Chhitraria and Others vs State of U.P. and Another

O.P. Pradhan, J.—The short question arising for consideration in this revision is if the Magistrate it, terms of Section 156(3) of the Code of Criminal Procedure 1973, can simply send the complaint to police for investigation and not for registration of the case.

Shorn of unnecessary details, the facts giving rise to this revision are that an incident took place on 17-3-1992 in which severe injuries are said to have been caused to Gyan Chand, Basudeo, Radhey Shyam and Smt. Bhagwan Devi wife of Basudeo by the opposite party No. 2 and six others who are said to have carried lathi, Danda and pharma and made an attempt to dispossess the revisionists from plot No. 303 situate in village Pali, P.S. Fatehpur Sikri, district Agra. A first information report was lodges on the same day and it was registered at crime No. 74 of 1992 under Sections 147/ 148/323/324/504 IPC at P.S. Fatehpur Sikri, Agra. After investigation, Section 308 IPC was also added later on. A cross-version of the incident was given by the opposite party No. 2 in his complaint dated 28-4-1992 filed in the court of V Addl. Chief Judicial Magistrate, Agra in this complaint, it was alleged that a report about the incident was sent by post to Senior Superintendent of Police on 17-3-1992 but no action had been taken by the police against the offenders, on the said complaint dated 28-4-1992, the learned Magistrate passed the impugned order whereby he directed on 29-4-1992 the Station Officer of Police Station Fatehpur Sikri to register and investigate the case u/s 156(3) Code of Criminal Procedure and submit a report. It is this order which has been challenged in the present revision.

I have heard the learned Counsel ''of the parties and perused the record.

It has been submitted on behalf of the revisionists that the learned Magistrate cannot issue a direction to the police u/s 156(3) Code of Criminal Procedure, to register a case and then investigate. According to the learned Counsel of the revisionists, the learned Magistrate can only issue a direction for investigation in exercise of his power vested u/s 156(3) Code of Criminal Procedure. In support of this contention, the learned Counsel for the revisionists relied upon the case of Raghubir Singh v. State of Haryana 1990 (1) CRIMES 600. In this reported case, it has been held that the Magistrate can send the complaint to police for investigation but the cannot direct the police for registration of the case in exercise of his power u/s 156(3) Code of Criminal Procedure. It has been further observed in the said case that this view is based on the observations of the Hon''ble Supreme Court made in Sevara Palli Lakshmnarayan Reddy v. Narayana Reddy 1976 SCC 380. However, no such observations appear to have been made by the Hon''ble Supreme Court in the case reported in 1976 SCC 380 (supra), What the Hon''ble Supreme Court has laid down in this case is that an order made u/s 156(3) Code of Criminal Procedure, is in the nature of a peremptory reminder or intimation to the police to exercise plenary powers of investigation u/s 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence u/s 156 and ends with a report or chargesheet u/s 173 Code of Criminal Procedure. However, the question which was decided by the Hon''ble Supreme Court in the said case '' was whether in view of Clause (a) of the first proviso to Section 202(1) Code of Criminal Procedure, a Magistrate who receives a complaint disclosing an offence exclusively tribal by the Court of Session, is debarred from sending the same to the police for investigation u/s 156(3) Code of Criminal Procedure. Accordingly, the aforesaid case which has been relied upon the learned Counsel for the revisionists is of little help to him, particularly, when no cogent reasons have been assigned for the view taken therein.

On behalf of the opposite party No. 2, reliance has been placed heavily on the case of Mandhata Sam rat v. State of U.P. 1988 ACC (Hindi Section) J. In this reported case, the learned Chief Judicial Magistrate on a complaint made u/s 156(3) Code of Criminal Procedure had found that a prima-facie case for investigation was made out and, therefore he directed the Station Officer Kotwali, Mathura to register a case for investigation and submit a report after investigation in the light of the allegation made in the complaint. It was clearly laid down in this reported case that such a direction simply meant that the case had to be investigated in the same manner as was required u/s 156(1) Code of Criminal Procedure. Hence, no illegality was found in such a direction. With respect, I share the views expressed in the aforesaid case of Mandhata Samrat.

The question may also be viewed from another angle. It has not been disputed before me that the learned Magistrate was competent in law to issue a direction to the local police to make an investigation in exercise of his power u/s 156(3) Code of Criminal Procedure. However, exception has been taken to the direction made by the learned Magistrate for registration of the case for the purpose of such investigation. It is common knowledge that before a case is investigated by the police, it has to be registered for statistical and other allied purposes. Registration of a case is at best a ministerial act of the police and the actual investigation, which is made by the police on a direction issued by the competent Magistrate, is done in pursuance of the provisions of Section 156(3) Code of Criminal Procedure. Therefore, a direction to the police for registration of the case in addition to the direction for investigation u/s 156(3) cannot be said to vitiate the order of investigation passed by the competent Magistrate.

In the instant case, it has not been disputed by the learned Counsel of the revisionists that the learned Magistrate was empowered to issue a direction for investigation of the complaint in exercise of the power u/s 156(3) of the Code of Criminal Procedure, The being so, I find that the impugned order does not suffer from any illegality which may warrant interference at the hands of this Court in exercise of its revisional power.

In the result, this revision is found devoid of merit and is hereby dismissed.