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[2008(3) ADJ 417]
ALLAHABAD HIGH COURT
BEFORE : V.D. CHATURVEDI, J.
Smt. ANJUM ...........Applicant
Versus
STATE OF U.P. AND ANOTHER .........Opposite Parties
(Criminal Misc. Application No. 443 of 2008, decided on 24th January, 2008)
(B) Criminal Procedure Code, 1973—Section 156(3)—Word “may”—Connotation of—It gives Magistrate a discretionary power to order—Or not from investigation into cognizable offence disclosed in petition—Discretionary power ought to have been exercised only on reasons—Not on arbitrariness. [Para 6]
Certainly. Based on the provided legal document, here are the key points:
The order of a magistrate declining to pass an investigation under Section 156(3) of the Criminal Procedure Code (Cr.P.C.) was challenged, as the magistrate treated the petition as a complaint and refused investigation (!) .
The petitioner filed an application under Section 156(3), Cr.P.C. alleging that accused Yameen entered her house with malicious intent, outraged her modesty, and caused injuries supported by medical reports, which indicated a cognizable offence under Section 325 of IPC (!) (!) .
The magistrate's refusal was based on the reasoning that all facts were already known to the petitioner, and thus, investigation was unnecessary. However, this reasoning was challenged as insufficient, since the discretion under Section 156(3) should be exercised based on reasons, not arbitrariness (!) (!) .
The word "may" in Section 156(3) grants the magistrate discretionary power to order or decline investigation, but this power must be exercised with proper reasoning, especially to distinguish between genuine and false allegations (!) .
The magistrate's role involves balancing the need to prevent false allegations from clogging the system and ensuring genuine cases are investigated. Several guidelines are provided for exercising this discretion, including that investigation should be ordered if allegations are supported by credible documents or involve serious offences like outraging modesty or causing injury [p_12–p_22].
In cases involving allegations of outraging modesty supported by medical evidence, and where the nature of the allegations is serious and involving the reputation of the victim, investigation is generally warranted. Declining investigation in such circumstances is considered a denial of justice [p_10–p_11].
The court emphasized that passing investigation orders in frivolous petitions or declining them in genuine cases both constitute miscarriages of justice. Proper exercise of discretion requires careful reasoning and consideration of the facts (!) (!) .
The order of the magistrate was found to be grossly erroneous, and the court directed that it be set aside and that the magistrate pass a fresh order within a week of producing a certified copy of this judgment (!) .
These points summarize the principles and findings relevant to the exercise of judicial discretion under Section 156(3) of Cr.P.C., especially in cases involving allegations of criminal offences supported by credible evidence.
Hon’ble V.D. Chaturvedi, J.—At the outset learned Counsel for the petitioner requests for permission to delete the name of the opposite party No. 2 stating that opposite party No. 2 has no locus standi and he was erroneously made opposite party No. 2.
2. AGA has no objection. The learned Counsel for the petitioner is permitted to delete the name of the opposite party No. 2 during the course of the day.
Heard.
3. The magistrate’s order, whereby he treated the petitioner’s petition under Section 156(3), Cr.P.C. as complaint and whereby the magistrate declined to pass the order of investigation, is under challenge.
4. Learned Counsel for the petitioner contends that the petitioner moved an application under Section 156(3), Cr.P.C. against accused Yameen stating that accused Yameen entered into the petitioner’s house with evil motive in the absence of her husband and outraged her modesty; that when she resisted, the accused Yameen had beaten her by a danda and had broken her tooth. He contends that she was medically examined after her husband came back and the injury reports (page No. 8 and 9 of the affidavit) support the allegations of offence under Section 325, IPC. Yet the magistrate declined to pass the order for the investigation on the petition under Section 156(3) moved by the lady petitioner on the ground that all the facts which could be investigated were already known to the petitioner.
5. The criteria for ordering the investigation under Section 156(3), Cr.P.C. is not solely what the magistrate has stated.
6. The word ‘ may’ occurring in Section 156(3), Cr.P.C. is of utmost significance. It gives the magistrate a discretionary power to order or not for an investigation into the cognizable offence disclosed in the petition. This discretionary power ought to have been exercised only on reasons and not on arbitrariness. This discretionary power has been given to magistrates to enable them to deal adequately with both types of the petitions (i) the genuine petitions containing truthful allegations about the commission of the cognizable offence and (2) the petitions having baseless or false allegations. The increasing tendency of the people to file petitions on false allegations cannot be ignored. The petitions of later category are filed with the motive to unnecessarily harass the opponents, by taking the undue advantage of the provisions of Section 156(3), Cr.P.C.
7. Hence while dealing with the petitions under Section 156(3), Cr.P.C., it is the duty of the magistrate to make it a point that no petitioner of the later category may succeed in his wicked game. His petition needs to be dismissed with firmness and boldness.
8. At the same time it is the poise duty of the Magistrates to ensure that no case of the former category may go uninvestigated.
9. The magistrates are thus saddled with a great responsibility to keep such a balance. It is for this purpose that the magistrates are endowed with the aforesaid discretionary powers. It is not an easy task to distinguish between the aforesaid two types of petitions. Hence following few guidelines may help them, while dealing with the powers contained in Section 156 (3), Cr.P.C.
(i) The investigation under Section 156 (3), Cr.P.C. cannot be ordered where the petition does not disclose the commission of a cognizable offence.
(ii) Magistrates are not under any obligation to order the investigation invariably in all the petitions, which disclose the commission of the cognizable offences.
(iii) Where the allegation of the commission of cognizable offence is supported by any such documents which tends to inspire the confidence of the magistrate regarding the commission of a cognizable offence, the magistrate must pass the order for the investigation. Such documents may include the medical report or some other cogent material of the like nature.
(iv) Where the allegation, in itself, is of such a nature which naturally inspire the confidence of a reasonable man in its truthfulness the magist
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