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HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
CRIMINAL REVISION NO. 1205/2009
Yashpal Singh, S/o Amarsingh Rathore, R/o Zer,
Police Station Prithvipur, District Tikamgarh (M.P.)
.................APPLICANT
Versus
State of Madhya Pradesh, through Police Station
Prithvipur, District Tikamgarh, M.P.
.......RESPONDENT
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For the applicant : Shri Manish Datt with Shri Anil Khare and Shri
Shashank Upadhyay, Advocates.
For the State : Shri J.K.Jain, Deputy Advocate General
For the objector : Shri P.C.Paliwal, Advocate.
Date of hearing : 4/12/2009
Date of order : 9/12/2009
(O R D E R)
Per: Rakesh Saksena; J,
Applicant Yashpal singh has filed this revision against the order dated
6.7.2009 passed by First Additional Sessions Judge, Tikamgarh in Criminal
Revision No. 41/2009, whereby the order dated 24.2.2009 passed by Judicial
Magistrate First Class, Niwadi in Crime No. 307/2008 of Police Station
Prithvipur District Tikamgarh was set aside.
2. In short, facts of the case are that on 28.11.2008 at about 1.30 A.M.
complainant Anurag Nayak lodged the report with police Prithvipur that while
the voting of Legislative Assembly Constituency, Prithvipur was in progress at
about 4.30 P.M. accused Brijendra Singh Rathore along with Yashpal Singh
and other accused persons forced voters to vote in favour of Brijendra Singh.
When rival candidate Sunil Nayak reached there and opposed the activities of
accused persons, on exhortation of Brijendra, Yashpal Singh took out a revolver
and fired it at Sunil Nayak, as a result of injury, Sunil Nayak died in Medical
College, Jhansi. On the above report, crime no. 307/2008 was registered under
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Sections 302 and 307 of the Indian Penal Code against Brijendra Singh,
Yashpal Singh and other accused persons.
3. According to applicant, in the same incident, he had also suffered gun
shot injury. He had also submitted a report to Superintendent of Police,
Tikamgarh on 28.11.2008 stating that at the time of occurrence Sunil Nayak
and his associates wanted to damage the electronic voting machine as they
expected his defeat. They wanted to disturb the election process with a view to
get the election of booth no. 53 rejected. Sunil Nayak abused him and exhorted
other persons to kill him. Sunil Nayak’s son Anurag Nayak snatched sten-gun
from one of the gunners which was resisted by the gunners. In the process of
snatching gun back from Anurag Nayak the bust of sten-gun went off, due to
which he, Sunil Nayak and a gunner of Sunil Nayak suffered injuries. Police
people took him to Jhansi for treatment and subsequently sent him to Kanpur,
where he was operated. According to him, he had given oral report to Station
Officer, Sunil Dhurve at the spot, but his report was not recorded. Even on his
written report, no action was taken.
4. Since no action was taken by the police, Yashpal Singh sent an
application to Chief Judicial Magistrate, Tikamgarh on 28.12.2008, praying that
action be taken under Section 156(3) of the Code of Criminal Procedure on his
report dated 28.11.2008. Chief Judicial Magistrate, Tikamgarh made over this
application to Judicial Magistrate, First Class, Niwadi, who had jurisdiction to
deal with it. By order dated 9.1.2009, Judicial Magistrate First Class sent the
written application dated 28.11.2008 to Superintendent of Police Tikamgarh
directing him to take action according to law. In compliance of the aforesaid
direction, Station Officer of Police, Prithvipur submitted a report before the
Magistrate on 19.2.2009 stating that the detailed investigation was conducted
by the police in Crime No. 307/2008, which was registered on the report lodged
by Anurag Nayak. Yashpal Singh was arrested in connection with that crime
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and the charge sheet was filed before the concerned court against 12 accused
persons on 16.2.2009. It was further stated that Yashpal Singh had made the
aforesaid application on false grounds to create his defence. After discussing
the evidence of witnesses which was recorded under Section 161 of the Code
of Criminal Procedure in Crime No. 307/2008 and drawing inferences on that
basis, Station Officer of Police Prithvipur requested the Court to decide the
application made by Yashpal Singh on the basis of record of Crime No.
