125, that if the Magistrate has no jurisdiction to take cognizance of the offence, then, order for investigation under Section 156(3), Cr.P.C. cannot be passed by him and if he has passed order under Section 156(3), Cr.P.C., the said order would be without jurisdiction. Although the matter of territorial jurisdiction was involved in that case, but on the basis of the principles of law laid down therein, it can very well be said that Addl. Although the matter of territorial jurisdiction was involved in that case, but on the basis of the principles of law laid down therein, it can very well be said that Addl. Chief Judicial Magistrate, Hamirpur could not pass order for registration of the FIR and its investigation by the police on the application moved by the applicant Rajjan Prasad under Section 156(3), Cr.P.C., as the allegations made therein prima facie discloses the commission of scheduled offence under U.P. Dacoity Affected Areas Act and hence, only the Special Court, Hamirpur, which is empowered to take cognizance of the scheduled offence under this Act by virtue of Section 7, could pass order for investigation under Section 156(3), Cr.P.C. on that application. 16. The matter of passing the order by the Special Judge under the U.P. Dacoity Affected Areas Act on the application under Section 156(3), Cr.P.C. was considered by this Court in the case of Suresh Prakash Tiwari and others v. State of U.P., 1994 (Suppl.) ACC 121, in which order for investigation under Section 156(3), Cr.P.C. was made by the Special Judge under U.P. Dacoity Affected Areas Act. The order for investigation passed by the Special Judge was upheld by this Court. 17. Therefore, in view of the foregoing discussion, there is no scope to make any interference in the impugned judgment of learned lower Revisional Court, because that judgment does not suffer from any legal infirmity. 18. Consequently, the Revision is hereby dismissed. The Revisionist, if so advised, can move fresh application under Section 156(3), Cr.P.C. in the Court of Special Judge, Dacoity Affected Areas Act, Hamirpur. ————