1. Heard Mr. Chandra Bhushan Yadav, learned counsel for the applicant and Mr. Mayank Awasthi, learned A.G.A. for the State.
2. The Application u/s 482 has been filed by the applicant with prayer to quash the impugned order dated 17.02.2024 passed by learned Special Judge (SC/ST Act) Gorakhpur in Criminal Misc. Case No.322/2021 (Vijay Kumar vs. Shiv Prakash Singh and others) in Application 3Ka u/s 156(3) Cr.P.C. under Sections 323, 504, 506, 120B I.P.C. & Sections 3(1)(Da), 3(1)(Dha), 3(1)(Pa) and 3(2)(VII) SC/ST Act, 1989, Police Station-Gola, District Gorakhpur as well as criminal proceedings.
3. Learned counsel for the applicant submits that on 24.05.2021 at about 7:30 hours, when applicant was sitting with his niece in his house, opposite party no.2, Sub Inspector came along with the police personnels and asked about some villagers and when the applicant could not tell him about those villagers, he became annoyed and abused the applicant by using caste indicative words and the applicant was also beaten by opposite party no.2, due to which applicant sustained injuries on his left eye, head and internal injuries all over the body. On hearing the noise, his neighbour came there and tried to save him but the opposite party no.2 did not stop and the applicant’s mother also sustained injuries and became unconscious as she received grievous injuries. The applicant was also threatened by opposite party no.2 that if he will make any complaint, then be ready to face dire consequences. A complaint was made by the applicant on 24.05.2021 before Superintendent of Police but no attention was paid as opposite party no.2 is himself police personnel. The applicant was also not medically examined nor his mother. The applicant himself went to Gola Primary Health Centre and was examined, placing the injury report moved an application u/s 156(3) Cr.P.C., which has been illegally and arbitrary rejected by learned Magistrate by order dated 17.02.2024, hence, the present application has been filed.
4. Learned counsel for the applicant further submits that the incident took place on 24.05.2021 in the morning at 7:30 hours, in which he as well as his mother were beaten by opposite party no.2 and they have sustained injuries. The caste indicative words were also used by opposite party no.2. He further submits that the impugned order passed by the concerned Magistrate rejecting the application of the applicant under Section 156 (3) Cr.P.C. is illegal and perverse and the same has been passed without application of judicial mind and law on the subject. The applicant, therefore, submits that in view of the settled law as laid down in the judgments of the Apex Court, the impugned order passed by the courts below is not sustainable in the eye of law and therefor, the same is liable to be set aside.
5. Mr. Mayank Awasthi, learned A.G.A. for the State, therefore, submits that in view of the settled law as laid down in various judgments by the Apex Court, the impugned order passed by the court below dated 17.02.2024 cannot be interfered with by this Court and the present application u/s 482 is liable to be dismissed, as the court below has rightly rejected the application filed by the applicant under Section 156 (3) Cr.P.C. He further submits that offence under the SC/ST is not made out against the opposite party no.2 as the applicant had not disclosed the caste of opposite party no.2, which is mandatory under the purview of SC/ST Act. In support of his submission, learned AGA has relied upon judgement of Apex Court passed in case of Khuman Singh v. State of M.P., (2020) 18 SCC 763, Hitesh Verma vs. State of Uttarakhand And Another, (2020) 10 SCC 710 and Ramawatar vs. State of Madhya Pradesh, (2022) 13 SCC 635.
6. This Court has considered the submissions as urged by the learned counsel for the applicant, learned A.G.A. for the State as well as gone through the entire materials brought on record.
7. Before coming to the merits of the submissions made by the learned counsel for the parties, it would be relevant to refer Chapter XII of the Code which deals with information to the police and their powers to investigate. As provided under Section 154 of the Code of Criminal Procedure (hereinafter referred as the "Code/Cr.P.C."), every information relating to commission of a cognizable offence, either given orally or in writing is required to be entered in a book, to be kept by the officer-in-charge of the concerned police station. The said FIR, as mandated by law, should pertain to a cognizable case. Section 2(c) of the Code defines "cognizable offence" which also deals with cognizable cases.
