Smt. Santosh Kumari Wife of Late Raja Ram Vs. State of U.P. - Court Judgment

Vinod Prasad, J.

1. Smt. Santosh Kumari, widow of Raja Ram, resident of Milavali, P.S. Kotwali Dehat, district Etah has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. with the prayer that the impugned order dated 21.9.2006 passed by Chief Judicial Magistrate, Etah, in Misc. Case No. 387 of 2006 be quashed. By the impugned order her prayer seeking order from the Chief Judicial Magistrate under Section 156(3) Cr.P.C. for registration of her FIR for offence of murder of her husband in a fake and false encounter by the police was refused by the Chief Judicial Magistrate, Etah and her said application was ordered to be registered as a complaint case was passed by the CJM concerned and complaint case No. 6130 of 2006 was registered treating the application under Section 156(3) as a complaint.

2. The factual matrix of the case are that the applicant filed an application under Section 156(3) Cr.P.C. before Chief Judicial Magistrate, Etah being Misc. Application No. 387 of 06 on 24.8.2006. Allegations which were levelled in the said application were that the sister of applicant namely Smt. Rajeshwari, wife of Badan Pal resident of village Pahloi was very sick. On 18.8.06 applicant Smt. Santosh Kumari along with her husband Raja Ram( Deceased), Jeth Shiv Prakash alias Pappu and Dewar Ashok was going to village Pahloi to look for her sister Rajeshwari. When they reached between village Pahloi and Taipur near brick klin of Surendra at 3 p.m. then the named alleged accused persons Station Officer Pawan Singh of PS Siddhpura, S.I. Sripal Thenua, S.I. Ajant Singh and constables Sarnam Singh, Rajendra Kumar, all of police station Siddhpura District Etah approached them in a jeep near the brick klin and after surrounding them forcibly abducted Raja Ram, husband of the applicant in their jeep and carried him to the police station Siddhpura. This incident was witnessed by Shiv Prakash alias Pappu and other persons accompaning the applicant. The witnesses tried to get Raja Ram freed from the clutches of the police but their endeavour failed. After the said abduction when the applicant accompanied by her Jeth and Dewar reached at the police station Siddhpura for knowing the where abouts of her husband, she was informed by the above police personnels that Raja Ram is to be interrogated for something and later on he will be released and she can take him back next day morning. The applicant on the said assurance came back to her house. Next day in the morning when the applicant went to bring her husband back from the police station Siddhpura, she was informed by the aforesaid police personnels that her husband Raja Ram was set free in the morning itself. When the husband of the applicant Raja Ram did not reach the house. then the applicant along with her family members searched for her husband but he was not traced out. On 20.8.06 she came to know that the police of police station Siddhpura on the aforesaid date 18.8.06 (the date on which Raja Ram was abducted) has shot dead a person near village Sunahara Gaon by showing a fake and false encounter. She was also shown the news paper in which the photograph of her husband was published. Applicant then came to know that her husband has been shot dead by showing false encounter by the police. On such information the applicant went to the police station Siddhpura On 23.8.06 and requested for action in the fake encounter case but nothing was done. She was threatened for her life by above police personnels who abused her fifthly and pushed her out. Since the husband of the applicant was murdered in a fake and false encounter by above named police personnels ; and because her FIR was not to be registered by the police of PS Siddhpura the applicant Smt. Santosh Kumari dispatched a written application to S.S.P. Etah through courier but nothing happened on her said application also.

3. The applicant therefore with the above allegations invoked the power of the Chief Judicial Magistrate, Etah, under Section 156(3) Cr.P.C. with the prayer that her FIR should be registered and the matter be investigated against erring police personnels vide her application dated 24.8.06.

