Dismissed

Saurabh Joshi v. State of Uttarakhand

Uttarakhand HC11 Jul 2019CRLR/270/2019

Case brief

AI extract

What is this about?

In a criminal revision, the High Court of Uttarakhand held that an order allowing an application under Section 156(3) CrPC for FIR registration before a Special Court is interlocutory. Consequently, no right lies with the revisionists to challenge it under Section 397 CrPC until cognizance is taken after investigation.

What did the court decide?

Criminal Revision No. 270 of 2019 dismissed; no right to revision against allowance of Section 156(3) application.

Saurabh Joshi Vs State of Uttarakha… — Constitutional and Fundamental Rights | Uttarakhand HC (2019)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Revision No. 270 of 2019

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Saurabh Joshi & Another

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...Revisionists

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Vs.

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State of Uttarakhand & Another

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...Respondents

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Mr. Kurban Ali, Advocate for the revisionists.

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Mr. P.S. Bohra, A.G.A. along with Mrs. Farida Siddiqui, Brief Holder for the State of Uttarakhand/respondent no. 1.

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Mr. Ankurit Raj David, Advocate for respondent no. 2.

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JUDGMENT

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Hon’ble Sharad Kumar Sharma, J (Oral)

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A very interesting question, which emerges in the revision, for consideration before this Court in the present case, which has been preferred by the revisionists. The proposed accused against whom the order under Section 156(3) has been filed by the Sessions Court, Pauri Garhwal, on 17.05.2019, whereby, an application preferred by the complainant under Section 156(3) has been allowed by the District Sessions Judge, Pauri Garhwal, in Miscellaneous Criminal Case No. 23 of 2019 ‘Vimla Devi vs. Saurabh Joshi & Another’.

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Admittedly, the offence complained of is an offence which falls to be an offence within the ambit under a special statute framed by the legislature called as the U.P. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 ( hereinafter to be referred as an ‘Act’) . Before venturing into the merits of the matter, and the argument of the learned counsel for the revisionists, it would be appropriate to deal with the manner in which the Special Courts created under the Special Act are constituted to take cognizance of the offence contemplated under the Act of 1989. It would be appropriate to quote Section 14 of the Act of 1989:

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“14. Special Court.—For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act.”

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Section 14 of the Act confers a special jurisdiction and power with the State Government to establish an exclusive special courts for the purposes of trying of the said offence under the Special Act or it also deals with the situation where the districts may not be having with them the number of cases where a special court could be appointed for the said purpose. In such an eventuality, Section 14 itself confers the power with the State Government to notify any official for the purposes of dealing with the offences covered under the said Special Act, but the said power, which has been conferred herein with the State Government for nominating of a Court or an Officer for trying of an offence under the Act has had to be done with the concurrence of Hon’ble the Chief Justice of the State High Court, particularly the State for which the Officer has to be notified. Meaning thereby, whenever Section 14 has to be taken into consideration, it has to be taken into consideration in the light of the powers, which has been exercised by that particular State, which has been vested with the responsibility to create a special court to take cognizance of the offence under the Act of 1989. Meaning thereby, the nomination or assignment of jurisdiction of the special courts in other States cannot act as an exemplar, to be considered for the purposes of deciding the competence of the Court of our State as created under Section 14 of the Act of 1989. To take cognizance of the offence in the instant case as it has been pointed out by the learned Government Advocate that the State Government while exercising its powers under Section 14 of the Act had issued a notification in concurrence with Hon’ble the Chief Justice being Notification No. 187/XVII-4/2017-243(l-d-)2002 Vh-lh-&I dated 17.04.2017, whereby, the Districts and Sessions Judge has been notified as to be a special court for the purposes of taking cognizance of the offence under the Act of 1989. Notification dated 17.04.2017 is quoted hereunder:

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“jkT;iky] vuqlwfpr tkfr vkSj vuqlwfpr tutkfr ¼vR;kpkj fuokj.k½ vf/kfu;e 1989 ¼vf/kfu;e 33 o’kZ 1989½ ¼le; le; ij ;Fkk la”kksf/kr½ dh /kkjk 14 }kjk iznRr “kfDr;ksa dk iz;ksx vkSj eq[; U;k;k/kh”k] mPp U;k;ky;] uSuhrky dh lgefr ls bl vf/kfu;e ds v/khu vijk/kksa ds “kh?kz fopkj.k djus ds iz;kstukFkZ] jkT; ds izR;sd ftys ds ftyk ,oa l= U;k;ky; dks mlds LFkkuh; {ks=kf/kdkj ds vUrxZr fo”ks’k U;k;ky; ds :Ik esa fofufnZ’V djus dh lg’kZ Lohd`fr iznku djrs gSaA

