Har Prasad vs State of U.P.

Vinod Prasad, J.—Heard learned Counsel for the revisionist and the learned A.G.A.

The application u/s 156(3) Cr.P.C. filed by Har Prasad the present revisionist did disclose the commission of a cognizable offence u/s 395 I.P.C. as the number of assailants were more than five. The Special Judge, Budaun by rejecting the prayer for registration and investigation of the case has committed a miscarriage of justice. At the stage of Section 156(3) Cr.P.C, which is a pre-cognizance stage, once cognizable offence is disclosed through that application it was the duty of the concerned court to order for registration and investigation of the offence as crime detection and crime prevention are the foremost duty of the police and not of the court. The aforesaid law has been laid down as far back as in 1947 by the Privy Council in the celebrated judgment Emperor v. Khwaja Nazir Ahmad 1945 PC 17. The said judgment has been affirmed by the Apex Court also in many subsequent judgments. The impugned order dated 5.9.2006 passed by Special Judge (D.A.A.), Budaun in Misc. Case No. 265 of 2006 is against the statutory provision u/s 156(3) Cr.P.C. as Section 156(3) is relatable to an investigation, which is to be carried out u/s 156(1). No new or different investigation is to be done under the aforesaid Section. The Apex Court in case of State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 SCC 426 has held that police is under the mandate of law to register all informations regarding commission of cognizable offence. Paragraph 30, 31 and 33 of the aforesaid judgment leaves no room for doubt that the police has to register the information regarding commission of a cognizable offence irrespective of fact that the allegations levelled where acceptable or not acceptable believable or non-believable. That is not the province at the stage of registration of the F.I.R. has been held by the Apex Court in the aforesaid judgment. The grievance of the revisionist before the Special Judge (D.A.A.) Badaun was that the police was not following the mandate of law and therefore, they should be directed to observe their primary duty and mandate of law. Special Judge (D.A.A.) Badaun was not prayed by the revisionist for any other relief. By refusing the said relief Special Judge (D.A.A.) Badaun committed a miscarriage of justice and acted arbitrarily against the law as well as against the judgment of the Apex Court.

In this view of the matter, the present revision is allowed at the admission stage itself. The impugned order dated 5.9.2006 passed by Special Judge (D.A.A.), Budaun in Miscellaneous Case No. 265 of 2006 is hereby set aside. The matter is remanded back to the Special Judge (D.A.A.), Budaun to reconsider the application of the revisionist u/s 156(3) Cr.P.C. afresh and pass an order in accordance with law.

I have not issued notices so far as the persons against whom the application u/s 156(3) Cr.P.C. was filed for the simple reason that they are not required to be heard at the stage of 156(3) Cr.P.C. as they have got no right to object the order for registration of an F.I.R. and they will get a right only after the F.I.R. is registered at the police station concerned and that too under Article 226 of The Constitution of India.

This revision is allowed.