While ruling on a very significant subject pertaining to the lodging of FIR after the rejection of an application under Section 156(3) of the CrPC, the Uttarakhand High Court in a very learned, laudable, landmark and latest judgment titled Lt. Colonel (Retd.) Balraj Singh Lamba And Another Vs State of Uttarakhand and Another in Criminal Revision No. 201 of 2013 that was finally decided on December 23, 2022 has held that by concealing the order of rejection of her application under Section 156(3) of the Code, the informant got the FIR lodged. It was made clear that by doing so, she made the order of the Magistrate redundant by deceitful means. It was also clearly stated that it cannot be permitted to continue. It was also pointed out that the order of the Magistrate of competent jurisdiction had been nullified in the case. Thus in view of the above, we see that the Court allowed the revision.
At the very outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of the Uttarakhand High Court comprising of Hon’ble Mr Justice Ravindra Maithani sets the ball in motion by first and foremost putting forth in para 1 that:
The challenge in this revision is made to order dated 26.07.2013, passed in Criminal Case No.2227 of 2013, State Vs. Siddharth Lamba and Another, by the court of Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar (the case).
To put things in perspective, the Bench then envisages in para 3 that:
Facts necessary to appreciate the controversy, briefly stated, are as follows: the respondent no.2 (the informant) filed an FIR (FIR No. 215 of 2012) on 09.08.2012 against the revisionists for the offences under Sections 419, 420, 467, 468, 471, 120-B IPC, Police Station Kashipur, District Udham Singh Nagar. In this FIR, after investigation, chargesheet under Sections 419, 420, 467, 468, 471, 120-B IPC was submitted against the revisionists and cognizance was taken, which is the basis of the case. The order dated 26.07.2013 was challenged by the revisionists in C-482 No.667 of 2013 (the petition). The petition was decided on 11.07.2013. In fact, it was withdrawn with certain liberties. At the stage of framing of charge, an application was moved for discharge. It has been rejected by the impugned order.
As we see, the Bench then enunciates in para 4 that:
In the instant case, before the FIR was lodged, in fact, the informant had filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 (the Code), based on which proceedings of Misc. Application No. 126 of 2012, were instituted in the courts of Kashipur, District Udham Singh Nagar (the 156(3) application).
On the 156(3) application, the court sought a report from Police Station Kashipur. Police Kashipur had reported that no FIR in the matter had been lodged at that police station.Subsequent to it, the application under Section 156(3) of the Code, filed by the informant was rejected on 10.07.2012, by the Judicial Magistrate, Kashipur, District Udham Singh Nagar. In that order, the court below had observed that it appeared that application under Section 156(3) of the Code was then filed by the informant with some oblique motives. Admittedly, the order dated 10.07.2012, passed on the application under Section 156(3) of the Code was never challenged. But, a few days, thereafter, the informant filed the FIR at the police station.
On the face of it, the Bench then stipulates in para 5 that:
The questions that fall for determination in this revision are as to whether, an FIR could be lodged after rejection of an application under Section 156(3) of the Code? Secondly, if after rejection of an application under Section 156(3) of the Code, on the same allegations, an FIR is lodged and chargesheet filed, what would be its effect?
Be it noted, the Bench notes in para 10 that:
The law is well settled in the case of Lalita Kumari Vs. Government of Uttar Pradesh and Others, (2014) 2 SCC 1. In the case of Lalita Kumari (supra), the Hon’ble Supreme Court recorded conclusions in Paragraph 120, which is as hereunder:-
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of 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.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
- Matrimonial disputes/family disputes
- Commercial offences
- Medical negligence cases
- Corruption cases
- Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
To be sure, the Bench states in para 15 that:
In the instant case, an application under Section 156(3) of the Code, filed by the informant had already been rejected by the court of Magistrate on 10.07.2012. Investigation had been denied by the Magistrate on the ground that the application under Section 156(3) of the Code had been filed with oblique motives.
Quite significantly, the Bench observes in para 16 that:
Fact remains that the informant, after rejection of her application under Section 156(3) of the Code, filed the FIR in the instant case. The FIR is more or less in-verbatim to the application under Section 156(3) of the Code, except some changes made for making flow of the language. But the informant did conceal the fact in her FIR that her application under Section 156(3) of the Code had already been rejected. Has not it in effect, made the order of Magistrate, having jurisdiction, null and void? What the informant did was, she nullified an order of Magistrate passed under Section 156(3) of the Code, by which investigation was denied.
It is worth noting that the Bench then hastens to add in para 19 stating that, In the instant case, the FIR, in fact, was of cognizable offences and the police could have investigated it in accordance with law. But, the informant, by a design concealing the actual facts, got the FIR lodged.
- In her application under Section 156(3) of the Code, the informant did write that she had gone to Kotwali Kashipur to lodge a report on 09.06.2012, but no action was taken on it.
- The application under Section 156(3) of the Code, field by the informant, was rejected on 10.07.2012.
- The informant knew that a Magistrate of competent jurisdiction had denied investigation in the matter observing that the informant had filed such application with oblique motives. But the informant concealed these facts. She filed FIR in the police station. It is verbatim to the application under Section 156(3) of the Code.
Most significantly, the Bench then minces no words to hold in para 20 what constitutes the cornerstone of this notable judgment wherein it is held that, By concealing the order of rejection of her application under Section 156(3) of the Code, the informant got the FIR lodged. She filed the FIR. By doing so, she made the order of Magistrate dated 10.07.2012 redundant by deceitful means.
It cannot be permitted to continue. The order of Magistrate of competent jurisdiction had been nullified in the case. Therefore, the investigation that follows on the basis of such FIR and proceedings subsequent thereto are vitiated and for this reason, the entire proceedings of the case deserves to be quashed.
Finally, the Bench then concludes by holding in para 21 that:
The revision is allowed. The entire proceedings of the case are quashed.
On the whole, we thus see that the Uttarakhand High Court in this leading judgment has made it pretty clear that the FIR which is lodged by deceitful means by concealing the order of the rejection of her application under Section 156(3) of the Code cannot be allowed to continue. We also see that the revision was thus allowed by the Court. Very rightly so!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.
