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When an focus underneath Section 156(3) CrPC could have been treated as a censure u/s 202 Cr.P.C.

HIGH COURT OF ALLAHABAD

Decided on Sep 18,2007

SUKHWASI…Appellant
VERSUS
STATE OF UTTAR PRADESH …Respondents

JUDGEMENT
on 18 September, 2007

Equivalent citations: 2008 CriLJ 472

Bench: R Deepak, B A Zaidi
JUDGMENT Barkat Ali Zaidi, J.

1. The, following question, has been referred, for consideration;

Whether a Magistrate is firm to pass an sequence on any and any focus underneath Section 156(3) Cr.P.C. containing allegations of elect of a cognizable corruption for registration of a F.I.R. and a review by a military even if those allegations, prima-facie, do not seem to be genuine and do not interest to reason, or he can practice authorised choice in a matter and can pass sequence for treating it as ‘complaint’ or to reject it in suitable cases?

2. Before, move to plead a pros and cons of a issue, it would not be out of place to discuss that this debate would have not arisen, if supplies of Section 156(3) Cr.P.C. had been drafted in a some-more pithy manner. It could have been mentioned that a Magistrate in his choice ensue registration of a initial information news or it could have been mentioned that he should ensue registration of a initial information news in an suitable case. Francs Bienniom couplet comes to mind;

I am a Parliamentary Draftsman. we stoical a country’s Laws. And of Half a litigation. we am positively a cause.

3. Hon’ble Mr. Justice Vinod Prasad in Criminal Misc. Application No. 6152 of 2006 Smt. Masuman v. State of U.P. and 19 Ors., connected applications, has reason that when an focus underneath Section 156(3) Cr.P.C. discloses a Commission of a cognizable offence, a Magistrate has no choice Magistrate has not to request his mind and has to act merely as a post office.

4. In a box of Ram Babu Gupta 2001 (43) ACC 201, it was reason by a Full Bench of this Court that a Magistrate is ostensible to practice a choice while behaving on an focus underneath Section 156(3) Cr.P.C, and he is not ostensible to pass an sequence in a slight manner, and he has to request his mind. This naturally means that a Magistrate has an choice of refusing for registration of a initial information report. This will seem from a following observations finished in para-17 of ‘Supra’ Full Bench judgment;

In perspective of a aforesaid contention on a authorised supplies and decisions of a Supreme Court as on date, it is hereby reason that on receiving a complaint, a Magistrate has to request his mind to a allegations in a censure on that he might not during once ensue to take knowledge and might sequence it to go to a military hire for being purebred and investigated. The Magistrate’s sequence contingency prove focus of mind. If a Magistrate takes cognizance, he deduction to follow a procession supposing in Chapter-XV of Cr.P.C. The initial doubt stands answered thus.

5. It will serve turn transparent from a following observations finished in para-40 of a Judgement:

While resorting to a initial mode in as most as directing a military for review he should not pass sequence in a slight manner. He should request his authorised mind and on a glance of a complaint, if he is prima facie of a perspective that allegations finished therein constituted elect of a cognizable corruption requiring consummate investigation, he might ensue a military to perform their orthodox duties as envisaged in law.

6. The dual schooled judges Mr. Justice Vinod Prasad and Mr. Justice R.K. Rastogi were firm by a aforesaid Full Bench decision. Mr. Justice Vinod Prasad referred to this case, while referring to arguments, propounded by a warn yet did not elaborate, as to what a anticipating in a box and what a effect of that anticipating was? He usually skipped over a case, and finished no reference, thereto. It was clearly illogical for a Single Judge to omit a commentary of a Full Bench. He did not even, contend in his visualisation that a Full Bench preference does not imply, that a Magistrate has a choice in traffic with a focus underneath Section 156(3) Cr.P.C. He abandoned a Full Bench decision, and afterward gave references, to many Supreme Court decisions. It is a small surprising to observe that a Full Bench preference was sidelined.

7. It will also be beheld that a law was, and has always been, that if a cognizable corruption is finished out, a Police are firm to register a First Information Report. In case, a Police do not register a First Information Report, there is sustenance underneath Section 154(3) Cr.P.C. to send an focus to Superintendent of Police, who shall ensue a registration of a First Information Report, if a cognizable corruption is disclosed. There was as such, no need for an management in this courtesy being given to a Magistrate. That, this has been finished and such management as given to a Magistrate indicates, that this has been done, since a Magistrate will move to bear on a matter a authorised and prudent approach, that will by indispensably import be selective. That gives a transparent incling to a goal of a legislature, that a Magistrate might cruise a feasibility and propriety, of flitting an sequence of registration of a First Information Report.

