On Friday, the Allahabad High Court has held that application of judicial mind while deciding an application under Section 156(3) Cr.P.C. is must.
As per the Petition on 05.05.2020 at about 8.30 a.m. the accused opposite party nos. 2 to 4 forcibly entered in the house of the applicant armed with lathi and danda, abused and misbehaved the applicant and her mother. The applicant’s report was not being registered, therefore, the application under Section 156(3) Cr.P.C. was filed.
The Chief Judicial Magistrate by means of an order dated 17.07.2020 registered the case as a complaint case.
Feeling aggrieved, the complainant moved to Allahabad High Court under Section 482 CrPC seeking quashing of the order of CJM.
Counsel for the applicant submits that the application under Section 156(3) Cr.P.C. discloses commission of cognizable offence and as such the Magistrate must have directed the registration of the first information report and investigation by police, instead of treating the application as a complaint case. He further submits that the order under challenge has been passed mechanically and in a routine manner, which does not manifest the application of judicious mind to the facts of the case and law applicable therein.
AGA submitted that the Magistrate has the jurisdiction to direct the police to register the F.I.R. and make investigation without taking cognizance. But, he has also the jurisdiction to take cognizance and proceed to inquire the matter by himself, registering the application as a complaint case. In such circumstance he has to follow the procedure prescribed for complaint case. He has submitted that the Magistrate while proceeding as a complaint case has still the power to direct for police investigation, in view of Section 202(1) Cr.P.C. If the Magistrate in his discretion has adopted the option of registering the application as a complaint case, no illegality has been committed by the Magistrate.
Consideration by Court
Hon’ble Justice R N Tilhari referred to various Judgments of Supreme Court, where in it has been laid down that the Magistrate empowered under section 190 Cr.P.C. may order an investigation by police under section 156 (3) but he need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance he has to follow the procedure envisaged in Chapter XV of the code.
The Court observed that:
The magistrate should apply judicial mind while exercising his powers under Section 156 (3) Cr.P.C. He could not act in a mechanical or casual manner and go on with the complaint after getting the report. The course adopted by the Magistrate i.e. direction to the police for registration of FIR and making investigation or to treat the application as a complaint case, must be supported by reasons. The order must also reflect that the Magistrate on relevant considerations has adopted one of these two modes open to him.Mere mention in the order that he has gone through the complaint and the police investigation is not required or otherwise, would not be sufficient compliance of application of judicial mind while deciding application under Section 156(3) Cr.P.C.
Further reference was made to the recent Judgment of the Allahabad High Court in the case of Lalaram Vs. State of U.P. and 13 others’ passed in Criminal Revision No.1611 of 2020, decided on 18.12.2020, where in Court has summarized the well settled proposition of law on the scope of Section 156(3) Cr.P.C., the power and jurisdiction of the Magistrate while deciding such an application.
From the perusal of the order impugned the Court found that the Magistrate has not applied judicious mind to the facts of the case and in particular paragraph no.3 of the application, which not only made out commission of a cognizable offence but an offence of molestation and sexual assault on the mother of the applicant. The application clearly stated that the accused persons are related to influential persons and as such neither the FIR was being lodged nor the medical of the applicant’s mother was carried out. In such matters the medical examination of the victim is necessary. The medical report of the victim is of importance. Merely because the facts are in the knowledge of the applicant, direction to lodge FIR cannot be refused.
In view of the above the court allowed the Petition and quashed the order of Chief Judicial Magistrate direction to reconsider the application under 156(3) Cr.P.C
Title: Anmol SIngh vs State of U.P. and Others
Case No.: Application U/s 482 No. 13804 of 2020
Coram: Hon’ble Justice R N Tilhari
Date of Judgment: 07.01.2021