Crl.M.C.No. 3601/2009 Page 1 of 51 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C.No. 3601/2009 % Reserved on: 25th February, 2010 Date of Decision: 10th March, 2010 # MOHD. SALIM .....Petitioner ! Through: Mr. R.N. Mittal, Sr. Adv. with Mr. Manoj Kumar, Adv. versus $ STATE ..... Respondent ^ Through: Mr. Jaideep Malik, APP. Mr. Vijay Aggarwal and Mr. Vishal Garg, Advs. for the complainant. * CORAM: HON'BLE MR. JUSTICE V.K. JAIN 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? : V.K. JAIN, J. 1. This is a petition under Section 482 of the Code of Criminal Procedure seeking quashing of the order dated 1st August 2009 passed by ACMM, New Delhi under Section Crl.M.C.No. 3601/2009 Page 2 of 51 156(3) of the Code of Criminal Procedure directing registration of FIR on a complaint filed by one Mohd. Rafique. 2. An FIR bearing No. 624/2005 under Section 302/34 of IPC was registered at Police Station Shahdara on 22nd December 2005, on the complaint filed by the petitioner regarding murder of his brother Mohd. Rashid by four persons including Mohd. Rafique, on whose compliant, the impugned order has been passed. Chargesheet against four persons including Mohd. Rafique was filed on 16th March 2006 and the case is pending trial before the Court of Sessions. 3. In his complaint, filed on 21st July 2006, Mohd. Rafique alleged that on 22nd December 2005, when he was sitting in the house of his sister Aamna, at about 9 PM, he came out hearing some noise and found some boys abusing each other. He further alleged that when he objected to this, deceased Mohd. Rashid intervened by asking as to whether the road belonged to his father. This, according to the complainant, was followed by exchange of hot words and the associates of Mohd. Rashid, including one Aarif, also threatened him with dire consequences. Mohd. Rashid thereupon asked a boy to call his brother. Within about 5 minutes, two accused named Crl.M.C.No. 3601/2009 Page 3 of 51 in the complaint, namely Ansar and Salim, along with some other persons reached there and started abusing the complainant. All of them were having weapons in their hands, Ansar being armed with an iron Kataar, Salim being armed with a knife, Rashid with a Karchi and Aarif having an iron Saria. According to the complainant, they all tried to assault him and their associates also gave fist and kick blows to him. He further alleged that when accused Ansar and Salim tried to assault him, someone caught hold of him, and on seeing them, he somehow saved himself, but, Ansar and Salim were not able to stop their hands and caused injuries to Rashid, from their knife and Kataar. It was further alleged in the complaint that, thereafter, the accused in the complaint took Rashid to hospital after threatening the complainant, who himself received a number of injuries at the hands of accused persons. The police came to the spot and took the complainant to GTB hospital and got him admitted there. In the hospital also, the complainant was beaten by the accused persons and was saved from them by the police officials. Since Rashid was declared dead, the police registered a case under Section 302/34 of IPC against complainant and others but, they did Crl.M.C.No. 3601/2009 Page 4 of 51 not register any case against the accused persons. 4. An application under Section 156(3) of the Code of Criminal Procedure was also filed by the complainant Mohd. Rafique seeking direction for registration of FIR against persons accused in the compliant. 5. Vide order dated 8th September 2006, the learned Metropolitan Magistrate directed the SHO to file a progress report in respect of incident of 22nd December 2005. Vide report dated 30th May 2007, the Investigating Officer of the case, through the concerned SHO, reported that the injuries caused to the complainant were self inflicted and sought filing of the complaint. Statements of some witnesses were recorded by the Investigating Officer before he submitted the above referred report to the learned Metropolitan Magistrate. Those witnesses told the police officers that the complainant Rafique had himself caused injuries on his person, with a view to create defence for him. 6. Since no one appeared for the complainant, the complaint was dismissed in default on 22nd January 2009. On a Revision Petition filed by him, the learned Addl. Sessions Judge vide order dated 5th February 2009 set aside the order dismissing Crl.M.C.No. 3601/2009 Page 5 of 51 the compliant in default and restored it. Order dated 1st August 2009, directing registration of FIR under appropriate provisions of law, with further direction to hand over the investigation to Crime Branch was, thereafter, passed by the learned ACMM. Since, while directing registration of FIR, the learned ACMM had also directed registration of a case against certain police officials, a revision petition was filed by the State against that order. The learned Addl. Sessions Judge noted that the State was not aggrieved by the order to the extent it directed registration of FIR, on the complaint of Mohd. Rafique against persons named as accused in the complaint. The State was aggrieved only from that part of the order whereby he ordered registration of FIR against the police officials. The learned Addl. Sessions Judge declined to interfere with the order passed by the learned ACMM, but set aside the direction given by him for transferring the investigation to the Crime Branch. 