State vs Shri Sainath Shivram Jhalmi

C.L. Pangarkar, J.—This criminal revision is preferred by the State through the Public Prosecutor against the order passed by the Additional Sessions Judge-I, Panaji, who confirmed the order passed by the Magistrate u/s 156(3) of the Code of Criminal Procedure. The facts giving rise to this application, are as follows :

The respondent herein filed a criminal complaint u/s 30 of the Goa, Daman and Diu Ancient Monuments and Archaeological Sites and Remains Act 1978, Section 3 of the Prevention of Damage to Public Property Act and Section 3 of Defacement of Public Property Act as well as u/s 427 of I.P.C. The complainant is an active social worker and is committed to the preservation and protection of the heritage sites in the State of Goa. It is alleged that in the village Reis Magos, there is an old fort known as Reis Magos Fort. The fort is under the control of the respondent. The said fort is notified as a protected monument by the Goa Government. It is alleged further that in the year 1997, the Government of Goa had tried to convert the said fort into the hotel for which a writ petition was required to be filed in the High Court. The High Court passed an order under Public Interest Litigation and directed the protection of the ancient monument. Move to convert the said fort into hotel, was thus prevented. It is alleged by the complainant / respondent that the accused No.1 is demolishing and defacing the entire protected monument of Reis Magos Fort. They have been causing immense damage to the said fort. They have destroyed walls and have changed the layouts etc. It is further alleged that the accused No.3 had granted permission to the accused No.1 to carry out the work. The complainant alleged that since the damage is being caused to the protected monument, he was compelled to institute a complaint proceedings before the Magistrate. It is further alleged that many letters were issued to the concerned authority, but no heed has been paid.

The learned Magistrate, before whom the complaint case was filed, passed a detailed order u/s 156(3) of the Code of Criminal Procedure and forwarded the complaint to the police. The petitioner preferred revision before the Sessions Judge, who rejected it. It is this order, which is challenged by the State.

I have heard the learned Counsel for the applicant and the respondent.

The first contention that is raised is that this revision is not maintainable being a second revision. Shri Ferreira, the learned Public Prosecutor submits that the bar of second revision u/s 397 cannot apply to the State and applies to individual or a person as defined in the I.P.C. He submits that the word used in the Section is ''person'' and the State is not a person and, therefore, the bar does not apply to the State. In support of his contention, he relied on the decision of the Supreme Court in the case of Krishnan and another Vs. Krishnaveni and another, . The Supreme Court observes thus, as follows :

The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of Sessions so as to prevent unnecessary delay and multiplicity of proceedings. As seen, under sub-section (3) of Section 397, revisional jurisdiction can be invoked by "any person" but the Code has not defined the word "person". However, u/s 11 of the IPC, "person" includes any company or association or body of persons, whether incorporated or not. The word "person" would, therefore, include not only natural person but also juridical person in whatever form designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word "person" for the purpose of limiting its right to avail the revisional power of the High Court u/s 397(1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as it deems proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. Generally, private complaints u/s 202 of the Code are laid in respect of non-cognizable offences or when it is found that police has failed to perform its duty under Chapter XII of the Code or to report a mistake of fact. In view of the principle laid down in the maxim ex debito justitiae, i.e. in accordance with the requirements of justice, the prohibition u/s 397(3) on revisional power given to the High Court would not apply when the State seeks revision u/s 401. So the State is not prohibited to avail the revisional power of the High Court u/s 397(1) read with Section 401 of the Code.

It is, therefore, clear that the bar as such of Now comes the material question if the State has second revision, does not apply in the instant case.

Now comes the material question if the State has right to challenge the order passed by the Magistrate directing the complaint lodged before him to be sent to the police u/s 156(3) of the Code of Criminal Procedure. To my mind, two things need to be considered while answering the question. The first is whether the State, who is not actually party can challenge the order and secondly if the accused named in the complaint case or somebody on their behalf, could be heard by the Court before actually the offence is registered by the police. In other words, it could be said whether the accused have cause of action to challenge the order.

Following are the persons arraigned as accused in the complaint case :

(i) Mrs. Helen Hamyln

(ii)Mr. Gerard D''Cunha

(iii)Shri Manohar Laximan Dicholkar

(iv)The persons working in the Fort Reis Magos.

