Prithvi Raj Singh Tomar Vs. Additional Chief Judicial Magistrate and ors.

Prithvi Raj Singh Tomar vs Additional Chief Judicial Magistrate and ors.

Disposition Application dismissed Court Allahabad Decided Jul 20, 1998

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Citation: sooperkanoon.com/489352
Court: Allahabad High Court
Judge: S.K. Phaujdar, J.
Decided On: Jul 20, 1998
Case Number: Criminal Misc. Application No. 2432 of 1998
Subject: Criminal
Disposition: Application dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land acquisition is not purely ministerial act to be performed by executive No...

Key legal issue: Criminal
Outcome / disposition: Application dismissed
Acts & sections: Indian Penal Code (IPC) - Sections 394; Code of Criminal Procedure (CrPC) , 1974 - Sections 154, 156, 156(1), 156(3), 173(2), 190, 190(1), 197(1), 197(2) and 197(3)

Parties & Advocates

Appellant / Petitioner

Prithvi Raj Singh Tomar

Advocate Suman Sirohi, Adv.

Respondent

Additional Chief Judicial Magistrate and ors.

Advocate G.A.

Legal References

Acts: Indian Penal Code (IPC) - Sections 394; Code of Criminal Procedure (CrPC) , 1974 - Sections 154, 156, 156(1), 156(3), 173(2), 190, 190(1), 197(1), 197(2) and 197(3)
Cases Referred: Ganesh Das v. State
Reported In: 1999CriLJ1358

Excerpt

.....of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - 7. both the objections having failed, there is no reason to interfere with the impugned order of the magistrate dated 12-6-1998 or to interfere with the proceeding started on the basis thereof......entered into the house of the complainant looted away his properties and had misbehaved with the woman folk in the house. it was urged by the learned counsel for the applicant that the applicant is a responsible and honest police officer and, in fact, there had been an fir in the concerned police station on 10-5-1998 for an offence under section 394, ipc and actions were taken in an investigation into the allegations made in that fir. it was argued that the court below could not have directed registration of an fir in exercise of its powers under section 156(3), cr.p.c. on this point reliance was placed on a division bench decision of the punjab and haryana high court in the case of ganesh das v. state as reported in 1996 cri lj 612.4. i have perused the reasonings given by the hon'ble judge to arrive at the aforesaid conclusion and with all humility i beg to differ from the opinion given by their lordships in the aforesaid case. section 156, cr.p.c. in sub-section (1) thereof, speaks of the power of officer-in-charge of a police station to investigate in a cognizable case. this power must be read along with the provisions of section 154, cr.p.c. which speaks of information relating to commission of a cognizable offence and of recording an fir. the power of the police officer springs from the fact of recording an fir and whether he proposes to make an investigation into a cognizable case there must be an fir before him as required under section 154, cr.p.c.5. section 156(3), cr.p.c. empowers a magistrate, competent under section 190, cr.p.c. to take cognizance, to order, 'such an investigation as above mentioned.' thus, the investigation which a magistrate is empowered to direct must be one as spoken of in the earlier sub-rule of section 156, cr.p.c. it must, therefore, be logically inferred that the power of investigation cannot be exercised without lodging an fir and, accordingly, it must be held that the magistrate's power to direct investigation includes.....

Full Judgment

ORDER

S.K. Phaujdar, J.

1. The matter was heard on 15-7-1998.

2. The petitioner has challenged an order dated 12-6-1998 recorded by the Addl. CJM, Meerut in Complaint Case No. 116 of 1998 and had prayed for quashing the order whereby the Magistrate had directed registration of an FIR and investigation.

3. The complaint/application was filed by one Pradeep Kumar against the present applicant making allegations against certain police officials including the present applicant to the effect that they had unlawfully entered into the house of the complainant looted away his properties and had misbehaved with the woman folk in the house. It was urged by the learned counsel for the applicant that the applicant is a responsible and honest police officer and, in fact, there had been an FIR in the concerned police station on 10-5-1998 for an offence under Section 394, IPC and actions were taken in an investigation into the allegations made in that FIR. It was argued that the Court below could not have directed registration of an FIR in exercise of its powers under Section 156(3), Cr.P.C. On this point reliance was placed on a Division Bench decision of the Punjab and Haryana High Court in the case of Ganesh Das v. State as reported in 1996 Cri LJ 612.

4. I have perused the reasonings given by the Hon'ble Judge to arrive at the aforesaid conclusion and with all humility I beg to differ from the opinion given by their Lordships in the aforesaid case. Section 156, Cr.P.C. in Sub-section (1) thereof, speaks of the power of officer-in-charge of a police station to investigate in a cognizable case. This power must be read along with the provisions of Section 154, Cr.P.C. which speaks of information relating to commission of a cognizable offence and of recording an FIR. The power of the police officer springs from the fact of recording an FIR and whether he proposes to make an investigation into a cognizable case there must be an FIR before him as required under Section 154, Cr.P.C.

5. Section 156(3), Cr.P.C. empowers a Magistrate, competent under Section 190, Cr.P.C. to take cognizance, to order, 'such an investigation as above mentioned.' Thus, the investigation which a Magistrate is empowered to direct must be one as spoken of in the earlier sub-rule of Section 156, Cr.P.C. It must, therefore, be logically inferred that the power of investigation cannot be exercised without lodging an FIR and, accordingly, it must be held that the Magistrate's power to direct investigation includes the power to direct registration of a case. The objection in this regard, as agitated by the appellant, must be overruled.

6. An objection has also been raised seeking protection under Section 197(1), Cr.P.C. It was stated that if anything was done in the course of investigation by a police officer, it must be deemed to have been done in the purported exercise/discharge of his official duties and no Court shall take cognizance of such an offence with previous sanction of the State Government if the officer is not removable from his office except by or with the sanction of the Government. The applicant is a sub-inspector of police and he is appointed/liable to be removed not by the State Government but by the Director General of Police and, as such, protection under Section 197(1), Cr.P.C. may not be available to this applicant. However, there are other provisions in Section 197(2) and (3), Cr.P.C. and under sub-section (2) a Court is not to take cognizance of any offence alleged to have been committed by any member of the armed forces of the Union of India while acting or purporting to act in the discharge of official duties except with the previous sanction of the Central Government. Sub-section (3) empowers the State Government to direct by notification that the provisions of Sub-section (2) shall apply to such class or category of the members of the forces charged with the maintenance of public order as may be specified therein and thereupon the provisions of that sub-section will apply as if for the expression Central Government the expression State Government were substituted. It is not disputed that a notification under Section 197(3), Cr.P.C. was issued by the State Government of U.P. for protection of the police force. The question of sanction, however, would come in only at the time of taking cognizance and not at an earlier stage. In giving a' direction under Section 156(3), Cr.P.C. the Court does not take cognizance of the offence. It merely records an administrative order directing registration of a case and its investigation. Cognizance would be taken if and when a report under Section 173(2), Cr.P.C. is submitted and the Court proposes to take action under Section 190(1), Cr.P.C.

7. Both the objections having failed, there is no reason to interfere with the impugned order of the Magistrate dated 12-6-1998 or to interfere with the proceeding started on the basis thereof. The present application stands dismissed.

Same Court & Year Allahabad · 1998 Same Parties Prithvi Raj Singh Tomar vs Additional Chief Judicial Magistra... Same Subject Criminal Same Judge S.K. Phaujdar, J. Acts & Sections Indian Penal Code (IPC) - Sections 394; Code of Criminal Proc...

Criminal