The discretion of the Magistrate under Section 156(3) Cr.P.C. must be guided by the nature of the alleged offences and the need for police investigation.

JUDGMENT :

1. This Criminal Misc. Petition under Section 482 Cr.P.C. has been preferred claiming the following reliefs:

“It is, therefore, prayed that this misc. petition of the petitioner may kindly be allowed and the above-mentioned impugned order dated 17.10.2022 passed by Learned Additional Chief Judicial Magistrate Cum Metropolitan Magistrate No.1, Jodhpur, in Criminal Misc. Case No. 28/2022 may kindly be quashed and set-aside and accordingly application filed by the petitioner may kindly allowed.

Any other relief, which this Hon’ble Court may deem just and proper in the facts and the circumstance of the case may kindly be passed in favour of the petitioner.”

2. Brief facts of the case, as placed before this Court by the learned counsel for the petitioner are that on 02.09.2022, the petitioner received a phone call from his neighbour, Sh.Umaid Singh, that few people obstructed a public road unlawfully i.e. without the requisite permissions, shifted an electricity wireline on towards the petitioner’s home; upon receipt of such information, the petitioner rushed back to his home, and found that Mohammed Salim Chhipa, Mohammed Usman Chhipa, Mohammed Azharruddeen, and Ahmed Shah, along with some other people were cutting down a 200 year old peepal tree, without requisite permissions.

2.1 In the aforesaid factual backdrop, the petitioner along with certain other persons went to Police Station, Khandafalsa to lodge a complaint and register an F.I.R. however, the FIR was not registered by the concerned police authorities. That also the petitioner sent a written complaint to the concerned Police Commissioner for registration of an F.I.R., but despite the same, no F.I.R. was registered nor was any action taken against the perpetrators.

2.2. On 01.10.2022, the petitioner filed an application under Section 156(3) Cr.P.C. before the Metropolitan Magistrate No. 1, Jodhpur for registration of an F.I.R. against the perpetrators, however, the learned Court below vide order dated 17.10.2022 rejected the said application, and initiated an inquiry under Section 200 Cr.P.C.

3. Learned counsel for petitioner submits that the act of the perpetrators is an unlawful and illegal act, not only against the petitioner himself, but also against the public at large. And, therefore, the learned Court below has committed a grave error of law, in not forwarding the complaint to the concerned police authorities, under Section 156(3) Cr.P.C., for the necessary investigation.

For the sake of brevity the said Section 156(3) is reproduced as hereunder:

“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.”

4. Learned counsel for the petitioner further submits that the interpretation of the word “shall”, as used in Section 154 (1) of Cr.P.C., makes it mandatory to register an F.I.R. when the offences are cognizable offences; in support of such submission, reliance was placed on the judgment rendered by the Hon’ble Apex Court in the case of Lalita Kumari Kumari vs. State of U.P & Ors. (2014) 2 SCC 1.

5. Learned counsel for the petitioner also submits that while the words “may take cognizance” are used in Section 156(3) Cr.P.C., the discretion of the Magistrate in forwarding a complaint under Section 156(3) CrP.C., must be exercised after duly looking into the facts and circumstances of a case, with the intent to do complete justice. Reliance in this regard was placed on the judgments rende