Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Magistrate Having No Jurisdiction To Take Cognizance Of The Offence Can Not Pass The Order For Investigation Under Section 156(3) Cr.P.C.
JUDGEMENT TITLE : Rajjan Prasad Vs. State Of U.P. And Others On 21/11/2008 By Allahabad High Court
CASE NO : CRIMINAL REVISION NO. 507 OF 2005
CORAM : Hon'ble Vijay Kumar Verma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
RESERVED


Criminal Revision No. 507 Of 2005


Rajjan Prasad................. Revisionist

Versus

State Of U.P. And Others....... Opposite Parties




Hon'ble Vijay Kumar Verma, J.

"Whether The Magistrate, Who Has No Jurisdiction To Take Cognizance Of The Offence, Can Pass The Order For Investigation Under Section 156(3) Of The Code Of Criminal Procedure (in Short, The Cr.P.C.')?" Is The Main Question That Falls For Consideration In This Revision, Which Has Been Preferred Against The Judgement And Order Dated 21.12.2004 Passed By Addl. Sessions Judge, Fast Track Court No. 2, Hamirpur In Criminal Revision No. 75 Of 2004 (Namo Narayan Tiwari Vs.State Of U.P. And Another).
2. By The Impugned Judgement, The Lower Revisional Court Has Set-aside The Order Dated 07.06.2004 Passed By The Addl. Chief Judicial Magistrate, Hamirpur, Whereby The Application Moved By The Revisionist Under Section 156(3) Cr.P.C. Was Allowed And S.O. P.S. Sumerpur Was Directed To Investigate The Case After Registration Of The F.I.R.
3.Shorn Of Unnecessary Details, The Facts Emerging From The Record Leading To The Filing Of This Revision, In Brief, Are That The Revisionist Rajjan Prasad Had Moved An Application Under Section 156(3) Cr.P.C. In The Court Of Addl. Chief Judicial Magistrate, Hamirpur Impleading Constable Namo Narayan Tiwari And Home Guard Daljit (opposite Party No. 2 And 3 Herein) As Accused. It Was Prayed In That Application That S.O. P.S. Sumerpur Be Directed To Register The FIR And Investigate The Case. That Application Was Allowed By The Addl. Chief Judicial Magistrate, Hamirpur Vide His Order Dated 07.06.2004, Whereby S.O. P.S. Sumerpur Was Directed To Register The FIR And Investigate The Case. That Order Was Challenged By The Prospective Accused Constable Namo Narayan Tiwari And Home Guard Daljit By Means Of Criminal Revision No. 75 Of 2004. The Learned Lower Revisional Court Vide Impugned Judgement Dated 21.12.2004 Allowed The Revision And Set-aside The Order Dated 07.06.2004 Passed By The Addl. Chief Judicial Magistrate Hamirpur On The Ground That The Magistrate Had No Jurisdiction To Pass The Order For Investigation And Registration Of F.I.R. In Present Case, As The Allegations Contained In The Application Moved By The Applicant Rajjan Prasad Under Section 156(3) Cr.P.C., Prima Facie Discloses The Commission Of Scheduled Offence Under U.P. Dacoity Affected Areas And Hence The Special Court Constituted Under That Act Could Only Pass The Order On That Application. Hence, This Revision.
4.I Have Heard Arguments Of Sri Vijay Bahadur Shivhare, Learned Counsel For The Revisionist And Learned AGA For The State.
5.Since The Prospective Accused (Constable Namo Narayan Tiwari And Home Guard Daljit In The Present Case) Have No Right To Challenge The Order Of Registration Of FIR And Its Investigation, Hence Notices Of This Revision Have Not Been Issued To Them. Reference In This Regard May Be Made To The Cases Of Prof. Ram Naresh Chaudhary And Another Vs. State Of U.P. And Another 2008(60) ACC 476 And Gulam Mustafa @ Johhar Vs. State Of U.P. And Others 2008 (61) ACC 922.
6.It Was Contended By The Learned Counsel For The Revisionist That Order Under Section 156(3) Cr.P.C. Can Be Passed Only By The Magistrate And Special Judge Under U.P. Dacoity Affected Area Act Has No Jurisdiction To Pass The Order On The Application Under Section 156(3) Cr.P.C. And Hence, The Impugned Judgement Being Illegal Should Be Set-aside, So That Investigation Of The Case May Be Made After Registration Of The FIR On The Basis Of The Application Moved By The Revisionist Under Section 156(3) Cr.P.C.
