Gurbachan Singh and Others vs State of U.P. and Another

Shiv Shanker, J.—This petition has been filed on behalf of the Petitioners u/s 482 of the Code of Criminal Procedure praying to allow this petition and set aside the impugned order dated 1.12.2007, passed by the Chief Judicial Magistrate, Sultanpur.

Heard learned Counsel for the Petitioners and learned A.G.A. as well as perused the materials available on records.

Learned Counsel for the Petitioners has submitted that the impugned order passed by the learned Magistrate regarding registering and investigating the case was in a mechanical manner and without application of mind and without considering the report of the police sent to him u/s 157, Sub-section (2) of the Code of Criminal Procedure which has disclosed commission of no offence by the Petitioners. It is further contended that false allegations have been levelled by opposite party No. 2, that too at a high belated stage without explaining the delay, cannot make the ground for curtailing the personal liberty to the Petitioners, that too, because of the judicial order passed without application of mind. The Petitioners are innocent and it is the bad fortune of Petitioner No. 1 that all of a sudden his happy marital life has ended in such a cruel manner. It is further contended that deceased Sapana was pregnant, having the pregnancy of about five months and she herself said to her husband that it is not a good sign and something bad is going to happen and she became very emotional as she was ill also at that point of time on 22.10.2006. On the next day, she was to be taken to the hospital after making arrangement as per the advice of Dr. J. P. Singh, Physician, then deceased Sapana asked that she wanted to see her house again and only then she will go to hospital. Thereafter he could not take the decision and in order to consult his father, he alongwith his wife came back to his house and it was decided that on the next day Sapana will be admitted to hospital. Unfortunately, she died in the intervening night of 23rd and 24th October, 2006. However, the application u/s 156(3), Cr. P.C. was moved on false and frivolous grounds for the harassment of the Petitioners. It is further contended that prima facie cognizable offence was also not made out on the basis of the facts mentioned in the said application. However, the learned Magistrate has allowed the said application illegally and without application of mind. In support of his contentions, the learned Counsel for the Petitioners has relied upon the following decisions:

Shashikant v. Central Bureau of Investigation and Ors. (2007) 1 SCC 630: 2007 (1) ACR 1102 .

Ram Babu Gupta v. State of U.P. (VIL)2001 ACC 51: 2001 (2) ACR 1350 (HC-FB).

Ajai Malviya v. State of U.P. (IXL)2000 ACC 435: 2000 (2) ACR 1778.

Sukhwasi v. State of U.P., Crl. Misc. Application No. 9297 of 2007, decided on 18.5.2007: 2008 (1) ACR 170, by Hon''ble R. K. Rastogi, J.

Vimla Devi and Ors. v. State of U.P. and Anr. Crl. Misc. Application No. 610 of 2006, decided on 13.10.2006 : 2007 (1) ACR 21 by Hon''ble R. K. Rastogi, J.

Order dated 10.7.2007 passed in Crl. Misc. Writ Petition No. 1823 of 2007, Shyam Chand alias Srichand and Ors. v. State of U.P. and Ors. Crl. Misc. Writ Petition No. 1823 of 2007.

Reference No. Nil of 2007 (Crl. Misc. Application No. 92 of 2007), Sukhwasi v. State of U.P. Reference No. Nil of 2007 (Crl. Misc. Application No. 92 of 2007), by a Division Bench consisting of Hon''ble R. C. Deepak and Hon''ble Barkat Ali, JJ., decided on 18th September, 2007.

On the other hand, learned A.G.A. has submitted that prima facie offence was made out on the basis of the fact mentioned in the said application. Therefore, the concerned Magistrate has passed the impugned order according to law. It is further contended that prospective accused has no right to say that the concerned Magistrate cannot pass order for registering and investigating the case, therefore, this petition is liable to be dismissed.

