Rakesh Kumar vs State of U.P. and Others

Vinod Prasad, J.—The applicant is aggrieved by the order dated 17.5.2007 passed by C.J.M. Gautam Budh Nagar on the Misc. Application No. 69 of 2007 filed by the applicant u/s 150(3) Cr.P.C. for getting his FIR registered at the police station, which prayer has been refused by the C.J.M., Gautam Budh Nagar by passing the impugned order.

The application of the applicant u/s 156(3) Cr.P.C. was filed with the allegation that S.I. Anil Kumar, S.I. Chandra Singh, Head Constable Khurshid, constable Satendra Singh and constable Kuwar Pal Singh of police station Dankaur, District Gautam Budh Nagar wrongly confined Rakesh Kumar and Sanjay or 20.4.2007 at 8.30 p.m. After detaining them for two hours at the police station, they were left freed from lock up and, therefore, the applicant along with four others was falsely, implicated in a case and Rs. 50,000/- belonging to the applicant were taken up by the aforesaid police personals. Since the FIR of the applicant was not registered, he filed an application u/s 156(3) Cr.P.C. The said prayer of the applicant was rejected by C.J.M. Gautam Budh Nagar by passing the impugned order dated 17.5.2007. The Said order of refusal is under challenge in this application.

Heard learned Counsel for the applicant and the learned AGA.

C.J.M. Gautam Budh Nagar was approached at a pre cognizance Kftage under chapter XII Cr.P.C. seeking a direction to the police for registration of F.I.R. C.J.M., Gautam Budh Nager rejected the said prayer on the ground that it seems that the applicant was arrested in some other case was sent to jail. He also observed that the source of Rs. 50,000 which was alleged to have been taken away by the police personal is not known. He also observed that what abusive Bywords were'' hurled is also not mentioned in the application. He also mentioned that there was no medical report filed along with the application. By observing these facts, C.J.M. has rejected the prayer with the final observation that no cognizable offence is disclosed.

The aforesaid observations made by C.J.M. is pre-judging the issue without getting it verified or investigated. C.J.M., Gautam Budh Nagar was only to look into the application and decide the prayer. The application of the applicant disclosed commission of cognizable offence of wrongful confinement and looting of money Rs. 50,000/- by the malefactors police personnel. Discloser of source of Rs. 50,000./- If by the applicant in the application u/s 150(3) Cr.P.C. was not at all warranted nor on the said basis, the offence of loot could have been refused to be got registered. The abusive words was also not required to be mentioned in the application u/s 150(3) Cr.P.C. Further the allegation was that a single blow by a danda was given by the police personals to Rakesh Kumar. It is not essential that the injured should have got himself medically examined. The fact remains is that the application did disclose commission of cognizable offence and since the Apex Court has held in the case of State Haryana v. Bhajan Lal 1992 SCC 426 that. If the cognizable offence is disclosed, the police must registered the FIR as it is its statutory duty the C.J.M. is directed the police to follow mandate of law. In the present case, the statutory duty was not Observed by the police and, therefore, the Magistrate was duty bound to direct the police to follow the mandate of law as has been held by the Apex Court. By not doing so the Chief Judicial Magistrate not only committed the manifest error of law but he did most glaring injustice to the applicant by pre-judging the allegation of the applicant as false. His reasoning given by the Magistrate is wholly illegal unwarranted and against the material on record. It seems that because the police personals were involved in the case, therefore, the C.J.M. Gautam Budh Nagar was trying to shield them. This conduct from the C.J.M. was not expected.

I do not want to say much on the observation made by C.J.M., Gautam Budh Nagar. Since C.J.M., Cautam Budh Nagar was approached at a pre-cognizance stage, he was to look into the application of the applicant on the face of it and decide it in accordance with law within the purview of rights confer on him under aforesaid Section as has been spelt out by the Apex Court in the 30 of Central Bureau Of Investigation, Through S.P. Jaipur v. State of Rajasthan 2001 SCC 524. In this case it may be reminded that the matter has been exhaustively dealt with by this Bench in Criminal Misc. Application No. 6152 of 2006 Smt. Masuman v. State of U.P. and Ors. 2007 (1) APLJ 221 which judgment was even circulated. Inspite of the law laid down by the Apex Court and various judgments which have been referred in the aforesaid judgment Smt. Masuman (Supra) C.J.M., Gautam Budh Nagar has refused to get the FIR by the applicant registered which disclosed commission of cognizable offence of wrongful confinement and of loot of Rs. 50,000/- of the applicant by the police.

In such a view this Criminal Misc. Application is allowed. The impugned order dated 17.5.2007 passed by C.J.M. Gautam Budh Nagar on the Misc. Application No. 69 of 2007 Rakesh Kumar v. S.I. Anil Kumar and Ors. u/s 156(3) Cr.P.C. is set aside C.J.M. Gautam Budh Nagar is directed to pass a legal order on the application of the applicant keeping in view, the observation made above within two weeks from the date of production of certified copy of this order before him.

With the aforesaid observation, this application is allowed at the admission stage itself.