8. The matter might be looked into from another angle, and that is, in Section 154(3) Cr.P.C. where a Superintendent of Police has been given a management for registration of First Information Report, a word used is ‘Shall’. Section 154(3) Cr.P.C. is as hereunder;

154. Information in cognizable cases – (1) ….

(2) ….

(3) Any chairman depressed by a refusal on a partial of an officer in assign of a military hire to record a information referred to in Sub-section (1) might send a piece of such information, in writing, and by post, to a Superintend of Police endangered who, if confident that such information discloses a elect of a cognizable corruption shall possibly Investigate a box himself or ensue an review to be made, by any military officer subordinate to him, in a demeanour supposing by this Code, and such officer shall have all a powers of an officer incharge of a military hire in propinquity to that offence.

In Section 156(3) Cr.P.C., a word used is ‘May’ Section 156(3) Cr.P.C. is as follows;

156. Police officer’s energy to inspect cognizable box – (1) ….

(2) ….

(3) Any Magistrate empowered underneath Section 190 might sequence such an review as above-mentioned.

9. The use of a word ‘Shall’ in Section 154(3) Cr.P.C. and a use of word ‘May’ in Section 156(3) Cr.P.C. should make a goal of a legislation clear. If a legislature dictated to tighten options for a Magistrate, they could have used a word ‘Shall’ as has been finished in Section 154(3) Cr.P.C. Instead, use of a word ‘May’ is, therefore, really significant, and gives a really transparent indication, that a Magistrate has a choice in a matter, and can, in suitable cases, exclude to sequence registration.

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10. In a box of State of West Bengal v. Union of India it was celebrated by a Supreme Court that a goal of a legislature can best be guarded “by directing it’s courtesy not merely to a clauses construed, yet to a whole statute; it contingency review a portion with a other tools of a law, and a environment in that a portion to be interpreted occurs”.

11. Let us take an instance to make things clear. If somebody wants to record a First Information Report, that a District Judge of a endangered District came to his residence during 1.20 O’clock in a day, and discharged on him, with a nation finished pistol and he ducked and transient being hurt, and a District Judge is, therefore, probable for an corruption underneath Section 307 Indian Penal Code. The Magistrate knows that a District Judge was in his Court room, during that time, and a endangered staff also knowns that. Is a Magistrate still firm to sequence registration of a First Information Report since a focus discloses a cognizable offence? It is apparent that a answer has to be in disastrous and it cannot, therefore, be pronounced that a Magistrate is firm to sequence registration of a First Information Report in all cases, where a cognizable corruption is disclosed.

12. The subsequent point, that stays for care is, a doubt possibly a Magistrate can provide an focus underneath Section 156(3) Cr.P.C. as a complaint?

13. It is cl.

ear from a visualisation of a Supreme Court in a box Suresh Chandra Jain v. State of Madhya Pradesh and Anr. 2001 (42) A.C.C. 459, that a Magistrate has a management to provide an focus underneath Section 156(3) Cr.P.C. as a complaint. This will turn transparent from a anxiety in a pronounced news to a box of Gooal Das Sindhi and Ors. v. State of Assam and Anr. A.I.R. 1961 S.C. 986, in that a following observations were made:

If a Magistrate had not taken knowledge of a corruption on a censure filed before him, he was not thankful to inspect a complainant on promise and a witnesses benefaction during a time of filing of a censure We can't review a supplies of Section 190 to meant that once a censure is filed, a Magistrate is firm to take knowledge if we contribution settled in a censure divulge a elect of any offence. We are incompetent to interpret a word ‘may’ in Section 190 to meant ‘must’. The reason is obvious. A censure disclosing cognizable offences might good transparent a Magistrate in promulgation a complaint, underneath Section 156(3) to a military for investigation. There is no reason since a time of a Magistrate should be squandered when essentially a avocation to inspect in cases involving cognizable offences is with a police. On a other hand, there might be occasions when a Magistrate might practice his choice and ‘Take’ knowledge of a cognizable offence.

