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2020 Supreme(All) 583
IN THE HIGH COURT OF ALLAHABAD
Chandra Dhari Singh, J.
Shalini Sahai & Another - Revisionists
Versus
State Of U.P. & Another – Opposite Parties
Criminal Revision No. - 128 of 2020
Decided On : 21-05-2020
Advocate Appeared:
For the Revisionist : Shishir Pradhan
For the Opposite Party :Govt. Advocate, Ashok Kumar Singh
Point of Law:
It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment.
Headnote:
Code of Criminal Procedure, 1973 – Sections 397, 401, 197, 154, 156 – Indian Penal Code, 1860 – Sections 506, 504, 406, 420 – F.I.R. Lodging – Criminal revision under Section 397/401 of Cr.P.C. has been preferred against the judgment and order passed in Criminal Misc. Case by which Special Judge, SC/ST Act, has allowed the application moved by opposite party no.2 under Section 156(3) of Cr.P.C. directing the Station House Officer, to lodged an FIR and submit report – Held, When considering scope of statutory powers of the police to investigate a cognizable case under sections 154 and 156 of the Code, that it would be an unfortunate result if Courts in exercise of their inherent powers could interfere in this function of police – Roles of Court and police are "complementary not overlapping and combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function." – Order of Magistrate passed in exercise of powers under Section 156(3) of Cr.P.c. directing police to register and investigate is not open to revision at instance of a person against whom neither cognizance has been taken nor any process issued and an order made under Section 156(3) of Cr.P.C. is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397 – Criminal Revision Dismissed (Paras 31, 32, 33)
Facts of the Case:
Opposite party no.2 had lodged an FIR against the revisionist Anit Kumar and his wife Sadhna Srivastava have in Case Crime No.1412 of 2019, under Sections 506, 504, 406, 420 IPC at Police Station Gomti Nagar, District Lucknow. The revisionist no.1 being a police officer posted at Police Station Gomti Nagar, District Lucknow was appointed to investigate the matter. During investigation, the revisionist no.1 called both the parties to compromise the dispute regarding construction of house.
Finding of the Court:
When considering scope of statutory powers of the police to investigate a cognizable case under sections 154 and 156 of the Code, that it would be an unfortunate result if Courts in exercise of their inherent powers could interfere in this function of police – Roles of Court and police are "complementary not overlapping and combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function." – Order of Magistrate passed in exercise of powers under Section 156(3) of Cr.P.c. directing police to register and investigate is not open to revision at instance of a person against whom neither cognizance has been taken nor any process issued and an order made under Section 156(3) of Cr.P.C. is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397.
Result: Criminal Revision Dismissed
JUDGMENT :
1. The instant criminal revision under Section 397/401 of Cr.P.C. has been preferred against the judgment and order dated 28.01.2020 passed in Criminal Misc. Case No.94 of 2020 (Raj Kishore v. Shalini Sahai and another), by which the learned Special Judge, SC/ST Act, Lucknow has allowed the application moved by opposite party no.2 under Section 156(3) of Cr.P.C. directing the Station House Officer, Gomti Nagar to lodged an FIR and submit report.
2. Submission of learned Counsel for revisionists is that the opposite party no.2 Raj Kishore had moved an application under Section 156(3) of Cr.P.C. against the revisionists on 18.01.2020, which has been allowed by the impugned order. Learned Counsel has further submitted that the impugned order is arbitrary and contrary to the law laid down by the Apex Court.
3. Learned Counsel for revisionists has further submitted that earlier on 25.11.2019, the opposite party no.2 had lodged an FIR against the revisionist Anit Kumar and his wife Sadhna Srivastava have in Case Crime No.1412 of 2019, under Sections 506, 504, 406, 420 IPC at Police Station Gomti Nagar, District Lucknow. The revisionist no.1 being a police officer posted at Police Station Gomti Nagar, District Lucknow was appointed to investigate the matter. During investigation, the revisionist no.1 called both the parties to compromise the dispute regarding construction of house. Learned Counsel has again submitted that the application under Section 156(3) of Cr.P.C. has been moved only in order to put pressure upon the revisionists.
4. Learned Counsel for revisionists has further submitted that while discharging official duty, the revisionist no.1 had never used any word relating to caste against the opposite party no.2 and, therefore, the averments made in the application under Section 156(3) of Cr.P.C. is totally false and fabricated. Learned Counsel again submitted that the impugned order is contrary to law as no first information report can be lodged against any public servant without obtaining sanction from the competent authority for initiation of criminal proceedings. The revisionist no.1 is a public servant and, therefore, she is entitled for protection under Section 197 of Cr.P.C. She cannot be made accused without any sanction by the State Government. Therefore, in these background, the impugned order is liable to be quashed.
5. In support of his arguments, learned Counsel for revisionists has placed reliance in the case of Anil Kumar and others v. M.K. Aiyappa and another; (2013) 10 SCC 705.
6. Per contra, learned A.G.A. and learned Counsel appearing for opposite party no.2 have vehemently opposed the submissions advanced by learned Counsel for revisionists.
7. Learned Counsel appearing on behalf of opposite party no.2 has submitted that the opposite party no.2 is a retired Government Employee and the revisionist no.2 is a contractor, builder and property dealer. The revisionist no.2 entered into an agreement with opposite party no.2 for construction of his house and paid Rs.50 lakhs but deliberately, the revisionist no.2 left the work incomplete. The opposite party no.2 made several request but no heed has been paid. Thereafter having left with no option, the opposite party no.2 moved an application under Section 156(3) of Cr.P.C. and the learned Court below while passing the impugned order on the said application has not committed any error. Learned Counsel has further submitted that the ratio laid down in the case of Anil Kumar (Supra) is not applicable to the instant case because the ration of the said case is applicable on the cases fall under the Prevention of Corruption Act in which there is specific provision under Section 19 but in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, there is no such provision like Section 19 of the Prevention of Corruption Act.
8. Learned Counsel for opposite party no.2 has further submitted that the Full Bench of this Court in Father Thomas v. State of
