- (1.) VINOD Prasad, J. Heard Sri Viresh Misra learned Senior Counsel assisted by Sri Sudhanshu Srivastava and Smt. Nayan Sri advocates in support of this application and the learned AGA in opposition.
(2.) THE applicants are aggrieved by an order dated 6-9-2006 by which the Chief Judicial Magistrate, Saharanpur has ordered for registration of the FIR and investigation of the same against the revisionists exercising his powers under Section 156 (3) Cr. P. C. in Misc. Case No. 624 of 2006, Munna Lal v. Subhash Chand, as the said application filed by the applicant Munna Lal disclosed commission of cognizable offence against the applicants. At the very outset the question of maintainability of this application at the instance of the revisionists came up for consideration since it transpired that this application at the instance of the applicants is not maintainable. Section 156 (3) Cr. P. C. finds it's placement under Chapter XII of Code of Criminal Procedure 1974 (hereinafter referred to as Code) which deals with the power of police to investigate. The Heading of the chapter reads INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE. The police under Section 154 (1) of the Code is mandated by law to register every information of a cognizable offence which is given to it whether orally or in writing. It has to register such an information of cognizable offence in the form prescribed by the respective State Governments which is called First Information report commonly known as FIR. The apex Court has held in State of Haryana v. Bhajan Lal, 1990 (2) JIC 997 (SC) : 1992 SCC (Cr.) 426 in para 30,31,and 33 that if the officer-in-charge of the police station does not register the information of a cognizable offence given to it then he eschews it's statutory responsibility. It has been held by the apex Court as follows: " (30) 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 a Section 154 (1) of the Code, the concerned police officer cannot 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. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context. In case, an officer in charge of a police station refuses to exercise the jurisdiction vested on 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. (31) Be it noted that in Section 154 (1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41 (1) (a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154 (1) unlike in Section 41 (1) (a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, reasonableness' or `credibility' of, the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the `word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that `every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act X of 1872) which thereafter read that `every complaint' preferred to an officer in charge of a police station shall be reduced into writing. The word `complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word `information' was used in the Codes of 1882 and 1955 which word is now used in Sections 154, 155, 157 and 190 (c) of the present Code of 1973 (Act 11 of 1974 ). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence. (32) 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. "
(3.) THE same view was expressed by the apex Court in the case of Janta Dal v. H. S. Chowdhari, 1993 SCC (Cri) 36. THE apex Court in the case of Union of India v. W. N. Chadha, 1993 SCC (Cri) 1171, has held that the investigating officer is free to conduct the investigation in the manner it deems fit and the accused cannot be heard regarding the manner of investigation and he has got no right to say or object to such a power of the investigating officer. It has been laid down by the apex Court in the said case of W. N. Chadha (supra) as follows: (91) In State of Haryana v. Bhajan Lal, 1990 (2) JIC 997 (SC) : 1992 Supp (1) SCC 335 at 359: (AIR 1992 SC 604 at p. 616), this Court to which both of us (Ratnavel Pandian and K. Jayachandra Reddy, JJ.) were parties after making reference to the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 and the decision of this Court in State of Bihar v. J. A. C. Saldanha, 1967 (3) SCR 668, has pointed out that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation. . . . . " (92) More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173 (2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. THEre are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances. (93) It may be noted that under Section 227 of the Code dealing with discharge of an accused in a trial before a Court of Session under Chapter XVIII, the accused is to be heard and permitted to make his submissions before the stage of framing the charge. Under Section 228 of the Code, the trial Judge has to consider not only the records of the case and documents submitted therewith but also the submissions of the accused and the prosecution made under Section 227. Similarly, under Section 239 falling under Chapter XIX dealing with the trial of warrant cases, the Magistrate may give an opportunity to the prosecution and the accused of being heard and discharge the accused for the reasons to be recorded in case the Magistrate considers the charge against the accused to be groundless. Section 240 of the Code dealing with framing of charge also reaffirms the consideration of the examination of an accused under Section 239 before the charge is framed. (94) Under Section 235 (2), in a trial before a Court of Sessions and under Section 248 (2) of the trial of warrant cases, the accused as a matter of right, is to be given an opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect. (95) It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. THE basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or Seizure of any property in his possession connected with the crime unless otherwise provided under the law. (96) True, there are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure such as Section 50 whereunder the person arrested is to be informed of the grounds of his arrest and of his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours which are all in conformity with the 'right to Life' and 'personal Liberty' enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Article 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be. in accordance with the provisions of the Code of Criminal Procedure. (97) If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary. " (Emphasis supplied and mine) The apex Court has further held in the case of Amar Nath & Ors. v. State of Haryana & Anr. , 1977 SCC (Cr.) 585, that so long as the accused is not summoned no proceeding has taken place in his respect. It has been held by the apex Court as follows: "the Magistrate on receiving the order of the Sessions Judge summoned the appellants straightway which meant that the appellants were to be put on trial. So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings pending against them. It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. " (emphasis supplied and mine);