Prithvi Raj Singh Tomar vs Additional Chief Judicial Magistrate and Others

S.K. Phaujdar, J.—The matter was heard on 15-7-1998.

The petitioner has challenged an order dated 12-6-1998 recorded by the Addl. CJM, Meerut in Complaint Case No. 116 of 1998 and had prayed for quashing the order whereby the Magistrate had directed registration of an FIR and investigation.

The complaint/application was filed by one Pradeep Kumar against the present applicant making allegations against certain police officials including the present applicant to the effect that they had unlawfully entered into the house of the complainant looted away his properties and had misbehaved with the woman folk in the house. It was urged by the learned counsel for the applicant that the applicant is a responsible and honest police officer and, in fact, there had been an FIR in the concerned police station on 10-5-1998 for an offence u/s 394, IPC and actions were taken in an investigation into the allegations made in that FIR. It was argued that the Court below could not have directed registration of an FIR in exercise of its powers u/s 156(3), Cr.P.C. On this point reliance was placed on a Division Bench decision of the Punjab and Haryana High Court in the case of Ganesh Dass and Others Vs. State of Kerala and Another,

I have perused the reasonings given by the Hon''ble Judge to arrive at the aforesaid conclusion and with all humility I beg to differ from the opinion given by their Lordships in the aforesaid case. Section 156, Cr.P.C. in Sub-section (1) thereof, speaks of the power of officer-in-charge of a police station to investigate in a cognizable case. This power must be read along with the provisions of Section 154, Cr.P.C. which speaks of information relating to commission of a cognizable offence and of recording an FIR. The power of the police officer springs from the fact of recording an FIR and whether he proposes to make an investigation into a cognizable case there must be an FIR before him as required u/s 154, Cr.P.C.

Section 156(3), Cr.P.C. empowers a Magistrate, competent u/s 190, Cr.P.C. to take cognizance, to order, "such an investigation as above mentioned." Thus, the investigation which a Magistrate is empowered to direct must be one as spoken of in the earlier sub-rule of Section 156, Cr.P.C. It must, therefore, be logically inferred that the power of investigation cannot be exercised without lodging an FIR and, accordingly, it must be held that the Magistrate''s power to direct investigation includes the power to direct registration of a case. The objection in this regard, as agitated by the appellant, must be overruled.

An objection has also been raised seeking protection u/s 197(1), Cr.P.C. It was stated that if anything was done in the course of investigation by a police officer, it must be deemed to have been done in the purported exercise/discharge of his official duties and no Court shall take cognizance of such an offence with previous sanction of the State Government if the officer is not removable from his office except by or with the sanction of the Government. The applicant is a sub-inspector of police and he is appointed/liable to be removed not by the State Government but by the Director General of Police and, as such, protection u/s 197(1), Cr.P.C. may not be available to this applicant. However, there are other provisions in Section 197(2) and (3), Cr.P.C. and under sub-section (2) a Court is not to take cognizance of any offence alleged to have been committed by any member of the armed forces of the Union of India while acting or purporting to act in the discharge of official duties except with the previous sanction of the Central Government. Sub-section (3) empowers the State Government to direct by notification that the provisions of Sub-section (2) shall apply to such class or category of the members of the forces charged with the maintenance of public order as may be specified therein and thereupon the provisions of that sub-section will apply as if for the expression Central Government the expression State Government were substituted. It is not disputed that a notification u/s 197(3), Cr.P.C. was issued by the State Government of U.P. for protection of the police force. The question of sanction, however, would come in only at the time of taking cognizance and not at an earlier stage. In giving a'' direction u/s 156(3), Cr.P.C. the Court does not take cognizance of the offence. It merely records an administrative order directing registration of a case and its investigation. Cognizance would be taken if and when a report u/s 173(2), Cr.P.C. is submitted and the Court proposes to take action u/s 190(1), Cr.P.C.

Both the objections having failed, there is no reason to interfere with the impugned order of the Magistrate dated 12-6-1998 or to interfere with the proceeding started on the basis thereof. The present application stands dismissed.