Neutral Citation No.

- 2016:AHC:143965

Court No. - 22

Case :- APPLICATION U/S 482 No. - 28463 of 2016

Applicant :- Reeta Devi

Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ajeet Kumar Srivastava
Counsel for Opposite Party :- G.A.

Hon'ble Amar Singh Chauhan,J.

Heard learned counsel for the applicant, learned AGA and
perused the record.
No notice is issued to the private opposite parties no. 2 to 4
in view of the order proposed to be passed today.
However, liberty is reserved for private opposite parties to
apply for variation or modification of this order, if they
feel so aggrieved.
The applicant, Reeta Devi, through this application under
Section 482 Cr.P.C., has invoked the inherent jurisdiction
of the court with a prayer to quash the order dated
23.7.2016 passed by the Additional Sessions Judge, Court
No. 4, Jaunpur in Criminal Misc. Case No. 3/2016 (Reeta
Vs. Neeraj) under Sections 376D, 504, 323, 506 IPC and
3(2) (V) SC/ST Act, P.S. Khetasari District Jaunpur and
direct the Additional Sessions Judge, Court NO. 4 to pass a
fresh order for lodging the first information report in the
aforesaid case instead of registering the complaint case.
It is submitted by the learned counsel for the applicant that
the applicant moved an application under Section 156(3)
for lodging the first information report before the
Additional Sessions Judge, Court No. 4 with the allegation
that on 28.6.2016 at the night of 10 PM when she was
going for attending natural call, gang rape was committed
by the accused persons. This application was registered as
complaint case. The allegation levelled against the
opposite party nos. 2 to 5 and one another unknown person
are under cognizable offence which should be investigated
by the police. The lower court is failed to apply his judicial
mind and by not lodging the FIR is the clear violation of
the law. He has relied upon a judgment of this Court in the
case of Jagannath Verma & Ors. Vs. State of U.P. &
Anr. (Full Bench) [2014 (3) JIC 930] in which the court
has interpreted the legislative intention regarding treatment
of the complaint made to the investigating officer. In
Lalita Kumari's case the Hon'ble Apex Court clearly laid
down the law that if a person approaches the police station
give the complaint with disclosing prima-facie case, the
only option led before the police is to be lodged FIR.
Per contra, learned AGA contends that in support of the
application moved under Section 156 (3) Cr.P.C. the
applicant neither enclose any evidence nor any affidavit.
Therefore, it is only option to the Magistrate to treat the
application as complaint case.
In the case in hand, only question of law raised is that
whether in a complaint where offences are triable by court
of Session, the learned Magistrate has to make enquiry
himself or can exercise its power under Section 156(3)
Cr.P.C. and direct police officer to register a case and
investigate into the allegation. In order to appreciate the
contention of the learned counsel for the applicant, it is
necessary to refer to Section 202 Cr.P.C. which is quoted
below:
"202. Postponement of issue of process.-(1) Any
Magistrate, on receipt of a complaint of an offence of
which he is authorized to take cognizance or which has
been made over to him under Section 192, may, if he
thinks fit, [and shall, in a case where the accused is
residing at a place beyond the area in which he exercises
his jurisdiction] postpone the issue of process against the
accused, and either inquire into the case himself or direct
an investigation to be made by a police officer or by such
other person as he thinks fit, for the purpose of deciding
whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be
made--
(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of
Sessions; or
(b) where the complaint has not been made by a Court,
unless the complainant and the witnesses present (if any)
have been examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate
may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the
offence complained of is triable exclusively by the Court of
Session, he shall call upon the complainant to produce all
his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a
person not being a police officer, he shall have for that
investigation all the powers conferred by this Code on an
officer in charge of a police station except the power to
arrest without warrant.
From the Section itself, it is very clear that on receipt of
the complaint of an offence, any Magistrate authorized to
take cognizance, may, postpone the issue of process
against the accused and either inquire into the case himself
or direct an investigation to be made by a police officer.
Proviso to such Section further make it clear that when the
offence complained of is triable exclusively by court of
Session, he shall call upon the complainant to produce all
his witness and examine them on oath. This section is very
clear to the effect that on the receipt of complaint when the
Magistrate is satisfied that offence is triable exclusively by
court of Session, he shall call upon to produce all his
witnesses and examine them on oath and therefore, the
Magistrate on receipt of such complaint has to make
enquiry himself and cannot direct investigation to be made
by a police officer. It is only, if the Magistrate decides to
hold the enquiry, the proviso to sub section (2) of Section
202 Cr.P.C. would come into operation. If the offence is
triable exclusively by court of Session, the Magistrate
himself has to hold enquiry and no direction for
investigation by police shall then be made. Enquiry can be
held for recording evidence on oath and if he thinks fit,
sub-section (2) of Section 202 Cr.P.C. gives discretion to
the Magistrate to record evidence of the witness on oath.
To this discretionary power, the proviso carves out an
exception. It provides that for the offence triable
exclusively by the court of Session, the Magistrate shall
call upon the complainant to produce all his witnesses and
examine them on oath.
So far as the present case is concerned, there is no dispute
that offence alleged are triable by court of Session and
therefore, the learned Magistrate has no jurisdiction to
direct investigation by the police officer in exercise of the
power under Section 156(3) Cr.P.C. and he has to make
enquiry himself. The same ratio was laid down in the case
of Laxmidar Das and others Vs. State of Orissa &
another [2004 Cr.L.J. 2816]. The Full Bench of this Court
in the case of Jagannath Verma and others Vs. State of
U.P. and others [2014 (3) JIC 930] in paragraph 29(2)
observed that "the magistrate may direct an investigation
to be made by a police officer or by such other person as
he thinks fit, for the purposes of deciding whether or not
there is sufficient ground for proceeding. However, the two
provisos to Section 202 stipulate that no direction for
investigation shall be made (i) where it appears that the
offence complained of is triable exclusively by the Court of
Session; or (ii) in a complaint which has not been made by
a court, unless the complainant and the witnesses present,
if any, have been examined on oath under Section 200. The
proviso to sub-section (2) stipulates that if it appears to
the magistrate that the offence complained of is triable
exclusively by the Court of Session, he shall call upon the
complainant to produce all the witnesses and examine
them on oath. Under Section 203, upon considering the
statements on oath, if any, of the complainant and of the
witnesses and the result of the enquiry or investigation, if
any, under Section 202, if the magistrate is of the opinion
that there is no sufficient ground for proceedings, he shall
dismiss the complaint recording brief reasons." It is further
held that once a magistrate has taken cognizance and has
adopted the procedure under Chapter XV, it is not open to
him then to go back to the precognizance stage and avail
of Section 156(3) Cr.P.C.
All other submissions made at the bar mainly relate to the
disputed questions of fact, which cannot be adjudicated
upon by this Court under Section 482 Cr.P.C. only in cases
where the court finds that there has been failure of justice
or misuse of judicial mechanism or procedure, sentence or
order was not correct, this power may be exercised to
prevent the abuse of process or miscarriage of justice.
In view of the above discussion, I find no illegality in the
impugned order.
Accordingly, the application stands dismissed being lack
of merit.
Order Date :- 22.9.2016
AK