4. On the aforesaid application of the applicant, Chief Judicial Magistrate called for report from the police vide order dated 25.8.06. The next date fixed in the case was 29.8.06. On the said date Chief Judicial Magistrate, Etah summoned the record from the concerned S.O. and Circle Officer. The next date fixed was 6.9.06, on which date Chief Judicial Magistrate ordered for information as to whether any offence was registered at police station or not? He on the aforesaid date he also ordered that in respect of other aspects 'of' the matter no information is required which information he had sought earlier. On the next date 12.9.06 Chief Judicial Magistrate Etah was informed by the Circle Officer that some Magisterial enquiry was being conducted by S.D.M. Patiali therefore Chief Judicial magistrate called for an information from S.D.M. Patiali and he fixed 19.9.07.There is no order sheet of the date 19.9.06. However order sheet dated 20.9.06 shows that Chief Judicial Magistrate Etah observed that from the report of S.D.M. Patiali, it transpires that no Magisterial enquiry is being conducted by him. After the said report of S.D.M. Patiali, Chief Judicial Magistrate summoned a report from the 'District Magistrate Etah in respect of death of Raja Raj as to whether any Magisterial enquiry was pending or not and he fixed 21.9.06 for disposal of the application of the applicant under Section 156(3) Cr.P.C.

5. On the said date 21.9.06, Chief Judicial Magistrate Etah passed a detailed order and in the aforesaid order he observed that he had called for report from the concerned police station who had informed him that husband of the applicant had died in cross firing on the spot on 18.8.06, regarding which entry was also made at Rapat No. 45 at 7.05 P.M. He also mentioned that it was reported by the police that S.H.O., Ajant Singh constable Ram Prasad Ghoomari were going on picket duty and when at 7.40 hours they reached at Village Sunahara, then from dense bushes, some people came out and fired at the police personnels, as a result of which constable Rajendra Kumar sustained injury on his head. It was also mentioned in the order that by the Chief Judicial Magistrate that in the said incident, husband of the applicant died in right of private defence regarding which crime No. 138/06 under Section 393/307 I.P.C. and crime No. 139/06 under Section 25 Arms Act was registered at the police station. By observing thus the Chief Judicial Magistrate rejected the prayer of the applicant to direct the police to register the FIR and instead treated her application as a complaint case and registered her application under Section 156(3) Cr.P.C. as a complaint. Chief Judicial Magistrate had also observed that the applicant is in the knowledge of the facts and nothing is to be recovered and nobody is to be arrested and there is nothing for the police to collect during investigation. Chief Judicial magistrate also made reference of judgement of this Court recorded in Gulab Chandra Uypadhyay v. State of U.P. and Ors. 2002(1) J.I. C. 853, Ram Babu Gupta v. State of U.P. 2001(43) ACC 50 and Joseph Madhuri alias Vishwaswarenanda v. Swami Sachhidanand Harisakshi 2001(3) Crimes, 384. He took cognizance of the offence under Section 190 Cr.P.C. after converting application under Section 156(3) Cr.P.C. into a complaint and directed the applicant to lead evidence under Section 200 Cr.P.C. and fixed 3.10.06 for recording statement under Section 200 Cr.P.C. It is this order which is under challenge in this application.

6. I have heard learned Counsel for the applicant in support of this application and learned A.G.A. in opposition.

7. A perusal of the application of applicant makes out a case of false and fake encounter and murdering of Raja Ram, the husband of the applicant Smt. Santosh Kumari by the police personals after abducting him in a police jeep from near the brick klin of Surendra. Smt. Santosh Kumari was not at all in the knowledge of facts as to how her husband was murdered by the police personals. She only knew that her husband was abducted by the police personnels on 18.8.06 when she was going along with him to see her ailing sister. But for this fact, no other fact was in the knowledge of Smt. Santosh Kumari. Therefore the observation made by the Chief Judicial Magistrate Etah that Smt. Santosh Kumari was in the knowledge of all the facts is not only against the averments made but is also contrary to the factual matrix of the application.

8. Further, cognizable offence under Section 302 IPC was disclosed by the applicant in her application under Section 156(3) Cr.P.C. The law laid down by the Apex Court is that once a cognizable offence is disclosed it is the statutory duty of the police to register the F.I.R. as investigated the offence. It has been held by the Apex Court in the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. 1992 SCC(Cr.) 426 as follows:

30. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a 'cognizable offence'(as defined under Section 2(c) of the code)if given orally (in which case it is to be reduced into writing )or in writing to 'an offer in charge of a police station ' (within the meaning of Section 2(o) of the code) and signed by the informant should be entered in book to be kept by such officer in such form as the state government may prescribe which form is commonly called as 'First Information report' and which act of entering the information in the said form is known as registration of a crime or a case.

31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the code, the concerned police officer can not embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the code to investigate, subject to the proviso to Section 157....In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the superintendent of police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by Sub-section (3) of Section 154 of the Code.