7.The Learned AGA On The Other Hand Submitted That The Allegations Made In The Application Moved By The Revisionist Under Section 156(3) Cr.P.C., Prima Facie Discloses The Commission Of Scheduled Offence Under U.P. Dacoity Affected Areas Act (hereafter To Be Referred As "the Act") And Since District Hamirpur Is Covered By That Act, Hence The Order On That Application Could Be Made Only By The Special Court Constituted Under That Act. The Contention Of Learned AGA Was That Only That Magistrate Or Court Can Pass The Order Under Section 156(3) Cr.P.C., Which Has Jurisdiction To Take Cognizance Of The Offence Under Section 190 Cr.P.C. And Since By Virtue Of Section 7 Of U.P. Dacoity Affected Areas Act, Addl. Chief Judicial Magistrate, Hamirpur, Who Passed The Order On 07.06.2004 On The Application Moved By The Revisionist Under Section 156(3) Cr.P.C., Has No Jurisdiction To Take Cognizance Of Scheduled Offence, Hence The Learned Lower Revisional Court Did Not Commit Any Illegality In Setting Aside That Order.
8. Having Given My Thoughtful Consideration To The Rival Submissions Made By The Parties' Counsel, I Find Force In The Aforesaid Contention Of The Learned AGA. Before Proceeding Further, It Would Be Proper To Have A Look On The Allegations Made In The Application Under Section 156(3) Cr.P.C., Which Was Moved By The Revisionist In The Court Of Addl. Chief Judicial Magistrate, Hamirpur. Annexure 1 To The Accompanying Affidavit Is The Copy Of That Application. The Following Main Allegations Have Been Made In The Application:-
"निवेदन है कि प्रार्थी थोक उच्छा कस्बा व थाना सुमेरपुर जिला हमीरपुर का निवासी है व बैलाही बाजार के पास सड़क के किनारे लकड़ी की दुकान किये है।
दिनांक २८.०४.२००४ की रात्रि करीब ९.०० बजे थाना सुमेरपुर में तैनात सिपाही नमोनारायन तिवारी व उसके साथ होमगार्ड दलजीत जो ग्राम भौनिया थाना सुमेरपुर का रहने वाला है प्रार्थी की लकड़ी की दुकान पर आए। दोनो हाथ में डंडा लिए थे। कां० नमोनारायन तिवारी ने प्रार्थी से ६ गुटका व ४ तख्ते लकड़ी के मांगे तो प्रार्थी ने तख्ता की कीमत बताई तो कां० नमोनारायन तिवारी गाली गलौज करने लगा और दोनों लोग दो-दो तख्ते लेकर चलने लगे तो प्रार्थी ने मना किया, उस पर दोनो लोग प्रार्थी को बुरी बुरी गालियां देते हुए लात घुंसो व डंडों से मारने लगे और कहा कि साले पैसे दूंगा ही नहीं और जबरन प्रार्थी की जेब से तलाशी लेकर ५५ रूपया होमगार्ड दलजीत ने व दिन भर की बिक्री का रूपया जो गोलक में रखा मु० २२५० रूपया कां० नमोनारायन ने जबरजस्ती निकाल लिया और दोनों लोग बुरी बुरी गालियां देते हुए किसी संगीन अपराध में फंसाने की धमकी देते हुये तख्ते लेकर चले गये। उपरोक्त घटना को मुहल्ले में मौजूद भगवान सिंह व अमर सिंह व अन्य बहुत से लोगों ने देखा है। प्रार्थी के मारपीट से काफी चोटें आयी है। कां० नमोनारायन ने धमकी दिया कि यदि जिन्दा रहना है तो चुपचाप रहना। सुमेरपुर का थाना प्रभारी मुझे ही मानो। कोई कुछ नहीं सुनेगा।"
9.The Above Mentioned Allegations Made In The Application Under Section 156(3) Cr.P.C., Prima Facie Discloses The Commission Of A Scheduled Offence Under U.P. Dacoity Affected Areas Act. Scheduled Offence Has Been Defined In The Act Under Section 2(b) As Under:-
(b) "scheduled Offence" In Relation To A Dacoity Affected Area Means An Offence, Specified In The Schedule To This Act, Being An Offence Committed By A Scheduled Offender."
10. According To Section 2(c) Of The Act, 'scheduled Offender Means A Person Who Commits Or Has Committed Or Is Accused Of Committing Or Attempt To Commit Dacoity Or Robbery As Such Or Being So Connected With Scheduled Offence As To Form Part Of The Same Transaction, Whether Such Offence Has Occurred At The Same Time And Place Or At Different Times And Places.'
11.A Schedule Has Been Given At The End Of The Act. The Offences Punishable Under Section 392 And 394 Are Also Included In The Schedule Offences. Therefore, Keeping In View The Definition Of 'scheduled Offence' And 'scheduled Offender' And Having Regard To The Allegations Made In The Application Under Section 156(3) Cr.P.C., Which Have Been Mentioned Herein-above, Prima Facie Scheduled Offence Is Disclosed In The Present Case.
12. By Virtue Of U.P. Govt. Notification No. 8111-P/VIII-3-31 Dated November 5, 1981, The Districts Jhansi, Etawah, Hamirpur, Jalaun, Banda, Kanpur Dehat, Etah, Mainpuri, Farrukhabad, Agra, Badaun And Lalitpur Were Declared To Be Dacoited Affected Areas For The Purpose Of U.P. Ordnance No. 16 Of 1981. Special Court Was Constituted In These Districts In Exercise Of The Powers Under Sub-section (1) Of Section 5 Of U.P. Ordnance No. 16 Of 1981. Thereafter, U.P. Dacoity Affected Areas Act 1983 Was Enacted, Which Received The Assent Of The President Of India On 12.10.1983 And Published In U.P. Gazette Extraordinary Dated 13.10.1983. Section 7 Of The Act Reads Thus:-
"7. Procedure And Powers Of Special Courts.-(1) A Special Court May Take Cognizance Of Any Scheduled Offence.-

