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Judgment
Heard Mr. A. Mannaf, learned counsel for the petitioners and Mr. T. Mishra, learned Additional Public Prosecutor, Assam for the State respondent
No. 1. None appears on behalf of the respondent No. 2 on call at the time of hearing.
By filing this petition under Section 482 Cr.P.C., the petitioners have prayed for quashing of the impugned order, dated 16.02.2017, passed by the
learned Chief Judicial magistrate, Kamrup, Amingaon in C.R. Case No. 26/2017 and the consequential First Information Report (FIR) of Boko P.S.
Case No. 90/2017 under Section 366/376/34 IPC, whereby the learned Chief Judicial magistrate, Kamrup, Amingaon in the aforesaid case has
directed the O/C, Boko P.S. to register a case on the complaint so filed by the respondent No. 2, Smt. Hasina Begum, under Section 156 (3) Cr.P.C.,
contending that the aforesaid order is bad in law and wholly illegal. It has been submitted by the learned counsel for the petitioner that the said
respondent cannot sought to file a complaint before the learned Court below under Section 156 (3) Cr.P.C. without availing the remedy as provided
under Section 154 Cr.P.C.
To be precise, the respondent No. 2, Hasina Begum, who is a married woman, having 2 (two) children, filed a complaint under Section 156 (3)
Cr.P.C. on 16.02.2017, in the Court of learned Chief Judicial Magistrate, Kamrup, Amingaon with an allegation that on 08.01.2017, at about 9.30 pm,
the accused petitioners have kidnapped her and kept her confined in an isolated place for 3 (three) days and during that period, the accused No. 1
committed rape on her and after 3(three) days, the Police along with her father rescued her from Jambari. It is mentioned in the FIR that subsequently
on 29.01.2017, all the accused persons threatened her with dire consequences that if she complains the police or goes against their wishes and
demands. It is stated that due to fear of the accused persons, who were high handed persons, with giving life threatening, she did not lodged any FIR
before the Police and lodged the complaint before the Court. So she filed the complaint before the court on 16.02.2017, raising the allegation of rape
against the accused persons. After filing of the said complaint, the learned Chief Judicial Magistrate, Kamrup, Amingaon by its order dated
16.02.2017, forwarded the same for causing investigation by Police, which is now been challenged before this Court.
On perusal of the order dated 16.02.2017, the learned Trial Court passed the order as below â€" “Seen and perused the application filed by the
complainant, Smt. Hasian begum u/s 156 (3) of Code of Criminal Procedure, 1973 for directing the Officer-In-Charge of Boko P.S. to register a case.
The complaint petition prima facie discloses the commission of cognizable offence which requires through investigation by police. So, considering the
matter in its entirety, the O/C, book P.S. is directed to register a case and to investigate the same and to submit final Form at the earliest.
The complaint petition and the copy of the order shall be forwarded to O/C, Boko P.S. for doing the needful.†Now the order itself reflects that the
learned Trial Court has not enquired at the reasons for non-filing of FIR prior to filing of the complaint before the Police under Section 154 (1) nor the
Court asserting as to the cause of delay for filing the said complaint.
Of course the complainant/respondent No. 2 in her complaint, herself reveals that she did not file any FIR against the accused persons and in that
pretext whether she can suo motu file the complaint before the Court directly or the Court can also direct the O/C concerned to register a case, is a
now question that has been raised before this Court.
Mr. A. Mannaf, learned counsel for the petitioners has referred to the decisions of Hon’ble Apex Court in the case of Priyanka Srivastava &
Anr. Vs. State of Uttar Pradesh & Ors. reported in (2015) 6 SCC 287 and in the case of Tarun Dev Sarma & Anr. Vs. State of Assam & Ors.
reported in 2015 (4) GLT 413 in support of his contention that such a direction by the Court to register a case under Section 156 (3) Cr.P.C. is illegal
and hence not maintainable.
In Priyanka Srivastava (Supra) the aforesaid matter has been elaborately dealt with and it has been held that the remedy available under Section 156
(3) is not of a routine nature. Exercising power thereunder requires application of judicial mind. The Magistrate exercising the said power must remain
vigilant with regard to the nature of allegations made in the application and not to issue directions without proper application of mind. In an appropriate
case, Magistrate can verify truth and veracity of allegations made, having regard to nature thereof. Furthermore, it is now mandatory, for a Petition
under Section 156 (3), the application to be supported by an affidavit. It has categorically held that the power under Section 156 (3) cannot be invoked
by a litigant at his own whim to harass others and it can be invoked only by a principled and really aggrieved citizen approaching the Court with clean
hands. Prior applications under Section 154 (1) Cr.P.C. and Section 154 (3) Cr.P.C. have to be in existence while filing petition under Section 156 (3)
Cr.P.C. and these aspects should be clearly spelt out in the application under section 156 (3) Cr.P.C and necessary documents to that effect has to be
filed. The warrant for giving a direction that an application under Section 156 (3) be supported by an affidavit is so that the persons making the
application should be conscious and also endeavor to see that no false affidavit is made.
