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IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Virendra Kumar-II, J.
Santosh Kumar Gautam - Appellants
Vs.
State of U.P. and Ors. - Respondent
Criminal Appeal No. 547 of 2021
Decided On : 18-03-2021
The Hon'ble Allahabad High Court has held that a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
Fact of the Case:
The present appeal under Section 14-A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to the 'Act, 1989') has been preferred assailing the impugned order dated 16.12.2020 passed by the court of learned Second Additional Sessions Judge/Special Judge, S.C./S.T. Act, Lakhimpur Kheri in Criminal Misc. Case No. 541 of 2017, Santosh Kumar Vs. Mohd. Umar and others, by which the complaint instituted by the appellant under Section 156(3) Cr.P.C. has been dismissed at pre-cognizance stage and discretion has not been exercised in favour of complainant.
Finding of the Court:
The Hon'ble Allahabad High Court has held that a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
Issues: Whether a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
Ratio Decidendi: The Hon'ble Allahabad High Court has held that a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
Final Decision: The Hon'ble Allahabad High Court has held that a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
ORDER
Virendra Kumar-II, J.
1. Heard learned counsel for appellant and the learned A.G.A. for the State.
2. The present appeal under Section 14-A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to the 'Act, 1989') has been preferred assailing the impugned order dated 16.12.2020 passed by the court of learned Second Additional Sessions Judge/Special Judge, S.C./S.T. Act, Lakhimpur Kheri in Criminal Misc. Case No. 541 of 2017, Santosh Kumar Vs. Mohd. Umar and others, by which the complaint instituted by the appellant under Section 156(3) Cr.P.C. has been dismissed at pre-cognizance stage and discretion has not been exercised in favour of complainant.
3. I have perused the record made available by the appellant/complainant.
4. A primary duty to register First Information Report (F.I.R.) regarding cognizable offence is of the Station House Officer of the concerned Police Station, if the Police Officer/Incharge does not register the F.I.R. then the Magistrate having jurisdiction to hear criminal case of the police station concerned has been empowered to issue directions under section 156(3) Cr.P.C. to register and investigate the fact and circumstances narrated in the complaint. the relevant provisions defining the complaint and the procedure adopted by the concerned Magistrate is provided under the various provision of the Cr.P.C. At a post cognizance stage, the Magistrate is empowered to take cognizance on the complaint and may adopt procedure provided under section 200, 202 of Cr.P.C. The relevant provisions are as follows:-
Provision of Sec. 2(d) of Cr.P.C. defines complaint and Section 154 of Cr.P.C. provides procedure for recording of First Information Report at Police Station
Section 2(d) of Cr.P.C.-
"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.--A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;
Section 154 in the Code of Criminal Procedure, 1973
154. Information in cognizable cases.--
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
Section 156 in the Code of Criminal Procedure, 1973
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
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