(a) Upon Receiving A Complaint Of Facts Which Constitute Such Offence;

(b) Upon A Police Report Of Such Facts;

(c) Upon Information Received From Any Person Other Than A Police Officer, Or Upon Its Own Knowledge That Such Offence Has Been Committed.

Provided That All Cases Triable By A Special Court Under This Act, Pending Before Any Court Immediately Before The Date Of Commencement Of This Act In A Dacoity Affected Area, Shall Stand Transferred To The Special Court Having Jurisdiction Over Such Cases And Shall Be Dealt With And Disposed Of In Accordance With The Provisions Of This Act."

13. Section 156(3) Cr.P.C. Reads Thus:-
"156. Police Officer's Power To Investigate Cognizable Case.- (1) Any Officer In Charge Of A Police Station May, Without The Order Of A Magistrate, Investigate Any Cognizable Case Which A Court Having Jurisdiction Over The Local Area Within The Limits Of Such Station Would Have Power To Inquire Into Or Try Under The Provisions Of Chapter XIII.
(2) No Proceeding Of A Police Officer In Any Such Case Shall At Any Stage Be Called In Question On The Ground That The Case Was One Which Such Officer Was Not Empowered Under This Section To Investigate.
(3) Any Magistrate Empowered Under Section 190 May Order Such An Investigation As Above-mentioned."


14. As Would Appear From Sub-section (3) Of Section 156 Cr.P.C., Only That Magistrate Can Pass The Order For Investigation, Who Is Empowered Under Section 190 Cr.P.C. To Take Cognizance Of The Offence. In View Of Section 7 Of The Act, Addl. Chief Judicial Magistrate Or Any Other Magistrate Has No Jurisdiction To Take Cognizance Of Any Scheduled Offence And Only The Special Court Constituted Under This Act Can Take Cognizance Of Any Scheduled Offence. Therefore, The Learned Lower Revisional Court Is Perfectly Right In Holding That The Addl. Chief Judicial Magistrate, Hamirpur Had No Jurisdiction To Pass The Order For Investigation On The Application Moved By The Applicant Rajjan Prasad Under Section 156(3) Cr.P.C.
15.This Court Has Held In The Case Of Mahendrapal Jha Vs. Ram Avtar Sharma And Others 2001 (42) ACC 125 That If The Magistrate Has No Jurisdiction To Take Cognizance Of The Offence, Then, Order For Investigation Under Section 156(3) Cr.P.C. Can Not Be Passed By Him And If He Has Passed Order Under Section 156(3) Cr.P.C., The Said Order Would Be Without Jurisdiction. Although The Matter Of Territorial Jurisdiction Was Involved In That Case, But On The Basis Of The Principles Of Law Laid Down Therein, It Can Very Well Be Said That Addl. Chief Judicial Magistrate, Hamirpur Could Not Pass Order For Registration Of The FIR And Its Investigation By The Police On The Application Moved By The Applicant Rajjan Prasad Under Section 156(3) Cr.P.C., As The Allegations Made Therein Prima Facie Discloses The Commission Of Scheduled Offence Under U.P. Dacoity Affected Areas Act And Hence, Only The Special Court, Hamirpur, Which Is Empowered To Take Cognizance Of The Scheduled Offence Under This Act By Virtue Of Section 7, Could Pass Order For Investigation Under Section 156(3) Cr.P.C. On That Application.
16.The Matter Of Passing The Order By The Special Judge Under The U.P. Dacoity Affected Areas Act On The Application Under Section 156(3) Cr.P.C. Was Considered By This Court In The Case Of Suresh Prakash Tiwari And Others Vs. State Of U.P. 1994 (suppl.) ACC 121, In Which Order For Investigation Under Section 156(3) Cr.P.C. Was Made By The Special Judge Under U.P. Dacoity Affected Areas Act. The Order For Investigation Passed By The Special Judge Was Upheld By This Court.
17. Therefore, In View Of The Foregoing Discussion, There Is No Scope To Make Any Interference In The Impugned Judgement Of Learned Lower Revisional Court, Because That Judgement Does Not Suffer From Any Legal Infirmity.
18. Consequently, The Revision Is Hereby Dismissed. The Revisionist, If So Advised, Can Move Fresh Application Under Section 156(3) Cr.P.C. In The Court Of Special Judge, Dacoity Affected Areas Act, Hamirpur.

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