Court dismissed a criminal miscellaneous application under Section 482 Cr.P.C. holding the petitioner lacked locus to file an FIR for damage to public property. Consequently, the complaint nature and cognizability questions became irrelevant.
Application under Section 482 Cr.P.C. was dismissed.
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Court No. - 44
Case :- MATTERS UNDER ARTICLE 227 No. - 4549 of 2018
Petitioner :- Ramautar Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Pankaj Kumar Yadav Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Pankaj Kumar Yadav, learned counsel for the applicants and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the order dated 26.2.2018, passed by the Sessions Judge, Kushinagar at Padrauna in Criminal Revision No. 112 of 2017 (Ramautar Vs. State of U.P. and Others), as well as the order dated 17.10.2017, passed by the Chief Judicial Magistrate, Kushinagar in Misc. Application No. 1005 of 2017 (Ramautar Vs. Harishankar and Others) under Section 156 (3) Cr.P.C.
From the record, it appears that the applicant filed an application purported to be under Section 156 (3) Cr.P.c. praying therein that in respect of the criminality alleged in the application, directions be issued to the Station House Officer of the concerned Police Station to register an F.I.R. and accordingly investigate the same. This application was registered as Misc. Application No. 131 of 2017 (Ramautar Vs. Harishanker and Others), the Chief Judicial Magistrate, Kushinagar, vide order dated 17.10.2017 directed that the said application shall be treated as complaint. Feeling aggrieved by the order dated 17.10.2017, the applicant preferred a criminal revision before the Sessions Judge, Kushinagar, which was registered as Criminal Revision No. 112 of 2017 (Ramautar Vs. State of U.P. and Others). The said criminal revision came to be dismissed vide order dated 26.2.2018. Feeling aggrieved by the order dated 26.2.2018, passed by the Revisional Court and the order dated 17.10.2017, passed by the Chief Judicial Magistrate, Kushinagar, the applicant has now come to this court by means of the present criminal misc. application.
From the perusal of the order passed by the Magistrate, copy of which is on record as Annexure-1 to the affidavit, the Court finds that the Magistrate had directed that the application under Section 156 (3) Cr.P.C. filed by the applicant shall be treated as a complaint, as all facts required to be proved for successful prosecution are in the knowledge of the applicant. The
Magistrate also found that the witnesses who can prove the alleged criminality are also known to the applicant and therefore, there is no such issue which requires Police Investigation, and the evidence in respect of the same can be collected only when the Police investigation is directed. The Revisional Court dismissed the revision on the findings that the Magistrate has exercised the jurisdiction vested in him in accordance with law. A further finding was recorded that no such material could be placed before the Revisional Court on the basis of which the conclusion drawn by the Magistrate could be termed as illegal or the findings recorded therein, could be said to be illegal, perverse or erroneous.
It may be stated here that the issue as to whether an F.I.R. should be registered in respect of a cognizable offence or not, is no longer res integra and stands settled by the judgement of the Apex Court in the case of Lalita Kumari Vs Goverment of Uttar Pradesh and another, reported in 2014 (2) SCC 1. Paragraph 111 of the aforesaid judgement is reproduced herein below:-
"111 . In view of the aforesaid discussion, we hold:
i) The 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 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."
However, the issue involved in the present case is whether the applicant is competent to lodge an F.I.R. in respect of the criminality alleged in the application filed under section 156 (3) Cr.P.C.
According to the provisions of Prevention of Damage to Public Property Act or under the provisions of the U.P. Revenue Code, the F.I.R. in respect of any damage to public property can be filed only by the State and not by an individual. Therefore, on the issue as to whether the said F.I.R. could be lodged by the present applicant against the private person for damage to public property, is the question involved in the present application.
Learned counsel for the applicant could not site any provisions of law whereunder such an F.I.R. could be lodged. Since the applicant has no locus to lodge an F.I.R, the question as to whether the criminality alleged against the opposite party discloses the commission of cognizable offence or not, becomes irrelevant.
In view of the above, the inescapable conclusion is that the present application is liable to be dismissed. It is, accordingly, dismissed.
Order Date :- 17.7.2018 Arshad
2 issues framed by the court
Whether the applicant is competent to lodge an FIR in respect of alleged damage to public property under Section 156 (3) Cr.P.C.
Whether the challenged order treating Section 156 (3) application as a complaint and dismissing revision was correct in law.
Colour shows how this judgement treated each authority
Lalita Kumari Vs Government of Uttar PradeshReferred¶10
2014 (2) SCC 1 · Who else cites this
3 provisions across 1 enactments
Ramautar
State Of U.P.
Rajeev Misra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
