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1996 Supreme(All) 432
HIGH COURT OF ALLAHABAD
C.A.Rahim
JAMNA
Versus
STATE OF U P
Decided On : 10 April 1996
Criminal Misc. Application No. 1018 of 1996
SUNIL KUMAR,
The High Court has the inherent power to quash an FIR under Section 482 of the CrPC, but this power should be exercised sparingly and only in cases where the FIR does not disclose any cognizable offense.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 156(3) - SECTION 200 - SECTION 202 - SECTION 482 - POWER OF MAGISTRATE TO DIRECT REGISTRATION OF CASE - PROCEDURE FOR FILING COMPLAINT - INHERENT POWER OF HIGH COURT TO QUASH FIRST INFORMATION REPORT - STAY OF ARREST - INTERPRETATION AND APPLICATION.
Fact of the Case:
An application was filed under Section 156(3) of the Criminal Procedure Code (CrPC) by one Subhash, alleging that a counter case was filed against him and others with mala fide intention and in collusion with the police. The applicant sought to quash the First Information Report (FIR) and stay his arrest.
Finding of the Court:
The court held that the Magistrate has the power to direct the registration of a case under Section 156(3) of the CrPC, and that the complaint need not be filed under Section 200 of the CrPC. The court also held that the High Court has the inherent power to quash an FIR under Section 482 of the CrPC, but this power should be exercised sparingly and only in cases where the FIR does not disclose any cognizable offense. In the present case, the court found that the FIR disclosed a cognizable offense and therefore could not be quashed.
Issues: 1. Whether a Magistrate has the power to direct the registration of a case under Section 156(3) of the CrPC? 2. Whether a complaint must be filed under Section 200 of the CrPC? 3. Whether the High Court has the inherent power to quash an FIR under Section 482 of the CrPC? 4. Whether the FIR in the present case should be quashed?
Ratio Decidendi: 1. The court held that the Magistrate has the power to direct the registration of a case under Section 156(3) of the CrPC, relying on the decision of a Division Bench of the same court in Surajmal's case. The court rejected the argument that the Magistrate can only direct an investigation but cannot ask for the registration of a case. 2. The court held that a complaint need not be filed under Section 200 of the CrPC, as the definition of 'complaint' in Section 2(d) of the CrPC is not confined to complaints filed under Section 200. The court noted that under Section 200, the Magistrate may take action when he wants to take cognizance of an offense, but if he does not take cognizance, Sections 200 and 202 of the CrPC do not come into play. 3. The court held that the High Court has the inherent power to quash an FIR under Section 482 of the CrPC, but this power should be exercised sparingly and only in cases where the FIR does not disclose any cognizable offense. The court relied on the decision of the Supreme Court in Union of India v. B. R. Bajaj, where it was held that the High Court may interfere at the stage of the FIR to examine whether it discloses any cognizable offense. 4. The court found that the FIR in the present case disclosed a cognizable offense and therefore could not be quashed.
Final Decision: The court dismissed the application to quash the FIR and stay the arrest of the applicant. However, the court directed that the arrest of the applicant be stayed till the submission of the charge sheet or completion of the investigation, whichever is earlier.
Heard learned counsel. It has been submitted that Crime Case No. 7-A/96 was started on the basis of an order of the Magistrate under Section 156 (3), Cr. P. C. but the learned Magistrate has got no power to
proceed under that section. Since a complaint when filed under Section 200, Cr. P. C. , the Magistrate is to adopt the procedure of that Chapter and he is to examine the complainant and witnesses in their favour. If he desires that the matter should be investigated he can send it to the police station under Section 202, Cr. P. C. There is no provision of law to file an application under Section 156 (3), Cr. P. C. It has also been submitted that under that section a Magistrate can direct for investigation but cannot ask for registration of the case. The later part of the submission is covered by Surajmals case reported in 1993 ACC 81. A Division Bench of this Court has decided the issue stating that "objection of the learned counsel that registration of a case in the police station could not be directed by the learned Magistrate, is not correct. " This rests with the matter relating to the power of the Magistrate to issue a direction for registration of a case. But with regard to the first part of the submission of the learned counsel that the complaint must be filed under Section 200, Cr. P. C. is not borne out with the spirit of the provi sions in Criminal Procedure Code in regard to the lodging of a case. The complaint as per section 2 (d), Cr. P. C. means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code. So it is not confined that a Magistrate should take action under Section 200, Cr. P. C. only. Under that section the Magistrate may take action when he wants to take cognizance of an offence and if he does not take cognizance, Sections 200 and 202, Cr. P. C. do not come to play.
2. Under Section 156 (3), Cr. P. C. what the Magistrate is empowered to do is to see whether any cognizable offence has been disclosed. Scrutiny of the complaint is limited to that extent only and if he is convinced that such a condition has been fulfilled he will send the complaint to the police station with a direction for registration and for investigation. In this regard the contention of the learned counsel is not correct that the Magis trate is powerless in this respect. So this part of the contention is there fore, rejected.
3. The learned counsel has submitted that the occurrence took place on 5-3-1996 in which one Kanhaiya was murdered and as many as three persons received fire-arm injuries. The case was started being crime No. 71-A/96 under Sections 147, 148, 149 and 302, 307, 501, I. P. C. against nine accused persons. All of them, besides one Subhash have been arrested and lodged in judicial custody. The allegation is that said Subhash got an application filed through one Bharat Pal under Section 156 (3), Cr. P. C. which was directed to the Police Station for registration and for starting a case being case Crime No. 71-A/96 under Sections 147, 148, 383, 149, 323, 307 and 504, I. P. C. The learned Counsel has submitted that the date of the occurrence is the same but the story has been manufactured in a different way. According to him the said case has been engineer ed as a counter blast with mala fide intention in collusion with the police. The learned counsel has referred the case of Mohd. Habibur Rahman Faizi and others v. State and another, reported in 1995 JIC 672. In that case the celebrated case of Ch. Bhajan Lal reported in AIR 1992 SC 604: 1990 (2) JIC 997, has been referred wherein it has been decided that under Section 482, Cr. P. C. or under Article 226 of the Constitution, the High Court may interfere where criminal proceeding is manifestly attended with mala fide. It may be that the instant proceeding is counter blast of the murder case, probably to put a defence of right of private defence
during the trial or it may be that out of sheer malice the i
