1. Mohan Lal-appellant has filed this criminal appeal to challenge the impugned order dated 29.9.2023 passed by the Special Judge (SC/ST Act), Jhansi in Criminal Misc. Case No. 396 of 2023 (CNR No. UPJS01-004687-2023); titled Mohan Lal vs. Pankaj and others, whereby his application under Section 156(3) Cr.P.C., Police Station Uldan, District Jhansi has been rejected.
2. Briefly, the facts leading to the criminal appeal are that the appellant-complainant made a complaint under Section 156(3) Code of Criminal Procedure, 1973 before the Special Judge (SC/ST Act), Jhansi, in respect of an incident dated 9th July, 2023, which took place at 10:00 am, when the complainant had tried to prohibit the accused persons namely Pankaj son of Surendra Patel, Anup Patel son of Lakhan Lal, Om Prakash son of Thakurdas Patel, Mukesh son of Ramkishan Patel, Rinku son of Omprakash Patel from cutting the tree planted by his father three decades ago, which was being used by his family and other villagers as a shade/shelter. The accused had given beatings to the complainant and his family members, and were rescued by the other villagers, who had arrived at the spot, but the accused were successful in their act of cutting the tree. In this regard, an information was given to the Senior Superintendent of Police, Jhansi through registered post on 13.07.2023, but no action was taken against the accused persons, therefore, appellant filed a complaint under Section 156(3) Cr.P.C., dated 07.08.2023 before the Special Judge (SC/ST Act), Jhansi with a prayer to send it to the concerned Police Station Uldan, District Jhansi for registration of F.I.R. and investigation.
3. The Special Judge (SC/ST) Act, Jhansi vide impugned order dated 29.9.2023 has refused to exercise the jurisdiction under Section 156(3) Cr.P.C. Hence, this criminal appeal.
4. Learned counsel for the appellant has argued that the case of the complainant-appellant is supported with the sufficient material, particularly the injury reports (Annexure No. 2) as well as the photographs of the occurrence to prima facie show the commission of alleged offence, but the Special Judge (SC/ST Act), Jhansi has refused to exercise the discretion on the ground that the complainant has failed to explain that who had clicked these photographs. He submits that at the stage of exercising the power under Section 156(3) Cr.P.C., the court is not to evaluate the material relied upon by the complainant to reach at the conclusion that the same would lead to the conviction of the accused. He submits that the impugned order is not sustainable and warrants interference by this Court in exercise of appellate jurisdiction. He prays that the impugned order be set aside and his application under Section 156(3) Cr.P.C. be allowed.
5. Learned counsel for the accused/opposite party nos. 2 to 6, who has appeared on advance notice, has argued that the Special Judge has passed the reasoned order, and since the complaint is false, therefore, there is no reason to investigate the case. He prays that the appeal be dismissed.
6. Upon hearing the learned counsel for the parties and considering their submissions, this Court finds that the complainant in his case has placed on record the complaint sent to the Senior Superintendent of Police, District Jhansi along with the postal receipts, copies of the injury report as well as photographs. Further the report from the concerned police station was also called for, which indicated that in respect of the subject complaint, no case has been registered.
7. Chapter XII Code of Criminal Procedure contemplates information to police and their powers to investigate, and one of the modes for cognizance by police in respect of commission of cognizable offence is based upon the direction by Magistrate under Section 156(3) Cr.P.C., and since by virtue of Section 14 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Special Court can directly take cognizance of the offences, and the bar contained in Section 193 Cr.P.C. prohibiting cognizance by Sessions Court (Special Court) without committal of the case by the Magistrate stands lifted, therefore, for the purposes of the Special Act, the Special Judge is also competent to exercise the discretion envisaged under Section 156(3) Cr.P.C.
8. By now, it is settled law that jurisdiction under Section 156(3) Cr.P.C. can be exercised by the Magistrate/Special Judge directing the police to take cognizance by registering the F.I.R. followed by investigation, if, the allegations in the complaint prima facie disclose commission of the alleged offences as the investigation in a crime is the prime duty of the police. At the stage of exercising discretion under Section 156(3) Cr.P.C., the Magistrate/Special Judge is only reminding the police of its statutory duty to register a case relating to the alleged commission of cognizable offences for investigation and this stage is a pre-cognizance stage. In other words, while sending the complaint to the police, the Magistrate/Special Judge has not taken cognizance of the alleged offences in terms of Section 190 Cr.P.C. Thus, at this juncture, the Magistrate/Special Judge is only required to see, if the complaint discloses commission of cognizable offences. Of course, if the complaint falls short of this requirement, the Magistrate/Special Judge is always justified in refusing to exercise discretion under Section 156(3) Cr.P.C., who can alternatively, proceed with the complaint under Chapter XV Cr.P.C., and therefore, when the Magistrate/Special Judge applies mind to the complaint for the purpose of proceeding under Section 200 Cr.P.C., the cognizance of the offences is said to be taken in terms of Section 190 Cr.P.C. Here, it would be useful to refer the decision of the Hon'ble Apex Court rendered in the case of Gopal Das Sindhi and others Vs. State of Assam and another, AIR 1961 Supreme Court 986, the relevant extract of the judgment is reproduced here as under:-
".....If the Magistrate had not taken cognizance of the offence on the com-plaint filed before him, he was not obliged 'to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must.' The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence."
(Emphasis supplied)
9. The above view was again reiterated by Hon'ble Apex Court in the case of Devarapalli Lakshminarayana Reddy and others Vs. Narayana Reddy and others, AIR 1976 Suprme Court 1672, the relevant observations read as under:-
".....This raises the incidental question: What is meant by "taking cognizance of an offence`' by a Magistrate within the contemplation of s. 190 This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of s. 190 and the caption of Chapter XIV under which ss. 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under s. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of s. 190(l)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under s. 156(3), he cannot be said to have taken cognizance of any offence."
10. A perusal of the impugned order would show that the Special Judge (SC/ST Act), Jhansi has proceeded to disbelieve the photographs relied upon by the complainant solely on the ground that he has failed to explain that who have clicked these photographs. Further the injury reports relating to the injured have not been considered while passing the impugned order, whereas the material on record, prima facie, shows the commission of alleged cognizable offences. That apart, while rejecting the complaint of the complainant under Section 156(3) Cr.P.C., the court has not even treated the complaint of the complainant as a complaint case. The alleged occurrence took place when the complainant tried to prohibit the accused from cutting a Neem tree planted by his father, but the Special Judge, while dismissing the complaint, observed that the complainant has failed to specify the land where the tree was planted, i.e. in his own land or elsewhere, and this approach is erroneous in law. Besides, in such cases of offences against human body, ordinarily, the place of occurrence is not relevant, and its significance may be seen at a later stage.
11. Thus, considering the material on record, this Court has no hesitation in holding that the case of the complainant warranted exercise of discretion under Section 156(3) Cr.P.C., therefore, the impugned order is set aside, and it is ordered that FIR in respect of the complaint (Annexure No. 4) be registered at concerned police station for fair investigation.
