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2023 DIGILAW 242 (ALL)

Vinod Kumar v. State of U. P.

2023-01-24

NALIN KUMAR SRIVASTAVA

body2023
JUDGMENT : NALIN KUMAR SRIVASTAVA, J. 1. Heard learned counsel for the revisionist, learned A.G.A. for the State and learned counsel for the opposite party No. 2. 2. An application under Section 156(3) Cr.P.C. moved by the revisionist/applicant registered as Misc. Case No. 136 of 2018, Vinod Kumar vs. Aidal Singh, P.S. Gabhana, Aligarh was rejected by the Court of Additional Sessions Judge, Court No. 5, Aligarh vide order dated 26.05.2018, feeling aggrieved of which, the present revision has been filed. 3. The submissions of learned counsel for the revisionist, in brief, are that the impugned order has been passed without considering the facts of the case and evidence on record. It is against the provisions of law and suffers from the jurisdictional error as the jurisdiction vested in the Court has not been exercised properly. The observations made by the learned Sessions Court are perverse and arbitrary in nature. From a bare perusal of the application moved by the revisionist under Section 156(3) Cr.P.C. a cognizable offence was clearly made out and the Court ought to have ordered for the registration of F.I.R. and investigation into the matter, but the same was rejected in an illegal manner. Hence, a prayer has been made to set-aside the impugned order by allowing the present revision. 4. The learned A.G.A. appearing on behalf of the State as well as learned counsel for the opposite party No. 2 have vehemently opposed the present revision and it has been submitted that the impugned order has been passed in accordance with the legal principles governing the matter. The application under Section 156(3) Cr.P.C. moved by the revisionist was not sustainable in law and the learned Sessions Court committed no legal or jurisdictional error in passing the impugned order. Hence, the revision is liable to be dismissed. 5. The factual scenario, as reveals from the perusal of the application under Section 156(3) Cr.P.C. is that on 09.03.2018, the victim, daughter of the applicant, aged about 14 years, had gone to some outer place alongwith other women of the village. In the night at 11:00 P.M., the accused seduced her minor daughter and taking her into a Car, committed rape upon her and pressed her mouth so that she could not make any shriek. She was also threatened for her life. In the night at 11:00 P.M., the accused seduced her minor daughter and taking her into a Car, committed rape upon her and pressed her mouth so that she could not make any shriek. She was also threatened for her life. The incident was informed by the victim to her mother and when the informant, who was not present in the village, came back, his wife told him the incident. He searched for the accused, but could not find. Subsequently, on 27.03.2018, the accused again made an attempt to drag the victim when she was coming with her mother and when the wife of the informant and other witnesses tried to hold him, he fled away. Several applications were moved by the informant to the S.S.P. and other Police Officers and Human Rights Commission and he also went to P.S. Gabhana, but no report was lodged. Hence, application under Section 156(3) Cr.P.C. was moved before the concerned Magistrate. 6. Applications given to Station Officer, P.S. Gabhana, Aligarh dated 27.03.2018 and to S.S.P., Aligarh dated 28.03.2018 with Registry receipts were made annexure to the application. The learned Sessions Judge considering the allegations made therein false, frivolous and unnatural and also finding that no medical examination of the victim was performed, rejected the said application vide impugned order dated 26.05.2018. 7. From the rival contentions of both the sides, some relevant points for determination emerge out. Point for determination No. 1 8. At the very outset, it is desirable to elucidate whether the present revision is maintainable as such or not. 9. The learned State counsel and learned counsel for opposite party No. 2 have made it a point of assailment that since the order rejecting an application under Section 156(3) Cr.P.C. falls into the category of interlocutory order, criminal revision against the same is not maintainable. 10. Further, the prospective accused persons were necessary parties before the revisional court and since they were not afforded with an opportunity of hearing, their valuable rights were going to be affected by the order, which was eventually passed by the revisional court, is the second ground of contention taken by the learned counsel for the State and the opposite party No. 2. 11. 11. The question raised by the learned State counsel has already found its answer in a Full Bench case of this Court, Jagannath Verma and Others vs. State of U.P. and Another, AIR 2014 Allahabad 214 (Lucknow Bench) (F.B.). In this Full Bench case, another Full Bench case of this Court Father Thomas vs. State of U.P. and Another, 2011 Criminal Law Journal 2278 (All) (F.B.) was also discussed. In that matter, the Court of Chief Judicial Magistrate, Ambedkar Nagar rejected an application under Section 156(3) Cr.P.C. considering the contents of the complaint and coming to the conclusion that there was no ground for directing the police to register and investigate the case. The aggrieved party preferred a revision before the Session Judge, which was allowed and the order of the Chief Judicial Magistrate was set-aside and the latter was directed to decide the said application afresh. It was against that revisional order aggrieved by which the petitioners moved to the High Court. 