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2015 DIGILAW 1433 (ALL)

MUNNI v. STATE OF U. P.

2015-05-29

NAHEED ARA MOONIS

body2015
JUDGMENT Hon’ble Naheed Ara Moonis, J.—Heard learned counsel for learned counsel for the petitioners and the learned AGA and have been taken through the record. 2. By means of the present writ petition, the petitioners have invoked extra ordinary jurisdiction of this Court with a prayer to issue writ order or direction in the nature of certiorari quashing the impugned order dated 9.1.2015 passed by the learned Additional Chief Judicial Magistrate Court No. 1, Muzaffar Nagar on the application moved by the respondent No. 3 under Section 156 (3) Cr.P.C. which was allowed directing the Station House Officer concerned to register and investigate the case against the petitioners. It is submitted by the learned counsel for the petitioners that the learned Magistrate has not applied his judicious mind in passing the order dated 9.1.2015 whereby the application under Section 156 (3) Cr.P.C moved by the opposite party No. 3 was allowed in a very pedantic and insouciant manner directing the Station House Officer concerned to register the First Information Report against the petitioners and investigate the same. The order dated 9.1.2015 passed by the learned Magistrate being per se illegal does not deserve to sustain and may be quashed in the interest of justice. 3. The emergence of the facts in a short conspectus is that the instant writ petition has been filed by the proposed accused petitioners impugning the order dated 9.1.2015 passed on the application moved under Section 156 (3) Cr.P.C. which is a pre-cognizance order. The learned Magistrate has not made up his mind against anybody. The learned Magistrate has only sifted the accusations made in the application under Section 156 (3) Cr.P.C. so as to cull out as to whether cognizable offence is being disclosed and after hearing the learned counsel for the opposite party No. 2, he was satisfied that cognizable offence is made out against the petitioners thus he directed the Station House Officer, Police Station concerned to follow the mandate of law. Since no proceeding has taken against the petitioners, they cannot raise any grievance that the order passed by the learned Magistrate is violative of their fundamental rights enshrined in the Constitution of India. 4. Learned counsel for the petitioners has raked up a number of disputed question of facts stressing that the proceedings initiated against the petitioners pursuant to the impugned order dated 9.1.2015 is non-est and may be set aside. 4. Learned counsel for the petitioners has raked up a number of disputed question of facts stressing that the proceedings initiated against the petitioners pursuant to the impugned order dated 9.1.2015 is non-est and may be set aside. In support of his contention, learned counsel for the petitioner has placed reliance upon the verdict of the Hon’ble Apex Court in re Priyanka Srivastava and another v. State of U.P.and others (Criminal Appeal No. 781 of 2012) decided on 19th March 2015 submitting that a police officer can foreclose an FIR before an investigation under Section 156 (3) Cr.P.C. if it appears to him that there is no sufficient ground to investigate the offence. The learned Magistrate has not verified the verity and probity of the accusations made in the application under Section 156 (3) Cr.P.C. and has proceeded on erroneous consideration other than law by directing the Station House Officer concerned to lodge the First Information Report. The learned Magistrate has dissociated from the guidelines laid down by the Hon’ble Apex Court and has straightway proceeded with the matter so as to demonstrate undue favour to the opposite party No. 3 and undue harassment to the petitioners hence the prosecution of the petitioners pursuant to the impugned order dated 9.1.2015 being against the spirit of law deserves to be vitiated and the impugned order itself may be rendered nugatory. 5. Per contra learned AGA opposed the contention of the learned counsel for the petitioners and mooted his arguments that there is no illegality or vulnerability in the order passed by the learned Magistrate. On receiving the application under Section 156 (3) Cr.P.C. the learned Magistrate has applied his judicious mind on the allegation upon which he has ordered the Station House Officer concerned to register and investigate the matter. Mere registration of the First Information Report will not caste onerous upon the petitioners for being held guilty of the offence. The petitioners will have ample opportunity to put forth their defence which would be considered in the right perspective. The petitioners have got no locus to interfere in the investigation which is a pre-cognizance stage. 6. Having considered the rival submissions advanced by the learned counsel for the parties this Court culled out that the petitioners are the proposed accused who can appear and say their grievance at the appropriate forum. The petitioners have got no locus to interfere in the investigation which is a pre-cognizance stage. 6. Having considered the rival submissions advanced by the learned counsel for the parties this Court culled out that the petitioners are the proposed accused who can appear and say their grievance at the appropriate forum. The petitioners are not deterred from raising their grievance before the appropriate forum. The registration of the First Information Report and investigation are the integral and inseparable part of pre-cognizance stage. The investigating officer will swing into investigation and after recording the statement of the complainant and the witnesses will submit either charge-sheet or final report. At this stage no proceeding has taken place against the petitioner thus they cannot raise their grievance. 