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2009 DIGILAW 1360 (MP)

YASHPAL SINGH v. STATE OF MP.

2009-12-09

RAKESH SAKSENA

body2009
Judgment Rakesh Saksena, J. ( 1. ) Applicant Yashpal singh has filed this revision against the order dated 6.7.2009 passed by First Additional Sessions Judge, Tikamgarh in Criminal Revision No. 41/2009, whereby the order dated 24.2.2009 passed by Judicial Magistrate First Class, Niwadi in Crime No. 307/2008 of Police Station Prithvipur District Tikamgarh was set aside. ( 2. ) In short, facts of the case are that on 28.11.2008 at about 1.30 A.M. complainant Anurag Nayak lodged the report with police Prithvipur that while the voting of Legislative Assembly Constituency, Prithvipur was in progress at about 4.30 P.M. accused Brijendra Singh Rathore along with Yashpal Singh and other accused persons forced voters to vote in favour of Brijendra Singh. When rival candidate Sunil Nayak reached there and opposed the activities of accused persons, on exhortation of Brijendra, Yashpal Singh took out a revolver and fired it at Sunil Nayak, as a result of injury, Sunil Nayak died in Medical College, Jhansi. On the above report, crime no. 307/2008 was registered under Sections 302 and 307 of the Indian Penal Code against Brijendra Singh, Yashpal Singh and other accused persons. ( 3. ) According to applicant, in the same incident, he had also suffered gun shot injury. He had also submitted a report to Superintendent of Police, Tikamgarh on 28.11.2008 stating that at the time of occurrence Sunil Nayak and his associates wanted to damage the electronic voting machine as they expected his defeat. They wanted to disturb the election process with a view to get the election of booth no. 53 rejected. Sunil Nayak abused him and exhorted other persons to kill him. Sunil Nayaks son Anurag Nayak snatched sten-gun from one of the gunners which was resisted by the gunners. In the process of snatching gun back from Anurag Nayak the bust of sten-gun went off, due to which he, Sunil Nayak and a gunner of Sunil Nayak suffered injuries. Police people took him to Jhansi for treatment and subsequently sent him to Kanpur, where he was operated. According to him, he had given oral report to Station Officer, Sunil Dhurve at the spot, but his report was not recorded. Even on his written report, no action was taken. ( 4. Police people took him to Jhansi for treatment and subsequently sent him to Kanpur, where he was operated. According to him, he had given oral report to Station Officer, Sunil Dhurve at the spot, but his report was not recorded. Even on his written report, no action was taken. ( 4. ) Since no action was taken by the police, Yashpal Singh sent an application to Chief Judicial Magistrate, Tikamgarh on 28.12.2008, praying that action be taken under Section 156(3) of the Code of Criminal Procedure on his report dated 28.11.2008. Chief Judicial Magistrate, Tikamgarh made over this application to Judicial Magistrate, First Class, Niwadi, who had jurisdiction to deal with it. By order dated 9.1.2009, Judicial Magistrate First Class sent the written application dated 28.11.2008 to Superintendent of. Police Tikamgarh directing him to take action according to law. In compliance of the aforesaid direction, Station Officer of Police, Prithvipur submitted a report before the Magistrate on 19.2.2009 stating that the detailed investigation was conducted by the police in Crime No. 307/ 2008, which was registered on the report lodged by Anurag Nayak. Yashpal Singh was arrested in connection with that crime and the charge sheet was filed before the concerned court against 12 accused persons on 16.2.2009. It was further stated that Yashpal Singh had made the aforesaid application on false grounds to create his defence. After discussing the evidence of witnesses which was recorded under Section 161 of the Code of Criminal Procedure in Crime No. 307/ 2008 and drawing inferences on that basis, Station Officer of Police Prithvipur requested the Court to decide the application made by Yashpal Singh on the basis of record of Crime No. 307/2008. ( 5. ) Since no action was taken by the police by registering the first information report on the basis of allegations made by applicant, Yashpal singh filed an other application under Section 156(3) of the Code of Criminal Procedure in the Court of Magistrate on 20.2.2009. Taking into consideration the allegations made by the applicant in his report and application, learned Magistrate allowed the said application and directed police to register the first information report and supply its copy to complainant and to proceed according to law. It was further directed that after investigation, report be submitted on 20.3.2009. ( 6. Taking into consideration the allegations made by the applicant in his report and application, learned Magistrate allowed the said application