Shahid Akhtar vs State of U.P. and Others

K.N. Ojha, J.—This revision is directed against common order dated 25.1.2001 passed by learned Additional District and Sessions Judge, Court No. 12, Allahabad, in State of U.P. v. Shahid Akhtar Criminal Revision No. 808 of 2000,and, Abdul Aziz v. State of U.P. and Anr. Criminal Revision No. 889 of 2000

Heard Sri K. N. Raha, the learned Counsel for the revisionist, learned A.G.A. and Sri Abrar Ahmad, advocate, holding brief of Sri M. S. Haq, learned Counsel for the Respondent No. 3 and have gone through the judgment and record.

The fact of the case is that Shahid Akhtar, advocate, moved an application in the Court of the Chief Judicial Magistrate, Allahabad, u/s 156(3), Cr. P.C. containing the fact that he is an advocate in civil court, Allahabad, since last 16 or 17 years. His nephew Abid Husain was married with Shabnam, daughter of Abdul Aziz, O. P. No. 3 to this revision on 1.11.1999. Abdul Aziz did not want to send Shabnam to the residence of Abid Husain, on one pretext or the other, ornaments and cloths were taken away by Shabnam to her father''s residence and now they intend to seek divorce from Abid Husain. Abid Husain is a police constable in district Muzaffar Nagar, U.P. but Abdul Aziz was not successful in obtaining divorce, therefore, he along with his son Avesh, Usman alias Kalloo, Pappu, Gulab and two or three other persons forcibly entered into the house of Abid on 28.5.2000 at 8.50 a.m. and started to use insulting languages. Shahid Akhtar and his brother Akhtar Husain went to Police Station, Shahganj to lodge F.I.R. but it was not written. On 29.5.2000 at about 11.00 p.m. Station Officer of Police Station, Shahganj, along with three constables, Abdul Aziz, Kalloo, Avesh, Gulab, Babu, Munna, Rehan, Smt. Sayeeda, Smt. Seema, Smt. Sakeen and others forcibly entered into their house, bolted the door from inside, used insulting languages to ladies and daughters of the family and the accused injured them, looted the articles and locked it in one room of the house. When objection was raised by the revisionist, they threatened with dire consequences. Mohd. Usman snatched away golden necklace from the body of the Bhabhi of the revisionist, on which application was moved by the revisionist u/s 156(3), Cr. P.C. in the Court of the Chief Judicial Magistrate, who passed order on 3.6.2000 to the effect that the case be registered and investigation be made by some Gazetted Officer and report about the investigation be submitted within a month.

Aggrieved from the order dated 3.6.2000 passed by the Chief Judicial Magistrate, Allahabad, State of U.P. preferred Criminal Revision No. 808 of 2000, State of U.P. v. Shahid Akhtar and another and Abdul Aziz preferred Criminal Revision No. 889 of 2000, Abdul Aziz v. State of U.P. and Shahid Akhtar. Both these revisions were consolidated and were decided by the Additional Sessions Judge Court No. 12, Allahabad, by a common order dated 25.1.2001. Aggrieved, therefrom the revisionist Shahid Akhtar has preferred this revision.

It is submitted by the learned Counsel for the revisionist that by the impugned order dated 25.1.2001 the order passed by the Magistrate u/s 156(3), Cr. P.C. to make investigation in the crime was set aside, while the Magistrate is empowered to make such a direction to a Gazetted Officer.

The learned Counsel for the Respondent submitted that a Judicial Magistrate is entitled to make direction u/s 156(3), Cr. P.C. only to a Station Officer of the police station concerned. Neither any Gazetted Officer nor any authority or the police department nor any other authority other than officer-in-charge of the police station concerned can be directed by the Judicial Magistrate to make investigation. Besides it, no prima-facie case was made out, hence also it was not a fit case to make order of investigation u/s 156(3), Cr. P.C. by a Gazetted Officer.

