Court No. - 28 Case :- APPLICATION U/S 482 No. - 14354 of 2010 Petitioner :- Smt. Kamlesh Chaudhary Respondent :- State Of U.P. And Other Petitioner Counsel :- S.K.Dubey Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicant and learned A.G.A. for the
respondents.
The present application under Section 482 Cr.P.C. has been filed for quashing
of the order dated 4.3.2010 passed by learned Additional Chief Judicial
Magistrate, Hapur, P.S. Pilkhuva, District Ghaziabad in Case No. 209 of 2010
in which the application under Section 156(3) Cr.P.C. has been treated to be a
complaint case.
It is contended by learned counsel for the applicant that when no first
information report lodged by the police with regard to commission of
cognizable offence, the applicant filed an application under Section 156(3)
Cr.P.C. before the Court concerned below, who treated the same as a
Complaint Case. It is next contended that the order impugned has given long
rope to the police to refuse to register of first information report of cognizable
offence and further the applicant approached the Magistrate with sole prayer
to direct the police to register the case and investigate the same, as it disclosed
the commission of cognizable offence, therefore the Magistrate has no power
to pass the order impugned and till date no statement under Section 200 and
202 Cr.P.C. has been recorded. It is also contended that 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) 3SCC (Cri) 17 wherein Hon’ble Apex Court had issued
general direction in the cases where first information 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 complaint is in possession of the complete details of all the
accused as well as the witness who have to be examined and neither recovery
is needed nor any such material evidence is required to be collected which
can only be done 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
application, 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. He has further submitted that cognizable offence
is made out. Learned A.G.A. has relied upon a Judgement of Hon’ble Apex
Court in the case of Sakiri Vasu Vs. State of U.P. 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 Section
482 Cr.P.C., 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 U.P., 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.
Perused the material on record as well as the order impugned.
The Learned Magistrate, after perusing the documents and evidence on
records submitted by the applicant 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. Thus, this Court is of
the view that the order impugned does not suffer from any infirmity of law,
which may warrant any interference by this Court in exercise of powers
conferred under 482 Cr.P.C., jurisdiction.
In view of the facts and circumstances of the case, prayer for quashing the
order impugned is refused.
Accordingly, the application lacks merit and is dismissed at this stage.
Order Date :- 15.7.2010
Naresh