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2024 DIGILAW 68 (ALL)

Sanno v. State of U. P.

2024-01-08

SURENDRA SINGH I

body2024
JUDGMENT : Heard Sri Pradeep Yadav, learned counsel for the revisionist, Sri Hemant Kumar Singh, learned counsel for the opposite party nos. 2, 3 and 4 and learned A.G.A. for the State. 2. This criminal revision has been filed against the impugned order dated 21.09.2022 passed by the Special Judge (POCSO Act), Azamgarh, in Criminal Misc. Case No. 39 of 2022 (Sanno Vs. Shahnawaz and others) u/s 156 (3) Cr.P.C. 3. By the impugned order, the trial court dismissed the application of the revisionist u/s 156 (3) Cr.P.C. for registration of case against opposite party nos. 2, 3 and 4. 4. It has been submitted by learned counsel for the revisionist that from the averments made in the application u/s 156 (3) Cr.P.C., a cognizable offence was made out against the opposite party nos. 2, 3 and 4 but the trial court without any legal ground rejected her application for registration of a criminal case and investigation thereof by the S.O. of the concerned police station. It has next been submitted that the trial court rejected the application merely on the ground that one of the accused, namely, Ansar, had registered a criminal case bearing Case Crime No. 125 of 2022 u/s 34, 323, 504, 506, 354 I.P.C. and 7/8 POCSO Act, Police Station- Atrauliya, District-Azamgarh, against the father of the petitioner, Noorul Huda Kayim and 5 others. It has also been submitted that the application u/s 156 (3) Cr.P.C. cannot be dismissed merely on the presumption that it was registered to take revenge for the first information report previously registered by the opposite party nos. 2 to 4 against revisionist’s father. Learned counsel for the revisionist has placed reliance on the judgement of the Hon’ble Apex Court in the case of Lalita Kumari Vs. Govt. of U.P. & Others, 2014 (2) SCC 1 . 5. Per contra, Sri Hemant Kumar Singh, learned counsel for the opposite party nos. 2, 3 and 4 has submitted that the trial court has passed the impugned order after considering the facts in the light of the law laid down by the Hon’ble Apex Court regarding registration of first information report. 5. Per contra, Sri Hemant Kumar Singh, learned counsel for the opposite party nos. 2, 3 and 4 has submitted that the trial court has passed the impugned order after considering the facts in the light of the law laid down by the Hon’ble Apex Court regarding registration of first information report. It has been next submitted that the date of occurrence of the alleged offence in the application u/s 156 (3) Cr.P.C. is 01.07.2022 whereas for the first time, the revisionist/applicant gave application to S.S.P., Azamgarh on 16.07.2022 after a gap of 16 days and no explanation has been given for the aforesaid delay. In the application, it has not been mentioned that the applicant earlier tried to get her first information report registered by submitting application to the S.O. of concerned police station. It has also been submitted that the Class VIII examination marksheet filed by the revisionist which is issued by Madarsa Islamia Faizan-I-Raza does not bear the stamp of the Principal of the school. It has also been submitted that the revisionist resides in District-Azamgarh. No reason has been given why marksheet has been issued from school situated in District- Ambedkar Nagar in proof of her date of birth. 6. The averments made in application u/s 156 (3) Cr.P.C. filed by the revisionist, Sanno, in brief is that applicant, Sanno, daughter of Noorul Huda Kayim, resident of village- Sakin Saraiya Ratnawa, Police Station-Atrauliya, District- Azamgarh, who has passed Class- VIII in 2022, was on 01.07.2022 at 8 p.m. going towards west of her house to Siwan. Her neighbour, opposite party no. 2, Shahnawaz, was sitting concealing himself for ambush. As soon as revisionist/applicant reached there, he held her hands and forcibly put her on the ground and removed her clothes. He started making obscene gestures with her. On hue and cry being raised by the revisionist/applicant, her mother, Avtaran, reached there. Then accused, Shahnawaz, fled from the place of occurrence. The revisionist’s mother, Avtaran and her grandfather, Wazir, visited the house of Shahnawaz to complain against him to his parents. There opposite party nos. 3 and 4, namely, Ansar and Takdirun, threatened revisionist’s mother and her grandfather that if they again dared to complain against their son, Shahnawaz, they will kill them. 7. The