Ram Bachan Mishra vs State of U.P.and Others

Vinod Prasad, J.—An application under Section 156(3) Cr.P.C. was filed by the applicant Ram Bachan Mishra in the Court of Judicial MagistrateI, Gorakhpur which was registered as Criminal Misc. Case No. 175 of 2003. On 2862003, the J.M.I, Gorakhpur found that the cognizable offence was disclosed against the accused persons and keeping in view the law laid down by the Apex Court in AIR 1988 SC 1121, he directed the police to register the F.I.R. and investigate the case. The said order was challenged by Phool Chand Yadav and Hari Ram Yadav, the two accused persons in the aforesaid application under Section 156(3) Cr.P.C. Special Judge (Anti Corruption), Gorakhpur allowed in the aforesaid revision filed by the two accused persons vide his impugned order dated 552007 which order is under challenge in the revision by the victim, aggrieved person Ram Bachan Mishra.

I have heard learned Counsel for the revision and the learned AGA.

Learned Counsel for the revisionist contended that the application of the applicant disclosed commission of cognizable offence as the allegations levelled were in short that the accused persons got the stamp paper taken out from Government treasury on 24122007 and forged a saledeed on the said stamp paper on 612003 in favour of one Babu Lal. The said saledeed was executed by the accused persons knowingly fully well that the land which was sold by them did not belong to them. It was further alleged that five accused persons, therefore, executed a forged saledeed in favour of Babu Lal and got his name mutated illegally. When the applicant came to know of the said saledeed, he moved an application on 622006 to the District Magistrate and subsequently he also filed an application on 722003 and 21 22003 to S.D.M. and other officers including tehsildar. He also filed an objection in the mutation proceeding. With the said allegation, the Magistrate found that cognizable offence was disclosed and he directed the police to register the F.I.R. and investigate the offence which order was set aside by the lower revisional Court.

From the perusal of the impugned order, it is clear that the Magistrate has passed only an order for registration of F.I.R. and investigation of the case. That order was passed by the Magistrate exercising the power under Section 156(3) Cr.P.C. under Chapter XII of the Code of Criminal Procedure. The said power of the Magistrate is only in the nature of a primary reminder to the police to exercise its plenary power of investigation as has been held by the Apex Court in the case of Devarapallai Lakshaminarayana Reddy and Ors. v. V. Narayana Reddy and Ors., 1976 ACC 230. Such a power is not amenable to the revisional power of the lower revisional Court has been held by this Court in the case of Rakesh Puri and Anr. v. State of U.P. and Anr., 2007(1) ALJ 169. After a detailed examination of the power under Section 156(3) Cr.P.C. and looking into the various provisions and the judgment rendered by the Apex Court which has been referred in the aforesaid case Rakesh Puri (supra) it has been held in that decision that the accused persons has got no right to be heard at a pre cognizance stage and he cannot object registration of F.I.R. It has also been held by the Apex Court in the case of Union of India v. W.N. Chadda, 1993 SCC (Criminal) page 1171, that the accused has got no right to be heard at a precognizance stage before he is summoned.

It is not understandable that how the accused of cognizable offence can install the registration of F.I.R. I have perused the impugned order passed by Special Judge (Anti Corruption), Gorakhpur. First and the foremost question which should have attracted the alteration of revisional Court by the Special Judge (Anti Corruption), Gorakhpur was whether the revision filed by the proposed accused was maintainable before him or not? The said aspect of the matter was not considered at all by the Special Judge (Anti Corruption), Gorakhpur. The revision which was entertained by the lower revisional Court was not maintainable. The accused persons of cognizable offence has got no right to install the registration of F.I.R. order passed against him by the Magistrate.

Since the respondent/accused have not been summoned as yet and since they have not right to be heard at the presummoning stage that I have no thought it proper to issue them notices in this revision as that would have amounted to perpetuating an illegality. The impugned order passed by the lower revisional Court is absolutely absurd against the settled the law. Interest of justice demands that the illegality committed by the lower revisional Court must be rectified in accordance with law laid down by the Apex Court.

In view of the aforesaid law, this revision is allowed at the admission stage itself.

The impugned order dated 552007 passed by Special Judge (Anti Corruption), Gorakhpur in Criminal Revision No. 179 of 2003, Phool Chand Yadav and Anr. v. Ram Bachan Mishra and Anr., is hereby set aside and the order passed by Judicial MagistrateI dated 2862003 under Section 156(3) Cr.P.C. on the application filed by Ram Bachan Mishra is hereby restored. The police is directed to register the F.I.R. against the accused persons within two weeks positively and investigate the matter and submit its report as expeditiously as possible.

With the aforesaid observation, this revision is allowed at the admission stage itself.

Revision allowed.