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In the present case the complaint, which was sought to be registered by the complainant/respondent no. 2 by filing an appropriate application before the Court invoking Section 156(3) of Cr.P.C., thus notified by the aforesaid notification, which was to the effect and with regards to an allegation that the present revisionists were accused of committing of the offence under the Act of 1989, and since she was belonging to a community of an oppressed class covered under the Act, coupled with the set of allegation, which has been leveled with regards to the dialect and words, which has been used by the revisionists, she has filed an application under Section 156(3) on 02.05.2019 before the District and Sessions Judge as notified by notification dated 17.04.2017, which was registered as Criminal Case No. 23 of 2019 for the purposes of seeking an appropriate direction to the concerned police station to register her FIR for the offences complained of against the revisionist.

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The said application came up for consideration before the learned Sessions Judge, Pauri Garhwal, who vide his order dated 17.05.2019 impugned in the present revision has allowed the application under Section 156(3) and consequently, has directed the SHO of Thana Kotwali Kotdwar to register the FIR.

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Before venturing further, this Court is of a considered view that if the language of Section 156(3) is taken into consideration for the purposes of seeking a direction from the competent Court (Magistrate) for the SHO to register the FIR, it is situation where the probable accused person or the accused person himself gets no right whatsoever to raise any objection in relation to the application or its maintainability, which has been submitted for consideration before the Court notified under Section 14 of the Act because it is exclusively lying within the domain of the notified court to consider the application and then pass an order of either allowing or rejecting application under Section 156(3) of Cr.P.C.. Consideration of application here would mean that it should be by a Court, which has been made competent by law to take cognizance of an offence, that means it should be a Court which is authorized to have an authority under law for inception of the proceedings under the offence

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complained of particularly when it is an offence under the Special Act of 1989.

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The argument of the learned counsel for the revisionists is two folds:

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(i) that under Section 156(3) since the Act specifically uses the word “Magistrate” empowered under Section 190, it will not be inclusive of the Sessions Court for the purposes of invoking of sub-section (3) of Section 156, which is quoted hereunder:

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“ 156. Police officer' s power to investigate cognizable case. Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.”

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(ii) Secondly, he submits that as per the ratio propounded on the various judgments on which he placed reliance as against the decision taken under Section 156(3) either rejecting or allowing the application, it would only be revisable before the High Court under Section 397 to be read with Section 401 of Code of Criminal Procedure, which are quoted hereunder:

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“ 397. Calling for records to exercise powers of revision.

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(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.

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(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

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(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

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401. High Court' s Powers of revisions.

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(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

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(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

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(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

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(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

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(5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice.”

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Let us deal with the principal objection as to what does the term ‘Magistrate’ as used under sub-section (3) of Section 156 has to be considered. This Court is of the view that the reference of the term Magistrate over here would mean the Magistrate of a competent jurisdiction, who is having an authority under law to take cognizance of an offence complained of, and in case if it is under a special statute if a session trial has been notified to be a principal Court, which could take cognizance of an offence under law, in that eventuality, the term ‘Magistrate’ used under sub-section (3) of Section 156 has to be read with the power, which has been vested with the principal court, who can take cognizance of the offence complained of and which in the instant case has been vested with the Sessions Trial under a special statute as contained under Section 14 of the Act.

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The Government Advocate has raised an objection during arguments to the effect that as against “allowing” of the application under Section 156(3), in fact, no lis is being decided, its an interlocutory order, hence, the same will not fall to be within the purview of Revision under Section 397 to be read with Section 401 of

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the Code of Criminal Procedure, hence, it would not be revisable on account of the bar created by sub-section (2) of Section 397, because allowing of an application under Section 397 would amount to be an interlocutory order and, hence, the same would not be revisable under Section 397. There cannot be any dispute pertaining to the competence of the Revisional Court as conferred to it under Section 397 and the legal bar, which has been created by sub-section (2) of Section 397, but this Court is of the view that after having said so that the principal application, which has been filed at the initial stage before a special court having power to take cognizance of an offence under the said Act and if the application under Section 156(3) is allowed, its exclusively an inter se determination between the complainant and the Court as to whether prima facie offence is made out as per the application under Section 156(3), which is entitled to take cognizance of an offence under Section 14 of the Act and it will not be within the competence of the proposed accused persons to file a revision against allowing of Section 156(3) application, because till the allowing of an application under Section 156(3), as a matter of fact, no action has yet been taken as against the accused persons except its a direction to the SHO to register a complaint against the probable accused persons upto this stage the accused person does not come into picture, as any order of allowing the application would be making the police authorities of their responsibility under Section 154 of Cr.P.C..

