Dismissed

Mahboob v. State of U.P. and Another

Allahabad HC20 Jan 2020A482/2632/2020

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 Cr.P.C. challenging orders that treated a Section 156(3) application as a complaint. The Court found no illegality in the lower courts' decision, holding that prosecution via complaint is a valid alternative to police investigation.

What did the court decide?

The application under Section 482 Cr.P.C. is dismissed; no interference with impugned orders.

Mahboob Vs State of U.P. and Another — Civil Procedure and Limitation | Allahabad HC (2020)

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Court No. - 76

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Case :- APPLICATION U/S 482 No. - 2632 of 2020

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Applicant :- Mahboob Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kashif Gilani Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Kashif Gilani, 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 8th April, 2019 passed by the Additional Chief Judicial Magistrate, Court No.2, Rampur as well as the order dated 1st July, 2019 passed by the Sessions Judge, Rampur in Criminal Revision No. 59 of 2019. The applicant also seeks for a direction upon the concerned Magistrate to direct the Police for investigation of the matter on the basis of allegations made in the application of the applicant.

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By means of the order dated 8th April, 2019, the Court below treated the application under section 156 (3) Cr.P.C. filed by the applicant as a complaint and did not direct the Station House Officer of the concerned Police Station to register the First Information Report against the accused persons. By means of the order dated 1st July, 2019 passed by the District and Sessions Judge, Rampur, the revision filed by the applicant against the order dated 8th April, 2019 has been rejected.

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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

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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 life and liberty of the applicant as well as loss of movable property of the applicant is involved. The learned counsel for the applicant has contended with vehemence that the Magistrate has passed the impugned order in a mechanical manner. The revisional court also committed jurisdictional error in ignoring the same and in confirming the order dated 8th April, 2019.

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Learned A.G.A. on the other hand has supported the impugned orders and has pointed out that the grievance of the applicant has not gone unattended by the court below. The Magistrate 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. The revisional court has not committed any error in affirming the impugned order of the Magistrate.

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Considered the rival submissions made by the learned counsel for the parties and gone through the records of the present application.

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Before adverting to the merits of the present case, it would be worthwhile to reproduce Sections 154 and 156 Cr.P.C., which 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

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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 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 subsection (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,

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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 provision as well as Section 154 Cr.P.C., 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 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. , reported in 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

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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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In the case of All Institute of Medical Sciences Employees Union Vs. Union of India reported in 1996 (4) Crimes 189 (Supreme Court) , the Apex Court has held Para 4:

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"4. When the information is laid with the police but no action in that behalf was taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/ evidence recorded prima facie discloses offence, he is empowered to take cognisance of the offence and would issue process to the accused."

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Similarly, the Apex Court has again in the Case of Hari Singh Vs. State of U.P reported in 2006 Criminal Law Journal 3283 held that para 4:

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"4. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the

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offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg) through its President v. Union of India and Ors. MANU/SC/1769/1996 : (1996)115CC582 . It was specifically observed that a writ petition in such cases is not to be entertained. The above position was again highlighted recently in Gangadhar Janardan Mhatre v. State of Maharashtra MANU/SC/0830/2004 : 2004CriLJ4623 and in Minu Kumari and Ant v. State of Bihar and Ors. MANU/SC/8098/2006: 2006CriLJ2468."

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in Lalita Kumari Vs. Government of U.P. and others reported in 2014 (2) SCC 1 , specifically in paragraph 111, the Apex Court has observed as follows:-

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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 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 light of the above facts and above proposition of law, this Court is of the view that there is no illegality or irregularity in the orders impugned and after collecting the report from the police station concerned or the report otherwise the Magistrate is of the view that no investigation from the Police is required and he has rightly directed the present case to be treated as complaint case.

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In light of above facts, this Court is of the view that no interference is required in the orders impugned. The present application lacks merit and deserves to be dismissed. It is accordingly dismissed.

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(Manju Rani Chauhan, J.)

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Order Date :- 20.1.2020 Sushil/-

Mahboob v. State of U.P. and Another

Case brief

What is this about?

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Mahboob v. State of U.P. and Another

Case brief

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