Bahar Alam alias Babu and Others vs State of U.P. and Another

Shiv Shanker, J.—This criminal revision has been preferred against the impugned order dated 2.6.2006, passed in Criminal Misc. Application No. 56 of 2006, Salim v. Bahar and Ors. Criminal Misc. Application No. 56 of 2006 by Additional Chief Judicial Magistrate I, Gautambudh Nagar, whereby the application moved u/s 156(3), Code of Criminal Procedure was allowed by directing the police to register and investigate the case.

Brief facts, arising out of this revision, are that complainant Salim moved an application u/s 156(3) before the concerned Magistrate stating that Nikah between Smt. Nafisa Khatoon and accused Bahar Alam was performed about four years ago according to Muslims Rites and customs. Rs. three lakhs were spent by her father in Nikah. However, Bahar Alam (husband), Habib (father-in-law), Jamila (mother-in-law), Naushad (jeth), Mehroon (jethani), Shah Alam (dewar), Nasir (nandoi) were not satisfied. She was subjected to cruelty by them by demanding more dowry of Rs. 50,000 which was not fulfilled. On 4.5.2005, she was left at Haldoni crossing after beating by saying that Rs. 50,000 has been given by her father. Dowry of Rs. 50,000 was disclosed by her to her brother at her parentage house. Therefore, first information report was lodged against them. Thereafter, panchayat was held for the purpose of compromise and pacify the matter between both the parties and they assured that she would be taken by them after one week. However, they did not turn up. She was residing at her parent''s house with two children. On 16.5.2006 at about 10.00 a.m., all the above accused persons reached at house of the complainant and they entered in the house and she was beaten by them after abusing her. They said that she will not be taken by them unless the demand of Rs. 50,000 is not fulfilled. The complainant had requested to them and showing his inability not to give more dowry of Rs. 50,000 upon which, she was beaten by them with kicks and fists and also by danda. Her husband assaulted and inflicted the knife injury on her person. On raising alarm, several persons reached on the spot and saved her. Thereafter, they fled away from there. She was medically examined by doctor regarding her injury and went to the police station Bisrakh where her report was not lodged in the police station. Thereafter, complainant sent a registered letter regarding alleged occurrence to S. P. Gautam Budh Nagar on 24.5.2006 but no action was taken upon it. Thereafter, complainant moved an application u/s 156(3), Code of Criminal Procedure upon which the concerned Magistrate passed the order to register and investigate the case. As per direction of the concerned Magistrate case against the above accused persons was registered and investigation was entrusted to the Investigating Officer.

Feeling aggrieved by it, accused persons filed the present revision in this Court.

I have heard learned Counsel appearing for the revisionists and learned A.G.A. and perused the record.

It is contended on behalf of the revisionists that there will be no effect in lodging the F.I.R. as per direction of the Magistrate if such order is quashed in the revision there will be prospective effect meaning thereby the F.I.R. and investigation will be effected in absence of quashing the order. It is further contended that the order of registering and investigating the case will be passed by concerned Magistrate when the facts mentioned in the application u/s 156(3), Code of Criminal Procedure discloses the prima facie cognizable offence against the accused persons. It is further contended that if the order u/s 156(3), Code of Criminal Procedure has been obtained by fraud or concealing the real facts, in such circumstances, such order may be quashed. It is further contended that if the F.I.R. has been registered as per direction of the order of Magistrate it is pre-cognizance stage and arrest can be stayed till the fiing of the report u/s 173, Code of Criminal Procedure It is further, contended that first F.I.R. was in existence as admitted by Respondent that F.I.R. was lodged earlier. Thereafter, second time application u/s 156(3), Code of Criminal Procedure was moved and in F.I.R. final report was submitted by Investigating Officer which is pending. Later on, Talak had taken place between husband and wife on 15.6.2006. Later on present story was made on 16.6.2006, by moving application u/s 156(3), Code of Criminal Procedure Report was not called by concerned Magistrate and passed the impugned order. In such circumstances, the impugned order is liable to be quashed and revision deserves to be allowed.

On the other hand, learned A.G.A. has submitted that regarding one incident two F.I. Rs. are permissible and arrest can be stayed only in case of miscarriage of justice. It is mainly submitted that in the present case, F.I.R. has been lodged as per direction of the concerned Magistrate. Therefore, the order is exhausted. In such circumstance, the impugned order and F.I.R. and investigation cannot be quashed. Investigation will be ended after filing report u/s 173, Cr. P.C.

There is no dispute that application moved u/s 156(3), Code of Criminal Procedure on behalf of Respondent No. 2 was allowed and passed the order to register and investigate the case. According to the order of the Magistrate concerned the case was registered against all the accused persons under Sections 147, 148, 323, 504, 506, 307, 452 and 498A, I.P.C. and 3/4 Sections on 11.6.2006 and investigation is in progress.