307/2008.
5. Since no action was taken by the police by registering the first
information report on the basis of allegations made by applicant, Yashpal singh
filed an other application under Section 156(3) of the Code of Criminal
Procedure in the Court of Magistrate on 20.2.2009. Taking into consideration
the allegations made by the applicant in his report and application, learned
Magistrate allowed the said application and directed police to register the first
information report and supply its copy to complainant and to proceed according
to law. It was further directed that after investigation, report be submitted on
20.3.2009.
6. Aggrieved by the aforesaid order, State filed revision before the First
Additional Sessions Judge, Tikamgarh mainly on the ground that since
previously an application under Section 156(3) of the Code was filed by the
applicant and the police had submitted its report that the allegations made by
the applicant were false and baseless, learned Magistrate committed error in
entertaining second application under Section 156(3) of the Code of Criminal
Procedure and directing registration of the First Information Report.
7. Learned Sessions Judge allowed the revision and set aside the order
passed by the learned Magistrate on the ground that when a report was filed by
the police then Magistrate could have proceeded under the provisions of
Section 190(1)(a) and 190(1) (b) of the Code of Criminal Procedure and should
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not have entertained the second application under Section 156(3) of the Code
of Criminal Procedure.
8. Aggrieved by the order passed by learned Additional Sessions Judge,
applicant has filed this revision. Learned counsel for the applicant contended
that the order passed by learned Additional Sessions Judge was illegal and
incorrect and was liable to be set aside. According to him, learned Magistrate
had not proceeded under the provisions of Section 156(3) of the Code when
first application was sent to him by the applicant from Jail. No first information
report was registered by the police and no investigation was conducted, not
even the statement of complainant i.e. Yashpal Singh was recorded, therefore,
it could not be held that the first application was treated as an application under
Section 156(3) of the Code of Criminal Procedure. Per contra, learned counsel
for the State and the objector contended that the second application under
Section 156(3) of the Code was barred, because a report had already been
submitted by the police on 19.2.2009.
9. I have heard the learned counsel of both the sides and perused the
record.
10. In Madhu Bala Vs. Suresh Kumar and others-AIR 1997 SC 3104, the
Apex Court held as under:
” Whenever a Magistrate directs an investigation on a
`complaint’ the police has to register a cognizable case on that
complaint treating the same as the FIR and comply with the
requirements of the Police Rules. Therefore, the direction of a
Magistrate asking the police to `register a case’ makes an order
of investigation under Section 156(3) cannot be said to be
legally unsustainable. Indeed, even if a Magistrate does not
pass a direction to register a case, still in view of the provisions
of Section 156(1) of the Code which empowers the Police to
investigate into a cognizable `case’ and the Rules framed under
the Police Act, 1861 it (the Police) is duty bond to formally
register a case and then investigate into the same . The
5 AFRprovisions of the Code, therefore, does not in any way stand in
the way of Magistrate to direct the police to register a case at
the police station and then investigate into the same. When an
order for investigation under Section 156(3) of the Code is to
be made the proper direction to the police would be to register
a case at the police station treating the complaint as the First
Information Report and investigate into the
same.”……………………Once such a direction is given under sub
section (3) of Section 156 the police is required to investigate
into that complaint under sub-section (1) thereof and on
completion of investigation to submit a `police report’ in
accordance with Section 173(2) on which a Magistrate may
take cognizance under Section 190(1)(b) but not under 190(1)
(a). Since a complaint filed before a Magistrate cannot be a
`police report’ in view of the definition of `complaint’ referred to
earlier and since the investigation of a `cognizable case’ be the
police under Section 156(1) has to culminate in a `police report’
the complaint – as soon as an order under Section 156(3) is
passed thereon- transforms itself to a report given in writing
within the meaning of Section 154 of the Code, which is known
as the First Information Report (FIR). As under Section 156(1),
the police can only investigate a cognizable ‘case’ it has to
formally register a case on that report.”
