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Uttarakhand High Court · body

2021 DIGILAW 612 (UTT)

SANJAY MEHTA v. STATE OF UTTARAKHAND

2021-12-07

R.C.KHULBE

body2021
JUDGMENT Hon'ble R.C. Khulbe, J. By means of this writ petition, filed under Article 227 of the Constitution of India, petitioner seeks the following reliefs: 1. A writ order or direction in the nature of certiorari quashing the orders passed by the 1st Addl. Session Judge Nainital in Criminal Revision No.156 of 2019 dated 04.03.2020 and the order dated 21.06.2019 passed by learned Chief Judicial Magistrate, Nainital in Misc. Application No.96 of 2019. 2. A writ order or direction in the nature of mandamus directing the respondent nos. 1 & 2 to register a FIR u/s 427, 452, 379, 392, 395, 504, 506 IPC. 2. The brief facts of the case are that, the petitioner filed an application under Section 156(3) Cr.P.C. before the C.J.M., Nainital, which was registered as Misc. Application No.96 of 2019; the concerned C.J.M. after hearing the petitioner, dismissed the application on 21.06.2019; thereafter, the petitioner filed Criminal Revision No.156 of 2019 before the 1st Addl. Session Judge, Nainital; the concerned court after hearing the parties dismissed the revision on 04.03.2020 and affirmed the impugned order passed by the C.J.M., Nainital. Aggrieved by the impugned orders, the present revision is preferred. 3. It is the only allegation filed in the application under Section 156 (3) Cr.P.C. that the petitioner is the tenant situated at Mall Road, Nainital while the owner of the property is the respondent no.3-Gopal Mehrotra; when the petitioner was out of station and had gone Delhi for the treatment of his mother, the respondent no.3 barged into the property and broke open the lock and looted the money and other household items; when the petitioner reached at Nainital on 05.06.2019, he came to know of the aforesaid incident; thereafter, the petitioner has received threatening calls, even from the Police Station. 4. It is submitted by learned Sr. Counsel for the petitioner that the petitioner was the tenant of the respondent no.3, and in absence of the petitioner, the respondent no.3 barged into the property and after broke open the lock, taken away the household items. 5. 4. It is submitted by learned Sr. Counsel for the petitioner that the petitioner was the tenant of the respondent no.3, and in absence of the petitioner, the respondent no.3 barged into the property and after broke open the lock, taken away the household items. 5. The learned counsel for the private respondents submitted that no cognizable offence is made out against the respondents; the petitioner was the tenant of respondent no.3 who handed over the key to the respondent no.3; the petitioner had already vacated the impugned house; there was no occasion to break the lock and stolen the household items related to the petitioner; there is no illegality in the impugned orders. 6. Admittedly, the present petitioner was the tenant of respondent no.3 in the impugned house as mentioned in the application filed under Section 156 (3) Cr.P.C. Although, it is the contention of learned counsel for the respondent no.3 that the petitioner has already handed over the possession of the respondent no.3, but there is no ‘prima facie' evidence on record, which shows that the petitioner has already given the vacant possession to the respondent no.3. 7. Chapter-XII of the Cr.P.C. relates to the information to the police and their powers to investigate. Section 154 Cr.P.C. relates to the information in cognizable cases while Section 155 Cr.P.C. relates to the information as to non-cognizable cases and investigation of such cases. 8. Section 154 Cr.P.C. reads as under:- “(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. (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." 9. As per Section 154 Cr.P.C. it is provided that it is the duty of the Police Officer to lodge the FIR, if the information discloses the commission of cognizable offence; thus, in respect of any cognizable offence for lodging the FIR is mandatory for the incharge of the police station concerned. The Five Judges' Bench of the Hon'ble Apex Court in Lalita Kumari vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1 , 2014 (1) NCC 161 having considered catena of the judgments, held that the FIR is a pertinent document in the criminal law procedure of our country and its main object from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities, is to obtain information about the alleged criminal activity so as to be able to take suitable steps. 10. The Hon'ble Apex Court summarized the law as follows: i) Registration of FIR is mandatory under Section 154 Cr.P.C., 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. 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. 11. Section 156 of Cr.P.C. deals regarding Police Officer's power to investigate in cognizable offence; as per section the incharge police station have a power to investigate the matter without the order of the Magistrate in a cognizable offence; as per sub-Section 3 of Section 156 Cr.P.C., any Magistrate empowered under section 190 may order such an investigation as above mentioned. Section 190 Cr.P.C. deals power of the Magistrate for taking cognizance. 12. From the perusal of the application dated 11.06.2019, it is clear that the petitioner was the tenant of respondent no.3, when the petitioner was out of station and had gone to Delhi for the treatment of his mother; meanwhile, the respondent no.3 barged into the property and broke open the lock and looted the household items and money. 13. 12. From the perusal of the application dated 11.06.2019, it is clear that the petitioner was the tenant of respondent no.3, when the petitioner was out of station and had gone to Delhi for the treatment of his mother; meanwhile, the respondent no.3 barged into the property and broke open the lock and looted the household items and money. 13. As per the 1st Schedule of the Cr.P.C. the offence falls under Sections 379 and 452 IPC are cognizable offence and definitely comes within the purview of Section 154 Cr.P.C.; from the perusal of the application filed under Section 156(3) Cr.P.C. ‘prima facie' the cognizable offence is made out against respondent no.3-Gopal Mehrotra; since the allegation relates to the cognizable offence; accordingly, it was the duty of the concerned Magistrate to direct the concerned Police Station for lodging the FIR; although, it is matter of investigation as what kind of offence is made out, but, if prima facie, as per the application, cognizable offence is made out, then certainly, the concerned Magistrate was duty bound to pass an appropriate order in the application for directing the police to lodge the FIR in the light of the above judgment (supra). In the present matter, both the courts had overlooked the directions of the Hon'ble Supreme Court, which were binding in nature, as per the Article of 141 of the Constitution of India. 14. In these circumstances, the writ petition is liable to be allowed. Accordingly, the instant petition is allowed and the impugned orders are set aside. The concerned Police Station is directed to register the FIR against the respondent no.3-Gopal Mehrotra and to investigate the matter, as per law. 15. Pending applications, if any, also stand disposed of accordingly.