12. The Hon’ble Full Bench in Jagannath Verma case (supra) held like this: “The power of the magistrate under Section 202 to postpone the issuance of process and to direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding, is distinct from an order under Section 156(3). Hence, where an order is passed by the magistrate declining to order an investigation under Section 156(3), such an order affects the valuable rights of the complainant and is a matter of moment. Access to the remedy of a revision under Section 397 (1) is not barred since such an order is not an interlocutory order under sub-section (2) nor can access to the statutory remedy of a revision under Section 397 (1) be defeated on the ground that the complainant may avail of the procedure prescribed in Chapter XV of the Code.” 13. Hon’ble Full Bench specifically laid down that in a revision petition against the order of the Magistrate rejecting the application under Section 156(3) Cr.P.C. for registration of F.I.R. and investigation of case, the prospective accused has right to be heard. Hon’ble Full Bench specifically laid down that in a revision petition against the order of the Magistrate rejecting the application under Section 156(3) Cr.P.C. for registration of F.I.R. and investigation of case, the prospective accused has right to be heard. It was also said that: “But a right to be heard in revision is not excluded because a person who claims such a right was not entitled to be heard before the original order, which is assailed, was passed in the first instance or merely because a right of a hearing will not be available in the original proceedings on remand..............” It was further explained that: “Natural justice in our jurisprudence is not merely a matter of statutory entitlement but is an emanation or recognition of the constitutional right to fair procedure, fair treatment and objective decision making. Hence, a prospective accused is entitled to be heard in revision under Section 397 when an order rejecting an application under Section 156(3) is assailed.” 14. The connotative pronouncement of the Full Bench of this Court makes the legal position discernible and clarifies all the doubts regarding the maintainability of the present revision and accordingly it is held to be maintainable. 15. It is also apparent from the perusal of the record that the prospective accused has been impleaded as opposite party No. 2 in the present revision by the revisionist and he has participated in the proceedings of the present revision. Point for determination No. 2. This point relates to the extent of power of a Magistrate while dealing with an application under Section 156(3) of Cr.P.C. 16. Before going into the discussion, a perusal of the relevant provisions of law appears to be necessary. The provisions of Section 154 of the Criminal Procedure Code read like this: “Sec. 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. (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 sub-section (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.” 17. The provision given under Section 154 (1) Cr.P.C. clearly indicates that if a cognizable offence is made out from the very perusal of the information given to an officer in charge of a police station, the police is thereby apprised about the alleged criminal activity and then it is the duty of the police to take suitable steps and to set the criminal law into motion and first step in this regard is the lodging of the F.I.R. and at that stage, as held in Lalita Kumari vs. State of U.P. 2014 (2) SCC 1 “reasonableness” or “credibility” of the information is not a condition precedent for the registration of a case under Section 154 Cr.P.C.” 18. Having an exhaustive account of incident or containing every minute details of the occurrence is never supposed to be a pre-requisite of an F.I.R. Thus, we find that it is unequivocally clear that in case of information of any cognizable offence, the registration of F.I.R. is mandatory. Although, in some cases, it may be required to have a preliminary inquiry and the requirement of preliminary inquiry was emphasized by the Apex Court in Priyanka Srivastava vs. State of U.P. 2015 (6) SCC 287 , wherein the Constitutional Bench of Lalita Kumari case (supra) has been referred like this: “115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.” 19. Further, the Constitutional Bench proceeded to hold that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 20. The question arises as to the remedy of the person who is victim or aggrieved, if the police denies to fulfill its constitutional and legal duty and F.I.R. is not lodged ignoring the mandatory provisions of law. Section 154(3) is provisioned by the legislature in its wisdom and farsightness to provide a remedy to such an aggrieved person and that is why under the aforesaid provision the S.P. concerned was made empowered to proceed into the matter as referred hereinabove. 21. Situation arises when the crime on a victim remains unheard despite approaching the Superintendent of Police and this leaves him in a state of disgust and distress. This takes the victim/informant to the Magistrate, who may order for registration of F.I.R. and investigation into the matter under Section 156(3) Cr.P.C. which provides as under. “Sec. 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 abovementioned.” 22. (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 abovementioned.” 