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2016 DIGILAW 1854 (ALL)

NAWAL SINGH v. STATE OF U. P.

2016-05-13

SUDHIR AGARWAL

body2016
JUDGMENT : Hon'ble Sudhir Agarwal,J. 1. This writ petition under Article 226 of Constitution of India has arisen from judgment and order dated 10.8.2004 passed by Sri A.K. Mathur, Additional Sessions Judge, Court no.1, Mathura in Criminal Revision no. 356 of 2004, whereby it has dismissed aforesaid revision and affirmed order dated 27.8.2003, passed by Civil Judge (J.D.)/Judicial Magistrate, Chhata, District Mathura, whereby he took cognizance of the offence under Section 182 IPC, after receiving charge-sheet and summoned the accused. 2. Brief facts giving rise to present writ petition are as follows: 3. On an application being moved by complainant Parsadi Lal, under Section 155(2) Cr.P.C., praying for investigation of a non-cognizable offence (under Section 182 IPC), Judicial Magistrate, Chhata, District Mathura, directed police for investigation into the matter. Application under Section 155(2) Cr.P.C., inter alia, stated that on 28.5.2000, petitioner Nawal Singh presented a false application before Station officer Kosi Kala containing allegations that his relative Parshadi had got his daughter Bhaddo married two years back with Tara Chand but the girl fled away with another boy just after 1½ months after the marriage. Petitioner had further stated falsely that on 21.5.2000, Tota Ram, girl's uncle and Rajendra killed the girl Bhaddo, for defaming their family. Two witnesses namely, Fattey and Ram Kishan were quoted to have seen the girl being taken away by Totaram. 4. Pursuant to Magistrate's order, investigation was conducted and ultimately police came to conclusion that Petitioner Nawal Singh had moved false complaint against Parsadi Lal (girl's father) and other accused persons, alleging that they had murdered girl Bhaddo. Accordingly, charge-sheet under Section 182 Cr.P.C. was submitted against Nawal Singh, Fattey Ram and Ram Kishan for giving false information with mala fide intention to cause injury to Parsadi Lal by using power of a public servant. 5. On receiving charge-sheet against revisionist and other co accused, learned Magistrate passed order dated 27.8.2003, summonning accused including revisionist herein. On revision being filed by accused revisionist, by impugned order Revisional Court has dismissed revision, aggrieved whereof, petitioner has come up in this writ petition. 6. Report/complaint was made by Parsadi Lal, a private person to police at P.S. Kosi Kala, District Mathura, which was registered as NCR No. 66 of 2001. It was presented before Magistrate who passed order on 6.5.2003 for investigation by police. 6. Report/complaint was made by Parsadi Lal, a private person to police at P.S. Kosi Kala, District Mathura, which was registered as NCR No. 66 of 2001. It was presented before Magistrate who passed order on 6.5.2003 for investigation by police. Police made investigation and submitted charge-sheet before Magistrate under Section 182 IPC against petitioner Nawal Singh and two others, i.e. Fattey Ram son of Bishan Singh and Ram Kishan son of Roshan Lal. Up to this stage Section 195 Cr.P.C. has no application as it cannot control power of police to investigate a matter under Code of Criminal Procedure. It is only when matter is placed before Court for taking cognizance, embargo under Section 195 would come into play. 7. In M. Narayandas Vs. State of Karnataka 2003 (11)SCC 251 , a complaint was made to police that documents filed in a suit were forged and fabricated. Report under Section 468/470/471/120B IPC was registered. At this very stage, a petition under Section 482 Cr.P.C. was filed for quashing Final Report, which was allowed by High Court. In appeal, Supreme Court observed that whenever an information of a commission of cognizable offence is brought to notice of a police officer, he is obliged under statute to register a case and then to proceed with investigation if he has reason to suspect commission of an offence, which he is empowered under Section 156 to investigate, subject to proviso to Section 157 Cr.P.C. At the stage of registering an F.I.R., the condition necessary is that there must be information and that information must disclose a cognizable offence. In para 5 of the judgment, Court has held that law has been very succinctly set out in the case of State of Haryana versus Bhajan Lal, 1992 SCC (Cri) 426 wherein para 33, Court said: "33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information." 8. It is also said that field of investigation of any cognizable offence is exclusively within the domain of investigating agencies, over which, Court cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as investigation proceeds in compliance with the provisions relating to investigation except in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code. Therefore, on a report/complaint made by a private person, of non-cognizable offence, order passed by Magistrate directing police to make investigation and investigation made by police is one thing. 9. Then the question comes about application of Section 195 Cr.P.C. and stage at which it will apply. Section 195 Cr.P.C. and power of police to make investigation has been considered in State of Punjab versus Raj Singh (1998) 2 SCC 391 , holding that Section 195(1)(b)(ii) Cr.P.C. does not prohibit entertainment of a complaint and investigation by police. Section 195 would come into picture only when the matter is placed before Magistrate for taking cognizance of offence under relevant Sections of IPC, in respect whereto, Section 195 Cr.P.C. is attracted. Relevant extract of judgment reads as under: "From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) Cr. PC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceedings in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.PC. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.PC. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC." (emphasis supplied) 10. Reiterating the same, in M. Narayandas (supra), Court said: "Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340 Criminal Procedure Code is followed." (emphasis added) 11. When examined the present matter in the light of exposition of law, discussed above, the Court finds that herein, Magistrate while taking cognizance and issuing summoning order, has not examined that there is prima facie case pertaining to offence under Section 182 IPC and apparently it was in the clutches of Section 195(1)(a) Cr.P.C., hence dictum laid down above would squarely apply. Revisional Court has not examined the matter in correct perspective in as much as, if an offence under Section 182 IPC has been taken cognizance of, it could not have been taken in any manner other than specified in Section 195 Cr.P.C. It is not disputed by learned A.G.A. that requirement of Section 195 Cr.P.C. is mandatory and anything done which is not in consonance therewith, will be illegal and would result in denuding jurisdiction conferred upon Magistrate to take cognizance. 12. In the result, writ petition is allowed. Summoning order dated 27.8.2003 as well as revisional order dated 10.08.2004 are hereby set aside. Order Date :- 13.05.2016