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Judgment
A.P. Lavande, J.—Heard learned Counsel for the parties and learned Public Prosecutor.
Rule, in both the revision applications. By consent heard forthwith.
On 31.03.2010, the Petitioner in Criminal Revision Application No. 22 of 2011 filed Criminal Misc. Application No. 38/2010 purportedly u/s 156(3) of Code of Criminal Procedure against the Superintendent of Police (North) and the Sub-Divisional Police Officer, Mapusa seeking direction to Respondent No. 1 to register a crime against Shri Krishna Subaji, ASI - Respondent No. 1 and Shri S.S. Narvenkar, PSI -Respondent No. 2 in Criminal Revision application No. 22 of 2011 u/s 218 of the Indian Penal Code. After recording the statement of the informant u/s 200 of Code of Criminal Procedure, the Magistrate passed an order dated 18.08.2010 u/s 156 of Code of Criminal Procedure directing the Respondent No. 1 to register FIR against Respondent Nos. 1 and 2 u/s 218 of Indian Penal Code. Pursuant to the said order dated 18.08.2010, FIR came to be registered at Pernem Police Station.
Respondent Nos. 1 and 2 filed Criminal Revision Application before the Sessions Court, North Goa, Panaji, which was made over to the Additional Sessions Judge, Panaji. The Additional Sessions Judge by judgment and order dated 30.10.2010 allowed the revision application and cancelled FIR registered against Respondent Nos. 1 and 2.
The judgment and order passed by the Additional Sessions Judge has been challenged by the Superintendent of Police ( North) and Anr. and the original accused. Perusal of record discloses that the application was filed u/s 156(3) of Code of Criminal Procedure against the Superintendent of Police, (North) as well as the Sub-Divisional Police Officer, Mapusa. No. averment has been made in the application that an attempt was made by the applicant to call upon the officer incharge of Pernem police station to register FIR u/s 154(1) of Code of Criminal Procedure. It is well settled that FIR has to be lodged with the officer incharge of police station in terms of Section 154(1) of Code of Criminal Procedure and in case he fails or refuses to register FIR, aggrieved party has to approach the concerned Superintendent of Police in terms of Section 154(3) of Code of Criminal Procedure. It is also well settled that in an application seeking direction to register FIR u/s 156(3) of Code of Criminal Procedure, a direction can only be sought against the officer incharge of police station to register FIR. Such a relief can never be sought against the Superintendent of Police or the Sub-Divisional Police Officer.
Perusal of the record further discloses that in the application purportedly filed u/s 156(3) of Code of Criminal Procedure, the Magistrate recorded the statement of the informant u/s 200 of Code of Criminal Procedure and thereafter chose to pass an order u/s 156(3) of Code of Criminal Procedure. It is patently contrary to the provisions of Code of Criminal Procedure. It is axiomatic that order u/s 156(3) of Code of Criminal Procedure can be made by the Magistrate only before taking cognizance and if a statement of the complainant is recorded u/s 200 of Code of Criminal Procedure, the Magistrate is not entitled to pass an order in terms of Section 156(3) of Code of Criminal Procedure but he can only proceed to direct inquiry or investigation if he deems fit in terms of Section 202 of Code of Criminal Procedure. Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, . Therefore, it is evident that the Magistrate also erred in recording the statement of the informant and, thereafter, proceeded to pass an order u/s 156(3) of Code of Criminal Procedure.
In view of the above legal and factual position, Shri Kerkar, learned Counsel for the Petitioner in Criminal Revision Application No. 22 of 2011 seeks leave to withdraw the application dated 31.03.2010.
In the peculiar circumstances of the case and considering that the application filed by the Petitioner was not maintainable and also that the Magistrate has not followed correct procedure, I deem it appropriate to grant leave to the Petitioner to withdraw the application dated 31.03.2010 purportedly filed u/s 156(3) of Code of Criminal Procedure with liberty to the Petitioner to avail of appropriate proceedings as may be available in law.
In view of the above, I pass the following:
ORDER
(i) The Petitioner in Criminal Revision Application No. 22 of 2011 is permitted to withdraw the application dated 31.03.2010 purportedly filed u/s 156(3) of Code of Criminal Procedure.
(ii) Consequently, order dated 18.8.2010 passed by JMFC, Pernem and judgment and order dated 30.10.2010 passed by the Additional Sessions Judge, Panaji in Criminal Revision Application No. 102/2010 stands quashed and set aside.
(iii) FIR filed against Respondent Nos. 1 and 2 also stands quashed and set aside.
Both the revision applications stand disposed of.
No order as to costs.