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Allahabad High Court · body

2010 DIGILAW 169 (ALL)

SHRI GOPAL v. STATE OF U. P.

2010-01-13

VINEET SARAN

body2010
JUDGMENT Hon’ble Vineet Saran, J.—By means of this petition under Section 482, Cr.P.C. the petitioner is challenging the order dated 27.11.2009 passed by Chief Judicial Magistrate, Meerut whereby the application of the petitioner filed under Section 156(3), Cr.P.C. praying that a first information report be lodged under Section 498A, 304B, 201, I.P.C. and Section 3/4, Dowry Prohibition Act and the police may then be directed to investigate the matter, has been rejected. 2. I have heard Sri Brahm Singh along with Sri Susheel Kumar Tewari, learned counsel for the petitioner as well as learned Additional Government Advocate appearing for the State-respondent and have perused the record. With consent of the learned counsel for the parties this petition is being disposed of at this stage without calling for a counter affidavit. 3. The case of the petitioner is that since the first information report was not being lodged by the police concerned even after an application in this regard was given to the Senior Superintendent of Police, Meerut on 22.10.2009, the petitioner filed an application under Section 156(3), Cr.P.C. on 30.10.2009 before the Chief Judicial Magistrate, Meerut for registering his first information report. On the said application the Chief Judicial Magistrate called for a report from the police station. In turn, the police submitted a report that the daughter of the petitioner had died because of illness and thus no case under Sections 498-A, 304-B and 201, I.P.C. and section 3/4, Dowry Prohibition Act was made out. 4. The submission of the learned counsel for the petitioner is that the Code of Criminal Procedure does not provide for getting the matter investigated prior to passing an order under section 156(3), Cr.P.C. for registering the case and by having done so, the Chief Judicial Magistrate has erred in law by rejecting the application of the petitioner on the basis of the report of the police. 5. The learned Additional Government Advocate appearing for the State-respondent could not defend the action of the police in having submitted the report in response to the filing of an application under Section 156(3), Cr.P.C. 6. The provisions of Section 156, Cr.P.C. read with Section 154, Cr.P.C. are clear. If an application having the ingredients of a cognizable offence is filed before the Magistrate, then the Magistrate concerned is under an obligation to direct for registration of the case and enforce the provisions of Section154, Cr.P.C. 7. The provisions of Section 156, Cr.P.C. read with Section 154, Cr.P.C. are clear. If an application having the ingredients of a cognizable offence is filed before the Magistrate, then the Magistrate concerned is under an obligation to direct for registration of the case and enforce the provisions of Section154, Cr.P.C. 7. In the present case, a perusal of the application filed under Section 156(3), Cr.P.C. does disclose a cognizable offence and as such it was not for the Magistrate to call for a report from the police after investigation and then pass order to either register the case or not to register the same. The procedure which has been adopted by the Chief Judicial Magistrate by calling for a report from the police after investigation and then proceeding to pass order under Section 156(3), Cr.P.C. is absolutely alien to the procedure prescribed in the Code of Criminal Procedure. By adopting the procedure of asking the police to first investigate the matter at the initial stage of the filing of the application, without passing any order under Section 156 (3), Cr.P.C., what has actually been done is that practically a report under Section 173, Cr.P.C. has been filed and the same has been accepted by the Magistrate, without the petitioner being given an opportunity to challenge the same. In the normal course, if such a report had been submitted after registration of the case, then the petitioner would have had an opportunity to file a protest petition before the Magistrate concerned at the time when the report under Section 173, Cr.P.C. was presented before the Magistrate. 8. In the present case, apparently no enquiry was made from the petitioner, who was the complainant and the report has been submitted by the police on the statement of the doctor and the accused person. On such basis the police has come to the conclusion that no offence is made out against the accused. In this way, in fact, what has happened is that the entire cases, which the petitioner wanted to be investigated in accordance with the procedure prescribed under the Code of Criminal Procedure, has been nipped in the bud and closed down at the initial stage itself, leaving the petitioner remediless. In this way, in fact, what has happened is that the entire cases, which the petitioner wanted to be investigated in accordance with the procedure prescribed under the Code of Criminal Procedure, has been nipped in the bud and closed down at the initial stage itself, leaving the petitioner remediless. As such the order passed by the Magistrate rejecting the application under Section 156(3), Cr.P.C. by adopting a procedure which is neither prescribed under the Code of Criminal Procedure nor can be said to be justified in law, is liable to be quashed. 9. For the foregoing reasons, this petition stands allowed. The impugned order dated 27.11.2009 passed by the Chief Judicial Magistrate, Meerut is quashed. The Chief Judicial Magistrate, Meerut is directed to pass fresh order in accordance with law and in the light of the observations made hereinabove. ———