Afroz Jahan and Another vs State of U.P.and Another

P. K. Jain, J.—Heard Sri S. K. Agrawal, learned Counsel for the revisionists, Sri M.S. Haq, learned Counsel for opposite party No. 2, and learned AG A for the State.

Respondent No. 2 had moved an application under Section 156(3), Cr. P.C. praying for direction to the police of police station Nagina, district Bijnor, to register a case under Sections 420,467,468,471/34, IPC and investigate the same. The allegations were that an election was to be held for electing VicePresident of Nagar Palika Parishad, Nagina. According to the rules 50 per cent of the members were required to be present to complete the quorum for holding the meeting. The election meeting was to be held on 6397. The accused persons in order to show the quorum forged signatures of Smt. Savitri Devi, Hukum Singh and Veer Singh and showing their presence at the time of meeting conducted election proceedings whereas the aforesaid three members were not present. The learned Magistrate appears to have directed the police concernedto enquire and after preliminary enquiry, police appears to have submitted report dated 9497. The applicant (respondent No. 2) appears to have filed affidavits of the aforesaid three members who denied their signatures in the election proceedings dated 6397. The learned Magistrate did not rely upon the preliminary enquiry report and satisfied by the affidavits filed by the aforesaid three members directed the police to register and investigate the case by order dated 25797. It is this order which is being challenged in this revision.

The order is challenged mainly on the ground that the learned Magistrate did not take into consideration the police report and had committed an error in relying upon the affidavits. On behalf of the opposite party No. 2 it is contended that the preliminary enquiry report was not required under law and it was not based upon any material collected during preliminary enquiry.

It may be pointed out here that on behalf of the respondent No. 1 counteraffidavit of one Charan Singh, SubInspector of Police of P.S. Nagina has been filed and in his affidavit he has deposed that in pursuance to the order dated 25797 a case had been registered and the investigation is going on. Handwriting expert''s report (Annexure C.A.1) dated 12897 has been filed.

Bare perusal of Section 156(3) would show that there is nothing in law under which the learned Magistrate after receipt of an application under Section 156(3), Cr. PC. is required to obtain a preliminary enquiry report from the police. Police can investigate the case either after recording the FIR under Section 154, Cr. PC. when a cognizable case is disclosed from the FIR or under the directions of the Magistrate under Section 156(3), Cr. PC. It is only by way of abundant precaution that the Magistrates some times to satisfy themselves, if any cognizable offence is disclosed, call for the police report. Such report cannot be equated with report of the investigation under Section 173, Cr. PC. or under Section 169, Cr. P.C. The learned Magistrate is not bound by the opinion of the police. It is well settled that even after investigation in accordance with the provisions of law if the police submits report under Section 169, Cr. P.C., the Court is not bound by the opinion of the Investigating Agency and on the material collected during investigation the Court can arrive at its own conclusion. In the instant case there was only preliminary enquiry report and there is nothing to show that statements of any witnesses were recorded or the documents were perused by the Inquiry Officer. The learned Magistrate, in order to satisfy himself that a cognizable offence was disclosed, perused the affidavits filed on behalf of the applicant (respondent No. 2) and thereafter directed registration and investigation of the case. In my view no illegality has been committed. The learned Counsel has not been able to show that the facts mentioned in the application did not disclose any cognizable offence.

It is also not disputed that the case has already been registered and investigation is going on inasmuch as the report of the Handwriting Expert has been obtained. Learned Counsel for the revisionists contends that steps taken towards investigation would be null and void in view of the stay granted by this Court. It appears from record that the stay order was passed on 12897 and it must have been communicated to the Investigating Agency at some later stage which is not disclosed by either party. The material on record further discloses that the investigation had started much earlier and on 12897 a report of the Handwriting Expert had already been given. In these circumstances the registration of the case and investigation done in pursuance to the order dated 25797 cannot be said to be in violation of the stay order.

There is no merit in this revision and the same is dismissed at the admission stage.

Stay order dated 12897 and subsequent stay orders are vacated.

Revision dismissed.