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1996 Supreme(P&H) 1453
PUNJAB & HARYANA HIGH COURT
K.K.Srivastava, J.
Shiv Lal
Versus
State Of Haryana
Criminal Misc. No. 10209-M of 1994,
Decided On : SEPTEMBER 20, 1996
A Magistrate cannot order the police to register an FIR under Section 156(3) of the Code of Criminal Procedure.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 156(3) - SECTION 482 - FIR QUASHING - ORDER FOR REGISTRATION OF FIR BY MAGISTRATE - JURISDICTION - MAGISTRATE CANNOT ORDER POLICE TO REGISTER FIR - FIR REGISTERED ON BASIS OF SUCH ORDER IS INVALID.
Fact of the Case:
Petitioners sought to quash an FIR registered against them under various sections of the Indian Penal Code, alleging that the Magistrate had no jurisdiction to order the registration of the FIR and that the FIR did not disclose any offence against them.
Finding of the Court:
The Court held that the Magistrate could not order the registration of the FIR under Section 156(3) of the Code of Criminal Procedure, as the registration of an FIR is a function of the police under Section 154 of the Code.
Issues: Whether the Magistrate had the jurisdiction to order the registration of the FIR under Section 156(3) of the Code of Criminal Procedure.
Ratio Decidendi: The Court relied on the Division Bench judgment of the Punjab and Haryana High Court in Ganesh Dass and others v. State of Haryana and another, which held that the Magistrate is not empowered to direct the police to register an FIR under Section 156(3) of the Code of Criminal Procedure.
Final Decision: The Court allowed the petition, set aside the Magistrate's order for registration of the case, and quashed the FIR registered on the basis of that order.
K.K.Srivastava, J.
1. This is a petition filed under Section 482 of Code of Criminal Procedure seeking the quashing of FIR No. 120 dated 1.4.1994, registered at Police Station Ratia, District Hissar under Sections 420, 465, 468, 470, 471, 476, 120- B of Indian Penal Code, a copy of which has been placed on record as annexure P-1 and further proceedings thereon. Petitioners Shiv Lal and Surinder Kumar, both sons of Brij Lal, working as Commission Agents in Anaj Mandi and Krishan Lai Sharma, resident of Narka Mohalla, Ward No. 26, Ratia have been involved as accused in the said FIR, Charan Dass, respondent No. 2 filed a complaint under Sections 420, 465, 468, 470, 471, 120-B of Indian Penal Code against the petitioners alleging that he was the owner of plot No. 117 situated in New Grain Market Ratia. Respondent No. 2 complainant mortgaged the plot for a sum of Rs. 1,55,000/- in favour of one Bhim Sein son of Bhagwan Datta and an agreement dated 23.5.1988 was executed. A sum of Rs. 1,35,000/- was paid as advance money by Bhim Sein to the complainant Charan Dass. According to the terms of the agreement the balance amount of Rs. 20,000/- was to be paid subsequently and then the sale-deed was to be executed. Bhim Sein did not pay the balance amount of Rs. 20,000/-. It was alleged that the petitioners-accused hatched a conspiracy and prepared an affidavit dated 11.11.1991 as indemnity bond and an application dated 25.11.1991. for transferring the said plot No. 117. The complainant was impersonated and the document was got attested from the Executive Magistrate, Sirsa and documents were presented before the Market Committee Ratia for transferring the plot. The witnesses, who attested the documents fully well knew that the documents were not executed by complaint-respondent Charan Dass and that he was impersonated. By means of the documents, the plot was transferred in favour of one Shiv Lal. It is alleged that complainant- respondent No. 2 filed the said complaint in the court of Judicial Magistrate 1st Class, Fatehabad who passed orders under Section 156(3) Cr.P.C. and ordered for registration of the case vide his order dated 18.3.1994. The petitioners seek the quashing of the FIR on the ground that the FIR does not disclose the commission of any offence against them and on the ground that the learned Magistrate could not order for the registration of the case against the petitioners.
2. Notice of the petition was issued to the respondents. Respondent No. 2 filed reply contending that the petition under Section 482 Cr.P.C. is mis- conceived, mala fide and designed to prolong the litigation and is an abuse of process of the Court. It was alleged that the petition was not maintainable in view of the settled law and it will be open to the petitioners to take the pleas before the trial Court. This Court will not go in exercise of its powers under Section 482 Cr.P.C. into the merits of the case, examine the evidence collected during investigation and which is to be produced at the time of the trial before the trial Court. It was also contended that the contention of the petitioners about the pendency of a civil suit regarding this matter is without any substance because the pendency of a civil suit is no bar to the filing of the FIR; starting of the investigation and trial, the civil and criminal remedies are not, it was alleged, mutually exclusive but on the contrary are co-extensive. On merits, the averments made in affidavit were defended.
3. I have learned counsel for the petitioners and learned counsel for the respondentsand have perused the records of the case.
4. The Learned counsel for the petitioners argued that as per settled law, the Magistrate cannot order for the registration of the case by exercising the powers under Section. The Learned Counsel cited a Division Bench judgment of this Court rendered in the case of Ganesh Dass and others v. State of Haryana and another, 1996(1) I.L.R. Punjab and Haryana, 88. The Divis
