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2020 DIGILAW 549 (JK)

Taro Devi v. Union Territory of J&K

2020-10-22

SANJAY DHAR

body2020
Judgment Sanjay Dhar, J.—The petitioner has challenged order dated 09.09.2020 passed by learned Additional Mobile Magistrate, Samba, whereby the learned Magistrate has directed SHO, P/S Vijaypur to verify the matter and if cognizable offences are made out, to proceed in terms of Section 156(3) of the Code of Criminal Procedure. 2. Petitioner is primarily aggrieved of the direction of the learned Magistrate to the extent it asks the SHO to verify the matter prior to proceeding in terms of Section 156(3) of Cr. P. C. According to the petitioner the learned Magistrate could not have delegated the power of verification to the SHO. 3. For appreciating the controversy at hand, it is necessary to notice the facts of the case. 4. It appears that the petitioner had filed an application under Section 153(6) of Cr. P. C before the learned Magistrate seeking a direction for registration of FIR. In the application it was alleged that at about 9. 30 a.m. on 29.08.2020, when the petitioner was working in her land measuring 16 marlas comprised in Khasra No.3 situated at Smball Wali Tehsil Vijaypur District Samba, the accused persons, armed with Dharatis and clubs, trespassed into the said land and hurled abuses upon the petitioner. It is also alleged that the petitioner somehow managed to escape from the spot otherwise she would have been physically harmed by the accused persons. It was also alleged in the application that the petitioner had approached the SHO concerned as well as the SSP concerned but her efforts to get the case registered against the accused persons did not bear any fruits. Accordingly, she approached the learned Magistrate with a request to issue a direction for registration of a case against the accused persons in terms of Section 156(3) of Cr. P. C. 5. It seems that the learned Magistrate vide a detailed order dated 09.09.2020, after noting the contents of the complaint and the submissions of learned counsel for the petitioner, directed SHO P/S Vijaypur to verify the matter and if cognizable offences are made out, to proceed in terms of Section 156(3) of Cr. P. C. It is this direction of the learned Magistrate which is under challenge before this Court by way of instant petition. 6. It has been contended by learned counsel for the petitioner that the learned Magistrate has delegated the power vested under Section 156(3) of Cr. P. C. It is this direction of the learned Magistrate which is under challenge before this Court by way of instant petition. 6. It has been contended by learned counsel for the petitioner that the learned Magistrate has delegated the power vested under Section 156(3) of Cr. P. C to the SHO concerned. It has been further contended that there was no occasion for the learned Magistrate to get the matter verified when the application of the petitioner on the face of it disclosed commission of cognizable offences against the accused. According to the learned counsel, the impugned direction of the learned Magistrate is in violation of various judgments of the Supreme Court to which he has made reference in the petition. 7. I have heard learned counsel for the petitioner and perused the record of the case. 8. Section 154 of Cr. P. C makes its incumbent upon an officer-in-charge of a Police Station to register an FIR when he receives an information disclosing commission of a cognizable offence. Section 156(3) of Cr. P. C gives jurisdiction to a Magistrate empowered under Section 190 of Cr. P. C to order an investigation into a cognizable case. Section 156 of the Code reads as under: “156. Investigation into cognizable cases (1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the local limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial. (2) No proceeding of police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned. 9. From a perusal of the aforesaid provision, it is clear that a Magistrate who has jurisdiction to entertain a complaint under Section 190 of Cr. P. C for taking cognizance of an offence, is empowered to issue direction to the officer-in-charge of a Police Station to register and investigate a case if the information laid before him discloses commission of cognizable offences. The discretion lies with the Magistrate whether to proceed under Section 156(3) of Cr. P. C for taking cognizance of an offence, is empowered to issue direction to the officer-in-charge of a Police Station to register and investigate a case if the information laid before him discloses commission of cognizable offences. The discretion lies with the Magistrate whether to proceed under Section 156(3) of Cr. P. C or to adopt a course in terms of Chapter XIV of the Code of Criminal Procedure by taking cognizance of offences and proceeding in accordance with the provisions contained in the said Chapter. 10. In the instant case, it appears that the learned Magistrate has taken recourse to the provisions contained in Section 156(3) of Cr. P. C instead of proceeding to take cognizance of the offence on the basis of information laid before her. The question arises as to what is the scope of power of the Magistrate under the provisions contained in Section 156(3) of Cr. P. C 11. It has been vehemently contended by learned counsel for the petitioner that as per the ratio laid down by the Supreme Court in Lalita Kumari’s case { (2014) 2 SCC 1 }, once information laid before the Magistrate discloses commission of a cognizable offence, he has no option but to direct registration of FIR. The ld. Counsel has further contended that the scope of power of the Magistrate does not extend to the extent of directing verification of the veracity of the information laid before him. 12. Section 156(1) of the Cr. P. C provides that officer-in-charge of a Police Station may investigate a cognizable case within the local area of his jurisdiction whereas Section 156(3) of the code empowers a Judicial Magistrate having jurisdiction direct the officer-in-charge of Police Station to undertake investigation of such case. So far as registration of an FIR is concerned, Section 154 of Cr. P. C makes it obligatory upon an officer-in-charge of a Police Station to do so in case the information regarding commission of a cognizable offence comes to his notice. The Supreme Court in Lalita Kumari v. Govt. of UP & Ors., (2014) 2 SCC 1 , while discussing the scope of Section 154 of Cr. P. C makes it obligatory upon an officer-in-charge of a Police Station to do so in case the information regarding commission of a cognizable offence comes to his notice. The Supreme Court in Lalita Kumari v. Govt. of UP & Ors., (2014) 2 SCC 1 , while discussing the scope of Section 154 of Cr. P. C, held as under: “In view of the aforesaid discussion, we hold: i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/ family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.” 