22. Since investigation in a criminal matter may be initiated after lodging of the F.I.R. hence needless to say that the power of the Magistrate to order for investigation implies his power to order for registration of the F.I.R. in any cognizable case. 23. Hence, sufficient provisions have been embodied in the Criminal Procedure Code to safeguard the rights of the victims/informants. On the one hand, it is incumbent upon the police to lodge an F.I.R. on receiving information regarding a cognizable case and at the same time the duty has been cast upon the Superintendent of Police that in case there is a refusal on the part of the officer in charge of the police station to record the information of a cognizable offence as an F.I.R., to either investigate such case himself or through any other subordinate police officer. 24. Inspite of such requisite safeguards for the victim/informant and obligatory provisions for the police, there may be several instances when F.I.R. is not lodged despite invocation of provisions of Section 154 Cr.P.C. and that is why the Magistrate was equipped with the power to make an order for lodging of the F.I.R. and to investigate the matter. 25. Now the point to be tackled at this juncture is that whether the Magistrate after receiving an application under Section 156(3) Cr.P.C. for registration of F.I.R. is bound to accept it or any other course is available to him. 26. The answer to it we find in Sukhwasi vs. State of U.P. 2008 Cri. 25. Now the point to be tackled at this juncture is that whether the Magistrate after receiving an application under Section 156(3) Cr.P.C. for registration of F.I.R. is bound to accept it or any other course is available to him. 26. The answer to it we find in Sukhwasi vs. State of U.P. 2008 Cri. L.J. 472 (All) (D.B.) wherein the Division Bench firstly quoted the question referred before it as “the following question, has been referred, for consideration: Whether the Magistrate is bound to pass an order on each and every application under Section 156(3) Cr.P.C. containing allegations of commission of a cognizable offence for registration of the F.I.R. and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as ‘complaint’ or to reject it in suitable cases?” Answering to the question, it was held that- “For the reasons mentioned above, I am of the opinion that the Magistrate is not always bound to pass an order for register of the case and investigation after receipt of the application under Section 156(3) Cr.P.C. disclosing a cognizable offence. The Magistrate may use his discretion judiciously and if he is of the opinion that in the circumstances of the case, it will be proper to treat the application as a complaint case then he may proceed according to the procedure provided under Chapter XV of Cr.P.C. I am also of the opinion that it is not always mandatory in each and every case for the Magistrate to pass an order to register and investigate on receipt of the application under Section 156(3) Cr.P.C. In the present case, the Magistrate is perfectly within the judicial power to treat the application under Section 156(3) Cr.P.C. as a complaint case. There is no illegality or impropriety in the order. There is no illegality or impropriety in the order. The revision is devoid of merit and is liable to be dismissed.” It was also held that: “It will not be proper to deal with this hypothetical position that if the Magistrate is of opinion that false and frivolous allegation has been made in application then he may reject the application or it is for the investigating officer to decide the truthfulness of the story and if found false then launch prosecution against the applicant But it is discretion of the Magistrate to be used judiciously while disposing of the application.” 27. It will be apposite to note here that in Sukhwasi (supra), the cases of Suresh Chandra Jain vs. State of M.P. AIR 2001 SC 571 , Gopal Das Sindhi vs. State of Assam, AIR 1961 SC 986 , Madhu Bala vs. Suresh Kumar, AIR 1997 SC 3104 , Ramesh Kumari vs. State (NCT of Delhi), AIR 2006 SC 1322 have been discussed and followed in its true spirit. 28. From the above, it is clear that the Magistrate dealing with an application under Section 156(3) Cr.P.C. is legally authorized to make an order for registration of F.I.R. and investigate into the matter or to treat such application as a complaint, as the case may be and he is fully empowered even to reject the application moved before it under Section 156(3) Cr.P.C. Point for determination No. 3. This point relates to the question as to whether application under section 156(3) Cr.P.C. necessitates the filing of an affidavit in support thereof: 29. As the legal pronouncements delivered by the Courts in India on several occasions are the result of the constant study of developing Society and swiftly changing socio-economic conditions, they always stand in conformity with the need of the hour and requirement of the Society. 30. At one point of time, it was gathered by the Hon’ble Apex Court that the provisions of Section 156(3) Cr.P.C. are being misused on several occasions by some deviant, unscrupulous and unprincipled litigants, as the required sense of responsibility on the part of the applicants/victims in moving such applications even on flimsy and false grounds, is lacking and resulting into the unnecessary and deceitful hardships and agony caused to the prospective accused persons. 31. 31. In this backdrop, the legal principles enumerated by the Hon’ble Apex Court and directions issued in the case of Priyanka Srivastava (supra) are relevant and must be kept into mind. 32. In the factual scenario of the aforesaid case of Priyanka Srivastava, an application under Section 156(3) Cr.P.C. was moved against the bank authorities of the Punjab National Bank Housing Finance Limited with an intent to avoid bank loan and the order passed on that application gave rise to an F.I.R. under Sections 465, 467, 468, 471, 386, 506, 34 and 120-B IPC against the bank authorities. When the appellants being aggrieved therewith moved to the High Court, the High Court declined to interfere with the order passed by the Magistrate opining that from the perusal of the F.I.R., it could not be said that no cognizable offence was made out. 33. The Hon’ble Supreme Court while quashing the impugned F.I.R. made several relevant observations and issued specific directions to the Courts dealing with the application under Section 156(3) Cr.P.C. It was held that: “30. 