The Allahabad High Court while dismissing an application observed that if the application u/S 156(3) Cr.P.C, filed before the Magistrate does not discloses the cognizable offence per se, but it is indicative of commission of some cognizable offences, the Magistrate has the discretion to direct a preliminary inquiry before directing the registration of the FIR.
A Single Bench of Justice Anish Kumar Gupta passed this order while hearing an application under section 482 filed by Khalid Khan And Another.
The application U/S 482 Cr.P.C has been filed seeking quashing of the order dated 28.07.2023 passed by the Chief Judicial Magistrate, Ghaziabad, whereby in an application u/s 156(3) Cr.P.C, Magistrate has directed for a preliminary inquiry to be conducted by the Sub Divisional Magistrate, Modinagar, with regard to the allegations made in the application u/s 156(3) CrPC.
The facts of the case are that one Satyendra Pal was murdered, for which a Case under section 302/32, 120-B IPC, was registered at P.S Muradnagar, District Ghaziabad on the complaint of Sonu Pal S/o deceased Satyendra Pal.
Though in the complaint, the accused were named, however, the police after investigation arrested another son of said deceased Satyendra Pal namely Monu Pal for the murder of his father Satyendra Pal.
He was produced before the Chief Judicial Magistrate on 10.07.2023 and the police sought the remand of the said accused Monu Pal.
Counsel for the applicant submitted during the said search operation, the applicants herein, who are Advocates were escorting the police search operation and were recording the same. The police on reaching the spot where from the alleged recovery has been conducted by the police team, when the police realized that the entire incident was being recorded in the video camera, the police officers stopped the videography, then snatched the video camera of the applicant and the police team forcibly confined the applicant and other persons accompanying the applicant and put them in car and took at some distance and tried to threw them on the “Gang Nahar”. The aforesaid act of the police team was in violation of the order dated 10.07.2023.
Therefore, the said action by the police was beyond scope and was in violation of the order dated 10.07.2023 and therefore, the applicant herein filed an application u/s 156(3) Cr.P.C for registering the offence against the erring police officers. Whereupon Magistrate, vide order dated 28.07.2023 has directed the preliminary inquiry to be conducted by the Sub Divisional Magistrate.
Counsel for the applicant submitted that in the Lalita Kumari Vs Govt of U.P and others, the Apex Court has framed the guidelines and prescribed the five categories of the cases where the Magistrate can direct the preliminary inquiry to be conducted.
Counsel for the applicant submits that the instant case is not covered within the five categories prescribed in the case of Lalita Kumari (supra), therefore, the order dated 28.07.2023 directing preliminary inquiry is illegal and is in violation of the judgment of the Constitution Bench in Lalita Kumari (supra) and Mrs Priyanka Srivastava and Anr Vs State of U.P and others, AIR 2015 SC 1758.
Per contra, counsel for the State submitted that the aforesaid five categories prescribed in the judgment of Lalita Kumari are illustrative in nature and are not exhaustive, which is apparent from the observation made by the Supreme Court in the following terms;
“The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”
Therefore, counsel for the State submitted that the Magistrate had vide discretion to conduct and direct the preliminary inquiry in an appropriate case.
Counsel for the State further submitted looking at the nature of allegations made in the instant application u/s 156(3) Cr.P.C, the learned Magistrate has directed the preliminary inquiry, which cannot be faulted with.
The Court observed that,
Thus, from the above judgements, it is crystal clear when the application u/S 156(3) Cr.P.C, discloses the cognizable offence, then it is the duty of the concerned Magistrate to direct registration of the F.I.R, which is to be investigated by the Investigation Agency, in accordance with law and if the information received does not disclose the commission of cognizable offence apparently, but indicates necessity for inquiry, the preliminary inquiry may be conducted in order to ascertain whether the cognizable offence is disclosed or nor.
The scope of the preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence, what type of cases the preliminary inquiry can be directed, has been indicated in judgement of the Lalita Kumari (supra). However, in the said judgement itself, it has been said that these are the only illustrative categories and not the exhaustive of all conditions, which may warrant the preliminary inquiry.
Therefore, the Magistrate, if the application u/S 156(3) Cr.P.C, filed before the Magistrate, in the considered opinion of the Magistrate, does not discloses the cognizable offence per se, but it is indicative of commission of some cognizable offences, the Magistrate has the discretion to direct a preliminary inquiry before directing the registration of the F.I.R. The aforesaid categories mentioned in judgement of Lalita Kumar (supra), are not exhaustive and are only illustrative. Therefore, the discretion of the Magistrate cannot be questioned.
“However, relying upon the aforesaid principles in the application u/S 156(3) Cr.P.C, filed by the applicants herein, who are the advocates and who were following the police team in terms of the order of the Magistrate, with regard to the recovery at the indication of the accused. Therefore, from the perusal of the said complaint, the cognizable offence is per se, not apparently indicated in the said complaint. Therefore, vide impugned order dated 28.07.2023, the Magistrate has directed to preliminary inquiry in the matter. Therefore, in the facts and circumstances of the case, there is no illegality in the order dated 28.07.2023, passed by the Chief Judicial Magistrate, Ghaziabad, directing the preliminary inquiry into the matter, as the allegations were made with regard to the violation of the order of the Magistrate by the police team.
Therefore, in the considered opinion of the Court, there is no illegality in the order passed by the Magistrate and the instant application is devoid of merit”, the Court further observed while dismissing the application.