11. Learned counsel for the applicant relying on (2008) 2 SCC 409- Sakiri
Vasu Vs. State of Uttar Pradesh and others submitted that once an
application under Section 156(3) was filed it was duty of the Magistrate to direct
the Officer Incharge of the Police Station to register the First Information Report
of a cognizable case and to investigate. In the present case, since on sending
an application from jail by the applicant, Magistrate asked Superintendent of
Police to take action according to law, it cannot be held that the said application
was treated an application under Section 156(3) of the Code. In Sakiri Vasu
(supra) the Apex Court held as under:
” In view of the above mentioned legal position, we are of the
6 AFRview that although Section 156(3) is very briefly worded, there
is an implied power in the Magistrate under Section 156(3)
Cr.P.C. to order registration of a criminal offence and/or to
direct the officer in charge of the police station concerned to
hold a proper investigation and take all such necessary steps
that may be necessary for ensuring a proper investigation
including monitoring the same. Even though, these powers
have not been expressly mentioned in Section 156(3) CrPC,
we are of the opinion that they are implied in the above
provision”.
12. In Section 156(1) of the Code of Criminal Procedure, it has been
provided that that any Officer Incharge 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. Sub section (3)
provides that any Magistrate empowered under Section 190 may order such an
investigation as above mentioned. It is thus clear that while a Magistrate
proceeds under Section 156(3) of the Code of Criminal Procedure, he has to
direct to the Officer Incharge of the Police Station for registration of the criminal
offence and to proceed with investigation. But in the case in hand, learned
Magistrate by order dated 9.1.2009 directed Superintendent of Police,
Tikamgarh to take legal action instead of directing Officer Incharge of the Police
Station to register the First Information Report. Thus, it cannot be held that the
learned Magistrate treated the application sent by applicant from Jail as an
application under Section 156(3) of the Code of Criminal Procedure. Even the
police did not submit its report in terms of Section 173 of the Code of Criminal
Procedure, which was essential for it, had it treated the order of Magistrate one
under Section 156(3) of the Code of Criminal Procedure.
13. In Divine Retreat Centre Vs. State of Kerala and others-(2008) 3 SCC
542, the Apex Court observed:-
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“38. This Court in M.C.Mehta (Taj Corridor Scam) Vs. Union
of India upon analysis of the relevant provisions of the Code
held that after completion of the investigation if it appears to the
investigating officer that there is no sufficient evidence, he may
decide to release the suspected accused. If, it appears to him
that there is sufficient evidence or reasonable ground to place
the accused on trial, he has to take necessary steps under
Section 170 of the Code. “In either case, on completion of the
investigation he has to submit a report to the Magistrate under
Section 173 of the Code in the prescribed form who is required
to consider the report judicially for taking appropriate action
thereof.” We do not propose to deal with the options available
in law to the Magistrate and even to a victim or informant as the
case may be.”
14. Thus, in my opinion the order dated 9.1.2009 passed by the Magistrate
could not have been treated as an order passed under Section 156(3) of the
Code and the learned Additional Sessions Judge was not right in treating the
aforesaid order under Section 156(3) of the Code of Criminal Procedure.
15. Learned Additional Sessions Judge held that the Magistrate was not
empowered to direct the investigation under Section 156(3) of the Code of
Criminal Procedure in the instant case, because it could be a case under
Section 307 of the Indian Penal Code which was exclusively triable by the
Sessions. This was held in view of the proviso attached to Section 202(1) of
the Code of Criminal Procedure. In my opinion, the aforesaid finding of the
learned Additional Sessions Judge is misconceived and is based on incorrect
interpretation of the provisions of the Code. Section 156(3) and Section 202 of
the Code of Criminal Procedure operate in distinct spheres and different
stages. Section 156(3) of the Code of Criminal Procedure can be utilized only
at pre-cognizance stage, whereas Section 202 comes in the picture after
cognizance has been taken by the Magistrate, when the Magistrate is in seisin
of the case. In the case of a complaint regarding commission of a cognizable
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offence, the power under Section 156(3) can be invoked by the Magistrate
before he takes cognizance of the offence under Section 190(1)(a) of the Code
of Criminal Procedure. But, if he once takes such cognizance and embarks
upon the procedure embodied in Chapter XV, he is not competent to switch
back to the pre-cognizance stage and avail of Section 156(3) of the Code of
Criminal Procedure. Thus the object of an investigation under Section 202 is
not to envisage a fresh case on police report, but to assist the Magistrate in
completing the proceedings already instituted upon a complaint before him.
