Sanjeev Sirohi
Published on: 01 March 2023 at 17:14 IST
While specifically ruling on a very practical and so also very significant legal point pertaining to the remedy available with a person who is aggrieved with refusal of SHO to register FIR, the Chhattisgarh High Court in a most learned, laudable, landmark and latest judgment titled Parshant Vashishta and others vs State of Chhattisgarh and others in Writ Petition (Cr.) No. 177 of 2017 that was reserved on January 13, 2023 and then finally pronounced recently on January 30, 2023 has minced just no words to hold that there must be a separate and independent application under Section 156(3) of the Code of Criminal Procedure (CrPC) after the refusal by the SHO to register FIR.
It must be mentioned here that the Court said that such a refusal is sine qua non for making the application maintainable under Section 154(3) of the CrPC. We thus see in this leading case that the Court quashed the order of the Additional Sessions Judge, Durg.
At the very outset, we must note that this extremely remarkable, robust, rational and recent judgment authored by Hon’ble Shri Sanjay K Agrawal for a Division Bench of the Chhattisgarh High Court comprising of himself and Hon’ble Shri Rakesh Mohan Pandey sets the ball in motion by first and foremost putting forth in para 1 that, “The short point involved in the instant writ petition is, whether the learned Additional Sessions Judge (FTC), Durg, is justified in invoking power and jurisdiction under Section 156(3) of the CrPC in directing registration of first information report (FIR) and consequent investigation against the petitioners and to submit final report/closure report after finding compliance with the provisions contained in sub-sections (1) & (3) of Section 154 of the CrPC?”
To put things in perspective, the Division Bench then envisages in para 3 stating that, “Petitioner No.1 is the Principal of Delhi Public School, Risali Sector, Bhilai, whereas, other petitioners are Teachers/Lab Assistant working in the said school. It is the case of the petitioners that a complaint was received from the students of the school against the father of respondent No.3 namely Dr. Ramesh Prasad Dwivedi, Teacher (presently suspended) working in the school, alleging award of corporal punishment to the students whom he detained,”.
“On receipt of the said complaint, the matter was enquired by a committee and after due enquiry, though preliminary, the fact of award of corporal punishment was found proved and ultimately, in the interest of the students, the matter was referred to Police Station Newai, District Durg where Dr. Ramesh Prasad Dwivedi – father of respondent No.3 was charge-sheeted for offences punishable under Sections 354 & 354A of the IPC and Sections 11(1) & 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’) in which petitioners No.1 to 3 stood as witnesses. But during the course of trial, respondent No.3 filed an application under Section 156(3) of the CrPC alleging that the petitioners have committed the offence punishable under Section 23(1) & (2) of the POCSO Act and Section 67 of the Information Technology Act, 2000 (for short, ‘the IT Act’), as they have subjected the victim/students to videography disclosing the identity of the victim(s) which is barred under Sections 23 (1) & (2) of the POCSO Act and Section 67 of the IT Act,”.
“It was also submitted in the application that the matter was reported to the press and complaint was also made to Police Station Newai, Durg and to the Inspector General of Police, Durg by memo dated 4-12-2016 and to the Superintendent of Police on 6-12-2016, but no action has been taken leading to the filing of application before the Court,”.
“The learned Additional Sessions Judge (FTC) by order dated 20-3-2017 considered the application and granted the same by directing registration of FIR against the petitioners and consequent investigation and to file final report/closure report before the Court,”.
“Feeling aggrieved against that order, this instant writ petition has been filed stating that there is no compliance of Section 154(1) & (3) of the CrPC and that without applying its judicial mind in a most casual and cavalier manner, the order directing registration of FIR has been passed which runs contrary to law. As such, the impugned order is liable to be set aside.”
As we see, the Division Bench then very rightly goes on to observes in para 9 that, “Section 156(3) of the CrPC provides that “any Magistrate empowered under Section 190 may order such an investigation as abovementioned”. The words “as abovementioned” refer to Section 156(1), which contemplates investigation by the officer in charge of the police station,”.
“The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report under Section 173(8). The Magistrate can order reopening of the investigation even after the police submits the final report. (See Sakiri Vasu v. State of Uttar Pradesh and others (2008) 2 SCC 409.).”
Needless to state, the Division Bench then points out in para 11 that, “It is well settled that in order to make a duly constituted application for invoking the jurisdiction of the learned Special Judge under Section 156(3) of the CrPC, compliance of subsections (1) & (3) of Section 154 of the CrPC would be absolutely necessary and it is sine qua non for making the application maintainable under Section 156(1) of the CrPC.”
Quite significantly, the Division Bench then in the fitness of things mandates in para 14 postulating that, “Sub-section (3) of Section 154 of the CrPC provides the procedure to be followed by informant,”.
“A careful perusal of subsection (3) of Section 154 would show that on refusal on the part of an officer in charge of a police station to record the information referred to Section 154(1) of the CrPC, the person aggrieved may send the substance of such information in writing by post, to the Superintendent of Police concerned, who if satisfied that such information discloses commission of cognizable offence either investigate himself or direct an officer subordinate to him to investigate in the manner provided by the CrPC. What is required is refusal on the part of the Station House Officer to record the information referred to in sub-section (1) which will enable the person aggrieved to send the substance of such information, in writing and by post, to the Superintendent of Police,”.