7. Further in Union of India v. W.N.Chaddha, 1993 SC (Cri) 1171, the Hon’ble Apex Court in para 98 held as under : “If prior notice and an opportunity of hearing are given to an accused in every criminal case before taking any action against him such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self defeating. Further the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary”. 8. In the light of above scenario, it emerges out that the proposed accused cannot appear and say that the direction issued by the learned Magistrate should not be complied with against them with respect to a cognizable offence. In the present case, learned Magistrate found that cognizable offence is made out, he is rightly proceeded with the matter directing to register the First Information Report and investigate. Prior to registration of the First Information Report, hearing is not required to be afforded to the proposed accused persons. The Code of Criminal Procedure does not give any right to anybody to challenge the registration of the First Information Report against him when he is alleged to have committed cognizable offence. In the case in hand, it is highly stupendous that the order was passed by the Court below for registration of the First Information Report and investigation of the offence on the application under Section 156 (3) Cr.P.C. vide order dated 9.1.2015. In the case in hand, it is highly stupendous that the order was passed by the Court below for registration of the First Information Report and investigation of the offence on the application under Section 156 (3) Cr.P.C. vide order dated 9.1.2015. The present writ petition has been filed after lapse of considerable period of five months i.e. on 7.5.2015 but the petitioners have not made any whisper or inkling in the writ petition as to the First Information Report has been lodged pursuant to the order dated 9.1.2015 rather they have sought indulgence for making nullity to the order impugned. On the interrogation of the Court as to whether any First Information Report has been lodged pursuant to the order dated 9.1.2015, the learned counsel for the petitioners tried to get the matter oversighted insisting upon the legality or illegality of the order impugned. When the learned counsel for the petitioners did not put forth any genuine response, the Court directed to file the supplementary-affidavit narrating therein that no First Information Report has been lodged. Supplementary-affidavit has been filed by the clerk of the counsel bringing on record that pursuant to the order dated 9.1.2015, First Information Report has been registered vide Case Crime No. 42 of 2015 under Sections 323/376(d)/377/498A/504/506 IPC read with Section 3/4 Dowry Prohibition Act at police station Thana Bhawan, District Shamli on 22.1.2015. The conduct of the petitioners appears to be highly scornful and disdainful as they have not come up with clean hand before this Court and have committed perjury and fraud so as to obtain the favourable order frustrating the interest of justice. When the First Information Report was already lodged on 22.1.2015 and the instant writ petition has been reported on 7th May 2015 with a prayer to quash the order dated 9.1.2015 whereby First Information Report was directed to be lodged.Now this fact has been unfolded with the supplementary-affidavit that First Information Report was lodged much earlier to the filing of the present writ petition. 9. The conduct of the petitioners are not only despicable and abominable rather it is a tacit act to play fraud upon the Court so as to get favourable order which must be deprecated with iron hands so as to deter the unscrupulous litigants. 10. 9. The conduct of the petitioners are not only despicable and abominable rather it is a tacit act to play fraud upon the Court so as to get favourable order which must be deprecated with iron hands so as to deter the unscrupulous litigants. 10. Learned counsel for the petitioners could not advance any convincing facts in support of his contention rather he submitted that there is no attempt on the part of the petitioners to mislead or play the fraud upon the Court. The petitioners had no intention of obtaining any favourable order on the dint of exploring circuitous design by misguiding or defrauding the Hon’ble Court twisting/concealing the material facts. 11. Be that as it may, it clearly transpires that the petitioners have not come up with clean hand before this Court.The explanation put forth does not appear to be plausible and it appears to be a fit case in which cost must be inflicted for placing the wrong fact as it is an unfair device of obtaining favourable order which ostensibly amounts to interference in the dispensation of justice by abusing the process of the Court. The authority of the Hon’ble Apex Court in re Priyanka Srivastava and another v. State of U.P.and others (Supra) is rested on quite distinct set of facts and circumstances of the case which does not have any applicability with the present case. 12. In these circumstances, the present writ petition is dismissed. As observed above, the conduct of the petitioners, besides being an abuse of the process of the Court, is a fraud played upon the Court, therefore exemplary cost must‘ be imposed as the petitioners have made a tacit attempt to inveigle the Court to obtain favourable order in his favour and it being a serious abuse of the process of the Court, this Court quantify the cost of Rs. 20,000/- payable by the petitioners which is to be deposited at the head of Registrar General of this Court within one month. In case the petitioners fail to deposit the cost within the time framed as above, the same shall be recovered as arrears of land revenue by referring the matter to the competent authority. 13. A copy of this order be sent to the Court below for being placed in the concerned file. ———————