16. In Dilawar Singh Vs. State of Delhi-(2007) 12 SCC 641 the Apex Court
observed in paragraph 18 as under:
“6. Section 156 falling in Chapter XII, deals with powers of
police officers to investigate cognizable offences. Investigation
envisaged in Section 202 contained in Chapter XV is different
from the investigation contemplated under Section 156 of the
Code.
7. Chapter XII of the Code contains provisions relating to
`information to the police and their powers to investigate’,
whereas Chapter XV, which contains Section 202, deals with
provisions relating to the steps which a Magistrate has to adopt
while and after taking cognizance of any offence on a
complaint. Provisions of the above two chapters deal with two
different facets altogether, though there could be a common
factor i.e. complaint filed by a person. Section 156, falling within
Chapter XII deals with powers of the police officers to
investigate cognizable offences, True, Section 202, which falls
under Chapter XV, also refers to the power of a Magistrate to
`direct an investigation by a police officer’. But the investigation
envisaged in Section 202 is different from the investigation
contemplated in Section 156 of the Code.
8. The various steps to be adopted for investigation under
Section 156 of the Code have been elaborated in Chapter XII
of the Code. Such investigation would start with making the
entry in a book to be kept by the officer in charge of a police
station, of the substance of the information relating to the
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commission of a cognizable offence. The investigation started
thereafter can end up only with the report filed by the police as
indicated in Section 173 of the Code. The investigation
contemplated in that chapter can be commenced by the police
even without the order of a Magistrate. But that does not mean
that when a Magistrate orders an investigation under Section
156(3) it would be a different kind of investigation. Such
investigation must also end up only with the report
contemplated in Section 173 of the Code. But the significant
point to be noticed is, when a Magistrate orders investigation
under Chapter XII he does so before he takes cognizance of
the offence.
9. But a Magistrate need not order any such investigation if
he proposes to take cognizance of the offence. Once he takes
cognizance of the offence he has to follow the procedure
envisaged in Chapter XV of the Code. A reading of Section
202 (1) of the Code makes the position clear that the
investigation referred to therein is of a limited nature. The
Magistrate can direct such an investigation to be made either
by a police officer or by any other person. Such investigation is
only for helping the Magistrate to decide whether or not there is
sufficient ground for him to proceed further. This can be
discerned from the culminating words in Section 202 (1) i.e.
`or direct an investigation to be made by a police officer or
by such other person as he thinks fit, for the purpose of
deciding whether or not there is sufficient ground for
proceeding.’
10. This is because he has already taken cognizance of the
offence disclosed in the complaint, and the domain of the case
would thereafter vest with him.
11. The clear position therefore is that any Judicial
Magistrate, before taking cognizance of the offences, can
order investigation under Section 156(3) of the Code. If he does
so, he is not to examine the complainant on oath because he
was not taking cognizance of any offence therein. For the
purpose of enabling the police to start investigation it is open to
the Magistrate to direct the police to register an FIR. There is
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nothing illegal in doing so. After all registration of an FIR
involves only the process of entering the substance of the
information relating to the commission of the cognizable
offence in a book kept by the officer in charge of the police
station as indicated in Section 154 of the Code. Even if a
Magistrate does not say in so many words while directing
investigation under Section 156(3) of the Code that an FIR
should be registered, it is the duty of the Officer in charge of the
police Station to register the FIR regarding the cognizable
offence disclosed by the complainant because that police
officer could take further steps contemplated in Chapter XII of
the Code only thereafter.
12. The above position was highlighted in Suresh Chand
Jain Vs. State of M.P.- (2001) 2 SCC 628.”
17. Similar view was taken by the Apex Court in Mohd. Yusuf Vs. Afaq
Jahan (Smt.) and another- (2006) 1 SCC 627.
