- (1.) VINOD Prasad, J. Heard learned Counsel for the applicant and learned A. G. A.
(2.) AN application under Section 156 (3) Cr. P. C. was filed by applicant Shyam Raj, father of the victim Kismata in respect of an incident alleged to have taken place on 2-6-2006. It was mentioned in the application that the daughter of the applicant namely Kismata was married to Mewa Lal according to Hindu customs and rights. Three years later, her Gavana took place. After Gavana when Kismata went to her in-laws house she was tortured due to lust of dowry and her husband Mewa Lal demanded Rs. 50,000/- from the applicant Shyam Raj. Applicant showed his inability to pay the aforesaid amount. Because of non-fulfillment of the aforesaid demand, the daughter of the applicant was again tortured. Three months prior to the date of the incident, son-in- law of the applicant Mewa Lal came to applicant and repeated his of demanded Rs. 50,000/- in the presence of many villagers. The matter however was pacified and the applicant sent Kismata to her in-laws house on 2-6-2006 along with his elder brother-in- law Gajraj and his son. On the same night 2-6-2006 at 8 p. m. , Kismata reached back the house of Shyam Raj in half nacked condition. She informed the applicant that she was tortured and assaulted because of non-fulfilment of dowry by her in-laws and even an effort was made to burn her to death by pouring kerosene oil on her. She also informed the applicant that she was abused filthy. Kismata was got medically examined by the applicant Shyam Raj. On 5-6-2006 applicant Shyam Raj along with the injury report of his daughter endeavoured to get the FIR registered at the police station but in vain. On 7-6- 2007 he also filed a written application to S. P. Basti but he failed in his endeavour to get his F. I. R. registered. With such allegations the applicant Shyam Raj approached the concerned Magistrate on 21-6-2006 for getting his F. I. R. registered because the police failed in its statutory duty to register the FIR of cognizable offence. By the order dated 12-7-2006 her application under Section 156 (3) Cr. P. C. was rejected in respect of getting the F. I. R. registered but the Magistrate registered his application as a complaint case and 12-8- 2006 was fixed for recording the statement under Section 200 Cr. P. C. The aforesaid order dated 12-7- 2006 of refusal in getting the F. I. R. registered was challenged by the applicant in criminal revision filed in the Court of District and Sessions Judge, Basti but his revisions was also dismissed by Special Judge (E. C. Act) Basti, hence this criminal application has been filed seeking direction that the F. I. R. be directed to be registered against the husband and in- laws and they should be prosecuted as police challani case.
(3.) HEARD learned Counsel for the applicant as well as learned A. G. A. Averments which were made in the application were that on 2-6- 2006 because of demand of dowry, the daughter of revisionist namely Kismata was made naked and she was assaulted and was poured with kerosene oil for being burnt. Regarding the said incident, the F. I. R. was also endeavoured to be lodged by moving application but the F. I. R. was not registered. The victim Kismata was also got medically examined as well. Such averments which were mentioned in the application clearly made out the case under Sections 498-A and 307 I. P. C. for torture due to demand of dowry and an attempted to burn the victim alive. I fail to understand that if such offences will not be investigated by the police then what matters will be investigated by it. Magistrate committed a manifest error of law for transforming the application of father of the victim and treating it as a complaint case. The Magistrate was dealing with an application under Section 156 (3) Cr. P. C. as pre-cognizance stage. Application under Section 156 (3) Cr. P. C. is not necessary a complaint. It may be an application only for the purpose of seeking a direction for investigation. The complaint has been defined under Section 2 (d) Cr. P. C. Application which was filed by father of victim was not within the purview of the aforesaid definition clause. Further the applicant never wanted to prosecute the accused in a complaint case. He only wanted that the offence be investigated. He has not filed a complaint as is required under Section 190 (1) (a) Cr. P. C. for the Magistrate to take cognizance of the offence. He has approached the Magistrate at a pre-cognizance stage for getting his FIR registered. The Magistrate, therefore, committed a manifest error in transforming the said application as complaint. Moreover, the victim prayed that her F. I. R. be directed to be registered. His application disclosed commission of cognizable offence. Why the Magistrate did not direct the FIR to be registered is not borne out from the order passed by the Magistrate. It was incumbent on the Magistrate to direct the police to exercise its plenary power of investigation by ordering the registration of F. I. R. of cognizable offence. The Apex Court time and again has reiterated the law that if cognizable offence is disclosed the police is under it's statutory duty to register the FIR and investigate the offence. For a ready reference some of the judgment of the Apex Court are referred as State of Haryana v. Chaudhary Bhajan Lal, 1990 (2) JIC 997 (SC) : 1992 SCC (Crl.) 426; Madhu Bala v. Suresh Kumar and Ors. , 1997 JIC 979 (SC) : 1996 SCC (Crl.) 111; Suresh Chand Jain v. State of Madhya Pradesh, 2001 (1) JIC 740 (SC) : JT 2001 (2) SC 8. It has been held by the Apex Court in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. , 1990 (2) JIC 997 (SC) : 1992 SCC (Cr.) 426, in paras 30, 31 and 33 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 officer-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 a 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 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. . . 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);