and directed police to register the first information report and supply its copy to complainant and to proceed according to law. It was further directed that after investigation, report be submitted on 20.3.2009. ( 6. ) Aggrieved by the aforesaid order, State filed revision before the First Additional Sessions Judge, Tikamgarh mainly on the ground that since previously an application under Section 156(3) of the Code was filed by the applicant and the police had submitted its report that the allegations made by the applicant were false and baseless, learned Magistrate committed error in entertaining second application under Section 156(3) of the Code of Criminal Procedure and directing registration of the First Information Report. ( 7. ) Learned Sessions Judge allowed the revision and set aside the order passed by the learned Magistrate on the ground that when a report was filed by the police then Magistrate could have proceeded under the provisions of Section 190(l)(a) and 190(1) (b) of the Code of Criminal Procedure and should not have entertained the second application under Section 156(3) of the Code of Criminal Procedure. ( 8. ) Aggrieved by the order passed by learned Additional Sessions Judge, applicant has filed this revision. Learned counsel for the applicant contended that the order passed by learned Additional Sessions Judge was illegal and incorrect and was liable to be set aside. According to him, learned Magistrate had not proceeded under the provisions of Section 156(3) of the Code when first application was sent to him by the applicant from Jail. No first information report was registered by the police and no investigation was conducted, not even the statement of complainant i.e. Yashpal Singh was recorded, therefore, it could not be held that the first application was treated as an application under Section 156(3) of the Code of Criminal Procedure. Per contra, learned counsel for the State and the objector contended that the second application under Section 156(3) of the Code was barred, because a report had already been submitted by the police on 19.2.2009. ( 9. ) I have heard the learned counsel of both the sides and perused the record. ( 10. ) In Madhu Bala Vs. Per contra, learned counsel for the State and the objector contended that the second application under Section 156(3) of the Code was barred, because a report had already been submitted by the police on 19.2.2009. ( 9. ) I have heard the learned counsel of both the sides and perused the record. ( 10. ) In Madhu Bala Vs. Suresh Kumar and others- AIR 1997 SC 3104 , the Apex Court held as under: " Whenever a Magistrate directs an investigation on a complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the Police Rules. Therefore, the direction of a Magistrate asking the police to register a case makes an order of investigation under Section 156(3) cannot be said to be legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the Police to investigate into a cognizable case and the Rules framed under the Police Act, 1861 it (the Police) is duty bond to formally register a case and then investigate into the same . The provisions of the Code, therefore, does not in any way stand in the way of Magistrate to direct the police to register a case at the police station and then investigate into the same. When an order for investigation under Section 156(3) of the Code is to be made the proper direction to the police would be to register a case at the police station treating the complaint as the First Information Report and investigate into the same."........................Once such a direction is given under sub section (3) of Section 156 the police is required to investigate into that complaint under sub-section (1) thereof and on completion of investigation to submit a police report in accordance with Section 173(2) on which a Magistrate may take cognizance under Section 190(l)(b) but not under 190(l)(a). Since a complaint filed before a Magistrate cannot be a police report in view of the definition of complaint referred to earlier and since the investigation of a cognizable case be the police under Section 156(1) has to culminate in a police report the complaint - as soon as an order under Section 156(3) is passed thereon- transforms itself to a report given in writing within the meaning of Section 154 of the Code, which is known as the First Information Report (FIR). As under Section 156(1), the police can only investigate a cognizable case it has to formally register a case on that report." ( 11. ) Learned counsel for the applicant relying on (2008) 2 SCC 409 - Sakiri Vasu Vs. State of Uttar Pradesh and others submitted that once an application under Section 156(3) was filed it was duty of the Magistrate to direct the Officer Incharge of the Police Station to register the First Information Report of a cognizable case and to investigate. In