It has been provided under Suction 154(1), Code of Criminal Procedure that:

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 within 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.

Therefore, it is the duty of officer-in-charge of police station to lodge the F.I.R. regarding information received of cognizable offences. If the officer-in-charge of police station does not lodge the F.I.R regarding information of cognizable offence there is also provision u/s 154(3), Code of Criminal Procedure for check and balance regarding not performing the duty by officer-in-charge of police station in not lodging the F.I.R.

It has been provided u/s 154(3), Code of Criminal Procedure which runs as under:

(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.

Therefore, officer-in-charge of the police station has refused to lodge the F.I.R. then such information may be sent to the Superintendent of Police. After satisfaction he shall also either investigate the case or direct the investigation to be made by any police officer subordinate even the Superintendent of Police. If it was not performed by Superintendent of Police, another provision of Section 156(3), Code of Criminal Procedure is also available in the Code of Criminal Procedure to make application in the Court.

Scope of Section 156(3), Code of Criminal Procedure is that if the prima facie cognizable offence is made out on the basis of facts mentioned in the application and recovery or discovery is also to be made then the order to register and investigate may be passed otherwise it shall be treated as complaint case, any how the order should not be passed as non-speaking or in arbitrary manner.

It is worthwhile to mention here that if the case has not been registered as per direction of Magistrate concerned, in such circumstances, the criminal revision is filed then it may be allowed and such order may be quashed. There is another stage that F.I.R. has been lodged and investigation has been entrusted to the Investigating Officer as per direction made by the concerned Magistrate in application u/s 156(3), Cr. P.C.

There is latest pronouncement of Hon''ble Apex Court Mohd. Yousuf Vs. Smt. Afaq Jahan and Another,

The various steps to be adopted for investigation u/s 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer-in-charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation u/s 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.

Therefore, it has been observed by Hon''ble Apex Court in the above pronouncement that when the F.I.R. has been lodged and investigation has been started on the basis of Section 156(3), Code of Criminal Procedure then investigation can be ended up only by filing the police report u/s 173, Code of Criminal Procedure In these circumstances, the impugned order regarding the registering and investigation of the case passed by concerned Magistrate cannot be quashed and the same is not liable to be interfered as order has already exhausted by registering the F.I.R. and starting the investigation. There are several pronouncements regarding it:

Satvinder Kaur v. State (Delhi) XXXIX 1999 ACC 815 (SC) ;

State of West Bengal and Others Vs. Sampat Lal and Others,

State of Andhra Pradesh v. Goloconda Linga Swamy L 2004 ACC 249 (SC);

Eastern Spinning Mills and Virendra Kumar Sharda and Another Vs. Rajiv Poddar and Others,

Adri Dharan Das v. State of West Bengal LI 2005 ACC 706 ;

State of Bihar and Another Vs. J.A.C. Saldanha and Others,

Central Bureau of Investigation and another Vs. Rajesh Gandhi and another,

Dr. Swami Sachidanand Sakshi Maharaj v. State of U. P. and Ors. 2001 (2) UP CR 320 (All-DB) ; and 9. Vijay Bahadur Pandey v. State of U. P. 2005 (2) UP CR 675 (All), delivered by Hon''ble Mr. Justice Ravindra Singh, wherein it has been laid down that:

If the F.I.R. is registered at the police station concerned on the basis of the order passed u/s 156(3), Code of Criminal Procedure the purpose of the legislation to check the arbitrariness of officer-in-charge of a police station concerned is fulfilled. The order directing the officer-in-charge to register the case and investigate the same is not a necessary requirement for the F.I.R. in cognizable offence, if any F.I.R. is registered in pursuance of such order and if that order is set aside by any higher Court it will not affect the F.I.R. and its investigation because without such order also the officer-in-charge was under obligation to register the F.I.R. in cognizable offence.

It is also the latest view of this Court that such order is set aside by any higher Court it will not affect the F.I.R. and investigation.

Photostat copy of Crl. Misc. Writ Petition No. 9143 of 2006 of Division Bench of this Court, which was decided on 28.7.2006, has been produced on behalf of the revisionists wherein it has been observed that:

A first information report has been lodged by virtue of an order passed u/s 156(3), Code of Criminal Procedure If the order u/s 156(3), Cr. P.C., of the Magistrate is not set aside, it will continue to stand with the direction that the offence should be registered and investigated. In this parallel proceedings of writ petition, which is not going into the question of correctness of the order of the Magistrate u/s 156(3), Cr. P.C., a contrary order will be issued not to investigate and quashing of the registration of the offence.

This kind of anomaly is not permissible.

If the Petitioners want to challenge the order passed u/s 156(3), Cr. P.C., their remedy lies by way of criminal revision or u/s 482, Code of Criminal Procedure or by way of criminal writ petition cognizance by a single Judge.