14. It becomes transparent from a pronounced underlined apportionment that a Magistrate has a management to provide an focus underneath Section 156(3) Cr.P.C. as a complaint. Hon’ble Mr. Justice Vinod Prasad has also referred to a box of Suresh Chand Jain ‘Supra’ and has extracted a following apportionment therefrom in sequence to take a opposite view:

Section 156, descending within Chapter XII, deals with powers of a military officers to inspect cognizable offences. True, Section 202 that falls underneath Chapter XV, also refers to a energy of a Magistrate to “direct an review by a military officer”. But a review envisaged in Section 202 is opposite from a review contemplated in Section 156 of a Code.

It has been serve reason by a Apex Court in a same judgment. ” But a poignant prove to be beheld is when a Magistrate orders review underneath Chapter XII he does so before he takes cognizance.

Emphasis Mine.

It has been reason by a Apex Court in box of Madhu Bala v. Suresh Kumar and Ors. (1997) Supreme Court Cases 476 as follows:

Indeed. even if a Magistrate does not pass a instruction to register a case, still in perspective of a supplies of Section 156(1) of a Code that empowers a military to inspect into a cognizable “case” and a Rules framed underneath a Indian Police Act, 1861 it (the police) is avocation firm to rigourously register a box and afterwards inspect into a same.

(Emphasis Supplied) Thus from a above it is transparent that a Magistrate by not directing review underneath Section 156(3) Cr.P.C. gives a prolonged wire to a military to act on it’s whims and caprices and fosters illegality of inaction by a military in registration of information of cognizable offences. It is not slight for any Magistrate underneath a formula to act discordant to a supplies of a code.

15. It is frequency probable to infer from a aforesaid observations that a Magistrate can't provide an focus underneath Section 156(3) Cr.P.C. as a ‘Complaint’. Even a cloudy of distant fetched interpretation will not lead to that inference. The deduction drawn by Hon’ble Vinod Prasad, J. is not logical.

16. The Hon’ble Judge has also referred to a box of State of Haryana and Ors. v. Bhajan Lal and Ors. and has extracted a following observations:

At a theatre of registration of a crime or a box on a basement of a information disclosing a cognizable corruption in correspondence with a charge of Section 154(1) of a Code, a endangered military officer can't embark on any enquiry as to possibly a information, laid by a adviser is arguable and genuine or differently and exclude to register a box on a around that a information is not arguable or credible. On a other hand, a officer-in-charge of a military hire is statutorily thankful to register a box and afterwards to ensue with a review if he has reason to think a elect of an corruption that he is empowered underneath Section 157 of a Code to investigate, theme to a portion to Section 157 (As we have due to make a minute contention about a energy of a military officer in a margin of review of a cognizable corruption within a ambit of Sections 156 and 157 of a Code in a insuing partial of this judgment, we do not introduce to understanding with those sections in extenso in a benefaction context).

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In box an corruption incharge of a military hire refuses to practice a office vested in him and to register a box on a information of a cognizable offene reported and thereby violates a orthodox avocation expel on him, a chairman depressed by such refusal can send a piece of a information in essay and by post to a Superintendent of Police endangered who if confident that a information forwarded to him discloses a cognizable offence, should possibly inspect a box himself or ensue an review to be finished by any military officer subordinate to him in a demeanour supposing by Sub-section (3) of Section 154 of a Code.

Be it remarkable that in Section 154(1) of a Code, a legislature in a common knowledge has delicately and carefully used a countenance “information” yet subordinate a same as in Section 41(1)(a) or (g) of a Code wherein a expressions, “reasonable complaint” and “credible information” are used. Evidently, a non-qualification of a word “information in Section 154(1) distinct in Section 41(1)(a) and (a) of a Code might be for a reason that a military officer should not exclude to record an information relating to a elect of a cognizable corruption and to register a box thereon on a around that he is not confident with a option or credit of a information. In other difference ‘reasonableness’ or ‘credibility’ of a pronounced information is not a condition fashion for registration of a case. A comparison of a benefaction Section 154 with those of a progressing Codes will prove that a legislature had intentionally suspicion it fit to occupy usually a word “information” yet subordinate a pronounced word. Section 139 of a Code of Criminal Procedure of 1861 (Act 25 of 1861) inspected by a Legislative Council of India review that ‘every censure or information’ elite to an officer-in-charge of a military hire should be reduced into essay that sustenance was subsequently mutated by Section 112 of a Code of 1872 (Act 10 of 1872) that afterward review that ‘every complaint’ elite to an officer-in-charge of a military hire shall be reduced in writing. The word ‘complaint’ that occurred in prior dual codes of 1861 and 1872 was deleted and in that place a word ‘information’ was used in a Codes of 1882 and 1898 that word is now used in Sections 154, 155, 157 and 189(c) of a benefaction Code of 1973 (Act 2 of 1974). An altogether reading of all a Codes creates it transparent that a condition that is sine qua non for recording a initial information news is that there contingency be an information and that information contingency divulge a cognizable offence.”

