Radhey Shyam vs State of Haryana

Naresh Kumar Sanghi, J.—Radhey Shyam son of Amar Singh, resident of Village Matak Majri, Tehsil Indri, District Karnal, has invoked the inherent jurisdiction of this Court u/s 482, Cr.P.C., with the prayer that impugned order dated 13.12.2012, Annexure P10, passed by the learned Judicial Magistrate Ist Class, Karnal, whereby the prayer of the petitioner to direct the police for registration of a case, as per the mandate of Section 156(3), Cr.P.C., was declined, be set aside.

Learned counsel for the petitioner submits that the petitioner Radhey Shyam was falsely implicated in a case arising out of FIR No. 278, dated 28.7.2012, for the offences punishable under Sections 148, 307, 323, 324 read with Section 149, IPC, registered at Police Station, Indri, District Karnal. The petitioner was arrested by the police and taken to CIA Staff (I), Karnal. He was treated with 3rd degree treatment and, as such, he received multiple injuries on his person.

The petitioner filed a complaint before the learned Area Judicial Magistrate against the respondents for the offences punishable under Sections 218, 307, 327, 331, 506, 511 and 34, IPC, with a prayer to direct the Station House Officer, Police Station, Indri, to register an FIR and investigate the same.

The learned Area Judicial Magistrate while declining the prayer for issuance of direction to the police to register a case passed the following order:-

Heard on the point of 156(3) of Cr.P.C. After going through the contents of the complaint, this Court is of the view that the present complaint has been filed by the complainant u/s. 218, 307, 323, 331, 506, 511, 34 of IPC against the accused. However, at this stage, this Court does not deem it fit to register a case against the accused as administration of justice cannot be used to harass a person merely on the allegations unless supported by evidence. Moreover, no prejudice is likely to be caused to applicant if the case is not registered as if he subsequently succeeds in proving his case by convincing piece of evidence, the accused can always be summoned. Thus, the prayer u/s 156(3) Cr.P.C., is hereby declined.

Complaint be checked and registered. Come up on 23.02.2013 for preliminary evidence of complainant.

On 13.12.2012 yet another application was presented before the learned Judicial Magistrate Ist Class, Karnal, and following order was passed:-

File again taken up, as applicant moved another application maintaining therein that the accused are police officials of P.S. Indri. He further maintained that the offence has occurred in the police custody and therefore, the complainant is not having any witness. He further prayed that his complaint be sent u/s 156(3), Cr.P.C., for the registration of the case.

Heard. A perusal of the file reveals that the similar prayer of the applicant has already been declined by this Court by order of even date, therefore, the Court cannot review its own order and, as such, the second application before this Court is not maintainable and the same is also ordered to be dismissed. Now to come up on 23.02.2013, the date already fixed for recording preliminary evidence of the complainant.

Learned counsel for the petitioner submitted that the complaint presented by the petitioner before the learned Area Judicial Magistrate disclosed the commission of cognizable offences, therefore, the said Court had no other option but to issue direction to the Station House Officer, Police Station, Indri, to register an FIR and investigate the same. Learned Area Judicial Magistrate had no jurisdiction to take cognizance u/s 190, Cr.P.C., and proceed with the complaint. In support of his contention, he has placed reliance on the judgment of Allahabad High Court in the matter of Smt. Santosh Kumari Vs. State of U.P., .

On the other hand, learned counsel for the respondents strongly refuted the submissions raised by the learned counsel for the petitioner and submitted that the petitioner was in the habit of lodging false complaints against the public at large; various cases at different forums were filed against him (petitioner) and that in view of the fact that petitioner was arrested by the police for having committed the offences under various provisions of the Indian Penal Code and while he was confined in the lockup, he untied the tap of the bathroom and caused injuries on his person to concoct a false and fabricated case against the respondents; the said incident was witnessed by the Santri on duty and with the help of other police officials available at the police Station, the petitioner was brought out of the lockup and thereafter FIR No. 309 dated 13.08.2012 for the offences punishable under Sections 309 and 189, IPC, was registered at Police Station, Indri. Just to create a defence, the petitioner had filed a complaint before the learned Area Judicial Magistrate with a coloured version to save himself from the legal punishment in the cases he is facing prosecution. They further submitted that the judgment in the matter of Santosh Kumari''s case (supra) cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of the present case and that a Division Bench of Hon''ble Allahabad High Court had already answered the reference that it is within the discretion of the Judicial Magistrate either to refer the case to the Police Station u/s 156(3), Cr.P.C., for registration of the FIR or to take cognizance himself. In support of their contention, learned counsel for the respondents have placed reliance in the matter of Sukhwasi Vs. State of Uttar Pradesh, .

The foremost question before this Court is as to whether the Magistrate is bound to pass an order on each and every application u/s 156(3), Cr.P.C., containing allegations of commission of a cognizable offence for registration of First Information Report and its investigation by the police even if those allegations, prima facie, do not appear to be genuine and do not appeal to reason, or the Judicial Magistrate can exercise judicial discretion in the matter and pass order for treating it as a complaint or to reject it in suitable cases.

The following question was referred to a Division Bench of Hon''ble the Allahabad High Court for consideration in the matter of Sukhwasi''s case (supra):-

Whether the Magistrate is bound to pass an order on each and every application u/s 156(3) Criminal Procedure Code containing allegations of commission of a cognizable offence for registration of the F.I.R. and its investigation by the police even if those allegations, prima facie, do no appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as ''complaint'' or to reject it in suitable cases?

After lengthy discussion, the reference was answered in the following terms:-

The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application u/s 156(3), Criminal Procedure Code, and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application u/s 156(3) Criminal Procedure Code as a complaint.:

In view of the Division Bench judgment in the matter of Sukhwasi''s case (supra), the judgment in the matter of Santosh Kumari''s case (supra), cited by the learned counsel for the petitioner, is not a good law and, as such, this Court is of the opinion that in an appropriate case, the learned Area Judicial Magistrate has got the jurisdiction to decline the prayer of the complainant to refer the case to the Station House Officer concerned for registration of the FIR and its investigation. This Court further holds that learned Area Judicial Magistrate would be within its jurisdiction to take cognizance of the complaint as per Section 190, Cr.P.C., and proceed further in accordance with law.

If the facts and circumstances of the case are scanned in view of the above principles, then it would reveal that the petitioner is facing trial in FIR No. 278 dated 28.07.2012 for the offences punishable under Sections 148, 307, 323, 324 read with Section 149, IPC, registered at Police Station, Indri; FIR No. 309 dated 13.08.2012, under Sections 309 and 189, IPC, registered at Police Station, Indri; and a Kalendra for commission of offence u/s 182, Cr.P.C., is also pending against him, though yet another Kalendra for commission of offences punishable under Sections 182 and 211, IPC, relating to Police Station, Civil Lines, Karnal was quashed by this Court.

In view of the contents of the complaint, the learned Area Judicial Magistrate had rightly opted not to send the complaint to the Station House Officer for registration of the case. Learned Area Judicial Magistrate had also rightly proceeded to take cognizance as per Section 190, Cr.P.C., to probe into the allegations levelled by the petitioner against the respondents and, hence, the impugned order passed by the learned Area Judicial Magistrate is perfectly legal and no interference is called for by this Court.

Dismissed.