Gayasuddin vs State of U.P.

Ravindra Singh, J.—This application under section 482, Cr.P.C. has been filed by the applicant Gayasuddin with a prayer to quash the order dated 9.8.2004 passed by the learned Chiet Judicial Magistrate, Man whereby the application under section 156(3), Cr.P.C. filed by the applicant has been rejected. It is further prayed that a suitable direction may be issued to the OfficerinCharge of Police Station Ghosi to register the FIR and to investigate the same.

The facts, in brief, of this case are that applicant Gayasuddin moved an application dated 9.8.2004 under section 156(3), Cr.P.C. in the Court of learned Chief Judicial Magistrate, Mau with a prayer that the OfficerinCharge of Police Station Ghosi may be directed to register the FIR and investigate the same against Sala Uddin, Husn Bano, Mohammad Yasin and Mahboob Ahmad. The allegation has been made against them that the applicant was doing the business of sale and purchase of saris, he was having love affair with Rizwana Khatoon, daughter of Mohiuddin and sister of Salauddin and on 26.7.2002, he has performed the Nikah with Rizwana Khatoon according to Muslim Law. Rizwana Khatoon and the applicant were major but due to their marriage, the father and brother of Rizwana Khatoon were too much annoyed and lodged a false case against the applicant. The applicant and Ki/wana Khatoon were present at the chamber of Sri Rama Shanker Misra, Advocate where the applicant was beaten and Rizwana Khatoon was forcibly taken by her brother Salauddin and others to Kotwali Deoria, thereafter she was taken to their house, she was terrorised there, she has been made against the applicant, the false recovery of that girl has been made, she was medically examined thereafter her statement has been recorded in the Court of learned Magistrate, she has been illegally detained and she is being subjected to cruelty and she is not permitted to go to the house of the applicant, she had lived in the company of the applicant as wife, subsequently, she has become pregnant. The applicant requested to handover his wife and tried to know about the pregnancy but no proper information had been given and he was abused and he was asked not to think about Rizwana Khatoon and her son, thereafter he was sent to jail in Case Crime No. 422 of 2002 under sections 363, 366, 376, 504 and 506, I.P.C., Police Station Ghosi, District Mau. In medical examination it was found that Rizwana Khatoon was having the pregnancy but the pregnancy has been terminated by her brother and others. Considering the application moved by the applicant, the learned CJM Mau came to the conclusion that Rizwana Khatoon is the victim, she has been kidnapped and raped by the applicant, its FIR in Case Crime No. 442 of 2002 under sections 363, 366, 376, 504 and 506, I.P.C., P.S. Ghosi, District Mau has already been registered, but the plea taken by the applicant that Rizwana Khatoon is his wife is highly disputed, moving of the application by the applicant under section 156(3), Cr.P.C, is simply misuse of the process of law, thereafter rejected the application under section 156(3), Cr.P.C. on 9.8.2004.

Being aggrieved from the order dated 9.8.2004, the present application has been filed by the applicant.

Heard Sri Manoj Kumar Chandel, learned Counsel for the applicant and learned A.G.A. for the State of U.P.

It is contended by learned Counsel for the applicant that on the basis of the allegation made in the application under section 156(3), Cr.P.C., constitution of a cognizable offence is made out and the allegations are of such nature which requires investigation, in such circumstances, the learned Magistrate concerned was under obligation to direct the OfficerinCharge of the Police Station concerned to lodge the FIR and investigate the same because such powers have been conferred to the learned Magistrate concerned under section 156(3), Cr.P.C. so that the provisions of section 154, Cr.P.C. may be properly implemented. At this stage, the learned Chief Judicial Magistrate concerned committed a manifest error by not directing the OfficerinCharge of the Police Station Ghosi to register the case and investigate the same in exercise of the powers conferred under section 156(3), Cr.P.C. The learned Magistrate concerned has committed the error by relying upon the FIR of Case Crime No. 442 of 2002 under sections 363, 366, 376, 504, 506, I.P.C. in which the applicant is made accused, on the basis of pendency of the above mentioned case, the conclusion drawn by the I.O. that filing of the application under section 156(3) Cr.P.C. is misuse of the process of law, is illegal. Therefore, the impugned order dated 9.8.2004 may be quashed and OfficerinCharge of the P.S. Ghosi may be directed to register the FIR of the applicant and to investigate the same in accordance with the provisions of law.