13. From the afore-quoted enunciation of law, it becomes clear that when an information relating to commission of cognizable offences is laid before the incharge of a Police Station, he has no option but to register a case and commence the investigation. The Court has, however, observed that there may be some cases that would require preliminary enquiry before registration of FIR and instances of such cases have been given in the judgment. It has been further observed by the Court that these instances are only illustrative and not exhaustive. Thus, there may be some other kinds of cases also, though not mentioned in the judgment of the Supreme Court, that would require preliminary enquiry before a case is registered. 14. The scope of the judgment in Lalita Kumari’s case was further explained by the Supreme Court in a later judgment in the case of Priyanka Srivastava & anr. v. State of UP & Ors, AIR 2015 SC 1758 . The relevant observations of the Supreme Court in this context are reproduced as under: “27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.” {emphasis supplied} 15. From the aforesaid observations of the Supreme Court, it is clear that there may be cases in which it may not be appropriate for the Magistrate to directly order registration of FIR keeping in view the facts and circumstances of such cases. From the aforesaid observations of the Supreme Court, it is clear that there may be cases in which it may not be appropriate for the Magistrate to directly order registration of FIR keeping in view the facts and circumstances of such cases. The Court has clearly stated that there may be appropriate cases where the Magistrate would be well advised to verify the truth and veracity of the allegations. 16. The registration of an FIR against a person has serious consequences, as such, it cannot be done in a routine manner. Once an FIR is registered, the accused faces the possibility of arrest and all forms of harassment and indignation, which are associated with a criminal prosecution. If a Magistrate in the cases, nature whereof has been illustrated by the Supreme Court in aforenoted judgment, directly orders registration of FIR without verifying the veracity of the allegations and without getting satisfied as to whether or not any cognizable offence is made out, the affected parties will be un-necessarily put to harassment. It is because of these consequences in mind that the Supreme Court in Priyanka Srivastava’s case clearly laid down that in appropriate cases the Magistrates before ordering registration of FIR should look for certain safeguards like filing of an affidavit by the petitioner and verifying the veracity of the allegations. 17. With the aforesaid backdrop of the law in mind, let us now advert to the facts of the instant case so as to ascertain as to whether the learned Magistrate was justified in directing verification of the matter before registration of the FIR. 18. In the complaint made before the learned Magistrate it was mentioned that on an earlier occasion, another FIR bearing No.146/2020 for offences under Section 354, 447 and 341 IPC had been registered at the instance of the petitioner with regard to the trespass on the same land in which the accused are on bail. In the impugned order submission of the learned counsel for the petitioner that there is a civil litigation with regard to the said land going on between the parties, has been noted. So, it is a case where parties are litigating in Civil Court in respect of a patch of land and previously also one more FIR alleging trespass into the said land, stands registered. Thus, it was not an ordinary run of mill case. So, it is a case where parties are litigating in Civil Court in respect of a patch of land and previously also one more FIR alleging trespass into the said land, stands registered. Thus, it was not an ordinary run of mill case. It had special features, inasmuch as there was a long standing land dispute pending between the parties and, as such, filing of frivolous FIRs by the parties against each other to settle the dispute on the terms suitable to the respective parties could not be ruled out. In the backdrop of these facts, the learned Magistrate was fully justified in directing verification of the allegations made in the application before registration of the FIR. 19. The contention of the learned counsel for the petitioner that the learned Magistrate could not have delegated her power to verify the veracity of the allegations to the SHO, is without merit for the reason that once the ld. Magistrate decided to proceed in terms of Section 156(3) of Cr. P. C, she had no option but to get the allegations made in the complaint verified by the officer-in-charge of the Police Station. The ld. Magistrate could have done so by herself only if she would have decided to proceed in terms of the provisions contained in Chapter XIV of the Code of Criminal Procedure and not otherwise. 20. The impugned order passed by the learned Magistrate is, therefore, well-reasoned and based on sound principles of law. The same does not call for any interference from the Court. 21. For the foregoing reasons, I do not find any merit in this petition. The same is dismissed accordingly.