Court No.

- 42

Case :- APPLICATION U/S 482 No. - 22721 of 2019

Applicant :- Hariom
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Ali Hasan,Istiyaq Ali
Counsel for Opposite Party :- G.A.

Hon'ble Siddharth,J.

Heard learned counsel for the applicant and learned A.G.A. for
the State.

This application has been filed preferred against the order dated
20.05.2019 passed by learned Special Judge (S.C./S.T. Act),
Agra in Criminal Misc. Case No. 348 of 2019 (Hariom Vs.
Ashok Sharma and others), under Section 156 (3) Cr.P.C.,
Police Station- Sadar Bazar, District- Agra.

The submission of the counsel for the applicant is that if from

the perusal of the application under Section 156(3) Cr.P.C., a
prima facie congnizable offence is made out, then the
registration of FIR is mandatory because each and every
complaint made to the police is required to be investigated for
ascertaining the correctness of allegation of cognizable offence.

In view of the nature of allegations made by the applicant if the

application the Magistrate ought to have allowed the same and
directed the police has been concerned to investigate into the
matter and thereafter submit a report.

Section 154 and 156 Cr. P. C. provides for the registration and
investigation of complaint. The same are reproduced herein
under:-

"154. Information in cognizable cases.

(1) Every information relating to the commission of a

cognizable offence, if given orally to an officer in charge of a
police station, shall be reduced to writing by him or under his
direction, and be read Over to the informant; and every such
information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in
this behalf.

(2) A copy of the information as recorded under sub- section (1)

shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer

in charge of a police station to record the information referred
to in subsection (1) may send the substance of such
information, in writing and by post, to the Superintendent of
Police concerned who, if satisfied that such information
discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be
made by any police officer subordinate to him, in the manner
provided by this Code, and such officer shall have all the
powers of an officer in charge of the police station in relation to
that offence."

Section 156 Cr.P.C. is quoted herein below:-

"156. Police officer' s power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the

order of a Magistrate, investigate any cognizable case which a
Court having jurisdiction over the local area within the limits of
such station would have power to inquire into or try under the
provisions of Chapter XIII.

(2) 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.

(3) Any Magistrate empowered under section 190 may order

such an investigation as above- mentioned."

From the perusal of the aforesaid provision as well as Section

154 Cr.P.C., it is evident that the police can investigate into
matters relating to commission of 'cognizable offences' brought
to its notice under section 154 Cr.P.C. Officer-in-charge of
police station has power to investigate U/S 156(1) in such case.
Magistrate has power to take cognizance u/s 190 CrPC on
receiving the 'complaint'. Thus the matter relating to section 156
(3) relates to power of Magistrate to order investigation by
police in matters relating to cognizable offences brought before
it through complaint. Complaint has been defined in section
2(d) CrPC of as follows : "complaint' means any allegation
made orally or in writing to a Magistrate, with a view to his
taking action under this Code, that some person whether known
or unknown, has committed an offence, but does not include a
Police report." Code of Criminal Procedure has given different
type of powers to deal with such matters relating to commission
of cognizable offences when brought before it. A Division
bench of this Court in the case of ''Sukhwasi v. State of U.P.,
2007(59) ACC 739' held as under:

"Applications under section 156(3) Cr.P.C. are coming in

torrents. Provisions under section 156(3) Cr.P.C. should be used
sparingly. They should not be used unless there is something
unusual and extra ordinary like miscarriage of justice which
warrants a direction to the Police to register a case. Such
application should not be allowed because the law provides
them with an alternative remedy of filing a complaint,
therefore, recourse should not normally be permitted for
availing the provisions of section 156(3) Cr.P.C.

The reference is, therefore, answered in the manner that it is not

incumbent upon a Magistrate to allow an application section
156(3) Cr.P.C. and there is no such legal mandate."

However, the said judgement does not provide any reason as to

why FIR should not be registered in respect of a cognizable
offence.

Learned counsel for the applicant-revisionist has placed

reliance upon the judgement of the Apex Court in the case of
Lalita Kumari Vs Goverment of Uttar Pradesh and another,
reported in 2014 (2) SCC 1. He has relied upon paragraph 111
of the aforesaid judgement, which is reproduced herein under:-

111) In view of the aforesaid discussion, we hold:

"i) Registration of FIR is mandatory under Section 154 of the

Code, if the information discloses commission of a cognizable
offence and no preliminary inquiry is permissible in such a
situation.

ii) If the information received does not disclose a cognizable

offence but indicates the necessity for an inquiry, a preliminary
inquiry may be conducted only to ascertain whether cognizable
offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable

offence, the FIR must be registered. In cases where preliminary
inquiry ends in closing the complaint, a copy of the entry of
such closure must be supplied to the first informant forthwith
and not later than one week. It must disclose reasons in brief for
closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering

offence if cognizable offence is disclosed. Action must be taken
against erring officers who do not register the FIR if
information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity
or otherwise of the information received but only to ascertain
whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to

be conducted will depend on the facts and circumstances of
each case. The category of cases in which preliminary inquiry
may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months delay in
reporting the matter without satisfactorily explaining the
reasons for delay.

The aforesaid are only illustrations and not exhaustive of all

conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and
the complainant, a preliminary inquiry should be made time
bound and in any case it should not exceed 7 days. The fact of
such delay and the causes of it must be reflected in the General
Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the

record of all information received in a police station, we direct
that all information relating to cognizable offences, whether
resulting in registration of FIR or leading to an inquiry, must be
mandatorily and meticulously reflected in the said Diary and
the decision to conduct a preliminary inquiry must also be
reflected, as mentioned above."

In view of the aforesaid, the order dated 20.05.2019 passed by

the Special Judge (S.C./S.T. Act), Agra cannot be sustained.
Accordingly, the present criminal misc. application succeeds
and is allowed at the admission stage without issuing notice to
the prospective accused persons as they have no right to be
heard at pre-cognizance stage. The order dated 20.05.2019 is
consequently set aside.

The Special Judge (S.C./S.T. Act), Agra is directed to exercise

his discretionary power and decide afresh the application under
section 156(3) Cr.P.C. moved by the applicant-revisionist and to
pass appropriate order in accordance with law keeping in view
the observations made by this court, within a period of one
month from the date of production of a certified copy of this
order.

With the aforesaid directions, the present applicant is allowed.

Order Date :- 26.6.2019

Rohit