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Allahabad High Court · body

2019 DIGILAW 1209 (ALL)

Brajesh Shukla v. State of U. P.

2019-05-06

KARUNA NAND BAJPAYEE

body2019
JUDGMENT : Karuna Nand Bajpayee, J. 1. This criminal revision has been preferred against the judgment and order dated 1.4.2019 passed by the 1st Additional Sessions Judge, Agra in Criminal Revision No. 362 of 2017 (CNR No. UPAG01-008559-2017) Raghunandan Parasar v. State of U.P. and others, whereby the Revisional Court has allowed the revision filed on behalf of opposite party No. 2 and set aside the order dated 29.5.2017 passed by learned A.C.J.M., Court No. 8, Agra whereby the application moved under section 156(3) Cr.P.C. on behalf of opposite party No. 2 was rejected. 2. Heard Shri Radha Kant Ojha, learned Senior Counsel assisted by Shri Virendra Singh and Shri Dinesh Tiwari, learned Counsel for the revisionist. 3. An application under section 156(3) Cr.P.C. was moved by opposite party No. 2 for registering an F.I.R. with the allegations that he happens to be the Manager/Director of Raghuram Mahavidyalay Kishora Ka Bagh Birai Te-hra, P.S. Saiya, District Agra, which is being run by a registered society having its President Smt. Anita Parasar. It was further alleged that erstwhile Manager/Secretary, Mr. Brajesh Shukla (present revisionist) was trying to illegally take over the society as well as the college in respect of which the management had made complaints from time to time. It was further alleged that Brajesh Shukla had committed forgery by preparing forged resignation letters of the officiating Principal as well as some of the officiating Lecturers during 02.9.2016 to 6.10.2016 in order to extend undue benefit to few of his right hand men and all this was done in conspiracy with Mr. Mithan Lal, Raj Kumari, Bhagwan Devi, Urmila Devi, Ram Lachhin, Dr. R.K. Chandra and Dr. A.K. Jain. It was further alleged that forged document of appointment of eleven beneficiaries were also prepared on the pretext of their appointments in place of persons claimed to have resigned and apart from this certain forged documents of meeting of the society were also prepared and with all these forged documents, application was presented before the Examination Regulatory Authority, U.P., Allahabad on 06.10.2016 with request to grant approval to the appointment of eleven beneficiaries. All those forged and concocted resignation letters and other documents were certified by Mr. Brajesh Shukla. All those forged and concocted resignation letters and other documents were certified by Mr. Brajesh Shukla. It was further alleged that the Examination Regulatory Authority summoned the concerned parties along with their Aadhar Cards vide his letter dated 21.2.2017 for 9.3.2017, on which date the officiating Principal and other Lecturers appeared and disclosed that their resignation letters are forged and concocted and do not bear their original signatures. These persons also submitted their notary affidavits disclosing this intent. It was further alleged that in the entire controversy Mr. Brajesh Shukla and his associates were duly involved despite knowing the fact that Mr. Brajesh Shukla has never worked as Manager of the college but actually he had been the Manager/Secretary of the society, which are two different posts and this fact is supported by Clause-7(b) of Appendix 2 of the Regulations of B.T.C. Course of N.C.T.E. and is also supported by Clause-13(kha) of the Affiliation Regulation of S.C.E.R.T. It was also alleged that Clause-6 and Clause-10 of the Bye-laws of the society also provides that such type of appointment can only be done with the consent of Chairman of the institution but the Chairman, Smt. Anita Parasar in the present case has never given any consent for the said entire process. With such allegations, it was claimed in the application under section 156(3) Cr.P.C. that the opposite party No. 2 moved complaint before the concerned police station and senior police officers but the F.I.R. was not lodged and as such, the Station House Officer, P.S.-Saiya, District-Agra was required to be directed to lodge the F.I.R. and to do the needful. 4. The said application was rejected vide order dated 29.5.2017 by learned A.C.J.M., Court No. 8, Agra. Being aggrieved by order dated 29.5.2017, the opposite party No. 2 preferred a revision which has been allowed by order dated 1.4.2019, which is the order impugned in the present revision. The main ground of challenging the impugned order in the present revision is that the lower Revisional Court, has not considered the documents filed before him in deciding the revision and the application moved under section 156(3) Cr.P.C. has been moved only to pressurize the revisionist since he had earlier lodged two F.I.Rs. of embezzlement and forgery. The main ground of challenging the impugned order in the present revision is that the lower Revisional Court, has not considered the documents filed before him in deciding the revision and the application moved under section 156(3) Cr.P.C. has been moved only to pressurize the revisionist since he had earlier lodged two F.I.Rs. of embezzlement and forgery. The impugned order is also challenged on the ground that no cognizable offence is made out and the lower Revisional Court has failed to apply its mind on various documents which goes to the root of the cause. The lower Revisional Court while allowing the revision has set aside the order dated 29.5.2017 on the ground that learned Magistrate exceeded its jurisdiction by analyzing and conducting a mini inquiry on the merits of the application under section 156(3) Cr.P.C. The lower Revisional Court while setting aside the order of learned Magistrate observed that the conclusion of learned Magistrate while rejecting the application under section 156(3) Cr.P.C. that the present applicant has been filed to pressurize and harass the revisionist is also exceeding jurisdiction of the Court as the order passed under section 156(3) Cr.P.C. is an order of precognizance stage and there was no requirement of entering into the merits of the case. 5. Heard Shri Vimlendu Tripathi learned Counsel appearing for opposite party No. 2 and learned A.G.A. for the State and perused the record. 