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2001 (4) Crimes 53
ALLAHABAD HIGH COURT (FB)
Paloke Basu. R.K. Dash and JJ.
Gupta, JJ.
Ram Babu Gupta and Anr. - Petitioners
versus
The State of D.P. & Ors. - Respondents
Criminal Misc. Writ Petition No. 3672 of 2000
Decided on 27-4-2001
Counsel for the parties:
For the Petitioners: Jai Shankar Audichya, Advocate.
For the Respondents: AGA.
IMPORTANT POINT
Magistrate on receiving complaint has power under Section 156(3). Cr.P.C. to direct registration of case and its investigation but order must indicate application of mind.
Headnote:(i) Criminal Procedure Code, 1973 - Section 156(3) - Order by Magistrate directing Station Officer to register a case and investigate Petition to quash order on plea that order did not indicate application of mind and there was no power with Magistrate to direct the registration of case since there was no complaint and only an application - On receiving a complaint, Magistrate has to apply his mind to the allegations in complaint - Order must indicate application of mind - Where in an application facts disclose cognizable offence such application would not cease to be a complaint – Magistrate has power to direct registration of case and direct investigation.
Held: In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint the Magistrate has to apply his mind to the allegations in the complaint upon 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 Magistrate's order must indicate application of mind. If the Magistrate takes cognizance he proceeds to follow the procedure provided in Chapter-XV of Cr. P.C. (Para 16)
Further held: A provision empowering a Court to act in a particular manner and a provision creating a right for an aggrieved person to approach a Court-or authority must be understood distinctively and should not be mixed up. While Sections 154, 155 sub-sections (1) and (2) of 156, Cr. P.C. confer right on an aggrieved person to reach the police. 156(3) empowers a Magistrate to act in a particular manner in a given situation. Therefore, it is not possible to hold that where a bare application is moved before Court only praying 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 a complaint. It has been noted above that the Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers under Section 156(3). Cr. P.C. In this connection it may be immediately added that where in an application a complainant states facts which constitute cognizable offence but makes a defective prayer such an application will not cease to be a complaint nor can the Magistrate refuse to treat it as a complaint even though there be no prayer seeking trial of the known or unknown accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all practical purposes even such an application would be a complaint. (Para 17)
(ii) Criminal Procedure Code, 1973 - Section 156(3) - Order directing registration of case and investigation into a complaint - Before passing the older. Magistrate called for a report from police – No error in order. (Para 26)
(iii) Criminal Procedure Code, 1973 - Section 156(3) - Case registered as non-cognizable offence Objections taken to the Court - By impugned order Magistrate directed registration of case and investigation - No error in the order. (Para 30)
Result: Reference answered accordingly.
ORDER
Palak Basu, J. - The arguments advanced by parties learned counsel on the import of the provisions contained in Sections 156(3) read with other relevant provisions certainly touched great heights but luckily the timely ushering of a decision of the Apex Court has perforce reduced the controversies raised to a manageable extent.
2. It so happened that a Division Bench (of two of us. P. Basu and Hon. J.C. Gupta, J.) came across in the petition under Article 226 of the Constitution of India of Ram Babu Gupta and Pramod Kumar Gupta an order dated 56-2000 (Annexure-6) passed in exercise of powers under Section 156(3). Cr. P.C. by the Special Judge Dacoity Affected Area, Mainpuri directing Station Officer to register a case and investigate. The prayer was that the said order be quashed and respondents police station Alau, Mainpuri and the informant Ved Prakash Dubey be restrained from arresting the petitioners in case Crime No. 900 of 2000 under Section 395 registered there in pursuance of the impugned order.
3. Shri J.S. Audichya, learned counsel for the petitioner argued that the application of Ved Prakash Dubey requested the Magistrate to exercise only his powers under Section 156(3). Cr. P.C. direct the police to register the F.I.R. and. investigate it. The argument proceeded that the Special Judge's order S.O. Alau ko Nirdesh Diyajata hai ki mukaddama darj kar vivechna karen' (Translation by Court: "The S.O. is directed to register the case and investigate.") does not indicate application of mind, there was no power with the Magistrate to direct the registration of the case: since there was no complaint within the meaning of Section 2 of Cr. P.C. the after said order could not have been passed in exercise of the powers under Section 156(3), Cr. P.C. Reliance was placed on the decision of a Division Bench in Surajmal-ACC 1993 Page 81.
4. In a couple of days twenty petitions came to be filed with more or less similar prayers and in each matter it was noticed that either the challenge was to the Magistrate exercising powers under Section 156(3). Cr.P.C. because there was no proper complaint or because there was nothing in the order which showed application of mind by the Court before directing police station to register and investigate the case, Every time learned counsel came up with various decisions of this Court as well as other court, some of Single Judge and some of Division Bench on the question of existence or non-existence of the power with the magistrate to direct the police to register an F.I.R. with the police station, some decisions also were cited indicating necessity of passing some such order as to indicate application of mind rather than only say "Register and investigate."
5. All the matters which came before the said Division Bench were clubbed together in a bunch, notices were issued to the respondents, counter affidavits were called and the proceedings were stayed. Simultaneously the matter was referred to a Larger Bench. The reason for the reference was that the Division Bench in Suraj Mal (Supra) took the view that where an application is moved before a Magistrate requesting only exercise of powers under Section 156(3). Cr. P.C. it could not be termed as a "complaint' within the meaning of Section 2 of Cr. P.C. The relevant portion of the judgment in Suraj Mal is quoted below:
"a perusal of the application moved by respondent No .2 clearly shows that his grievance before the learned Magistrate was against the police as on being approached his report was not recorded under Section 154 of the Code. After stating the injustice caused to him he prayed before the learned Magistrate that police be directed to register his case and investigate the same. The contention of the learned counsel for petitioners that the application moved by respondent No.2 was a complaint thus is not correct. As it was not a complaint, there was no occasion for the learned Magistrate to adopt the procedure provided under Chapter-X