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In order to denounce the aforesaid argument extended by the learned Government Advocate, the learned counsel for the revisionists places reliance on a full bench judgment of Allahabad High Court as rendered in ‘Jagannath Verma & Others vs. The State of U.P. & Another’ . Particularly he makes reference to the contents of paragraph 51, which is quoted hereunder:

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“In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:

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(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is

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open to revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156 (3) would be amenable to a revision under Section 397 by the complainant or the informant whose application has been rejected;

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(ii) An order of the magistrate rejecting an application under Section 156 (3) of the Code for the registration of a case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a criminal revision under Section 397; and

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(iii) In proceedings in revision under Section 397, the prospective accused or, as the case may be, the person who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the criminal revision.

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The reference to the Full Bench is, accordingly, disposed of. The proceedings shall now be placed before the appropriate Bench in accordance with the roster of work for disposal in light of the principles laid down in this decision.”

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If paragraph 51 is read in precision, it rather runs contrary to the arguments, which has been extended by the learned counsel for the revisionists. The full Bench of Allahabad High Court was dealing with the situation where an application for taking cognizance of offence under Section 156(3) was rejected , rather the issue of maintaining a revision against the direction allowing Section 156(3) has been decided by the Full Bench judgment of Father Thomas, where a direction to register a case has been held to be interlocutory order will attract the bar of Section 397(2) and in the present case it is just converse, here the application has been allowed, which does not attain finality till after registration of the FIR the investigation is carried, chargesheet is submitted and cognizance is taken.

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Even the situation, which has been in argument by the learned counsel for the revisionists, in the light of the observations made by the Full Bench’s judgment, it has only taken a precaution that if a revision is preferred against the rejection of an application under Section 156(3), the only precaution which is required to be

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taken by the revisional court would be to hear the person concerned before passing any order. It was dealing with a situation of rejection of Section 156(3) application and not a situation as it is involved in the present case, i.e. allowing of application under Section 156(3) is an interlocutory in nature.

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The ratio behind the observations made by the Full Bench while maintaining a revision against an order passed was on rejection of an application under Section 156(3) and making it revisable from the view point that the rejection of an application under Section 156(3) will amount to closure of an opportunity to the complainant to initiate any criminal proceedings against the accused person, hence it attaines finality as far as the person is concerned, where application is rejected, but when the application is allowed and the direction has been issued to the SHO, rather this is the stage where the inception of the proceedings has been directed to be made and the accused persons comes into the picture only when the police conducts its investigation and submits its chargesheet and Court takes cognizance of the chargesheet and issues the summoning order, otherwise allowing of application is nothing but only a direction to perform its duties under Section 154 of registering the FIR against the cognizable offence, upto this state the accused cannot be said to be person aggrieved.

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Hence, as far the revisionists’ right to prefer a revision against allowing of an application under Section 156(3) is concerned, it is absolutely untenable because so far upto that stage no action has yet been perceived to be taken against him under the criminal law. Thus, this Court holds that by allowing of an application preferred by the respondent no. 2 under a special statute before the notified Court as already answered above would be maintainable before the District and Sessions Judge, which has been notified under Section 14 of the Special Act of 1989 and as far as the tenability of the revision is concerned, since it is exclusively a direction given by the District and Sessions Judge to the SHO to register a case, the revisionist has got no cause upto this stage to invoke the jurisdiction under Section 397.

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Hence, the bar of sub section (2) of Section 397 will come into play and the rejection will not be maintainable.

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Consequently, the revision is dismissed.

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(Sharad Kumar Sharma, J.) 11.07.2019

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Pooja

Saurabh Joshi v. State of Uttarakhand

Case brief

What is this about?

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Saurabh Joshi v. State of Uttarakhand

Case brief

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