the present case, since on sending an application from jail by the applicant, Magistrate asked Superintendent of Police to take action according to law, it cannot be held that the said application was treated an application under Section 156(3) of the Code. In Sakiri Vasu (supra) the Apex Court held as under: " In view of the above mentioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though, these powers have not been expressly mentioned in Section 156 (3) CrPC, we are of the opinion that they are implied in the above provision". ( 12. ) In Section 156(1) of the Code of Criminal Procedure, it has been provided that that any Officer Incharge 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. Sub section (3) provides that any Magistrate empowered under Section 190 may order such an investigation as above mentioned. It is thus clear that while a Magistrate proceeds under Section 156(3) of the Code of Criminal Procedure, he has to direct to the Officer Incharge of the Police Station for registration of the criminal offence and to proceed with investigation. But in the case in hand, learned Magistrate by order dated 9.1.2009 directed Superintendent of Police, Tikamgarh to take legal action instead of directing Officer Incharge of the Police Station to register the First Information Report. Thus, it cannot be held that the learned Magistrate treated the application sent by applicant from Jail as an application under Section 156(3) of the Code of Criminal Procedure. Even the police did not submit its report in terms of Section 173 of the Code of Criminal Procedure, which was essential for it, had it treated the order of Magistrate one under Section 156(3) of the Code of Criminal Procedure. ( 13. ) In Divine Retreat Centre Vs. State of Kerala and others- (2008) 3 SCC 542 , the Apex Court observed:- "38. This Court in M.C.Mehta (Taj Corridor Scam) Vs. Union of India upon analysis of the relevant provisions of the Code held that after completion of the investigation if it appears to the investigating officer that there is no sufficient evidence, he may decide to release the suspected accused. If, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he has to take necessary steps under Section 170 of the Code. "In either case, on completion of the investigation he has to submit a report to the Magistrate under Section 173 of the Code in the prescribed form who is required to consider the report judicially for taking appropriate action thereof." We do not propose to deal with the options available in law to the Magistrate and even to a victim or informant as the case may be." ( 14. ) Thus, in my opinion the order dated 9.1.2009 passed by the Magistrate could not have been treated as an order passed under Section 156(3) of the Code and the learned Additional Sessions Judge was not right in treating the aforesaid order under Section 156(3) of the Code of Criminal Procedure. ( 15. ) Thus, in my opinion the order dated 9.1.2009 passed by the Magistrate could not have been treated as an order passed under Section 156(3) of the Code and the learned Additional Sessions Judge was not right in treating the aforesaid order under Section 156(3) of the Code of Criminal Procedure. ( 15. ) Learned Additional Sessions Judge held that the Magistrate was not empowered to direct the investigation under Section 156(3) of the Code of Criminal Procedure in the instant case, because it could be a case under Section 307 of the Indian Penal Code which was exclusively triable by the Sessions. This was held in view of the proviso attached to Section 202(1) of the Code of Criminal Procedure. In my opinion, the aforesaid finding of the learned Additional Sessions Judge is misconceived and is based on incorrect interpretation of the provisions of the Code. Section 156(3) and Section 202 of the Code of Criminal Procedure operate in distinct spheres and different stages. Section 156(3) of the Code of Criminal Procedure can be utilized only at pre-cognizance stage, whereas Section 202 comes in the picture after cognizance has been taken by the Magistrate, when the Magistrate is in seisin of the case. In the case of a complaint regarding 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) of the Code of Criminal Procedure. 