33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information

(Under line Emphasis Supplied).

9. It has been held by the Apex Court in the case of Suresh Chand Jain v. State of Madhya Pradesh : 2001CriLJ954 (Supra) as follows:

But the significant point to be noticed is when a Magistrate orders investigation under chapter XII he does so before he takes cognizance.

(Emphasis Supplied)

10. Explaning the nature of order under Section 156(3) Cr.P.C. the Apex Court in the case of Devarapalli Lakshminaravana Reddy and Ors. v. V. Narayana Reddy and Ors. 1976 ACC 230 has held as follows:

Peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1).

(Emphasis mine)

11. It has been held by the Apex Court in the case of Madhu Bala v. Suresh Kumar and Ors. (1997) 8 Supreme Court cases 476 that the police is duty bound to register a case of cognizable offence and investigate the same. It has been held in the aforesaid judgement as follows:

Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable ,'case' and the Rules framed under the Indian Police Act. 1861 it (the police)is duty bound to formally register a case and then investigate into the same

(Emphasis Supplied)

12. It has further been held by the Apex Court in the: case of Superintendent of police, C.B.I. and Ors. v. Tapan Kumar Singh 2003(2) JIC 126(para 20) that whether the report is true or not or whether the evidence is sufficient or not all are matters alien to the consideration of question whether the report discloses commission of cognizable offence. It has been held by the apex court as follows:

The true test is whether the information furnished provides a reasons to Suspect the commission of an offence which the concerned police officer is empowered under Section 156 of the code to investigate. If it does he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses commission of a cognizable offence. Even if the information does not five full details regarding these matters, the investigating officer is not absolve his duty to investigate the case and discover the true facts, if her can,

13. The scope of Section 156(3) Cr.P.C. and the power of the Magistrate under the aforesaid section has been dealt with exhaustively in the case of Masuman v. State of U.P. and Anr. 2007 ALJ (1) 221. by this Court, After going through the various decisions of the apex court as well as of Jus court including the decision in Gulab Chand Upadhyaya (Supra) and Ram Ram Gupta (Supra) and after examining the law laid down by apex court a. well by this Court it was held in the decision that once a cognizable offence is disclosed the Magistrate is bound to direct the FIR to be registered and the after be investigated. The said judgement was even got circulated as it come to light that in for offences of murder, rape decoity, gang rape, loot, arson attempt to murder the Magistrates were refusing the prayer to get the FIR registered and in some cases where such order of registration of FIR were passed the same was stayed by the revisional courts. If the purpose of Section 156(3) is not to get the FIR these types of offences registered and investigated then what will be scope of this subsection 156(3) Cr.P.C. can not be comprehended. If the offences against human body, offences of decoity grabbing of property are not fit to be ordered for registration of FIR and investigated then what offences the Magistrates will order for registered as FIR and investigated is unthinkable. Such types of orders as the present one shows a culprit prone judicial order and are the most flagrant examples of miscarriage of justice. It has been held in the aforesaid judgement Masaman (Supra) as follows:

It is the responsibility of the Magistrate of direct the police to followable the mandate of law and it will be travesty of justice that the Magistrate instead of directing the police to follow the statutory mandate of law gives it a long rope to act arbitrarily at it's whims. Thus when ever the Magistrate is approached by an aggrieved person with the prayer that the police has refused to register his. of cognizable offence the Magistrate is required to look into his such prayer only to determine as to whether any cognizable offence is disclosed thereby or not and if it does, then he has no option but to direct the police to register the FIR and investigate the offence.

14. From the above discussion it is conspicuously clear that the power of Magistrate under Section 156(3) Cr.P.C. does not travel beyond the scope of directing investigation to the police if cognizable offeree is disclosed. This mandate of law as has been spelt but by the Supreme court has been flouted by the Chief Judicial Magistrate, Etah while passing the impugned order.

