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Allahabad High Court · body

2008 DIGILAW 934 (ALL)

DEVENDRA KUMAR v. STATE OF UTTAR PRADESH

2008-04-25

M.K.MITTAL

body2008
JUDGMENT Hon’ble M.K. Mittal, J.—This revision has been filed for setting aside the order dated 15-3-2008 passed by Principal Judge, Family Court, Meerut, in Case No. 431/06, under Section 125, Cr.P.C. Smt. Anupma v. Devendra Kumar. By his application the revisionist had prayed for summoning Sub-Inspector Mukesh Kumar Mishra, who had submitted a report on the application filed by the opposite party No. 2 under Section 156(3), Cr.P.C. 2. I have heard Sri Raj Kumar Khanna, learned Counsel for the revisionist, learned AGA and perused the material on record. 3. The brief facts of the case are that Smt. Anupma Verma, opposite party No. 2 filed an application under Section 125, Cr.P.C. for grant of maintenance against the present revisionist. In the application she alleged about the harassment and the ill-treatment as well as neglect of the revisionist and also that she was not able to maintain herself whereas the revisionist was financially sound. In that application she also alleged in para 14 that on 12-11-2006 at about 10 p.m. her in-laws including her husband came to her Maika at Moradabad and abused her and said that they would not allow her to live in their house unless Maruti Car was given. They abused and threatened but on account of intervention of some neighbourers the accused went away threatening to kill her and to have second marriage of Devendra. 4. The application under Section 125, Cr.P.C. was filed on 17-11-2006. The opposite party No. 2 also filed an application under Section 156(3), Cr.P.C. against her husband and others on 20-11-2006 regarding the alleged incident of 12-11-2006. In that matter the learned Magistrate called for a report from the concerned police station and Mukesh Kumar Mishra the Sub-Inspector gave a report dated 24-11-2006 to the effect that the allegations regarding harassment and Marpeet were alleged to have taken place at Shiv Puram in District Haridwar which was beyond the jurisdiction of his police station Nagphani District Moradabad. The incident dated 12-11-2006 was not supported and the other party could not be interrogated in the matter for shortage of time. 5. The incident dated 12-11-2006 was not supported and the other party could not be interrogated in the matter for shortage of time. 5. The revisionist filed an application in the Court of the Principal Judge, Family Court, for summoning the Sub-Inspector Mukesh Kumar Mishra to prove the fact that the alleged incident of 12-11-2006 was false but the learned Judge rejected the application by the impugned order on the ground that the report is called for from Police Station under Section 156(3), Cr.P.C. to the effect whether case has been registered or not and no order is passed regarding the actual dispute and if the Police Inspector makes any investigation that will be concerned with that case only and it will have no effect in the proceeding under Section 125, Cr.P.C. and there was no necessity to summon the Sub-Inspector as a witness. He also held that the defendant revisionist could file his evidence to substantiate his contention that the allegation as made by his wife were not correct and the Court could not consider the correctness of the allegations made in the application under Section 156(3), Cr.P.C. in a proceeding under Section 125, Cr.P.C. Consequently, he rejected the application. Feeling aggrieved this revision has been filed. 6. Learned Counsel for the revisionist has contended that the evidence of Mukesh Kumar Mishra Sub-Inspector who investigated the case under Section 156(3), Cr.P.C. is material for his defence and by refusal he has been prejudiced as he would not be able to establish the fact that the alleged incident of 12-11-2006 is false. He has also contended that the revisionist be allowed to adduce that evidence so that the correct fact may come on record. Against it the learned AGA has contended that the testimony of Mukesh Kumar Mishra the Sub-Inspector is not relevant at all as he did not make any investigation because no such investigation was directed by the Court. He also submitted that the purpose of the report called under Section 156(3), Cr.P.C. is only to notify whether any case has already been registered in the matter at the police station or not. Had Court directed for investigation, the position could have been different. He also submitted that the purpose of the report called under Section 156(3), Cr.P.C. is only to notify whether any case has already been registered in the matter at the police station or not. Had Court directed for investigation, the position could have been different. He also submitted that no inadmissible evidence can be brought on record because the facts as mentioned in the report submitted by the Sub-Inspector were inadmissible in evidence and therefore, the Sub-Inspector could not be examined to prove inadmissible facts. 