It is, therefore, manifestly transparent that if any information disclosing a cognizable corruption is laid therefore, officer-in-charge of a military hire gratifying a charge of Section 154(1) of a Code, a pronounced military officer has no other choice solely to enter a piece thereof in a prescribed from, that is to save to register a box on a basement of such information.

(emphasis mine)

17. As in a progressing case, a totally undiscerning and egregiously erring deduction has been drawn from a aforesaid observation. The observations describe to a registration of a box by a military officer as will seem from a final divide with importance and they have zero to do with a sequence inspected by a Magistrate underneath Section 156(3) Cr.P.C.

18. It will not be out of place to note that even for registration of a box by a military officer, a condition is that he contingency have reason to think a elect of an corruption as will seem from a following quotations extracted from a box of Ramesh Kumari v. State NCT of Delhi and Ors. a following are a difference extracted:

The loyal exam is possibly a information furnished provides a reasons to think a elect of an corruption that a endangered military officer is empowered underneath Section 156 of a formula to investigate. If it does he has no choice yet to record a information and ensue to inspect a box possibly himself or entrust any other efficient officer to control a investigation. The doubt as to possibly a news is true, possibly it discloses full sum per a demeanour of occurrence, possibly a indicted is named and possibly there is sufficient justification to support a allegations are all matters that are visitor to a care of a doubt possibly a news discloses elect of a cognizable offence. Even if a information does not give full sum per these matters, a questioning officer is not pardon of his avocation to inspect a box and learn a loyal facts, if he can.

19. In a new pronouncement, Hon’ble Mr. Justice Shiv Charan Sharma in a box of Chandrika Singh v. State of U.P. and Ors. 2007 (58) ACC 777 has reason that a Magistrate can provide an focus underneath Section 156(3) Cr.P.C. as a complaint. The Hon’ble Judge referred to several cases in his visualisation and has come to this finish thereafter. It was celebrated by Shiv Charan, J. as follows:

In perspective of this visualisation of Full Bench, a Magistrate is entirely efficient to pass an sequence to register a box and inspect on an focus underneath Section 156(3) Cr.P.C., all a focus underneath Section 156(3) Cr.P.C. might be treated as censure and in a circumstance, a Magistrate shall follow a procession as supposing in Chapter XV Cr.P.C. This visualisation of Full Bench has not been set aside. Hence, in perspective of a Apex Court and Full Bench of this Court a Magistrate is entirely efficient to provide an focus underneath Section 156 Cr.P.C as a censure and in a benefaction box a Magistrate inspected an sequence in a resources of a box that it might be purebred as a censure box and ensue to record a matter underneath Sections 200 and 202 Cr.P.C. There appears no illegality and impropriety in a sequence of a Magistrate.

This debate contingency come to an finish that an focus underneath Section 156(3) Cr.P.C. can usually be treated as an focus for flitting an sequence for registration of a box and review can't be treated as a censure case. The Magistrate is not firm in any and any box to pass an sequence to register a box and inspect if cognizable corruption is finished out The Magistrate is entirely efficient to use this authorised instruction in a matter. This is wrong idea that if an focus has been changed underneath Section 156(3) Cr.P.C. that a usually sequence can be inspected for registration in a matter. The court has got instruction underneath Section 190 Cr.P.C. to take a knowledge directly or to pass an sequence that a military to inspect and afterwards take knowledge on submissions of a news underneath Section 173 Cr.P.C. The Magistrate is also approaching to act underneath some discipline and it should not be left during a capricious choice of a Magistrate to pass an sequence or not to pass an sequence to register a box and review underneath Section 156(3) Cr.P.C. In Gulab Chandra Upadhyaya v. State of U.P. Hon’ble Single Judge of this Court laid down a discipline for a superintendence of Magistrate while determining a focus underneath Section 156(3) Cr.P.C. and a discipline can't be pronounced opposite any sustenance of law or check on a authorised instruction of a Magistrate. Even Hon’ble Apex Court also reason that a Magistrate has got a instruction to pass an sequence to register a box and review underneath Section 156(3) Cr.P.C. or to provide an focus as a censure case.

