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2017 DIGILAW 295 (ALL)

Dhannwati v. State of U. P.

2017-01-20

NAHEED ARA MOONIS

body2017
JUDGMENT Naheed Ara Moonis,J. Heard learned counsel for the applicant and the learned A.G.A. for the State and perused the record. The instant application has been preferred by the applicant-complainant against the order dated dated 11.11.2016 passed by the learned Additional Chief Judicial Magistrate, Court No.1, Rampur in Complaint Case No.176/11 of 2016 whereby the application moved by the applicant under section 156(3) Cr.P.C. to direct the police concerned to register an FIR against the accused opposite party nos.2 to 8 under Sections 302,120-B IPC has been treated as complaint. It is submitted by the learned counsel for the applicant that after the death of the husband of the applicant in an accident, the sister-in-law and her husband wanted to oust from the house and hence a case was registered against the applicant under Sections 302,120-B IPC. Thereafter the opposite party nos.2 to 8 had barged into the house of the applicant and she was kept in captivity by them and was also ravished her. This news was highlighted in several news paper also. The applicant had tried to lodge the FIR of the incident against the opposite party nos.2 to 8 by moving an application to the S.P., Rampur on 23.9.2016. When no action was taken by the authority the applicant had moved an application u/S 156(3) Cr.P.C. before the court of Additional Chief Judicial Magistrate, Court No.1, Rampur alleging the same averments as contained in the aforesaid application dated 23.9.2016 with a prayer to direct the concerned Station House Officer to lodge the FIR against the accused opposite parties and investigate the case. It is further submitted that the learned Additional Chief Judicial Magistrate proceeded to treat the application u/S 156(3) Cr.P.C. as a complaint case in view of the decision of the Hon'ble High Court passed in Sukhwasi Vs. State of U.P., 2007 (59) ACC 743 directing to record the statement u/S 200 Cr.P.C. of the complainant and fixing 9.12.2016 by order dated 11.11.2016. It is further contended that the order passed by the court below suffers from manifest error of law as allegations made in the application u/S 156(3) Cr.P.C. relating to cognizable offence for which the learned Magistrate ought to have directed the police concerned to lodge the FIR and to investigate the case but the order has been passed in mechanical and cursory manner, hence the same is liable to be quashed. The Hon'ble Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and others, reported in (2008) 3SCC (Cri) 17 wherein Hon'ble Apex Court had issued general direction in the cases where first information was not lodged or where the first information report was lodged on Court's direction, the apathy of police is to investigate the matter, as such, the Hon'ble Apex Court had issued stringent directions pinning responsibility on police authorities to act promptly or else to face contempt/disciplinary proceedings including suspension. In the case of Mobin Vs. State of U.P.and others, reported in 2006 (55) ACC 757 in which this Hon'ble Court has held that when the injury report and X-Ray report make out a cognizable offence, then matter may be remanded back to the Court below to decide the application filed under Section 156(3) Cr.P.C. afresh. In the case of Gulab Chand Upadhyaya Vs. State of U.P. and others, reported in 2002 (44) ACC,. 670, in which this Court has held as follows: - "The scheme of Cr.P.C., and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom State has conferred the powers essential for investigation, for example. (1) where the full details of the accused are known to the complainant and the same can be determined only as a result of investigation, or (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation. Learned A.G.A. has submitted that the order impugned, in the present application, has been passed after considering entire facts and evidence on record which suffers from no illegality or infirmity in law and calls no interference by this Court where the complainant is in possession of the complete details of all the accused as well as the witness who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can only be done by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary case to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides, even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr.P.C. order investigation, even though of a limited nature.". He has further submitted that cognizable offence is made out. Learned A.G.A. has relied upon a Judgment of Hon'ble Apex Court in the case of Sakiri Vasu Vs. State of U.P. and others, reported in (2008) 2 SCC 409 in which Hon'ble Supreme Court has held that caution should be exercised by the High Court in the matter which relates to non-registration of first information report or improper investigation. It was held that High Court should discourage writ petitions or petitions under Section 482 Cr.P.C., where alternative remedies under Section 154(3) read with Section 36 or Section 156(3) or Section 200 Cr.P.C. have not been exhausted. Learned A.G.A. has also referred a Division Bench decision of this Court in the case of Sukhwasi Vs. State of U.P., 2007 (59) ACC 739 wherein this Court has held that the Magistrate is not bound to order registration of a first information report in all cases where a cognizable offence has been disclosed and the Magistrate has authority to treat it as complaint. Having considered the submissions advanced by the learned counsel for the parties and having gone through the record it appears the learned Additional Chief Judicial Magistrate has passed this order in a routine manner. Having considered the submissions advanced by the learned counsel for the parties and having gone through the record it appears the learned Additional Chief Judicial Magistrate has passed this order in a routine manner. Initially the applicant approached to the concerned police authority for lodging an F.I.R. but the F.I.R. was not lodged when it was the statutory duty of the police authority to register the F.I.R. in a cognizable offence. The Apex Court has deprecated the tendency of the police in Lalita Kumari (supra) case, wherein it has been mentioned that if commission of cognizable offence is made out there is no option but to register the F.I.R. forthwith. The other considerations are not relevant at the stage of registration of F.I.R. as to whether the information is falsely given, whether the information is genuine and whether the information is credible etc. these issues have to be verified during the investigation of the F.I.R. At the stage of registration of an F.I.R. what is to be seen is merely whether the information given ex-facie discloses the commission of a cognizable offence. If, after investigation, the information is found to be false, there is always an option to prosecute the complainant for filing a false F.I.R. Learned Additional Chief Judicial Magistrate has not disclosed any sufficient reason on the basis of-which learned Magistrate has proceeded to treat the application under section 156(3) Cr.P.C. as a complaint even though the Apex Court in the case of Alieque Padamsee's case (supra) has held that there is option that the learned Magistrate may treat the application under section 156(3) Cr.P.C. as a complaint case but registering a complaint is not the intention of legislature while exercising the powers under section 156(3) Cr.P.C. It is the duty of the Magistrate to see that the police follows the mandate of law. There are various judgment of the Apex Court that FIR of all cognizable offences must be registered. The Division Bench judgment in the case of Sukhwasi (Supra) has not gone into that aspect of the matter as to why the prayer for directing the registration of FIR of a cognizable offence should be refused. By refusing the prayer of the applicant to get the FIR registered and treating the application U/s 156(3) Cr.P.C. as complaint is manifest error of law and miscarriage of justice vulnerable and not tenable. By refusing the prayer of the applicant to get the FIR registered and treating the application U/s 156(3) Cr.P.C. as complaint is manifest error of law and miscarriage of justice vulnerable and not tenable. In this view of the matter, the orders passed by the two courts below are hereby set aside. Learned Additional Chief Judicial Magistrate is directed to exercise his discretionary power and decide the application under section 156(3) Cr.P.C. moved by the applicant a fresh and shall pass appropriate order within a period of two months from the date of production of a certified copy of this order. The application is accordingly disposed of.