7. The impugned order has been assailed primarily on the ground that once an FIR has been registered, chargesheet has been filed and the case has been committed to Court of Sessions, there cannot be a second FIR into the same incident Crl.M.C.No. 3601/2009 Page 6 of 51 and the complaint filed by Mohd. Rafique, who himself is facing trial for committing murder, is nothing but an attempt to create a false defence for himself and to delay the progress of the trial pending against him. 8. The first question which comes up for consideration is as to whether an order passed under Section 156(3) of the Code of Criminal Procedure can be challenged by way of a petition under Section 482 of the Code of Criminal Procedure. It has been contended by the learned counsel for the complainant/respondent that since registration of FIR, on receipt of information of commission of a cognizable offence, is mandatory as provided under Section 154 of the Code of Criminal Procedure, the order passed by the Magistrate under Section 156(3) is in the nature of a reminder to the SHO and an administrative, order which cannot be subject matter of challenge before a superior court. On the other hand, the contention of the learned counsel for the petitioner is that the order passed under Section 156(3) being a judicial order, it is open to the petitioner to challenge it in appropriate proceedings. This was also his submission that if the Court comes to a conclusion that a petition under Section 482 of the Crl.M.C.No. 3601/2009 Page 7 of 51 Criminal Procedure is not maintainable, the petition filed by him may be treated as a writ petition under Article 226/227 of the Constitution. 9. Section 156 of the Code of Criminal Procedure, to the extent it is relevant reads as under:- “156. Police officer’s power to investigate cognizable case- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) **** (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.” 10. Since the Magistrate can direct investigation only in respect of a cognizable case, it would be necessary for him before he passes any such order, to examine the allegations made in the application made to him and form a prima facie view that commission of a cognizable offence is disclosed from those allegations. If the Magistrate is of the opinion that the allegations made in the complaint do not disclose commission of a cognizable offence, he cannot direct investigation, in exercise of the powers conferred upon him under Section Crl.M.C.No. 3601/2009 Page 8 of 51 156(3) of the Code. In that case, he will have no option but to dismiss the application seeking a direction to the Police to investigate the matter. Obviously, in that case he will have to pass a speaking order giving reasons for rejecting the application, which necessarily would require application of judicial mind on the part of the Magistrate. 11. The use of the expression „may‟ in sub-section (3) of Section 156 of the Code leaves no doubt that the power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the Police even if the allegations made in the complaint disclose commission of a cognizable offence. In the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the Police, straightaway take cognizance of the alleged offence and proceed under Section 200 of the Code by examining the complainant and his witnesses, if any. In fact, the Magistrate ought to direct investigation by the Police only where the assistance of the Investigating Agency is necessary and the Crl.M.C.No. 3601/2009 Page 9 of 51 Court feels that the cause of justice is likely to suffer in the absence of investigation by the Police. The Magistrate is not expected to mechanically direct investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156(3) of the Code. Of course, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the Police. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police. 12. Section 154(1) of the Code of Criminal Procedure enjoins upon the Station House Officer of a Police Station to record FIR as and when he receives information relating to commission of Crl.M.C.No. 3601/2009 Page 10 of 51 cognizable offence. If he fails to perform this statutory obligation on his part, any person aggrieved by refusal of the Station House Officer to record FIR can send the substance of such information to the Superintendent of Police concerned as provided in Section 154(3) of the Code. If satisfied that the information received by him discloses commission of a cognizable offence, he has to either investigate the case itself or directs investigation by a Police Officer subordinate to him. Such a Police Officer will have all the powers of a Station House Officer in relation to that offence. If the intention of the legislature were merely to ensure compliance of statutory obligation of the Station House Officer to register FIR, on receipt of the information relating to commission of a cognizable offence, there was no need to give such an authority to the Magistrate, since the requisite authority has already been given to the Superintendent of Police under Section 154(3) of the Code. The purpose of vesting such a power on the Magistrate was to bring upon the matter, a judicial and judicious approach, which by necessary implication needs to be selective. The use of the word “may” leaves no reasonable doubt about the intention of the legislature that the Magistrate Crl.M.C.No. 3601/2009 Page 11 of 51 needs to consider the feasibility, necessity