7. After considering the respective contention, I am of the view that the contention as raised by the learned Counsel for the revisionist cannot be accepted. Learned Magistrate had only directed for report under Section 156(3), Cr.P.C. and it is settled law that this report is admissible only to the extent whether any case has already been registered or not. The Magistrate had not directed for investigation and if the report contained any other fact it was extraneous to the report called and was not admissible in evidence. In the circumstances, the witness who gave that report could not be examined to prove any fact that was itself inadmissible. 8. Learned Counsel for the revisionist has placed reliance on the case of Rajendra Singh Katoch v. Chandigarh Administration and others, 2008 (60) ACC 347 (SC), and has contended that the Hon’ble Apex Court has held that the Police Officers also have a duty to make a preliminary inquiry so as to find out as to whether allegations made had any substance or not. In that matter there was a dispute between the brothers who were co-sharers regarding the immovable property. One of the brothers filed a First Information Report but the same was not registered. He then filed an application under Section 482, Cr.P.C. in the High Court and prayed for a direction for registration of the case. The High Court rejected the application. In appeal before the Apex Court it was pleaded that in terms of Section 154 of the Code of Criminal Procedure the Police Officers had a duty to register the First Information Report once the allegation disclosed commission of a cognizable offence. The High Court rejected the application. In appeal before the Apex Court it was pleaded that in terms of Section 154 of the Code of Criminal Procedure the Police Officers had a duty to register the First Information Report once the allegation disclosed commission of a cognizable offence. In that case it has been observed in para 8 as under : “Although the officer-in-charge of the police station is legally bound to register a First Information Report in terms of Section 154 of the Code of Criminal Procedure, if the allegations made by them gives rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned; the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not. In this case, the authorities had made investigations into the matter. In fact, the Superintendent of Police himself has, pursuant to the directions issued by the High Court, investigated into the matter and visited the spot in order to find out the truth in the complaint of the petitioner from the neighbours. It was found that the complaint made by the appellant was false and the same had been filed with an ulterior motive to take illegal possession of the first floor of the house.” 9. It has been further observed in para 10 as under : “Criminal proceedings, in our opinion, cannot be taken recourse to for enforcing such a civil right. In any event, in a case of this nature where the authorities bound by law have already investigated into the matter and found that the allegations made by the appellant against respondent No. 4 were not correct, it would not be proper for us to issue any direction to the respondent Nos. 1 to 3 to lodge a First Information Report.” 10. Consequently, the appeal was dismissed. In that case the calling of report under Section 156(3), Cr.P.C. and an enquiry made suo motu by the Police Officer has not been considered. Moreover in that case there was a direction from the High Court and on that basis the Superintendent of Police had himself investigated the matter and had found that the complaint made by the appellant was false. Moreover in that case there was a direction from the High Court and on that basis the Superintendent of Police had himself investigated the matter and had found that the complaint made by the appellant was false. Section 156(3), Cr.P.C. provides that the Magistrate may direct for investigation as herein above. If refers to Section 156(1), Cr.P.C. Therefore unless the Magistrate directs investigation, the Police Officer cannot make any investigation or enquiry when required to give report under Section 156(3), Cr.P.C. The position of Police Officer regarding investigation in a cognizable case under Section 154 read with Section 156(1), Cr.P.C. is different and he can make investigation suo motu and can also make preliminary enquiry. In the circumstances, this ruling does not help the appellant and on its basis it cannot be said that the testimony of the Sub-Inspector Mukesh Kumar Mishra was necessary for the defence case of the revisionist. 11. The instant case is under Section 125, Cr.P.C. and its successes will depend on the facts to be established by Smt. Anupama as alleged by her in her application under Section 125, Cr.P.C. The incident of 12-11-2006 is one of instance to show the harassment and ill-treatment by the revisionist. There are other incidents also which have been mentioned in the application. The parties can lead legal evidence in their case. Since the report under Section 156(3), Cr.P.C. regarding the correctness of the incident itself is not admissible as legal evidence, no witness could be summoned to prove that fact. 12. In the circumstances, I come to the conclusion that the learned Judge has rightly rejected the application and this revision is devoid of merits and is liable to be dismissed and is hereby dismissed. ————