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2021 DIGILAW 414 (ALL)

Prem Chand v. State of U. P.

2021-03-18

MUNISHWAR NATH BHANDARI, SHAMIM AHMED

body2021
JUDGMENT : 1. Heard Sri Rakesh Tripathi I, learned counsel for the petitioners and Sri Patanjali Mishra, learned AGA appearing for the State. 2. By this writ petition, a challenge is made to the FIR dated 04.02.2021 registered as Case Crime No. 0042 of 2021, under Sections 323, 504, 506 and 307 IPC, Police Station Garhmukteshwar, District Hapur. 3. The FIR has been challenged having been lodged as a counter blast to the injunction order passed against the complainant on a suit preferred by the petitioner. In view of the above, prayer is to quash the FIR, as it is motivated one. 4. The second argument of the learned counsel for the petitioners is in reference to Section 154 Cr.P.C. He submits that one needs to approach the office incharge for registration of the FIR. If FIR is not registered then to approach the Superintendent of Police. Without approaching the police officer, an application under Section 156(3) Cr.P.C. was filed. The FIR was registered pursuant to the order passed by the Court under Section 156(3) Cr.P.C. ignoring that order aforesaid could not have been passed without first complying the provision of Section 154 Cr.P.C. On both the grounds, challenge is made to the FIR. 5. We have considered the submissions made by the learned counsel for the petitioners and perused the record. 6. The challenge to the FIR has been made alleging it to be as a counter blast. It is ignoring that allegation for commission of offence under Section 323 and 307 has also been made thus case does not fall under any of the ground set out by the Apex Court in the case of State of Haryana Vs. Bhajan Lal; 1992 SCC (Cr.) 426 and in a recent judgment of the Apex Court in the case of State of Telangana Vs. Habib Abdullah Jeelani and others; 2017 (2) SCC 779 . Any comment on the facts may cause prejudice to either of the party. We are thus not making any comment on facts. So far as second argument is concerned, a reference of Section 154(3) Cr.P.C. has been given. The same is quoted hereunder for ready reference: 154. Information in cognizable cases. Any comment on the facts may cause prejudice to either of the party. We are thus not making any comment on facts. So far as second argument is concerned, a reference of Section 154(3) Cr.P.C. has been given. The same is quoted hereunder for ready reference: 154. Information in cognizable cases. (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf: Provided that if the information is given by the woman against whom an offence under Section 326A, Section 326B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that- (a) in the event that the person against whom an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of aninterpreter or a special educator, as the case may be; (b) the recording of such information shall be videographed; (c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. 7. Section 154(3) Cr.P.C. gives remedy to the complainant if a case is not registered by the office incharge. 8. Learned counsel for the petitioners has made a reference to a judgment of Apex Court in the case of Sakiri Vasu Vs. State of U.P. and others; 2008 (1) RLW (SC) 136. It is to show that Section 156(3) can be involved only when steps were earlier taken under Section 154(3). 9. Here we refer to Section 156(3) Cr.P.C. for ready reference: 156. Police officer’s power to investigate cognizable case.—(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 limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a 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. 10. The perusal of section 156 (3) Cr.P.C. shows the power of the Magistrate to send the matter for investigation. The jurisdiction can be exercised by the Magistrate empowered Section 190 Cr.P.C. to order for such investigation as mentioned in sub section (1) and (2) of Section 156 Cr.P.C. Since a reference of Section 190 Cr.P.C. has been given in Section 156(3) Cr.P.C., it would be gainful to refer even Section 190 Cr.P.C. which is quoted thus: 190. The jurisdiction can be exercised by the Magistrate empowered Section 190 Cr.P.C. to order for such investigation as mentioned in sub section (1) and (2) of Section 156 Cr.P.C. Since a reference of Section 190 Cr.P.C. has been given in Section 156(3) Cr.P.C., it would be gainful to refer even Section 190 Cr.P.C. which is quoted thus: 190. Cognizance of offences by Magistrates.— (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence— (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 11. Section 190 Cr.P.C. provides for filing of the complaint on such facts which constitute an offence. The Magistrate empowered under Section 190 Cr.P.C. can pass an order under Section 156 (3) Cr.P.C. to send the matter for investigation. Section 156(3) Cr.P.C. does not provide for an application but gives power to the Magistrate empowered under Section 190 Cr.P.C. to direct for investigation. 12. It would be gainful to refer even chapter XII in which section 156 Cr.P.C. exist. Chapter XII is about information to the police and their powers to investigate. Section 156 (3) Cr.P.C. falls under Chapter XII which is basically in regards to power of the police to investigate the matter. 13. In the light of aforesaid, we are of the opinion that for invocation of power under Section 156(3) Cr.P.C. the compliance of section 154 (3) Cr.P.C. is not mandatory though even after exhausting aforesaid provision, FIR is not lodged, one can invoke Section 190 Cr.P.C. Therein an order can be passed under Section 156(3) Cr.P.C. The perusal of the FIR however reveals invocation of Section 154(3) Cr.P.C. The complainant first approached the station officer and thereafter the S.P. of the district. 14. Taking into consideration the discussion made above, we do not find a case for quashing of the FIR. The writ petition is, accordingly, dismissed. 15. 14. Taking into consideration the discussion made above, we do not find a case for quashing of the FIR. The writ petition is, accordingly, dismissed. 15. It is, however, made clear that the investigation in the matter would not be guided by any observations made by us rather it would be made independently on merits of the case.