15. More over Chief Judicial Magistrate, Etah had no power under the aforesaid section to convert an application under Section 156(3) Cr.P.C. into a complaint against the, wishes of victim. Filing: of complaint is right which is vested in the victim or aggrieved person. The Magistrate has got no right to file a complaint. He has also got no right to start litigation on the basis of an application seeking direction from him to get the FIR of cognizable offence registered. If no complaint is filed before him no cognizance of the offence can be taken by the Magistrate under Section 190(1)(a) Cr.P.C. An application with the prayer to get the FIR of cognizable offences registered and offences investigated is certainly not a complaint as is defined under Section 2(d) Cr.P.C. The applicant never wanted the Magistrate to take action self but he wanted the Magistrate to take action of other kind and exercise administrative power under chapter XII Cr.P.C. and direct the police to register the FIR and investigate the offence. In the present case, aggrieved person has not filed the complaint before the Magistrate, for which different procedure is laid down under Chapter XIV of Cr.P.C. Under Section 90(1)(a) Cr.P.C., if complaint is filed, then the Magistrate can take cognizance. In the said section it is not provided that the Magistrate can convert suo motu an application for registration of FIR under Section 156(3) Cr.P.C. as a complaint when no such payer is made by the aggrieved person informing his application as a complaint. More over the procedure of the complaint case as is mentioned in the Code of Criminal Procedure is such that the prosecution of the complaint case is the responsibility of the complainant It is his duty to bring the witnesses, and to lead evidence and bringing all the materials before the court. The statutory procedure prescribed for the complaint case is such that if the complainant is not present, then the complaint filed by him can even be dismissed in default and if the accused appeared then he be either discharged or acquitted as the case may be Thus it is responsibility of complainant to prosecute the complaint and the court cannot compel him to launch such a prosecution. Under the Cr.P.C. courts cannot compel any person to start the litigation. If the aggrieved person does not want to start litigation, the court cannot say that he must litigate.

16. Further it is to be noted that it is the choice of the victim or aggrieved person to prosecute the accused persons before the court in the forum which he desires best. The court cannot say that it will not prosecute the offender of cognizable offence in particular forum and the victim must adhere to another forum. If two forums are available to the victim it is his choice to opt for the forum best suited to his interest. Recently cases of dacoity, murder, gang rape, loot arson, forgery have come to this Court where the prayer of the victim of getting the F.I.R. registered has either been refused or the same has been directed to be prosecuted as a complaint case. the flagrant miss-carriage of justice. I am constraint to observe that by not directing the police to register the F.I.R of cognizable offence which was rayed for by the victim, the Magistrate commit total miscarriage of justice. Question of converting the application under Section 156(3) Cr.P.C. as complaint arises subsequently. The for most question is as to whether the Magistrate can refuse the prayer for directing the FIR of cognizable offence. to be registered when he is approached by the victim or aggrieved person with such a prayer. In view law laid down by the apex court refered to above it is crystal clear that the Magistrate can not refuse such a prayer if cognizable offence is disclosed through such an application under Section 156(3) Cr.P.C. Here, at this stage, I can do no better that to refer the view of the Apex Court rendered in Central Bureau of Investigation through it's S.P. Jaipur v. State of Rajasthan 2001 SCC (Cr) 524 where in it has been held by the Apex Court in para 15 thus:

15. As the present discussion is restricted to the question whether a Magistrate can direct the CBI to conduct investigation in exercise of his powers under Section 156(3) of the Code it is unnecessary for us to travel beyond the scope of that issue. We, therefore, reiterate that the magisterial fewer cannot be stretched under the said sub-section beyond directing the officer-in-charge of a police station to conduct the investigation.

17. Thus the Magistrate by not directing investigation to be conducted by the police commits illegality and total miss-carriage of justice. It is reminded that it is for the police to decide which matter is to be investigated and which by matter is not to be investigated. It has been held by the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad 1945 PC 17 thus:

The function of the judiciary and the police are complementary and not overlapping and the combination of individual of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise it's own function, always, of course, subject to the right of the court to intervention in appropriate case when moved under Section 491, Criminal Procedure Code to give direction in the nature of Habeas Corpus.