There is no dispute that the first information report has not been registered in compliance of order passed u/s 156(3), Cr. P.C. regarding the information of cognizable offence. It is well-settled view that the provision of Section 154(1), Cr. P.C. is mandatory as has also been held in Mohd. Yousuf Vs. Smt. Afaq Jahan and Another,

If information regarding the cognizable offence is not registered by the concerned police, the application should have been made regarding the alleged incident to the Superintendent of Police or higher authorities of the police according to the provision of Section 154(3), Cr. P.C. and even then the case is not registered, in such circumstances remedy is also available u/s 156(3), Cr. P.C. wherein the Magistrate concerned may pass orders upon the said application for registering and investigating the case regarding the cognizable offence. The same view has been reiterated in Sakiri Vasu v. State of U.P. (Crl. Appeal No. 1685 of 2007), decided on 7.12.2007: 2008 (1) ACR 4 (SC), by Hon''ble Markandey Katju, J. In the present case, it has been alleged in the said application that deceased was subjected to cruelty due to non-fulfilment of dowry of Rs. 50,000 and she died at the house of the Petitioners. The post mortem was conducted and viscera was preserved therefore, there is no dispute that she died within seven years of her marriage. Unless and until the viscera report is received in negative, the presumption would be that it is a case of unnatural death within seven years of the marriage. The information was also given regarding her death by her ''devar'' but the same was not registered. Then a complaint was also made to the concerned Superintendent of Police. Thereafter, the application u/s 156(3) Cr. P.C., was moved by the opposite party. Therefore, the concerned Magistrate has not committed any illegality in passing the impugned order and the same has been passed according to law.

It is worthwhile to mention here that the application moved u/s 156(3), Cr. P.C. has been allowed and the order for registering and investigating the case has been passed against the Petitioners. In such circumstances, the prospective accused, who are Petitioners, do not have any right to say that the Magistrate does not have any power to direct the police to lodge the F.I.R. for cognizable offence as has been held in the case of Ram Kishore Purohit v. State of U.P. and Ors., JT 2007 (2) 194 2007 (1) ACR 511 and in the case of Rakesh Kumar and Ors. v. State of U.P. and Ors. JT 2007 (2) 191 (All): 2007 (2) ACR 1281. The same view has also been taken by me in my judgment dated Sept. 10, 2007 passed in Criminal Revision No. 2549 of 2007, Smt. Gulistan and Ors. v. State of U.P. and Ors.: 2008 (1) ACR 218.

It is also worthwhile to mention here that if the F.I.R. is registered in compliance of the order passed u/s 156(3), Cr. P.C. against the Petitioners, the proper remedy available to them to invoke the jurisdiction of Article 226 of the Constitution of India for quashing the F.I.R. as well as for staying the arrest.

So far as the decision of Shashikant v. C.B.I. and Ors. (supra)is concerned, in this case a anonymous criminal complaint was made to C.B.I. by the Appellant Shashikant, therefore, it was held that the preliminary inquiry was permissible in this case. Therefore, the contention of the learned Counsel for the Petitioners has no force that the police report should have been considered in the said application moved u/s 156(3), Cr. P.C., therefore, this decision of Hon''ble Apex Court does not help the Petitioners in the present case.

So far as the decision of Full Bench case of Ram Babu Gupta and Anr. v. State of U.P. and Ors. (supra) is concerned it has been held that the application u/s 156(3), Cr. P.C. can be treated as complaint, it has not been observed in this decision that the application moved u/s 156(3), Cr. P.C. could not be allowed for registering and investigating the case. It depends upon case to case and the same view has also been taken in the decision of Sukhwasi v. State of U.P. (supra) therefore, in the present case the investigation is necessary as it relates to the case of dowry death.

So far as the decision in the case of Ajai Malviya (supra) is concerned, it has been discussed, considered and distinguished in the decision of this Court in the case of Rakesh Puri and Ors. v. State of U.P. and Anr. (LVI) 2006 ACC 910. The case of Ajay Malviya (supra) has also been discussed in the decision of Prof. Ram Naresh Chaudhary v. State of U.P. and Ors. 2008 (1) ADJ 169: 2008 (1) ACR 874. So far as the interim stay order passed in the case of Shyam Chandra alias Srichand (supra) is concerned, wherein the arrest has been stayed until reliable and cogent evidence regarding the case has been collected by the Investigating Officer, it is not binding in the case on merit. Presently, the case has not been registered in compliance of the order of the concerned Magistrate. Therefore, no order can be passed by this Court in favour of the Petitioners.

In view of the discussions made above, I do not find any force in any of the contentions raised by the learned Counsel for the Petitioners, and, as such, the impugned order has been passed by the concerned Magistrate according to law, which requires no interference by this Court in exercise of the powers vested in it u/s 482 of the Code of Criminal Procedure.

Consequently, this petition is hereby dismissed.