As far as the accused No.1 is concerned, she is not even a citizen of India at all and is an individual. The accused No. 2 is a private citizen, who seems to have undertaken contract of the work of alleged restoration. The accused No.4 are collectively workers on the site. While the accused No.3 Shri Manohar Dicholkar is the director of Archives and Archeology. The State is not even party to the complaint proceedings. The State, therefore, apparently has no right to come in revision before the Court for espousing the cause of accused Nos. 1,2 and 4. The accused No.3 is no doubt an officer of the Government. The accused No.3, who is the director of the Archives, is made accused in his individual name. He alone can, therefore, challenge the order of the Magistrate if at all he can. If at all any F.I.R. is registered upon the complaint, it would be against the accused No.3 alone, which could give rise to cause of action in his favour. There is serious predicament in the present case if such F.I.R. is registered by one of the arm of the government which enforces the law, against another government department. The question would be whether the government could stand by side of one of them alone. This would precisely be the dispute between the two government departments. The law enforcing agency and Archeology department both would be required to be represented before the Court by the Public Prosecutors although the interest of both the Public Prosecutors, will be conflicting. Therefore, the question is whether one Public Prosecutor can be adversary to other Public Prosecutor. Secondly, if at all police officer wants to register the offence and defend his action as well as the order passed by the Magistrate, who is going to do it ? The police officers will necessarily have to approach once again to the Public Prosecutor alone. It must be borne in mind that it is the prerogative of the police to register the offence. Can one Public Prosecutor say that the order of the Magistrate is correct and other say it is not. Therefore, it was in fact none of the business of the State to have come in revision at all. It is only Shri M. L. Dicholkar, who could have himself challenged the order. If he is held guilty in the present complaint, it would be he alone, who would be convicted and not the State. If any cognizance is taken and offence registered, it would be against him alone and not against the State. The defence i.e. available u/s 197 of Criminal Procedure Code is available to government servant alone. It is, therefore, the accused/ government servant named in the complaint, who has a right to challenge any order passed by the Magistrate and not the State. It was urged that the government feels that the government servant named in the complaint, should not and cannot be prosecuted and therefore, it could come in revision. The submission cannot be accepted. The government does have a right to decide if a government servant should or should not be prosecuted, but it could do so only when the matter comes up before it while granting sanction u/s 197 of Criminal Procedure Code. It may in such cases or certain cases, not grant sanction, but it has no right to stifle the registration of F.I.R. What is prohibited is taking of cognizance of offence by the Magistrate or the Court. The Magistrate has not yet taken cognizance of any offence. I may give illustrations as to why this cannot be done. In a case, under prevention of corruption Act where a complaint is lodged by an individual, the government is the real prosecutor. The government officer has to defend the case in his individual capacity even though he is a government servant. The interest of the government and the accused in such case, can be said to be adverse. Even in cases under prevention of corruption Act, what the government does, is to grant sanction to prosecute. Similarly, it has right even in those cases, not to grant sanction to prosecute. Similar would be the case in the case at hand. Therefore, when the government so feels, it may or may not grant sanction to prosecute. It has no right to say that no prima facie offence is made out in the F.I.R. and that no offence could be registered. Such a defence or plea could be taken by the person named as accused in the complaint. The challenge of the order at the instance of the Public Prosecutor by the State, is not at all contemplated.

The next ground that has to be considered, is whether any party other than the complainant can be heard before passing any order on complaint. The Magistrate has two options open when he receives a complaint in writing. He can either forward the complaint u/s 156(3) or could himself take the cognizance u/s 200. Once he decides to take cognizance himself u/s 200, he has to proceed u/s 202 to either make an enquiry himself and issue process or call report u/s 202 by postponing the issue of process. As far as Section 156(3) is concerned, such order is passed by the Magistrate before taking of the cognizance i.e. even before recording of verification statement.

In the instant case, the detailed order u/s 156(3) has been passed by the Magistrate while forwarding the complaint to police. This order is challenged by the State. By this order, the Magistrate has not passed any order which could be said to affect either the accused or the State. The right in them, may arise only when such a complaint is registered as F.I.R. They would get a right to quash the F.I.R. u/s 482 of Criminal Procedure Code, but until the offence is actually registered, the accused has no right to be heard at all. Order u/s 156(3) stands on better footing than order u/s 202. In a decision reported in AIR 1980 SCC 138, the Supreme Court has held that the accused has no right to be heard before the process is issued. If the accused cannot be heard before the issue of process, there is no reason to hear the accused or any person other than the complainant before the offence is actually registered. To my mind, neither the accused nor the State could be heard before the offence is actually registered by the police.

It was contended on behalf of the complainant / respondent that the order has already been passed by the Magistrate and the complaint is sent to the police. He submits that the police officers are now left with no alternative but to register the F.I.R. A Full Bench of this Court has held as follows in the case of Sandeep Rammilan Shukla and Ors. Versus State of Maharashtra and Ors. Reported in 2008(2) Bombay Cases Reporter (Cri.) 799 :

Having deliberated at some length on various aspects of the legal controversies raised in the present reference, in our considered view the following principles can be culled out as correct exposition of law :

(a) The expression "shall" appearing in section 154 of the Code of Criminal Procedure is mandatory. The section places an ''absolute duty'' on the part of the ''officer in charge of a Police Station'' to record information and place substance thereof in the prescribed book, where the information supplied or brought to his notice shows commission of a cognizable offence.

(b) As the law does not specifically prohibit conducting of a limited preliminary inquiry, pre-registration of FIR in exceptional and rare cases by the officer in charge of a Police Station, he may penultimately thus enter upon a preliminary inquiry in relation to information supplied of commission of a cognizable offence but only and only upon making due entry in the Daily Diary/Station Diary/Roznamachar instantaneously with reasons as well as the need for adopting such a course of action. Such inquiry should be completed expeditiously and in any case not later than two days. Thereafter, the FIR should be recorded in the prescribed register and/or the officer should take any other recourse permissible to him strictly in accordance with the provisions of the Code of Criminal Procedure under which he is empowered to investigate. Such cases can be illustrated by giving an example i.e. when the information received in regard to commission of a cognizable offence would patently cause absurd results or report of happening of events, authenticity of which ex facie is extremely doubtful.

(c) The law inescapably requires the Police Officer to register the information (FIR) received by him in relation to commission of a cognizable offence. Under the Scheme of the Code, no choice is vested in the Police Officer between recording or not recording the information received. The concerned officer would aptly take recourse to Clause (a) as a normal rule while could adopt the course of action as stated in Clause (b) above as an exceptional and rare case.

Thus, once the complaint is sent to the police officer, he has to register the offence, of course he may have right to make preliminary enquiries. In view of the fact that the complaint has already been sent to the Magistrate, there is no question of the order being reversed. I, therefore, do not find any substance in the present revision. It is dismissed.