Court No. - 49 Case :- APPLICATION U/S 482 No. - 34031 of 2009 Petitioner :- Jiley Singh Respondent :- State Of U.P.And Others Petitioner Counsel :- Samit Gopal Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicant on correction application and the
learned AGA for the State-respondent.
It appears that due to inadvertent mistake, the order of some different case has
been transcribed directing that the application under Section 156(3) Cr.P.C.
which has remained pending be decided within two months. Accordingly, the
Correction Application No.12485 of 2010 is allowed.
The present 482 Cr.P.C. petition has been filed for quashing the order dated
3.9.2009, passed by Chief Judicial Magistrate, Gautam Budh Nagar whereby
the application of the petitioner filed under Section 156(3) Cr.P.C. has been
treated to be a complaint case and also for quashing the order dated
14.10.2009 whereby the revision filed against the aforesaid order was
dismissed by the Sessions Judge, Gautam Budh Nagar.
It is contended by the leaned counsel for the petitioner that order impugned
has given long rope to the police to refuse to register of first information
report of cognizable offence and further the Magistrate was approached by the
petitioner with a sole prayer to direct the police to register the case and
investigate the same, as it disclosed the commission of a cognizable offence,
therefore the Magistrate has no power to pass the order impugned. It is also
contended that the Magistrate does not have any power of investigation and
consequently he also lacks all ancillary powers to decide whether the
investigation in a cognizable offence is required or not and power to
investigate the cognizable offence is vested with the police. Learned counsel
has relied upon a judgement of Hon’ble Apex Court in the case of Lalita
Kumari Vs. Government of Uttar Pradesh and others, reported in (2008) 3
SCC (Cri) 17 wherein Hon’ble Apex Court had issued general direction in the
cases where first information report was not lodged or where the first
information report was lodged on court’s direction, the apathy of police is to
investigate the matter, as such, the Hon’ble Apex Court had issued stringent
directions pinning responsibility on police authorities to act promptly or else
to face contempt/disciplinary proceedings including suspension. Learned
counsel has further relied upon a judgement in the case of Mobin Vs. State of
U.P. and others, reported in 2006 (55) ACC 757 in which this Hon’ble Court
has held that when the injury report and X-ray report make out a cognizable
offence, then matter may be remanded back to the court below to decide the
application filed under Section 156(3), Cr.P.C. afresh. Learned counsel has
further placed reliance upon a judgement of this Court in the case of Gulab
Chand Upadhyaya Vs. State of U.P. and others, reported in 2002 (44) ACC
670, in which this Court has held as follows:
“The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the
registration of the case and its investigation by the police should be exercised where some
“investigation” is required, which is of a nature that is not possible for the private
complainant, and which can only be done by the police upon whom State has conferred the
powers essential for investigation, for example.
1. where the full details of the accused are known to the complainant and
the same can be determined only as a result of investigation, or
2. where recovery of abducted person or stolen property is required to
be made by conducting raids or searches of suspected places or
persons, or
3. where for the purpose of launching a successful prosecution of the
accused evidence is required to be collected and preserved. To
illustrate by example cases may be visualised where for production
before Court at the trial (a) sample of blood soaked soil is to be taken
and kept sealed for fixing the place of incident; or (b) recovery of case
property is to be made and kept sealed; or (c) recovery under Section
27 of the Evidence Act; or (d) preparation of inquest report; or (e)
witnesses are not known and have to be found out or discovered
through the process of investigation.
But where the complainant is in possession of the complete
details of all the accused as well as the witnesses who have to
be examined and neither recovery is needed nor any such
material evidence is required to be collected which can be
done only by the police, no “investigation” would normally be
required and the procedure of complaint case should be
adopted. The facts of the present case given below serve as an
example. It must be kept in mind that adding unnecessary case
to the diary of the police would impair their efficiency in
respect of cases genuinely requiring investigation. Besides
even after taking cognizance and proceeding under Chapter
XV the Magistrate can still under Section 202 (1) Cr.P.C.
order investigation, even though of a limited nature.”
Learned A.G.A. has submitted that the order impugned, in the present
petition, has been passed after considering entire facts and evidence on record
which suffers from no illegality or infirmity in law and calls no interference
by this Court under Section 482 Cr.P.C. Learned A.G.A. has relied upon a
judgement of Hon’ble Apex Court in the case of Sakiri Vasu Vs. State of
Uttar Pradesh and others, reported in (2008) 2 SCC 409 in which Hon’ble
Supreme Court has held that caution should be exercised by the High Court in
the matter which relates to non-registration of first information report or
improper investigation. It was held that High Court should discourage writ
petitions or petitions under writ jurisdiction where alternative remedies under
Section 154(3) read with Section 36 or Section 156(3) or Section 200 Cr.P.C.
have not been exhausted. Learned A.G.A. has also referred a Division Bench
decision of this Court in the case of Sukhwasi Vs. State of Uttar Pradesh,
reported in 2007 (59) ACC 739 wherein this Court has held that the
Magistrate is not bound to order registration of a first information report in all
cases where a cognizable offence has been disclosed and the Magistrate has
authority to treat it as complaint.
Heard learned counsel for the applicant/petitioner and learned A.G.A. for the
State respondent.
Perused the material on record as well as the order impugned.
The Magistrate, after calling police report on an application moved under
Section 156(3), Cr.P.C. by the petitioner, and after perusing the evidence on
record, directed that the same may be treated as complaint case. The
discretion of the Magistrate to decide the application under Section 156(3),
Cr.P.C. cannot be taken away. However, taking note of the provisions of
Section 202, Cr.P.C., I am of the view that the order impugned does not suffer
from any infirmity in law, which may warrant any interference by this Court
in exercise of powers under Section 482 Cr.P.C.
The petition lacks merit and is, accordingly, dismissed at this stage.
Order Date :- 21.1.2010
Hasnain