and propriety of investigation by the Police before he passes an order under Section 156(3) of the Code. The use of the word “shall” in Section 154(3) and use of the word “may” in Section 156(3) also make the legislative content quite clear. If the legislature intended to leave no option for the Magistrate but to direct investigation by the Police, the legislature would have used the word “shall” as has been done in Section 154(3) rather than using the word “may” which gives a clear indication that the Magistrate has a discretion in the matter and can in appropriate cases refuse to order registration of FIR. 13. Since the discretion vested in the Magistrate under Section 156(3) of the Code of Criminal Procedure is a judicial discretion which cannot be exercised arbitrarily and on his whims and fancies, but needs to be guided by on sound principles of law governing exercise of such a discretion, it cannot be said that the discretion exercised by him cannot be subject matter of challenge in appropriate proceedings. If the Magistrate exercises discretion arbitrarily or in contravention of the principles governing exercises of such a discretion by him, the person against whom the discretion is exercised Crl.M.C.No. 3601/2009 Page 12 of 51 cannot be left remediless. In a given case, the Magistrate may take a view that the complaint received by him does not disclose the commission of a cognizable offence and may, therefore, reject an application filed under Section 156(3) of the Code seeking directions for investigation by the Police. If the complainant is aggrieved on account of the view taken by the Magistrate and feels that the complaint does in fact disclose commission of a cognizable offence, can it be said that the complainant has no remedy against the order passed by the Magistrate. In yet another case, the Magistrate may take a view that the complaint made to him does not need assistance of the Police by way of investigation by the State machinery and he may proceed to examine the complainant and his witnesses under Section 200 of the Code of Criminal Procedure. The complainant may, however, feel otherwise, and the case may be such as would warrant investigation by State machinery. Can it be said that the complainant, if he is aggrieved on account of the view taken by the Magistrate has no remedy with him, available in law. The answer to these questions can obviously be only in negative. The Magistrate acts judicially, exercises a judicial discretion while directing Crl.M.C.No. 3601/2009 Page 13 of 51 investigation by the Police or rejecting the request seeking such direction and in doing so he passes a judicial order. It is therefore difficult to accept that a judicial order cannot be challenged before a superior court, in any proceedings whatsoever. 14. A judicial order can be of three types. It may be a final order, an intermediate order or an interlocutory order. If an order finally disposes of a matter in dispute, it is termed as a final order. As held by the Hon‟ble Supreme Court in Amar Nath vs. State of Haryana and Anr.(1977) 4 SCC 137, the term interlocutory order denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order. As held by the Supreme Court, the orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order. 15. Taking a view most favourable to the complainant/respondent and assuming an order passed under Crl.M.C.No. 3601/2009 Page 14 of 51 Section 156(3) of the Code of Criminal Procedure to be an interlocutory order was such an order can, in appropriate cases, definitely be challenged by filing a petition under Section 482 of the Code of Criminal Procedure of the Code of Criminal Procedure. As noted by the Supreme Court in CBI vs. Ravi Shankar Srivastava 2006 (7) SCC 188, Section 482 of the Code does not confer any new powers on the High Court. It only saves the inherent power, which the High Court possessed even before the enactment of the Code. Since no procedural enactment can provide for all the cases that may come up before the Courts, they do possess inherent powers, apart from express provisions of law which are necessary for proper discharge of functions and duties imposed by law on them. This doctrine finds statutory recognition in Section 482 of the Code of Criminal Procedure. In the case of Madhu Limaye vs. The State of Maharashtra’ (1977) 4 SCC 551, the Hon‟ble Supreme Court held that the inherent powers of the High Court come into play when there is no provision for redressal of the grievance of the aggrieved party. Of course, the power under Section 482 of the Code needs to be exercised very sparingly and only to prevent abuse of the process of the Crl.M.C.No. 3601/2009 Page 15 of 51 Court or to otherwise secure the ends of justice. 16. When the High Court, on examination of the record finds that there is a grave miscarriage of justice or abuse of the process of the Court or there is failure of justice on account of the order passed by the Court below, it becomes the duty of the High Court to correct such an order at the very inception, lest miscarriage of justice ensues. It is with a view to meet the ends of justice and prevent abuse of the process that the High Court has been vested with inherent powers, which have been recognized by the Legislature in statutory recognition in Section 482 of the Code of Criminal Procedure. Therefore, the order passed by the Magistrate under Section 156(3) of the Code of Criminal Procedure irrespective of whether it directs investigation by the Police or it declines to give such a direction, can be challenged before the High Court under Section 482 of the Code of Criminal Procedure. 