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2009 DIGILAW 2255 (ALL)

HARI PRAKASH KASANA v. STATE OF U. P.

2009-05-15

SUBHASH CHANDRA AGARWAL

body2009
JUDGMENT SUBHASH CHANDRA AGARWAL, J.-Heard Sri Anurag Khanna, learned Counsel for the revisionist and learned AGA for the State. This criminal revision has been filed against the order dated 1.2.2001 passed by the learned Sessions Judge, Bijnor in bail application No. 129 of 2001 whereby while granting the bail to the accused Mohd. Arif Khan and Ravindra Raghav, learned Sessions Judge directed for registration of FIR against the revisionist Hari Prakash Kasana, Inspector P.s. Kotwali, District- Bijnor for committing an offence punishable under relevant provision of the Indian Penal Code. 2. In brief the facts of the cases are that Mohd Arif Khan and Ravindra Raghav was accused in Case crime No. 908 of 2000, under section 7/13 Prevention of Corruption Act and section 384 IPC, P.S. Kotwali City, District-Bijnor. The prosecution case was that on 19.10.2000 at 9.15 p.m., complainant Sardar Harbhajan Singh was taken his combine on road and he was stopped by three constables, namely accused Mohd. Arif Khan, Ravindra Raghav and co-accused Gian Prakash and sum of Rs. 50 / - was demanded as bribe. When bribe was not paid, he was scolded, threatened and beaten by the accused persons. In the meantime, Inspector Hari Prakash Kasana came on the spot and rebuked the constable and obtained a written report from Sardar Harbhajan Singh, on the basis of which FIR was registered on 20.10.2000, at about 4.30 p.m. 3. At the time of hearing of the bail application on behalf of Mohd. Arif Khan and Ravindra Raghav, it was argued on their behalf that no case under section 7/13 of Prevention of Corruption Act was made out and at the most it was a matter of extortion punishable under relevant provision of the Indian Penal Code. It was further submitted before learned Sessions Judge that SHOH.P. Kasana was a very corrupt officer and he pressurised the police constables to give him hush money and when they refused, they were manhandled and accused Mohd. Arif Khan was beaten by Mr. Kasana. Mohd. Arif Khan got himself medically examined on 20.10.2000 and injuries were found on his person. It was further argued that FIR was obtained by H.P. Kasana from the complaint in the back date. 4. Agreeing with the submission made by the learned Counsel for the accused persons, learned Sessions Judge was convinced that Mohd. Kasana. Mohd. Arif Khan got himself medically examined on 20.10.2000 and injuries were found on his person. It was further argued that FIR was obtained by H.P. Kasana from the complaint in the back date. 4. Agreeing with the submission made by the learned Counsel for the accused persons, learned Sessions Judge was convinced that Mohd. Arif Khan was manhandled by the SHO, therefore, while granting bail to the accused Mohd. Arif Khan and Ravindra Raghav, the Sessions Judge directed that a case be registered against Mr. Hari Prakash Kasana, Inspector P.S. Kotwali City, District-Bijnor for committing an offence under the relevant provisions of Indian Penal Code and that of misconduct on the basis of statement of Mohd. Arif Khan and directed investigation by a Senior Officer. Senior Superintendent of Police CBCID was directed to nominate a Senior officer to investigate the matter. Against the impugned order Hari Prakash Kasana had preferred this revision. 5. It is submitted by the learned Counsel for the revisionist that while deciding the application for bail, learned Sessions Judge had no jurisdiction to order for registration of FIR against the ,revisionist. It is contended that only provision in the Cr.P.C. regarding registration of FIR is under section 154 and section 156(3). Under section 156 (3) Cr.P.C. only Magistrate is empowered to direct the police to register the FIR and to make an investigation if prima fade cognizable offence is made out. Under section 154 Cr.P.C., the police can register the FIR on the basis of written report or oral statement made by the complainant. 6. It is further submitted that the Sessions Judge himself cannot exercise the powers conferred on the Magistrate while deciding an application for bail. Learned AGA is unable to defend the impugned order. It is submitted by him that if the Sessions Judge was of the opinion that an investigation into oral complaint made by Mohd. Arif was required, he should have directed him to present himself before the Magistrate for filing an application under section 156 (3) Cr.P.C. or to file complaint under section 190 Cr.P.C. 7. After hearing the learned Counsel for the revisionist and learned AGA, I find that order passed by the learned Sessions Judge directing the registration of FIR against the revisionist cannot be sustained and is liable to be set aside. After hearing the learned Counsel for the revisionist and learned AGA, I find that order passed by the learned Sessions Judge directing the registration of FIR against the revisionist cannot be sustained and is liable to be set aside. In the Code of Criminal Procedure, the powers to direct for registration of FIR has been specifically conferred on the Magistrate under section 156 (3) Cr.P.C. If such an application was moved before the Magistrate and was rejected, only then in revision, the Sessions Judge could have directed the Magistrate to pass appropriate orders but the Sessions Judge himself cannot direct for registration of FIR against any person. If the learned Sessions Judge was of the opinion that there was some truth in the allegations made by Mohd. Arif Khan, he should have directed Mohd. Arif Khan to file complainant before the Magistrate or to move an application under section 156 (3) Cr. P.C. before the Magistrate. While deciding -an application for bail learned Sessions Judge exceeded his) jurisdiction in directing the registration .of FIR against Hari Prakash Kasana. Threrefore, revision deserves to be allowed. 8. The revision is allowed. Part of the order dated 1.2.2001 passed by the learned Sessions Judge, Bijnor on bail application No. 129 of 2001 in Case Crime No. 908 of 2000, P.5. Kotwali City, Bijnor directing the registration of FIR against Hari Prakash Kasana and further directing the investigation by a Senior Officer of C.B.C.I.D is set aside. Revision Allowed.