Ramhit and Others vs State of U.P. and Others

D.C. Srivastava, J.—The short question of law, involved for consideration in this petition u/s 482, Code of Criminal Procedure, is whether a Magistrate in exercise of his powers u/s 156(3), Code of Criminal Procedure is justified and authorised to direct the police to register a case and the F.I.R. and investigate the same in accordance with law.

In this case, Annexure No. 3 is the impugned order which shows that an application u/s 156(3), Code of Criminal Procedure was given to the C.J.M., Jaunpur. He examined the application and passed the following order which is translation of the Hindi order of the C.J.M.:

On the basis of facts, given in the application, prima facie cognizable offence is made out. S.O., P.S. Line Bazar is directed to register the case and investigate according to rules.

It is this order which is under challenge.

It has been contended that the Magistrate has no jurisdiction to direct the police to register a case or register the F.I.R while acting u/s 156(3), Code of Criminal Procedure Several cases were cited in support of the contention whereas learned A.G.A. contended that direction to register a case is neither illegal nor irregular and no interference is required. He also cited two cases of single Judge of this Court in support of his contention.

Learned Counsel for the Petitioner s referred to the case of Raghbir Singh v. State of Haryana 1990 (1) Crimes 600. In this case, it was held that the learned Magistrate in terms of Section 156(3) of the Code of Criminal Procedure, 1973 can send the complaint to Police for investigation and not for registration of the case.

Division Bench of the same High Court of Punjab and Haryana in Ganesh Dass and Others Vs. State of Kerala and Another, , held resolving earlier conflict of the decisions in that Court that the Magistrate while passing order u/s 156(3), Code of Criminal Procedure is not empowered to direct the police to register F.I.R. This Division Bench case also took into consideration the pronouncements of the Supreme Court in D.L. Reddy v. V.N. Reddy 1976 SCC 380 and Tula Ram and Others Vs. Kishore Singh, .

The order of the Magistrate in Raghubir Singh''s case (supra) was as follows:

Forwarded in original along with the documents filed with the complaint u/s 156(3) of the Code of Criminal Procedure to the Station House Officer, Police Station, Radaur, for registration of the case and investigation.

The order of the Magistrate, directing registration of the case was found to be unwarranted and illegal. However, in this case, the proceedings were not quashed only on this ground but on two other grounds, namely, on the ground of limitation because the complaint was filed nearly 22 to 30 years after the alleged incident and also because of the pendency of the civil suit in respect of the same matter. Consequently, on the basis of this case, it cannot be said that the entire proceedings can be quashed only for the reason that there is direction by the Magistrate to register the case and the F.I.R

In the Division Bench case of Ganesh Dass (supra), the reference was answered that the provisions of Chapter XII do not contemplate any direction by the Magistrate to the police to register F.I.R. With these observations, the reference was returned to the single Bench. The judgment of the single Bench, after this answer to the reference, has not been filed or cited. Consequently, it cannot be said that merely for this technical reason, entire investigation is to be quashed.

In Tula Ram''s case (supra), the facts were different. The police submitted charge-sheet on the basis of F.I.R. and investigation conducted thereon. A cross version was set up by the other side and complaint was filed before the Magistrate. The Magistrate ordered the police to investigate the case u/s 156(3), Code of Criminal Procedure The police submitted final report. On protest petition by the complainant and after examining him and his witnesses, the Magistrate issued process against the accused and summoned them under Sections 304/149 and 148, I.P.C. The accused approached the High Court for quashing this order of the Magistrate. The contention was that once the Magistrate ordered investigation u/s 156(3), Code of Criminal Procedure, he was not competent to revive the complaint and issue process against the accused. The High Court rejected this contention. The Supreme Court laid down certain guidelines and guideline No. 4 was: where a Magistrate orders investigation by the police before taking cognizance u/s 156(3) of the Code and receives report thereupon, he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action u/s 190 of the Code. It was further found that the case was covered by proposition No. 4 aforesaid. Consequently in this case, the (sic)upreme Court has not held that a Magistrate cannot order registration of a case. Moreover, the order of the Magistrate was not disturbed by the Supreme Court.

In D.L. Reddy''s case (supra), scope of Section 156(3), Code of Criminal Procedure was considered but again in this case, there was no direct observation that the Magistrate cannot order registration of a case or the F.I.R. These two cases were considered by the Division Bench of Punjab and Haryana High Court in the case of Ganesh Dass (supra).

The order of the Magistrate in D.L. Reddy''s case (supra) was as follows:

Forwarded u/s 156(3), Code of Criminal Procedure to the Inspector of Police, Dharmavaram for investigation and report on or before August 5, 1975.

It is thus clear that in the order of the Magistrate in this case, there was no direction for registration of the case.

The impugned order before me clearly shows that the learned Magistrate has not taken cognizance of the case. It was pre-cognizance stage that he directed the police to register the case and investigate. Power to direct the police to investigate on an application u/s 156(3), Code of Criminal Procedure cannot be disputed.

Learned A.G.A. has cited two decisions, one of a single Bench and the other of a Division Bench of this Court. In Suraj Mal v. State of U.P., 1993 ACC 81, a Division Bench of this Court had considered this very question and held that a Magistrate is competent of issue direction for registration of a case u/s 156(3), Code of Criminal Procedure It was held at page 86, column 1, that the objection of the learned Counsel that the registration of the case in the Police Station could not be directed by the learned Magistrate is not correct and we express our respectful dis-agreement to the case of Raghbir Singh v. State of Haryana 1990 (1) Crimes 600.

This Division Bench''s verdict was followed by a learned single Judge of this Court in Jagan Singh v. State of U.P. 1996 JIC 293.

Thus in view of the Division Bench pronouncement of this Court which was subsequently followed by a learned single Judge of this Court, there is no scope for holding that a Magistrate has no power to direct the police to register a case on an application u/s 156(3). Code of Criminal Procedure.

For the reasons, given above, there is no merit in this petition which is hereby dismissed.