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In a law laid down by Hon’ble a Apex Court and several judgments of this Court clearly laid down that a Magistrate is not always firm to pass an sequence to register a box and review when focus underneath Section 156(3) Cr.P.C. is moved. It will not be correct to understanding with this suppositious position that if a Magistrate is of opinion that fake and whimsical claim has been finished in focus than he might reject a focus or it is for a questioning officer to confirm a truth of a story and if found fake afterwards launch charge opposite a applicant But it is choice of a Magistrate to be used sensibly while disposing of a application.

For a reasons mentioned above, we am of a opinion that a Magistrate is not always firm to pass an sequence for register of a box and review after receipt of a focus underneath Section 156(3) Cr.P.C. disclosing a cognizable offence. The Magistrate might use his choice sensibly and if he is of a opinion that in a resources of a case, it will be correct to provide a focus as a censure box afterwards he might ensue according to a procession supposing underneath Chapter XV of Cr.P.C. we am also of a opinion that it is not always imperative in any and any box for a Magistrate to pass an sequence to register and inspect on receipt of a focus underneath Section 156(3) Cr.P.C. In a benefaction case, a Magistrate is ideally within a authorised energy to provide a focus underneath Section 156(3) Cr.P.C. as a censure case. There is no illegality or impropriety in a order. The rider is abandoned of consequence and is probable to be dismissed.

20. The Full Bench preference of Ram Babu Gupta’s box ‘ Supra’ also lays down that a Magistrate can provide an focus underneath Section 156(3) Cr.P.C. as a complaint. This ill seem from a following observations:

Coming to a second doubt remarkable above, it is to be during once settled that a sustenance lenient a Court to Act in a sold demeanour and a sustenance formulating a right for an depressed chairman to ensue a Court or authority, contingency be accepted admirably and should not be churned up. While Sections 154, 155 Sub-section (1) and (2) of 156, Cr.P.C consult right on an depressed chairman to strech a police, 156(3) empowers a Magistrate to act in a sold demeanour in a given situation. Therefore, it is not probable to reason that where a unclothed focus is changed before Court usually praying for practice of powers underneath Section 156(3) Cr.P.C, it will sojourn an focus usually and would not be in a inlet of a complaint. It has been remarkable above that a Magistrate has to always request his mind on a allegations in a censure where he might use his powers underneath Section 156(3) Cr.P.C. In this connection, it might be immediately combined that where in an application, a complainant states contribution that consecrate cognizable corruption yet creates a poor prayer, such an focus will not stop to be a censure nor can a Magistrate exclude to provide it as a censure even yet there be no request seeking hearing of a famous or different accused. The Magistrate has to understanding with such contribution as consecrate cognizable corruption and for all unsentimental functions even such an focus would be a complaint. This Court can do no improved than impute to a following observations in Suresh Chand Jain (Supra):

The position is so clear. Any authorised Magistrate, before holding knowledge of a offence, can sequence review underneath Section 156(3) of a Code…could take serve stairs contemplated in Chapter XII of a Code usually thereafter.

21. Hon’ble Mr. Justice Amar Saran in Criminal Misc. Application No. 7484 of 2004 Mohan Shukla and Ors. v. State of U.P., Hon’ble Mr. Justice Alok Singh in Criminal Misc. Application No. 671 of 2007 Ram Sabad v. Sessions Jude, Bahraich and Ors. have also reason that a Magistrate is empowered underneath Section 156(3) Cr.P.C. to provide an focus as a ‘Complaint’.

22. Applications underneath Section 156(3) Cr. P.C. are now entrance in torrents. Provisions underneath Section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something surprising and additional typical like miscarriage of justice, that warrants a instruction to a Police to register a case. Such applications should not be authorised since a law provides them with an choice pill of filing a complaint, therefore, chance should not routinely be available for availing a supplies of Section 156(3) Cr.P.C.

23. The anxiety is, therefore, answered in a demeanour that it is not obligatory on a Magistrate to concede an focus underneath Section 156(3) Cr.P.C. and there is no such authorised mandate. He might or might not concede a focus in his discretion. The second leg of a anxiety is also answered in a demeanour that a Magistrate has a choice to provide an focus underneath Section 156(3) Cr.P.C. as a complaint.

24. Hon’ble Justice V. Prasad has systematic for dissemination in subordinate courts of his aforesaid judgment. Since a perspective propounded by him has not been inspected by a Division Bench, it is required that a subordinate courts are sensitive about a same, so that they might not be misled. For this purpose, it is essential, that a duplicate of this judgment, be circulated in all a subordinate courts.

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