6. The provisions contained in Chapter-XXII of the Code deal with the information to the police and their powers to investigate. The said chapter sets out the procedure to be followed during investigation. The objective to be achieved by the procedure prescribed in the said chapter is to set the criminal law in motion and to provide all procedural safeguards as to ensure that the investigation is fair and is not mala fide. In case the concerned police is reluctant to lodge the F.I.R. as has been provided under the Statute, section 156(3) of Cr.P.C. is one of such enabling provision which provides a scope to the informant to move an application to the Magistrate concerned for setting the criminal law in motion. It is also the settled position of law and practice that the investigation of offences and the prosecution of the offenders are the duties of the State. It is also the settled position of law and practice that the investigation of offences and the prosecution of the offenders are the duties of the State. For cognizable offences, a duty has been cast upon the police to register the F.I.R. and to conduct investigation as provided under law. It has also been settled by the Apex Court in the case of Lalita Kumari v. Govt. of U.P. and others, 2014 (84) ACC 719 (SC), that the Code of Criminal Procedure does not have any ambiguity in this regard and it has been held that the registration of the F.I.R. is mandatory under section 154 of the Code, if the information discloses commission of cognizable offence and no preliminary inquiry is permissible in such a situation. It would be useful to reproduce paragraph Nos. 78 and 119 of Lalita Kumari's case (supra), which read as follows : "78. In Lallan Chaudhary (supra), this Court held as under: 8. Section 154 of the Code thus casts a statutory duty upon the police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information. 9. In Rumesh Kumari v. State (NCT of Delhi) this Court has held that the provision of section 154 is mandatory. Hence, the police officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence. Genuineness or credibility of the information is not a condition precedent for registration of a case. That can only be considered after registration of the case. 10. The mandate of section 154 of the Code is that at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence, the police officer concerned cannot embark upon an inquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not relevant or credible. In other words, reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under section 154 of the Code." A perusal of the above-referred judgments clarify that the reasonableness of credibility of the information is not a condition precedent for the registration of a case. ................. ................. 119. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, 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 given is found to be false, there is always an option to prosecute the complainant for filing a false FIR." 7. In this regard it may be further reiterated that various counter claims in the nature of defence of the proposed accused with regard to the desirability of registration or non registration of the said F.I.R. could not be seen at the time of initial registration of the said F.I.R. What is necessary is only the information being given to the police which discloses the commission of a cognizable offence. If the contents of such application discloses commission of cognizable offence then it is mandatory for the police authority that the F.I.R. should be registered. If the contents of such application discloses commission of cognizable offence then it is mandatory for the police authority that the F.I.R. should be registered. Now if the police does not do what it must, and aggrieved by such refusal the informant approaches the Magistrate by moving an application under section 156(3) Cr.P.C., the Magistrate is only required to be satisfied as to whether the F.I.R. discloses the commission of cognizable offence and to see that the allegations on the face of it are not inherently absurd, vague or so improbable that would revolt against the understanding of a man of common prudence. If that is so found then on the application under section 156(3) Cr.P.C. the Magistrate is required to direct the police to register an F.I.R. and conduct the investigation. Section 156 of Cr.P.C. also falls within Chapter-XXII of Cr.P.C. which deals with the powers of police to investigate cognizable offences. Thus the scheme of the Act does not envisages any pre-investigation enquiry to be conduced into the truthfulness of the allegations or otherwise, either before lodging of the F.I.R. under section 154 of Cr.P.C. or even at the stage of section 156(3) Cr.P.C., when the Magistrate directs the concerned police station to register the F.I.R. and investigate the matter. There is no provision which contemplates that at the stage of registration of the crime on the basis of the information itself, the police officer concerned may embark upon an inquiry as to whether the information furnished by the informant is reliable and genuine or whereby he may otherwise refuse to register a case on the ground that the information does not appear to be reliable or credible. The intention of the statute is clear that the officer In-charge of a police station is statutorily obliged to register a case and then proceed in accordance with law as provided under the scheme of statutes. If the police begins with the investigation, the truthfulness of the allegations, its reliability and worth are then to be ascertained through proper investigating methods. If the police begins with the investigation, the truthfulness of the allegations, its reliability and worth are then to be ascertained through proper investigating methods. In the present case learned Magistrate while passing order dated 29.5.2017 relied upon the police report which stated that against Raghunandan Parasar the opposite party No. 2, the revisionist has filed a case being Case Crime No. 193 of 2016, under sections 420, 467, 468, 471, 406 I.P.C. which is pending investigation and another case has also been lodged by him being Case Crime No. 374 of 2017, under sections 420, 467, 468, 472, 120-B, 504, 506 I.P.C. and therefore on the basis of these two police cases a favourable presumption was drawn by the learned Magistrate that the application moved under section 156(3) Cr.P.C. has been filed by the revisionist in order to pressurize the revisionist. The conclusion so drawn and reliance placed upon these two earlier cases was in fact tantamount to embarking upon a mini pre-inquiry prior to lodging of the F.I.R. which was not permissible under the scheme of the Code of Criminal Procedure. The Lower Revisional Court has rightly allowed the revision and there is no illegality, irregularity, impropriety or infirmity in the impugned order passed by the lower revisional Court. 8. The revision lacks merit and stands dismissed.