Hafijullah and Others vs State of U.P. and Another

Shiv Charan, J.—Heard learned Counsel for the applicant, learned AGA for the State and perused the entire facts of the case.

The present application has been moved u/s 482 Cr.P.C. for quashing the order dated 01.09.2007 passed by Judicial Magistrate Court No.2 Bansi District Siddharth Nagar in Misc. Case No.53 of 2007 Jumman v. Hafijullah u/s 156(3) Cr.P.C. for register of the case and investigation and learned Magistrate being satisfied with the averments of the application passed order for register of the case and investigation in the matter.

It has been argued by learned Counsel for the applicant that the learned Magistrate has not recorded any finding or has not observed in the order that from the facts of the case prima facie a cognizable offence is made out. Hence, the Magistrate should not be justified in passing the order of register of the case and investigation. It is further argued that the instant application u/s 156(3) Cr.P.C. was not moved by the victim but by Jumman father of the victim. When the victim herself is alive hence the father is not entitled and competent to move the application u/s 156(3) Cr.P.C. and the order is not justified due to this reason also and principle of inheritance shall also not be applicable when the victim is alive and living in the same village. It is further argued that this is a counter blast of the case of the applicant as alleged in para 23 of the affidavit. That the injuries are simple and minor in nature and duration also does not tally with the prosecution story.

Learned A.G.A. opposed the argument of learned Counsel for the applicant.

I have considered all the facts and circumstances of the case. It may be a fact that learned Magistrate has not mentioned in his order that a cognizable offence is made out against the applicants. But learned Magistrate passed the order after perusing the entire facts of the application and it has been alleged by the Magistrate in the order that after perusing the contents of application, it appears that the accused persons thrashed the victim for non-fulfilment of demand of dowry and she was subjected to cruelty mentally and physically and with this observation the application u/s 156(3) Cr.P.C. was allowed. And in my opinion there is sufficient compliance of that section. I have perused all the contents of the application moved u/s 156(3) Cr.P.C. And I am convinced from the contents of the application that primafacie a cognizable offence is made out. In an application u/s 156(3) Cr.P.C. it is requirment of law that if cognizable offence is made out from the application then the Magistrate may pass the order for register of the case and investigation and learned Magistrate after being satisfied from the allegation of the application passed the order for register of case and investigation.

It has been further argued by applicant''s Counsel that this application u/s 156(3) Cr.P.C. moved by the father of the victim and not by the victim herself and she is living in the same village and also visited the hospital for medical examination. Under these circumstances this application was not maintainable as moved by the father. In this connection section 198A is material. It has been provided in this section;

"No Court shall take cognizance of an offence punishable u/s 498A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father''s or mother''s brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption."

Hence, in view of this provision of law all the relations mentioned above, have got the right to move an application or lodge the FIR for the offencer u/s 498 A IPC and the principle of inheritance is also not applicable for the offence u/s 498 A IPC. The framer of the law were fully aware while making the provision that while filing the complaint by other relations of the victim, these relations have got the right to file the complaint on behalf of the victim when she is alive and not after death or when she is not available. Hence, in my opinion the father is fully competent to move an application u/s 156(3)Cr.P.C.

Learned Counsel for the applicant also stated that the FIR was lodged as a counter blast as alleged in para 23 of the affidavit. He also prayed that some protection be given to the applicants so that the applicants may not be harassed by the act of the police and he requested that order be passed for staying the arrest of the applicants till submission of report u/s 173 Cr.P.C. But I disagree with the request of the applicants'' counsel. Such an order can only be passed when a case is registered at the police station and investigation is under progress. There is another forum to challenge the FIR. And a writ is provided in the Rules to challenge the FIR. It may be possible that in writ order be passed for staying the arrest of accused persons till submission of the report u/s 173 Cr.P.C. But in the instant application u/s 482 Cr.P.C. the order passed by the Magistrate for register of the case and investigation has been challenged. According to the applicants the case has not been registered as yet at the police station. There is no investigation in progress hence I do not accept or anticipate that the arrest of the applicants be stayed till submission of the report. The remedy is available to the applicants when the case is registered and the investigation is under progress and this prayer is pre-mature at this stage.

For the reasons mentioned above, in my opinion, there is no illegality or impropriety in the order of learned Magistrate. Hence, the application u/s 482 Cr.P.C. deserves to be disposed of at this stage.

The present application u/s 482 Cr.P.C. is disposed of at this stage finally. However, it is provided that the bail application of the applicants specially of the ladies be considered expeditiously if possible on the same day.