8. For ready reference, Sections 2 (c), 154 and 156 (3) Cr.P.C., which are relevant for deciding the present application, read as follows:-
"cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;
"154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."
156. Police officer' s power to investigate cognizable case.
(1) Any officer in charge 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. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."
9. In the case of Lalita Kumari vs. Government of U.P. and Others reported in 2014 (2) SCC 1, the question which arose for consideration on a reference was "whether a police officer is bound to register a first information report (FIR) upon receiving an information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short "Code") or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same in the context of the question before it.
10. The five judges Bench of Hon'ble Apex Court in the case of Lalita Kumari (supra), taking note of the provisions contained in Section 154, 156 & 157 in Chapter XII of the Code of Criminal Procedure has held in paragraph nos. 120 to 120.8 as under:-
"120. In view of the aforesaid discussion, we hold:-
120.1 The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2 If the information received does not disclose commission of a cognizable offence but indicates that the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith (not later than one week) disclosing reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering an offence if cognizable is disclosed. Action must be taken against an erring officer who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise by the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases the preliminary inquiry is to be conducted, will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are identified as under:-
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
11. Acquainting the above directions issued by the Hon'ble Apex Court in the case of Lalita Kumari (supra), in the context of the question referred before it, it is evident that all the directions issued therein apply in the matter of receipt of information of commission of a cognizable offence by the police and the stage of "investigation" as defined in Section 2(h) of the Code to be made by the police in exercise of power conferred upon it under Chapter XII of the Code.
12. The question regarding power of Magistrate to order investigation under Section 156(3) Cr.P.C. came up for consideration before the Hon'ble Apex Court in the case of Mohammad Yousuf vs. Smt. Afaq Jahan & another reported in 2006 (1) SCC 627 wherein the Hon'ble Apex Court has held that the "investigation" under the directions of the Magistrate under Section 156(3) Cr.P.C. falling within Chapter XII contemplates "investigation" by the police authorities. Whether the investigation is started by the police on the registration of FIR on the information received by it or under the order of the Magistrate under Section 156(3) Cr.P.C., it would be same kind of investigation which would end up only with the report contemplated under Section 173 of the Code. But when a Magistrate orders "investigation" under Chapter XII, he does so before he takes cognizance of the offence under Chapter XV of the Code. It has also held that Chapter XV of the Code which confers power on the Magistrate to order "investigation" under Section 202 of the Code deals with the provisions relating to the steps which a Magistrate may adopt after taking cognizance of an offence on a complaint. Thus, the investigation under Section 202, which falls under Chapter XV, though refers to the power of a Magistrate to direct an investigation by a police officer, but is different from the "investigation" contemplated in Section 156(3) falling within Chapter XII of the Code.
13. The relevant paragraphs nos. 9, 10 & 11 of Mohammad Yousuf's (Supra) case are to be quoted herein:-
"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 offence, 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 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 complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."
14. Further it is well settled law as laid down by the Hon'ble Apex Court in the cases of R.R. Chari vs the State of Uttar Pradesh reported in AIR 1951 SC 207, Narayandas Bhagwandas Madhavdas vs. State of West Bengal reported in AIR 1959 SC 1118 and Gopal Das Sindhi & others Vs. State of Assam & another reported in AIR 1961 SC 986 as also the decision of the Calcutta High Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Abani Kumar Banerjee reported in AIR 1950 Calcutta 437.
