Allowed

Sudha Srivastava v. State of U.P. and 4 Others

Allahabad HC13 Jul 2018A482/21097/2018

Case brief

AI extract

What is this about?

Single judge allowed a Section 482 application challenging a Magistrate's order to treat a Section 156(3) application as a complaint. The court set aside the order mandating fresh consideration in light of Lalita Kumari requiring FIR registration for cognizable offences.

What did the court decide?

The application is allowed at the admission stage; the impugned order dated 17.4.2018 is set aside; and the Chief Judicial Magistrate is directed to decide afresh within one month.

Sudha Srivastava Vs State of U.P. and 4 Others — Criminal Trial and Appeal | Allahabad HC (2018)

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Court No. - 44

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Case :- APPLICATION U/S 482 No. - 21097 of 2018

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Applicant :- Sudha Srivastava Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Rajesh Kumar Srivastava,Hari Ram Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Rajesh Kumar Srivastava, learned counsel for the applicant, and the learned A.G.A. for the State.

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This application under Section 482 Cr.P.C. has been filed challenging the order dated 17.4.2018, passed by the Chief Judicial Magistrate, Sonebhadra in Misc. Application No. 1166 of 2017 (Sudha Srivastava V. Praveen Kumar Srivastava), under Section 156(3) Cr.P.C., P.S. Robertsganj, District Sonebhadra, whereby the Court below has directed that the aforesaid application filed by the applicant shall be treated as a complaint.

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Learned counsel for the applicant submits that a perusal of the complaint filed by the applicant clearly discloses the commission of a cognizable offence. He, therefore, submits that once the application filed by the applicant under Section 156 (3) Cr.P.C. disclosed the commission of a cognizable offence, the Magistrate has erred in law in directing to proceed with the application as a complaint case. He further submits that in the case in hand the death of a young woman is involved. The learned counsel for the applicant has contended with vehemence that the court below has passed the impugned order in a mechanical manner and has ignored the judgement of the Apex Court rendered in the case of Lalita Kumari Vs. Government of U.P. and others reported in 2014 (2) SCC 1.

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Learned A.G.A. on the other hand has supported the impugned order and has pointed out that the grievance of the applicant has not gone unattended by the court below. The court below after taking into consideration the entire gamut of the facts and circumstances of the case has rightly concluded to treat the application filed by the applicant under Section 156 (3) Cr.P.C. as a complaint. The applicant shall still have an opportunity to prove his case before the court below.

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Considered the rival submissions made by the learned counsel for the parties.

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A perusal of the impugned order shows that no sufficient reason

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has been disclosed, on the basis of which, the Magistrate has proceeded to treat the application under section 156(3) Cr.P.C. as a complaint.

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From the record, it transpires that in the present case, the death of a young woman is involved. The allegations made in the application filed under section 156 (3) Cr. P. C. are not only serious, but also show the commission of a cognizable offence as well as an offence involving moral turpitude. However, the Magistrate vide order dated 17.4.2018 directed that the said application shall be treated as a complaint. A perusal of the aforesaid order passed by the Magistrate will to to show that the Magistrate was of the view that since all the evidence required in respect of the incidents which occurred on different dates can be given by the applicant, therefore, there is no necessity of police investigation in the matter. Feeling aggrieved by the order dated17.4.2018, the applicant has not come to this court challenging the same.

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Learned counsel for the applicant submits that in view of the nature of the allegations made by the applicant in the application filed in terms of Section 156 (3) Cr.P.C., the Judicial Magistrate, Bareilly ought to have allowed the application and directed the police of Police Station Nawabganj, Bareilly to investigate into the matter and thereafter submit a report.

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Sections 154 and 156 Cr.P.C. provide procedure for registration and investigation of complaint. The same are quoted herein under:-

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" 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.:

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[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 376B, Section 376C, Section 376D, 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:

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Provided further that -

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(a) in the event that the person against whom an offence under section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section

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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 an interpreter or a special educator, as the case may be;

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(b) the recording of such information shall be videographed;

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(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].

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(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.

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(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.

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156. Police officer' s power to investigate cognizable case.

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(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.

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(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.

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(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."

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From the perusal of the aforesaid provisions, it is evident that the police can investigate into matters relating to commission of 'cognizable offences' brought to its notice under section 154 CrPC. Officer-in-charge of police station has power to investigate U/S 156(1) in such case. Magistrate has power to take cognizance u/s 190 CrPC on receiving the 'complaint'. Thus the matter relating to section 156 (3) relates to power of Magistrate to order investigation by police in matters relating to cognizable offences brought before it through complaint. Complaint has been defined in section 2(d) CrPC of as follows : "complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include a Police report." Code of

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Criminal Procedure has given different type of powers to deal with such matters relating to commission of cognizable offences when brought before it.

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A Division bench of this Court in the case of '' Sukhwasi v. State of U.P., 2007(59) ACC 739' held as under:

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"Applications under section 156(3) Cr.P.C. are coming in torrents. Provisions under section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice which warrants a direction to the Police to register a case. Such application should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of section 156(3) Cr.P.C.

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The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application section 156(3) Cr.P.C. and there is no such legal mandate".

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However, the said judgement does not provide any reason as to why FIR should not be registered in respect of a cognizable offence.

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Learned counsel for the applicant has placed reliance upon 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. He has relied upon paragraph 111 of the aforesaid judgement, which is reproduced herein under:-

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111) In view of the aforesaid discussion, we hold:

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"i) 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.

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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.

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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.

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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.

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v) The scope of preliminary inquiry is not to verify the veracity or

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otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

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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:

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a) Matrimonial disputes/ family disputes

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b) Commercial offences

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c) Medical negligence cases

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d) Corruption cases

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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.

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The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

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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.

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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."

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In view of the aforesaid, the order dated 17.4.2018 passed by the Chief Judicial Magistrate, Sonebhadra cannot be sustained. Accordingly, the present criminal misc. application succeeds and is allowed at the admission stage without issuing notice to the prospective accused persons as they have no right to be heard at pre-cognizance stage. The order dated 17.4.2018 is consequently set aside.

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The Chief Judicial Magistrate, Sonebhadra is directed to exercise his discretionary power and decide afresh the application under section 156(3) Cr.P.C. moved by the applicant and to pass appropriate order in accordance with law keeping in view the observations made by this court, within a period of one month from the date of production of a certified copy of this order.

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With the aforesaid directions, the present application is allowed.

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Order Date :- 13.7.2018 Arshad

Sudha Srivastava v. State of U.P. and 4 Others

Case brief

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Sudha Srivastava v. State of U.P. and 4 Others

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