17. Even an order which is incapable of being challenged under Section 482 of the Code of Criminal Procedure can be challenged by way of a writ petition under Article 226/227 of the Constitution. Recently, I had an opportunity to examine this issue while deciding Criminal Revision Petition Crl.M.C.No. 3601/2009 Page 16 of 51 No.293/2006 titled R.C.Sabharwal versus Central Bureau of Investigation and connected cases, 166 (2010) DLT 362. After reviewing case law on the subject, I held that even an interlocutory order passed by a Special Judge exercising power under Prevention of Corruption Act can be challenged by way of a writ petition. It was noted that Article 227 of the Constitution gives, to High Court, the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction and this jurisdiction conferred upon the High Court cannot be limited or fettered even by an Act of the State Legislature. Referring to the decision of the Supreme Court in Industrial Credit and Investment Corporation of India Limited vs. Grapco Industries Limited, 1999 (4) SCC 710, where it was held that there was no bar on the High Court examining the merits of the case in exercise of its jurisdiction under Article 227 of the Constitution if the circumstances so require, the decision of the Supreme Court in Surya Dev Rai vs. Ram Chander Rai & Others, (2003) 6 SCC 675, holding that the amendment of the Section 115 of Code of Criminal Procedure could not have taken away the constitutional jurisdiction of the High Court to Crl.M.C.No. 3601/2009 Page 17 of 51 issue a writ of Certiorari nor can the power of the superintendence conferred on the High Court under Article 227 of the Constitution be taken away, the decision of the Supreme Court in Rupa Ashok Hurra (2002) 4 SCC 388, holding that the orders and proceedings of a judicial court subordinate to the High Court can be challenged under Article 226 of the Constitution, and also relying upon the decision of a Constitution Bench of Supreme Court in L.Chandra Kumar vs. Union of India 1997 (3) SCC 261, holding therein that the jurisdiction conferred on the High Court under Article 226 and 227 of the Constitution is a part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with or taken away even by constitutional amendment, it was held that irrespective of the embargo placed by Section 19(3)(C) 115 of Prevention of Corruption Act, an interlocutory order passed by the Special Judge can be challenged by way of a writ petition under Article 226/227 of the Constitution. 18. In Vanshu Vs. State of U.P. 2007 Crl.L.J. 4677, Allahabad High Court held that the order passed by the Crl.M.C.No. 3601/2009 Page 18 of 51 Magistrate, directing registration of FIR and investigation of the case, being an interlocutory order, is not amenable to revisional jurisdiction of the High Court. In the case before Allahabad High Court, the order passed by the Magistrate under Section 156(3) of the Code of Criminal Procedure was challenged by the accused persons by filing a revision petition before the Sessions Judge, who set-aside the order passed by the Magistrate. The order passed by the Magistrate was then challenged before the High Court on the ground that the order being a pre-cognizance order, Sessions Judge had no jurisdiction to entertain the revision filed by the accused. The High Court felt that while passing order under Section 156(3) of the Code of Criminal Procedure, the Magistrate had not applied his mind against anybody and since the accused does not have right to appear before the Magistrate at pre- cognizance stage, he cannot challenged an interlocutory order passed in such a proceedings. The High Court observed that the order passed by the Magistrate was only a preemptory reminder or intimation to the police to exercise their plenary power of the investigation. The petition before this Court being under Section 482 of the Code of Criminal Procedure, the Crl.M.C.No. 3601/2009 Page 19 of 51 decision of Allahabad High Court taking a view that the order passed by the Magistrate being an interlocutory order, could not be challenged under Section 397(2) of the Code does not apply to this petition. Even an interlocutory order can definitely be challenged by way of a petition under Section 482 of the Code of Criminal Procedure, as noted earlier. 19. In Ram Naresh Chaudhary & Ors. Vs. State, 2008 Crl.L.J. 1515, the High Court was dealing with a Revision Petition filed by the proposed accused against an order passed by the Magistrate under Section 156(3) of the Code of Criminal Procedure. With respect to the Hon‟ble Judge of the High Court, I am unable to agree that despite its being a judicial order, an order passed under Section 156(3) of the Code of Criminal Procedure cannot be challenged even by way of a petition under Section 482 of the Code of Criminal Procedure. In any case, since the petition before the High Court was a Revision Petition and not a petition under Section 482 of the Code, the observation made by the learned Judge to the effect that an order under Section 156(3) of the Code of Criminal Procedure, despite being a judicial order, could not be challenged even by moving an application under Section 482 of Crl.M.C.No. 3601/2009 Page 20 of 51 the Code are rather in the nature