The learned Counsel for the revisionist has cited Netrapal Singh v. C.J.M. and Ors. 1996 JIC 1131, in which it was held by this Court that yet the allegations were serious, it was essential for the Chief Judicial Magistrate, Bulandshahr, to have directed the higher police authorities including the Senior Superintendent of Police to make an inquiry into the matter.

Another ruling Suresh Chand Jain v. State of M.P. 2001 (1) ACR 586 (SC) : 2001 (42) ACC 459 was cited by the learned Counsel for the revisionist in which it was held by Hon''ble the Supreme Court that there was difference between the order made by the Magistrate to register the case u/s 202, Cr. P.C. and the direction of the Magistrate to register case u/s 156(3), Cr. P.C. and to investigate the case.

The revisionist has also cited State of Bihar and Another Vs. J.A.C. Saldanha and Others, , in which it was held by Hon''ble the Apex Court that the State Government has power of superintendence u/s 3 of the Police Act, 1861, including giving direction to such a superior officer for further investigation u/s 173(8) of Cr. P.C. even after submission of the report by the previous investigating agency u/s 173(2) of Cr. P.C. Such power of the State Government is not affected by the power of the Magistrate to order investigation u/s 156(3), Cr. P.C. If in the facts and circumstances of the case State Government directs the I.G. (Vigilance) for further investigation, it is not illegal.

Thus, it was held by Hon''ble the Apex Court in Saldhana''s case that Section 156(2), Cr. P.C. includes the police officer superior in rank to such officer. Section 156(2), Cr. P.C. contemplates that no proceeding of a Police Officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. The term "in any such case" means a cognizable case, which could be investigated by a Police Officer without order of the Magistrate as contemplated u/s 156(1) of Cr. P.C. Thus, if F.I.R. is lodged in a cognizable case and police authorities think it proper that considering the gravity of the offence, the investigation is to be made by some Police Officer having authority higher than that of an officer in-charge of police station. The investigation can be made by such higher authority u/s 156(1) of Cr. P.C. because Section 36 of Cr. P.C. provides that Police Officers superior in rank to an officer in-charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limit of his station.

In the cited case of Netra Pal Singh, as mentioned above, decided by this Court, the position of law was not discussed as to whether a direction to the police authority higher in rank than the in-charge of the police station was in accordance with law or not. This judgment was delivered only in the perspective that the allegation of committing offences were serious against the police men, therefore, direction was made for investigation being made by higher police authorities including the Senior Superintendent of Police.

The learned Counsel for the revisionist has cited Central Bureau of Investigation v. State of Rajasthan and Anr. 2001 (2) ACR 1875 (SC) : 2001 (1) UP Cri 339, in which Hon''ble the Supreme Court held that there are three provisions of Cr. P.C. in which the Magistrate can order for investigation to be conducted. They are Sections 155, 156 and 202 of the Code. Amongst them Section 155 concerns only when the offence is non-cognizable. Section 156 only enables a Magistrate to have assistance of an investigation conducted either by the police or by any other person for the limited purpose of deciding whether or not there is sufficient ground for proceeding with the complaint. Section 156(3) contemplates about the power of the Magistrate to order investigation in Section 156(1), Cr. P.C. Thus, the power is to order to an officer in-charge of police station to conduct investigation. Officer in-charge of police station is defined in Section 2(o) of the Code as officer in-charge of the police station includes when the officer in-charge of police station is absent from the station house or unable for illness or for other cause to perform his duties, the Police Officer present at the police house, who is next in rank to such officer and is above the rank of a constable or when State Government so directs any other Police Officer so present. In this Ruling Section 36 of the Code was also dealt with, which contemplates that Police Officers superior in rank to an officer in-charge of a police station, may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limit of his station. Thus, superior Police Officer may exercise the duty of investigation, which is conferred on the officer in-charge of the police station. When a Magistrate orders investigation u/s 156(3) of the Code, he can only direct an officer in-charge of the police station to conduct such investigation, not a superior Police Officer though such officer can exercise such power by virtue of Section 36 of the Code. Section 36 of the Code is not meant to substitute the magisterial power envisaged in Section 156(3) of the Code, though it could supplement the power of an officer in-charge of the police station. It is permissible if any Police Officer of the police station takes over investigation from such officer in-charge of the police station either suo-motu or on the direction of the superior officer or even that of the Government.

