Sumer Kumar Agarwal vs State of U.P.

N.K. Mehrotra, J.—This is a revision u/s 397/401 of the Code of Criminal Procedure against the order dated 18.12.1999 passed on Misc. Application u/s 156(3) of the Code of Criminal Procedure.

I have heard the learned Counsel for the revisionist and the learned Additional Government Advocate.

The case of the revisionist is that Vijay Agarwal was the Manager of the Firm being run by his mother Smt. Leelawati Agarwal and daughter Reema Agarwal. On the guarantee of the revisionist, an overdraft limit of Rs. 3,00,000 was sanctioned by Rajdhani Sahkari Bank Limited and this limit was subsequently raised upto Rs. 5,00,000. After the death of his mother and on marriage of his daughter, the revisionist inspected the business of the firm and he found that the Manager Vijay Agarwal along with his father Bhrigu Kumar Agarwal, who was assisting him in the business of the said firm, had misutilised the bank limit and also the stock of the firm was misappropriated inasmuch as there was no stock left in the firm which could be of value and when Vijay Agarwal and Bhrigu Kumar Agarwal declined to give the accounts, the revisionist lodged the F.I.R. with police station, Kaiserbagh, Lucknow on 22.10.1999. The police did not register the case. The revisionist then met the Senior Superintendent of Police, Lucknow and handed over his F.I.R. who directed for investigation to the police of police station, Kaiserbagh, Lucknow. When the police did not lodge the F.I.R. then, the revisionist filed an application under the provisions of Section 156(3) of the Code of Criminal Procedure. The accused filed an objection and after hearing both the parties, the learned Magistrate passed the impugned order by holding that the complainant had failed to give sufficient evidence to substantiate the allegations in the plaint and consequently rejected the application u/s 156(3) of the Code of Criminal Procedure.

After hearing the learned Counsel for the parties, I am of the opinion that the learned Magistrate was not required to assess the evidence at the time of disposal of the application u/s 156(3) of the Code of Criminal Procedure. If a prima facie case is made out to show that some offence has been committed by the accused, the learned Magistrate should have passed the order directing the police to investigate the crime. Even in the absence of direction to register the case, the police is bound to formally register the case and then investigate the same. The proper course for Magistrate is that if any prima facie case showing the commission of offence is made out, then a direction should be issued u/s 156(3) of the Code of Criminal Procedure to the police to register a case treating the application as an F.I.R. and then investigate the same. It has not been done in this case, although the complaint makes out a prima facie case. In Suresh Chand Jain v. State of M.P. and Anr. 2001 (1) ACR 586 (SC) : 2001 (2) SCC 81, it was held by the Supreme Court that:

Any Judicial Magistrate before taking cognizance of the offence, can order investigation u/s 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an F.I.R. There is nothing illegal in doing so. After all, registration of an F.I.R. involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by Officer-in-Charge of the police station indicated in Section 154 of the Code of Criminal Procedure. Even if a Magistrate does not say in so many words while directing investigation u/s 156(3) of the Code that an F.I.R. should be registered, it is the duty of the Officer-in-Charge of the police station to register the F.I.R. regarding the cognizable offence disclosed by the complainant....

In Gulab Chand Upadhyaya v. State of U.P. and Ors. 2002 (1) ACR 644 : 2002 (1) JIC 853 (All), it has been held that the Magistrate can direct the police to investigate the matter only when full details of accused is not known to complainant ; recovery of abducted person of stolen property is required ; and evidence is required to be collected and preserved. In this case it is a case of misappropriation and the question of recovery of stolen property is involved for which the evidence is to be collected during investigation. Therefore, I am of the opinion that the impugned order passed by the learned Magistrate is not correct. He should have directed the police to register the F.I.R. and investigate the crime.

In view of the above, the revision is allowed. The impugned order dated 18.12.1999 is set aside and the learned Magistrate is directed to dispose of the petition afresh in the light of the aforesaid legal proposition. At the time of passing of the order, the Magistrate can consider to pass an order that the police will not make arrest of the accused for the purpose of investigation without first obtaining warrant for the arrest from the Magistrate.