revisionist’s mother, Avtaran and her grandfather, Wazir, visited the house of Shahnawaz to complain against him to his parents. There opposite party nos. 3 and 4, namely, Ansar and Takdirun, threatened revisionist’s mother and her grandfather that if they again dared to complain against their son, Shahnawaz, they will kill them. 7. The ruling of Lalita Kumari (supra) cited by the revisionist relates to registration of first information report u/s 154 (1) Cr.P.C. on the application of the informant by the S.O. In the aforesaid case of Lalita Kumari (supra), the Hon’ble Apex Court has given requirements for registration of first information report by the S.O. of concerned police station. In this case, the Hon’ble Apex Court has not given directions to the Magistrate regarding passing of the order on the application u/s 156 (3) Cr.P.C. The Hon’ble Apex Court has expressed the desirability of registration of first information report u/s 154 (1) Cr.P.C. by the S.O. on the application of the applicant/informant. The Hon’ble Apex Court had issued following guidelines for registration of first information report by the S.O. concerned u/s 154 (1) Cr.P.C. :- 49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. 53. Investigation of offences and prosecution of offenders are the duties of the State. For “cognizable offences”, a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of the Code. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. 53. Investigation of offences and prosecution of offenders are the duties of the State. For “cognizable offences”, a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality. 8. Admittedly, the impugned order was passed by Special Judge (POCSO Act), Azamgarh, on the application u/s 156 (3) Cr.P.C. submitted by the revisionist/applicant. Admittedly, revisionist and opposite party nos. 2 to 4 are relatives and are residents of the same village. From the perusal of the record, it transpires that on 01.04.2022, opposite party no. 3, Ansar, had lodged a first information report bearing Case Crime No. 125 of 2022 u/s 34, 323, 504, 506, 354 I.P.C. and 7/8 POCSO Act, Police Station- Atrauliya, District- Azamgarh, against the father of the petitioner, Noorul Huda Kayim and 5 other persons in which after investigation, the Investigating Officer has submitted charge-sheet under the aforesaid sections and trial is pending in the concerned court. 9. In Ramdev Food Products Pvt. Ltd. Vs. State of Gujarat, (2015) 6 SCC 439 , the Hon’ble Apex Court has held that :- “The direction u/s 156 (3) is to be issued only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.” 10. In case of Rambabu Gupta Vs. State of U.P., 2001 Cr.L.J. 3363, the Full Bench of the Allahabad High Court has held that the Magistrate has to apply his mind to the allegations in the complaint. In case of Rambabu Gupta Vs. State of U.P., 2001 Cr.L.J. 3363, the Full Bench of the Allahabad High Court has held that the Magistrate has to apply his mind to the allegations in the complaint. He may at once take cognizance or order that the case be sent to the police station for being registered and be investigated. The order of the Magistrate has necessarily to indicate the application of mind. Thus, Magistrate is not bound to pass order for registration of F.I.R. in every application u/s 156 (3) Cr.P.C. 11. In its impugned order, the trial court has given reasons that revisionist/ applicant has presented application u/s 156 (3) Cr.P.C. in July, 2022 against opposite party nos. 2 to 4 as a counterblast to the aforesaid first information report lodged by the opposite party no. 3, Ansar on 01.04.2023 against revisionist’s father, Noorul Huda and 5 others in which after investigation, charge-sheet has been filed. The trial court has also mentioned that both parties are relatives and live in the same village. There is no likelihood of opposite party nos. 2 to 4 committing alleged offence against their relatives near their house. 12. Considering the impugned judgement and facts and circumstances of the case in the light of the law propounded by the Hon’ble Apex Court regarding registration of first information report u/s 156 (3) Cr.P.C., the Court is of the view that while passing the impugned order, the trial court has not committed any illegality, irregularity or impropriety. There is no merit in the criminal revision and the same is liable to be dismissed. 13. The criminal revision is dismissed, accordingly. 14. Let a copy of this order be sent to the concerned trial court for necessary action.