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. 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. 31. 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. 31. 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.” Thus we find the answer to this point in affirmative. 34. Now the question arises whether the application under Section 156(3) Cr.P.C. which is in question before the Court, was entertainable by the concerned court or not. 35. Recently in Babu Venkatesh and Others vs. State of Karnataka and Another, 2022 (5) SCC 639 , the Hon’ble Apex Court reiterated the prerequisites for exercise of the power of Magistrate under Section 156(3) Cr.P.C. and the manner in which it is to be exercised. In that case, order passed by the Magistrate under Section 156(3) Cr.P.C. led to registration of FIRs under Sections 420, 471, 468, 465 and 120-B IPC against the appellants and petitions filed by appellants under Section 482 Cr.P.C. before High Court for quashing aforesaid criminal proceedings were dismissed on ground that serious allegations of cheating and forgery were shown in complaints and as such no case was made out for quashing FIRs. 36. 36. Clarifying the principles governing the scope and power of Magistrate under Section 156(3) Cr.P.C. and reiterating the principles laid down in Priyanka Srivastava case (supra), it was observed that: “This court has clearly held that, a stage has come where applications under Section 156(3) of Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate....................” “This court has further held that prior to the filing of a petition under Section 156(3) of the Cr.P.C. there have to be applications under Section 154 (1) and 154(3) of the Cr.P.C. This court emphasizes the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156(3) of the Cr.P.C. In as much as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.” 37. The Hon’ble Apex Court found that no affidavit in support of the application under Section 156(3) Cr.P.C. was filed by the complainant, hence it was observed that: “In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156(3) of the Cr.P.C.” 38. Principle has been thus laid down by the Hon’ble Apex Court for the Courts dealing with the application under section 156(3) Cr.P.C. that if such an application is not supported with the affidavit duly sworn by the complainant, such application cannot be entertained by Magistrate. 39. From the perusal of record, this Court finds that nowhere it has been mentioned in the memo of revision that any affidavit in support of the aforesaid application under section 156(3) Cr.P.C. duly sworn by the complainant was filed before the court concerned. Nothing in this regard can be found in the impugned order passed by the Additional Sessions Judge, Court No. 5, Aligarh. The copy of application under Section 156(3) Cr.P.C. also goes to show that nowhere it has been asserted therein that any affidavit is being filed by the applicant in support of the aforesaid application. Nothing in this regard can be found in the impugned order passed by the Additional Sessions Judge, Court No. 5, Aligarh. The copy of application under Section 156(3) Cr.P.C. also goes to show that nowhere it has been asserted therein that any affidavit is being filed by the applicant in support of the aforesaid application. As a matter of fact, the Court finds not even a whisper to this effect from the perusal of the whole record that any affidavit in support of the allegations made in the application under Section 156(3) Cr.P.C. has ever been filed by the applicant. 40. From the above discussion, it is explicit that before taking recourse of the Court, the complainant ought to move to the police station for registration of the F.I.R. and if unattended there, move an application to the Superintendent of Police and this fact also be deposed clearly in his application under Section 156(3) Cr.P.C. moved before the Magistrate. In the matter in hand, copies of the applications moved by the applicant to the police station Gabhana, District Aligarh and to the S.S.P. Aligarh have been filed on record, but this fact has not been deposed anywhere by the informant by way of affidavit, which was a necessary compliance of the law governing the subject. Although the learned Court has not paid any attention to this legal omission and the impugned order has been passed on factual aspect, but this Court can, in no circumstance, ignore legal principles governing the present matter. If no affidavit was filed in support of the application under Section 156(3) Cr.P.C. it even, could not have been entertained by the court concerned. The application itself suffers from a serious legal flaw and was not entertainable as such. 41. It is not required for this Court to examine the facts of the case and to draw a conclusion whether the learned Sessions Court analyzed the factual scenario of the matter in proper manner or not because it has been already held that the application in itself was not entertainable for want of affidavit and rejection of the same was a right consequence. 42. On the basis of the aforesaid discussion, I am of the considered view that the revision is devoid of merit and deserves to be dismissed. 43. The revision is accordingly dismissed.