In reply to the above contention, it is submitted by learned A.G.A. that in the present case the learned C.J.M. Mau has rejected the application under section 156(3), Cr.P.C. after considering the fact that the applicant was an accused in Case Crime No. 422 of 2002 under sections 363, 366, 376, 504 and 506, I.P.G., Police Station Ghosi, District Mau in which Km. Rizwana Khatoon was the victim and for the purpose of harassment and to take the plea of defence, the application under section 156(3), Cr.P.C. has been filed by the applicant, the learned Magistrate concerned has rightly come to the conclusion that it was simply misuse of the process of law, the learned Magistrate concerned has not committed any error in dismissing the application under section 156(3), Cr.P.C. on 9.8.2004, the impugned order dated 9.8.2004 is not suffering from any illegality or irregularity because in the present case Km. Rizwana Khatoon was forcibly kidnapped by the applicant at the pistol point, thereafter she was terrorised and raped by the applicant without her consent, her statement has been recorded under section 164, Cr.P.C., she has made such allegation, according to her statement, she was aged about 16 or 17 years and she has not performed the marriage with the applicant whereas the applicant was terrorising her to perform the marriage, in that case the applicant has been chargesheeted. In such circumstances, the Magistrate has not committed any error in rejecting the application under section 156(3), Cr.P.C., the present application is devoid of the merit and the same may be dismissed.

Considering the submissions made by the learned Counsel for the applicant, learned A.G.A. for the State of U.P. and from the perusal of the record it appears that the applicant has moved an application dated 9.8.2004 in the Court of learned Chief Judicial Magistrate, Mau with a prayer that the OfficerinCharge of the Police Station Ghosi may be directed to register the case and investigate the same in respect of termination of the pregnancy of Rizwana Khatoon to whom he claimed his wife but the learned CJM Mau has rejected the application under section 156 (3), Cr.P.C. on 9.8.2004 considering the fact that the applicant was accused in Case Crime No. 442 of 2002 under section 363, 366, 376, 504, 506, I.P.C..P.S. Ghosi, District Mau. The record shows that the statement of Km. Rizwana Khatoon was recorded under section 164, Cr.P.C. in which she categorically stated that she was forcibly kidnapped by the applicant and his Goons at pistol point, she was taken by Maruti Car, she was threatened and she was pressurised to perform the marriage with the applicant, she was raped by the applicant without her consent, she became unconscious also, she was brought to Allahabad where she was pressurised to give statement before the Judge, she was raped at Allahabad also and thereafter she was taken to Deoria. According to her statement she was aged about 16 or 17 years but the application dated 9.8.2004 under section 156(3), Cr.P.C. has been filed by the applicant claiming Km. Rizwana Khatoon to be her wife which is not correct, according to the statement of Km. Rizwana Khatoon, in such circumstances, the conclusion drawn by the learned CJM Mau that the application under section 156(3), Cr.P.C. filed by the applicant is misuse of the process of law, is not suffering from any irregularity. The impugned order dated 9.8.2004 is not suffering from any illegality or irregularity, it requires no interference.

The powers under section 156(3), Cr.P.C. have been conferred to the Magistrate for passing the order to investigate any cognizable case which reads as under:

"Any Magistrate empowered under section 190 may order such an investigation as above mentioned"

Such power has been given so that the provisions of section 154, Cr.P.C. may be properly enforced/implemented. Section 154, Cr.P.C. reads as under:

Section 154 Cr.P.C. Information in cognizable cases.(1) Every information relating to the commission of a cognizable offence, if given orally to an Officerincharge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants 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 subsection (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an Officerincharge 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.

If an offence has been committed which is of a cognizable offence, even then the OfficerinCharge of police station concerned, does not register the case, ignoring the provisions of section 154 (1), Cr.P.C, to check such arbitrariness, the power has been given to learned Magistrate concerned under section 156 (3), Cr.P.C. to direct the officerincharge of the police station concerned to register the case and to investigate the same. If the learned Magistrate comes to the conclusion that if the allegations made in the application under section 156(3), Cr.P.C. are disclosing the commission of a cognizable offence, directs the officer in charge of the police station concerned to register the case and investigate the same, but at the same time, learned Magistrate concerned is under obligation to check misuse of process of law also because the order passed by the learned Magistrate concerned on the application under section 156(3), Cr.P.C. happens to be a judicial order, it requires application of judicial mind also. If the learned Magistrate concerned comes to the conclusion that allegations are disclosing the commission of a cognizable offence but from the perusal of the application itself, it appears that the allegations are bogus or highly improbable or are made for the purpose of harassment due to ulterior motive or direction for lodging the FIR will not meet the ends of justice or filing of the application is misuse of the process of law, may dismiss such application In the present case also, the learned Magistrate concerned has come to the conclusion that the application under section 156(3), Cr.P.C. moved by the applicant is simply misuse of process of law, the conclusion drawn by the learned Magistrate concerned is logical and is having substance, it requires no interference.

In view of the above discussions, the impugned order dated 9.8.2004 passed by the learned Chief Judicial Magistrate, Mau dismissing the application under section 156 (3), Cr.P.C. is not suffering form the any illegality or irregularity, it is a perfect order, it does not require any interference, therefore, the prayer for quashing same is refused.

Accordingly, this application is dismissed.