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IN THE HIGH COURT OF ALLAHABAD
SHIV SHANKER PRASAD, J.
Rajina – Revisionist
Versus
State of U.P. and Another - Opposite Parties
Criminal Revision No. 715 Of 2023
Decided On : 02-11-2023
156(3) Cr.P.C. - Criminal Revision - POCSO Act - Lalita Kumari Vs. Government of Uttar Pradesh, 2014 (2) SCC 1 - Priyanka Srivastava Vs. State of U.P., 2015 (6) SCC 287 - XYZ Vs. State of Madhya Pradesh & Ors., 2022 SCC OnLIne SC 1002 - Srinivas Gundluri v. SEPCO Electric Power Construction Corpn. - Aparna Bhat v. State of Madhya Pradesh - State of Maharashtra v. Bandu @ Daulat - Smruti Tukaram Badade v. State of Maharashtra
Fact of the Case:
The revisionist filed an application under Section 156(3) Cr.P.C. stating that the accused harassed and assaulted her minor daughter, stole her belongings, and pressured her to compromise. The police refused to register an FIR and the court rejected the application.
Finding of the Court:
The court found that the impugned order was passed in a routine and mechanical manner, failing to serve substantial justice. The court held that the discretion to order investigation under Section 156(3) Cr.P.C. must be guided by judicial reasoning and that proper investigation was needed in the case.
Issues: The issues included the refusal of the police to register an FIR, the rejection of the application under Section 156(3) Cr.P.C., and the need for proper investigation in the case.
Ratio Decidendi: The court emphasized that the discretion to order investigation under Section 156(3) Cr.P.C. cannot be exercised arbitrarily and must be guided by judicial reasoning. It also highlighted the importance of treating victims of sexual harassment and assault sensitively and ensuring a fair investigation.
Final Decision: The criminal revision succeeded, and the impugned judgment and order were quashed. The matter was remanded to the concerned Judge to decide the application under Section 156(3) afresh within a specified period.
JUDGMENT :
(Shiv Shanker Prasad, J.)
1. Heard Sri Sanjeev Kumar Shukla, learned counsel for the revisionist and learned A.G.A. for the State and perused the records.
Challenge to the criminal revision
2. This criminal revision has been filed for setting aside the impugned judgment and order dated 05.11.2022 passed by learned Additional Sessions Judge/ Special Judge (POCSO Act), Bulandshahar in Criminal Misc. Case No. 717 of 2022 (Rajina Vs. Nishar and others), under Section 156(3) Cr.P.C., Police Station Jahangirabad, District Bulandshahar, whereby learned court below has rejected the application filed by the revisionist under Section 156(3) Cr.P.C.
3. The Case of the Revisionist
In respect of an incident dated 15.9.2022 the revisionist filed an application under Section 156(3) Cr.P.C. stating therein that opposite party no.2, namely Nisar used to harass the minor daughter of the revisionist by molesting her and forcing her to make videos and share them with him by taking her away from her house. On 15.09.2022, when the revisionist had gone to market, Nisar entered into her house and started removing her minor daughter’s pajamas with the intention of raping her on which she raised an alarm. When the revisionist returned to her house, the victim narrated her entire story. At 8:30 P.M. in the night Nisar alongwith his wife Nafeesha, sister-in-laws Anisha and Shabana and two unknown male persons, while abusing and threatening to kill her, entered into the victim’s house and tried to drag the victim to their house by grabbing her hair and also beaten her brutally by iron rods and sticks. On hearing the scream and alarm of the revisionist and the victim, Jamaluddin and Gajju of the locality came and saved her. The injured victim was admitted to Government Hospital, Jahangirabad in critical condition. Taking advantage of the opportunity at 11:30 P.M. on the same night, Nisar and his nephew Sarukh entered into the house of the revisionist after breaking the door and there they broke the things kept in her house and stole nine thousand rupees, silver anklets and a pair of earrings kept in the box.
4. When the police reached her house after calling of the revisionist on Dial 112, the accused ran away leaving their Bullet Motorcycle on the spot, which was taken into custody by the Police and was parked at the police station. The police took the complaint of the revisionist and was pressurizing her to compromise, on refusal to do so, she was scolded and sent away. Hence the revisionist had no other option but to move an application under Section 156 (3) Cr.P.C., which has been rejected by the court below while passing the impugned order.
5. Under the impugned order, it has been recorded by the court below that the allegation made in the complaint by the revisionist that opposite party no.2 Nisar tried to remove the pajamas of the victim with the intention of raping her and he abused her and threatened to kill her and also the allegation that they assaulted her with iron rods and sticks etc. due to which she sustained injuries are concocted on the ground that in the medical examination report of the victim, which was enclosed along with the complaint, only a scratch injury was mentioned, as such the entire story appears to be suspicious. The victim is minor girl. It has further been recorded that as per the report of the concerned Police Station, there is a dispute between both the parties regarding children and in order to humiliate the family of opposite party no.2, this application under Section 156 (3) Cr.P.C. has been filed. Due to the dispute between both the parties, the Police has also initiated proceedings under Sections 107 and 116 Cr.P.C. against both the parties. On the strength of aforesaid findings, learned Additional Sessions Judge/Special Judge (POCSO Act), Bulandshahar rejected the application under Section 156(3) filed by revisionist vide order dated 05.11.2022.
6. Submission on behalf of the learned counsel for the revisionist
distinction between the investigation by the police officer under Section 156(3) and under Section 202(1) Cr.P.C. is that the former is at the pre-cognizance stage and the latter is at post cognizanc....
The Magistrate has discretion under Section 156(3) of the CrPC to determine whether to direct an investigation, particularly in civil disputes masquerading as criminal matters.
(1) Sexual harassment at workplace – Police must be cognizant of fact that they are usually first point of contact for a victim of a crime or a complainant – They must abide by law and enable smooth ....
(1) While registration of FIR is mandatory, arrest of accused on registration of FIR is not.(2) Once Magistrate has taken cognizance under Section 190 of Code, he cannot ask for investigation by Poli....
Direction for Police Investigation – Option to direct registration of case and its investigation by police should be exercised where some “investigation” is required, which is of a nature that is not....
The Magistrate must judiciously exercise discretion in registering FIRs under Section 156(3) Cr.P.C., ensuring that mechanical refusals are avoided when cognizable offences are disclosed.
The Magistrate has discretion under Section 175(3) of the BNSS to decide whether to register an FIR based on the application, assessing whether a cognizable offense is made out.
The magistrate's discretion under Section 156(3) Cr.P.C. must be exercised judiciously, and the registration of an FIR is mandatory only when a cognizable offence is disclosed; otherwise, the applica....
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