Therefore, this writ petition for quashing the F.I.R., is not maintainable so long as the order of the Magistrate u/s 156(3), Cr. P.C., is not set aside in appropriate proceedings.

The writ petition is dismissed as not maintainable.

So far as this pronouncement is concerned. There is also latest pronouncement of Apex Court in the case of Mohd. Yousuf Vs. Smt. Afaq Jahan and Another,

After perusal of the above pronouncements of Hon''ble Apex Court as well as of this Court, it is well-settled that F.I.R. has been registered for cognizable offence as per direction of the Magistrate concerned given u/s 156(3), Code of Criminal Procedure and investigation had started. In such circumstances, the F.I.R. and investigation cannot be quashed merely by quashing the order passed by concerned Magistrate upon which the case was registered in the present case, the F.I.R. has already been registered and investigation is in progress. In such circumstances, the impugned order regarding registering and investigating the case shall not be set aside. If it is set aside it will be ineffective. Therefore, the contention of learned Counsel for the revisionist has no force that impugned order of the present case can be set aside in the revision.

So far as the contention of second F.I.R. regarding same occurrence is concerned, it has already been held in Upkar Singh Vs. Ved Prakash and Others, and Kari Choudhary Vs. Most. Sita Devi and Others, and Mukeem Ullah and Ors. v. State of U. P. and Ors. of this Court that second F.I.R. can be lodged regarding same incident if the versions is different and accused persons are different. In the present case, there is separate incident of F.I.R. Therefore, contention of learned Counsel for the revisionist has no force regarding investigation of the case by concealing the true facts. No doubt one F.I.R. was also in existence at the time of lodging the F.I.R. It has been specifically mentioned in the application moved u/s 156(3), Code of Criminal Procedure that the F.I.R. has already been registered in the direction of the Magistrate concerned. Therefore, it cannot be quashed merely on the ground of obtaining by concealment the order. It will be ended by filing the police report u/s 173, Cr. P.C.

Now the question arises whether the arrest of the accused against whom F.I.R. has been registered and investigation has been started as per direction of Magistrate concerned, it has been provided u/s 41(1)(a), Cr. P.C.:

Any police officer may without an order from a Magistrate and without a warrant, arrest any person:

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned ;

It has also been provided u/s 156(1), Code of Criminal Procedure that:

Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

It has also been provided u/s 157(1), Code of Criminal Procedure that:

If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered u/s 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:

When the case has been registered according to the direction of the concerned Magistrate and investigation has started. Therefore, the Investigating Officer may misuse his power by arresting the accused. In such circumstances, the accused should not be arrested without collecting the credible evidence against accused except the heinous crime. Such credible evidence will be seen by concerned Magistrate at the time of giving remand to the accused in such type of cases.

It has been observed in Ajit Singh alias Muraha v. State of U. P. and Ors. 2006 (5) ADJ 280 that:

(B) Criminal Procedure Code, 1973-Sections 41, 42, 157, 156, 154 and 482-Arrest-Investigation-Process of-Powers of police-Scope of-Powers of Court, with regard to-Held, generally investigation falls within exclusive domain of Executive-And scope of Judicial review was very limited in exceptional cases.

(D) Arrest - During investigation-Power of stay of arrest by High Court-And quashing of criminal proceedings -Interference by High Court-Scope under Article 226 of Constitution-Held, arrest was permissible only in case where circumstances of said case so require, and there was a justification for making arrest, otherwise not-Therefore, Court has to examine as to whether investigation was being made in accordance with law-And if it comes to conclusion that investigation was nothing, but a means to harass accused, Court can always interfere with investigation-Therefore, Court was competent to interfere with investigation/arrest only in exceptional case."

It has also been held in Ajit Singh alias Muraha v. State of U. P. and Ors. 2006 (5) ADJ 280 that the case of Satyapal v. State of U. P. and Ors. is a correct law.

In the end, if the F.I.R. has been registered according to the direction of the concerned Magistrate upon the application moved u/s 156(3), Code of Criminal Procedure it will not be interfered in the revision and F.I.R. and investigation will be ended by filing the police report u/s 173, Code of Criminal Procedure When the case has not been registered according to the direction of concerned Magistrate such order can be interfered in the revision according to law. After adopting the pronouncement of Full Bench, Ajit Singh alias Muraha v. State of U. P. and Ors. 2006 (5) ADJ 280 arrest of the accused shall not be stayed in general routine. For making effective control upon the Investigating Officer in such type of cases regarding misusing the power, it is essential that accused shall not be arrested by the Investigating Officer till collecting the credible evidence against him/them except in heinous crime.

In the present case, investigation is pending against the revisionist for offence u/s 307, I.P.C., which is also heinous crime.

In these circumstances, no interference can be made in the impugned order as well as first information report and investigation.

Consequently, this revision has no force and it is hereby dismissed.