18. Coming to the facts of present case, the victim wanted her FIR to be registered. She wanted to know as to who murdered her husband and under what circumstances he was murdered and who conducted his inquest and what happened in his post mortem examination. These facts were not known to the applicant widow. She only wanted her version to be registered and investigated. She wanted to know who are the real culprits of the murder of her and. How her such a prayer can be refused by the Chief Judicial Magistrate, Etah The applicant had levelled allegations of a fake police encounter. The police to save their skins and clutches of law was bound to furnish the same explanation before the Chief Judicial Magistrate, Etah. without verfying the facts alleged by the applicant how the Magistrate relied upon the version of the police is beyond comprehension. The Chief Judicial Magistrate, Etah without getting allegations of the victim investigated rejected her prayer and refused to direct registration of her F.I.R. Chief Judicial Magistrate should have thought of the fact how a wodow can contest a complaint case against the might of the police echelons. From where she is going to get witnesses against the police personals and from where she i; going to get the evidence of murder. Chief Judicial Magistrate also failed to realise that if the husband of the applicant can be murdered in fake encounter so can be the applicant and her witnesses. He also failed to realise as to who will support the applicant widow and give evidence against the police personals. On the own showing of the police the husband of the applicant was shot dead even though according to them it was in self defence. Whether it was a case of right of private defence or it was a. case of fake encounter that required investigation. CJM also also failed to realise that from where the widow lady is going to get the inquest report and post mortem report and whether, those documents are also tampered with or not? All these matters certainly required investigation.

19. From the order sheet of the present case, it seems that the C.J.M. Etah was shielding murderers of a fake police encounter. This conduct of C.J.M. Etah is wholly deplorable and severly condemnable. He should have been sensitive to the miseries of the victim widow and alive to the allegations levelled by her. C.J.M Etah did not realise that a widow was fighting for justice to bring to the books the murderes of her husband in fake police. encounter and she can be annihilated even during enquiry to be conducted by him. In the present case the C.J.M. has committed the worst land of miss-carriage of justice and perpetuated illegality intentionally for which his conduct is hereby condemned.

20. Now I take up the observation of the Chief Judicial Magistrate at a FIR has been registerd at the instance of the police regarding the murder husband of the applicant and is being investigated as well as his observation that Magisterial enquiry is also being conducted in that respect. How the two facts are relevant for getting the FIR of the applicant registered is not understandable. The FIR was lodged by the police. It was their version of incident. The said FIR as is perciptible from the order is under Sections 393/ 307 IPC and under Section 25 Arm's Act. Can on the basis of the FIR by the police the prayer of the widow of murdering of her husband and fake police encounter be refused? The answer without a second thought is emphatic No. Police FIR is regarding an attempt to murder offence where as the version of the applicant is that of intentional murder. Chief Judicial Magistrate so unmindful that he did not realise even this much that the version the victim was atleast a cross version and when the version of the police is being investigated the version of the applicant should also be investigated. was brought to him notice that a man has been shot dead and regarding his murder two different versions' are alleged and therefore both the versions have to be investigated. Chief Judicial Magistrates is. at the top of, Hirarchy Magistracy and is expected to act according to rule of common sense Further how a judicial enquiry is relevant to get the FIR of cognizable offence murder registered is un cogitable. Further the CJM has observed that the legations are levelled against police personals and therefore impartial investigation is not possible. With pains I am constrain to observe that the said reason is bereft of all common sense and totally codswallop. All these observations by the Chief Judicial Magistrate shows his lack of descipline in deciding-issues before him.

21. Resultantly, in view of what has been said above, this Criminal Misc. Application is allowed. The impugned order dated 21.9.06 passed by Chief Judicial Magistrate, Etah, in Criminal Misc. Application No. 387 of 06 Registered as a complaint case 6130 of 2006) filed by Smt. Santosh Kumari against the police personals Pawan Singh S.O., Sripal Thenua S.I., Ajant Singh S.I and constables Sarnam Singh and Rajendra Kumar, all of police station Siddhpura District Etah is hereby set aside. The Chief Judicial Magistrate is directed to get the FIR of the applicant registered forth with against the concerned police malefactors at the concerned police station positively.

22. Since in this case there seems to be nexus, hand over the investigation of this case to C.B.I. who is directed to get the copy of the FIR from the concerned police station as soon as it is registered and then to investigate the offence expeditiously and submit it's report to the concerned

23. Office of this Court is directed to furnish a copy of this order to Sri S. Hazela, learned Counsel for the C.B.I. free of charges immediately for his intimation and further action. Office of this Court is also directed to send ; copy of this order to the Chief Judicial Magistrate, Etah immediately for hi; intimation and action.

24. Let copy of this order be sent to the Administrative Judge, Etah to look into the matter and take appropriate necessary action against the C.J.M Etah for passing such illegal orders which is not befitting of a judicial officer.