In Priyanka Srivastava (Supra), the Hon’ble Apex Court has referred to the catena of decisions including the decisions of Devarapalli
Lakshminarayana Reddy Vs. Narayana Reddy, reported in (1976) 3 SCC 252 and Anial Kumar Vs. M. K. Aiyappa, reported in (2013) 10 SCC 705
and has strictly observed that the exercises of power under Section 156 (3) warrant application of judicial mind on the part of the magistrate and duties
caused on the magistrate while exercising the power under Section 156 (3) Cr.P.C. cannot be marginalized. It has also been held that the application
under Section 156 (3) should be accompanied by an affidavit and that there is to be prior application under Section 154 Â (1) Cr.P.C. and Section 154
(3) Cr.P.C. while filing a complaint under Section 156 (3) Cr.P.C. In the judgment of Priyanka Srivastava (Supra), the Hon’ble Supreme Court
has interpreted the application of 156 (3) and this is a binding effect on the Courts.
The provision of Section 156 cannot be read in isolation, it is to be supported along with an affidavit and a declaration that the party has already availed
the provision under Section 154 Cr.P.C. and statutory provision indicated that before invoking the power under Section 156 (3), the party has to take
resort to the provision prescribed under Section 154 and 155 Cr.P.C. The Magistrate on receipt of a complaint under Section 156 (3) cannot act and
forward the complaint to the Police for investigation without ensuing the compliance as indicated above.
The learned counsel for the petitioner has also relied upon the guideline so set forth by the judgment of the Hon’ble Apex Court in State of
Haryana & Ors. Vs. Bhajan lal & Ors., reported in 1992 Supp (1) SCC 335 wherein it has been held that quash proceeding is justified while there is
express legal bar to entertain any such complaint and the continuation of such proceeding will be equally illegal.
I have considered the submissions made by the learned counsel for the petitioner and learned Addl. P. P. for the State respondent and gone through
the decisions relied on by the learned counsel for the petitioner. It may be mentioned here that the respondent No. 2 , though on initial occasion
entered his appearance and sought time to file the FIR that alleged to have been filed by them but subsequently they remained absent on all the
occasion till date. So tt can be safely understand that there was no FIR filed prior to filing of the petition before the Court.
A bare reading of the petition also reflect that they have admitted about the fact that no FIR was filed prior to filing of the complaint. A plain reading
of the order so passed by the Court itself reveals that before forwarding the case to the Police, the Magistrate has not ascertained as to whether the
complainant has approach to the authority under Section 154 (1) and 154 (3) Cr.P.C. for which it can be clearly held that there was no compliance of
statutory provision as specified by the Section 154 (1) and 154 (3) Cr.P.C. the learned Magistrate has not recorded any raising to such aspect nor tried
to insist on the complainant for strict compliance of the same and has mechanically forwarded the complaint to the Police, which is not the mandate of
law. As it reflects the Magistrate has not applied his judicial mind while forwarding the said complaint to the O/C concerned. Such an order passed by
the learned Magistrate is not proper being devoid as proper reasons.
The learned counsel has also raised certain contentions regarding the conduct of the woman who being a married woman and have children, kept
confined in the house of the accused petitioner, as per allegation, but she did not choose to lodge complaint or FIR immediately after the occurrence
but after more than 2 months she lodged the FIR which is indicative of her deliberate after thought. As per her own averment in the complaint if she
was relieved by the Police from the house of the accused persons, than why she should afraid of Police to file the FIR, it is another question having
impact in the matter. But however, the basic question that has been raised before this Court regarding the none compliance of the mandatory provision
by the Magistrate, I am not inclined to discuss any other aspect into the matter about the merit of the case. The respondent side has also failed to
rebut the case of petitioner that has been made before this Court despite being aware of the proceeding.
In the light of the above and considering the entirety of the matter, it can be held that the order passed by the Chief Judicial magistrate, Kamrup,
Amingaon in C.R. Case No. 26/2017, dated 16.02.2017, has no force in law and is liable to be set aside and quashed. Accordingly, the impugned
order, dated 16.02.2017, passed in C.R. Case No. 26/2017 and the consequential First Information Report (FIR) of Boko P.S. Case No. 90/2017
under Section 366/376/34 IPC is hereby set aside and quashed. With the above observation, the petition stands disposed of.