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) of the Code of Criminal Procedure. Thus the object of an investigation under Section 202 is not to envisage a fresh case on police report, but to assist the Magistrate in completing the proceedings already instituted upon a complaint before him. ( 16. ) In Dilawar Singh Vs. State of Delhi- (2007) 12 SCC 641 the Apex Court observed in paragraph 18 as under: "6. Section 156 falling in Chapter XII, deals with powers of police officers to investigate cognizable offences. Investigation envisaged in Section 202 contained in Chapter XV is different from the investigation contemplated under Section 156 of the Code. 7. ) In Dilawar Singh Vs. State of Delhi- (2007) 12 SCC 641 the Apex Court observed in paragraph 18 as under: "6. Section 156 falling in Chapter XII, deals with powers of police officers to investigate cognizable offences. Investigation envisaged in Section 202 contained in Chapter XV is different from the investigation contemplated under Section 156 of the Code. 7. Chapter XII of the Code contains provisions relating to information to the police and their powers to investigate, whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences, True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to direct an investigation by a police officer. But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code. 8. The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence. 9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence. 9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202 (1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202 (1) i.e. or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. 10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him. 11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offences, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the Officer in charge of the police Station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. 12. 12. The above position was highlighted in Suresh Chand Jain Vs. State of M.P- (2001) 2 SCC 628 ." ( 17. ) Similar view was taken by the Apex Court in Mohd. Yusuf Vs. Afaq Jahan (Smt.) and another- (2006) 1 SCC 627 . ( 18. ) Apart from the above position of law, the factual situation which is revealed on perusal of the report submitted by police before the Magistrate in the instant case on 19.2.2009 is that the police did not register the formal FIR on the basis of accusation made by the applicant; police did not record the statement of complainant viz. Yashpal Singh or any other witness under Section 161 of the Code of Criminal Procedure and did not submit the report in terms of provisions of Section 173 of the Code of Criminal Procedure. Thus, the order passed by the learned Magistrate on 9.1.2009 could not be and was not treated by the police under Section 156(3) of the Code of Criminal Procedure, therefore, the second application filed by the applicant before the Magistrate and the order dated 24.2.2009 passed by the learned Magistrate was well within jurisdiction of the Magistrate. ( 19. ) Learned counsel for the applicant argued that the State had no locus standi to file revision challenging the order of Magistrate as the State is expected to act fairly and impartially for both, the complainant as well as the accused. If, it was brought to the notice of the Investigating Officer that accused had also suffered injuries, it was duty of the Investigating Officer to fairly investigate the accusation if any made by the accused. In Kashiram and others Vs. State of M.P. - (2002) 1 SCC 71 , the Apex Court observed:- "22. The Investigating Officer having found one of the accused having sustained injuries in the course of the same incident in which those belonging to the prosecution party sustained injuries, the investigating officer should have at least made an effort at investigating the cause of, and the circumstances resulting in, injuries on the person of accused Prabhu. Not only the investigating officer did not do so, he did not even make an attempt at recording the statement of accused Prabhu. Not only the investigating officer did not do so, he did not even make an attempt at recording the statement of accused Prabhu. If only this would have been done, the defence version of the incident would have been before the investigating officer and the investigation would not have been one-sided." ( 20. ) In Shiv Kumar Vs. Hukum Chand and another - (1999) 7 SCC 467 the Apex Court observed as under: " The Legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle or conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution, would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor." ( 21. ) A Division Bench of the High Court of Andhra Pradesh in Medichetty Ram kistiah Vs. State of A. P.- AIR 1959 AP 659 observed as under: A prosecution, to use a familiar phrase, ought not to be a persecution. The principle, that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing and anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. The principle, that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing and anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party." ( 22. ) For the aforesaid reasons, this revision is allowed. The impugned order dated 6th July, 2009 passed by the Additional Sessions Judge, Tikamgarh in Criminal Revision No. 41/2009 is set aside and the order dated 24.2.2009 passed by the learned Judicial Magistrate First Class, Niwadi is restored. Revision allowed.