15. Thereafter, the Full Bench of this Court in the case of Ram Babu Gupta Vs. State of U.P. & others reported in 2001 (43) ACC 50 has held that it is not possible to hold that when an application is moved before the Court only for exercise of powers under Section 156(3) Cr.P.C., it will remain an application only and would not be in the nature of the complaint. It was held that in any case, the Magistrate has to apply his mind on the allegations in the complaint to use his powers under Section 156(3) Cr.P.C. It was, thus, held that:-
"on receiving a complaint the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The order of the Magistrate must indicate application of mind. If the Magistrate takes cognizance; he proceeds to follow the procedure provided in Chapter XV of Cr.P.C."
16. In India Carat Pvt. Ltd. vs. State of Karnataka reported in 1989 (2) SCC 132, considering the provisions as contained in Chapter XIV, Chapter XV and Chapter XVI of the Code, it was observed in paragraph 13' as under:-
"13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him................... ....................Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(c) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued."
17. The question regarding the power of Magistrate to order investigation under Section 156(3) Cr.P.C. further came up for consideration before the Apex Court in the case of Sakiri Vasu vs. State of U.P. & Ors. reported in 2008 (2) SCC 409; wherein it is observed that Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII of the Code. In case where the Magistrate finds that the police has not done its duties of investigating the case at all or has not done it satisfactorily, he can issue direction to the police to do the investigation properly and can also monitor the same.
18. It was held therein that although Section 156(3) Cr.P.C. is very briefly worded but there is an implied power with the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal case 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.
19. The above view taken in Sakiri Vasu's (supra) case is supported by the reasoning therein that even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., they are implied in the said provision as when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. Relevant paragraph Nos. 18, 19 & 20 of the aforesaid judgement are noted as under:-
"18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.
19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd edn. Page 267):-
If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.
20. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein."
20. After perusing the whole scheme of Code of Criminal Procedure as well as the law settled by the Hon'ble Apex Court in the aforesaid judgments, it is evident that if a person has a grievance that his FIR has not been registered by the police, his first remedy is to approach the Superintendent of Police with written application under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. In case S.P. also does not register FIR, no proper investigation is done, in such a case, the aggrieved person can approach concerned Magistrate under Section 156(3) Cr.P.C. On receipt of the complaint, however, several courses are open to the Magistrate:-
“(i) That a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.
(ii) Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
(iii) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
(iv) Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190.”
21. Thus, the above discussion pertaining to the power of the Magistrate under Section 156(3) Cr.P.C. in Chapter XII read with Section 190 in Chapter XIV of the Code leaves no room for doubt that there is nothing in the Code of the Criminal Procedure, which curtails or puts any embargo on the power of the Magistrate to make an "inquiry" as defined under Section 2(g) of the Code or to order for "investigation" defined under Section 2(h) of the Code, in dealing with the application under Section 156(3) Cr.P.C., i.e. in exercise of the power conferred upon it under Chapter XII or Chapter XIV of the Code to satisfy itself about the veracity of the allegations of commission of a criminal offence made therein.
22. In its discretionary power, it is open for the Magistrate to direct the police to register a criminal case under Section 154 Cr.P.C. and conduct investigation. At the same time, it is open for the Magistrate, where the facts of the case and the ends of justice so demand, to take cognizance of the matter by treating it as a complaint and proceed for the "inquiry" under Section 200 and 202 Cr.P.C.
23. However, it is pertinent to note that while exercising its discretionary power under Section 156(3) Cr.P.C., the Magistrate like any other Court of discretionary jurisdiction is to act fairly and consciously and ensure that the discretion conferred upon it is exercised within the limits of judicial discretion. The entire emphasis is to act in an unbiased and just manner, strictly in accordance with law, to find out the truth of the case which shall come before it. It is a Magistrate who is the competent authority to take cognizance of an offence and it is his duty to decide whether on the basis of the record and documents produced, an offence is made out or not and if made out, what course of law should be adopted.
24. In view of the above, the impugned judgment and order dated 17.02.2024 is legal and the same do not suffer from any illegality, perversity or jurisdictional error which may call for any interference by this Court. Hence the prayer made in the present petition is refused.
25. The present petition lacks merit and is accordingly dismissed.