18. Apart from the above position of law, the factual situation which is
revealed on perusal of the report submitted by police before the Magistrate in
the instant case on 19.2.2009 is that the police did not register the formal FIR
on the basis of accusation made by the applicant; police did not record the
statement of complainant viz. Yashpal Singh or any other witness under
Section 161 of the Code of Criminal Procedure and did not submit the report in
terms of provisions of Section 173 of the Code of Criminal Procedure. Thus,
the order passed by the learned Magistrate on 9.1.2009 could not be and was
not treated by the police under Section 156(3) of the Code of Criminal
Procedure, therefore, the second application filed by the applicant before the
Magistrate and the order dated 24.2.2009 passed by the learned Magistrate
was well within jurisdiction of the Magistrate.
19. Learned counsel for the applicant argued that the State had no locus
standi to file revision challenging the order of Magistrate as the State is
expected to act fairly and impartially for both, the complainant as well as the
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accused. If, it was brought to the notice of the Investigating Officer that
accused had also suffered injuries, it was duty of the Investigating Officer to
fairly investigate the accusation if any made by the accused. In Kashiram
and others Vs. State of M.P. -(2002) 1 SCC 71, the Apex Court observed:-
“22. The Investigating Officer having found one of the
accused having sustained injuries in the course of the same
incident in which those belonging to the prosecution party
sustained injuries, the investigating officer should have at least
made an effort at investigating the cause of, and the
circumstances resulting in, injuries on the person of accused
Prabhu. Not only the investigating officer did not do so, he did
not even make an attempt at recording the statement of
accused Prabhu. If only this would have been done, the
defence version of the incident would have been before the
investigating officer and the investigation would not have been
one-sided.”
20. In Shiv Kumar Vs. Hukum Chand and another -(1999) 7 SCC 467 the
Apex Court observed as under:
” The Legislature reminds the State that the policy must strictly
conform to fairness in the trial of an accused in a Sessions
Court. A Public Prosecutor is not expected to show a thirst to
reach the case in the conviction of the accused somehow or the
other irrespective of the true facts involved in the case. The
expected attitude of the Public Prosecutor while conducting
prosecution must be couched in fairness not only to the Court
and to the investigating agencies but to the accused as well. If
an accused is entitled to any legitimate benefit during trial the
Public Prosecutor should not scuttle or conceal it. On the
contrary, it is the duty of the Public Prosecutor to winch it to the
fore and make it available to the accused. Even if the defence
counsel overlooked it, the Public Prosecutor has the added
responsibility to bring it to the notice of the court if it comes to
his knowledge. A private counsel, if allowed a free hand to
conduct prosecution, would focus on bringing the case to
12 AFRconviction even if it is not a fit case to be so convicted. That is
the reason why Parliament applied a bridle on him and
subjected his role strictly to the instructions given by the Public
Prosecutor.”
21. A Division Bench of the High Court of Andhra Pradesh in Medichetty
Ramakistiah Vs. State of A.P.- AIR 1959 AP 659 observed as under:
” A prosecution, to use a familiar phrase, ought not to be a
persecution. The principle that the Public Prosecutor should be
scrupulously fair to the accused and present his case with
detachment and without evincing and anxiety to secure a
conviction, is based upon high policy and as such courts should
be astute to suffer no inroad upon its integrity. Otherwise there
will be no guarantee that the trial will be as fair to the accused
as a criminal trial ought to be. The State and the Public
Prosecutor acting for it are only supposed to be putting all the
facts of the case before the Court to obtain its decision thereon
and not to obtain a conviction by any means fair or foul.
Therefore, it is right and proper that courts should be zealous to
see that the prosecution of an offender is not handed over
completely to a professional gentleman instructed by a private
party.”
22. For the aforesaid reasons, this revision is allowed. The impugned order
dated 6th July, 2009 passed by the Additional Sessions Judge, Tikamgarh in
Criminal Revision No. 41/2009 is set aside and the order dated 24.2.2009
passed by the learned Judicial Magistrate First Class, Niwadi is restored.
(RAKESH SAKSENA)
JUDGE
AD/