13 State of Kerala Vs. Kolakkacan Moosa Haji and Others, , was also discussed, in which Hon''ble the Apex Court had confirmed the order of the Kerala High Court and it was held that the Magistrate cannot order to any Police Officer other than one, who is in-charge of the police station to conduct investigation, though the Government in exercise of its executive power can authorize any superior Police Officer to investigate the case and such direction can be issued by the higher officer to his subordinate officer in the police department.

Thus, in the instant case, the revisional court has rightly held that the Chief Judicial Magistrate, Allahabad, had no jurisdiction u/s 156(3), Cr. P.C. to make direction for investigation being made by any Gazetted Officer because in-charge of the police station is not a Gazetted Officer and investigation by a Gazetted Officer means investigation by Dy. Superintendent of Police, Superintendent of Police, Senior Superintendent of Police or other Police Officers, who are superior in rank to an in-charge of police station. In view of the law laid down by the Hon''ble Supreme Court in case of C.B.I. v. State of Rajasthan (supra), the Chief Judicial Magistrate had no jurisdiction to pass such order.

In Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , it was held by Hon''ble the Apex Court that while issuing process, the Magistrate has to consider the inherent improbabilities appearing on the face of the complaint and the Magistrate has to exercise the discretion in a judicial manner whether the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach to a conclusion that there is sufficient ground for proceeding against the accused or whether the allegations on their face value make out absolutely no case against the accused and the accused should not be prosecuted.

In instant case, the allegations of the revisionist has been that since divorce was not made by his nephew Abid Husain, therefore, on 28.5.2000 at about 8.50 a.m., Abdul Aziz, father of Smt. Shabnam along with Avesh, Usman alias Kalloo, Pappu, Gulab and two or three others forcibly entered into the house of the revisionist and used insulting languages and thereafter on 29.5.2000 at 11 p.m. station officer of Police Station Shahganj, along with three constables, Abdul Aziz, Kalloo, Avesh, Gulab, Baboo, Munna, Rehan, Smt. Sayeeda, Smt. Seema, Smt. Sakin and others forcibly entered into his house, used insulting languages and caused injuries to the female members including girls of the family of the revisionist, looted articles and kept it in a room of the house and locked it and thereafter left the house. If the intention of the accused persons would have been to cause injuries and to loot the property. Abdul Aziz would not have gone along with his family members where any type of untoward situation could take place. Besides it there is nothing on record to show that injuries were caused to the victims and their medical examination was done. Further, if the intention of Abdul Aziz would have been to take away cloths and ornaments, etc. from the house of the revisionist and his nephew Abid Husain, the articles would have been taken away. There was no intention of Abdul Aziz to forcibly take possession of the alleged articles and lock it in a room of the house of the revisionist and his nephew. Thus, the complaint story of the revisionist suffers from inherent improbabilities in respect of which the revisional court has observed that the story was of such nature that it could not be believed, as it was unnatural. Besides it in such midnight, the station officer and the constable had no vested interest to go and loot the articles, while they were not intending to take it away. Therefore, not only the order dated 3.6.2000 passed by the Chief Judicial Magistrate, Allahabad, was beyond jurisdiction but the story of the complaint made by the revisionist was rightly held to be unnatural by the revisional court.

Therefore, the revisional court has rightly set aside the order dated 3.6.2000 passed by the Chief Judicial Magistrate, Allahabad, u/s 156(3), Cr. P.C. to make investigation in the case by a Gazetted Officer.

Instant revision does not yield fruitful result.

The revision is dismissed.