“Unless there is express or implied refusal on the part of the SHO to register FIR in case of cognizable offence, the person aggrieved may not be justified in filing application under Section 156(3) of the CrPC, as the object is that if the SHO refuses to record the information referred to in sub-section (1) of Section 154 of the CrPC, then he may approach the higher authority which is the Superintendent of Police of the district by way of an independent/separate application under Section 156(3) of the CrPC, who in case of refusal to record the information disclosing commission of cognizable offence, shall investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by the CrPC and such officer shall have all the powers of Station House Officer, as such, the refusal on the part of the SHO to register FIR in cognizable offence is mandatory for making an application under Section 156(3) of the CrPC.”
Be it noted, the Division Bench then notes aptly in para 16 that, “The principle of law laid down by their Lordships of the Supreme Court in Priyanka Srivastava (supra) has been followed with approval in the matter of Vikram Johar v. State of Uttar Pradesh AIR 2019 SC 2109 in which their Lordships have noticed the potentiality of misuse of Section 156(3) of the CrPC to harass those, who are entrusted with various statutory functions and emphasized the need that application under Section 156(3) has to be supported by an affidavit so that the person making allegation should take responsibility of what they have said in the complaint.”
While citing a very recent and most relevant case law, the Division Bench hastens to add in para 17 stating that, “Recently, in the matter of Babu Venkatesh and others v. State of Karnataka and another (2022) 5 SCC 639, their Lordships of the Supreme Court again while upholding the decision in Priyanka Srivastava (supra) analyzed the law as to how the power under Section 156(3) of the CrPC has to be exercised and laid down the prerequisites for exercise of power of Magistrate under Section 156(3) and the manner in which it has to be exercised. Paragraphs 24 to 28 of the report state as under: –
“24. This Court has clearly held that, a stage has come where applications under Section 156(3) CrPC are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.
25. This Court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The Court has noted that, applications under Section 156(3) of the CrPC are filed in a routine manner without taking any responsibility only to harass certain persons.
26. This Court has further held that, prior to the filing of a petition under Section 156(3) of the CrPC, there have to be applications under Sections 154(1) and 154(3) of the CrPC. This Court emphasises the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156(3) of the CrPC. Inasmuch as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.
27. In the present case, we find that the learned Magistrate while passing the order under Section 156(3) of the CrPC, has totally failed to consider the law laid down by this court.
28. From the perusal of the complaint it can be seen that, the complainant Respondent 2 himself has made averments with regard to the filing of the original suit. In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156(3) CrPC. The High Court has also failed to take into consideration the legal position as has been enunciated by this Court in Priyanka Srivastava v. State of U.P. (2015) 6 SCC 287, and has dismissed the petitions by merely observing that serious allegations are made in the complaint.”
Most significantly, the Division Bench then holds in para 18 that, “Reverting to the facts of the case in light of the aforesaid principles of law laid down by the Supreme Court in Priyanka Srivastava (supra) followed in Vikram Johar (supra) and further followed in Babu Venkatesh (supra), it is quite vivid that respondent No.3 made a complaint under Section 154(1) of the CrPC before the Station House Officer, Police Station Nevai, District Durg on 4-12-2016,”.
“However, on being scanned the original record, no application under Section 154(3) of the CrPC is said to have been made by respondent No.3 except the endorsement of the said application under Section 154(1) on 6- 12-2016 to S.P. Durg which in our considered opinion cannot be said to be the compliance of Section 154(3) of the CrPC,”.
“Their Lordships of the Supreme Court in Priyanka Srivastava (supra) followed in Vikram Johar (supra) and further followed in Babu Venkatesh (supra) have clearly held that applications under Section 154(1) & (3) are required to be made separately and both aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed, but in the instant case, though the application under Section 154(1) has been filed, but no application under Section 154(3) is said to have been filed clearly stating that on refusal by the Station House Officer such application is being made,”.
“Refusal is sine qua non for making application maintainable under Section 154(3) of the CrPC. Respondent No.3 got the application under Section 154(1) of the CrPC endorsed to the Office of the Superintendent of Police two days after making application on 4- 12-2016 which cannot be said to be the sufficient compliance of Section 154(3) of the CrPC,”.
“Registration of FIR involves serious and devastating consequences on life and liberty of a person against whom the FIR is directed to be made, therefore, strict compliance of Section 154(3) of the CrPC is required to be made which is sine qua non for maintaining an application under Section 156(3) of the CrPC and merely endorsing a copy of application under Section 154(1) of the CrPC to the Superintendent of Police cannot be said to be the strict compliance of Section 154(3) of the CrPC, there has to be a separate and independent application under Section 154(3) of the CrPC after refusal by the SHO to register FIR,”.
“Thus, there is total non-compliance of Section 154(3) of the CrPC, as no documents have been filed by the complainant in support of the averments made in paragraph 8 of the application under Section 156(3) of the CrPC.”
As a corollary, the Division Bench then holds in para 19 that, “As a fallout and consequence of the aforesaid discussion, the impugned order passed by the learned Additional Sessions Judge invoking power under Section 156(3) of the CrPC is totally without jurisdiction and without authority of law apart from being in teeth of the judgment rendered by the Supreme Court in Priyanka Srivastava (supra) followed in Vikram Johar (supra) and further followed in Babu Venkatesh (supra). As such, the impugned order dated 20-3-2017 passed by the Additional Sessions Judge (FTC), Durg is hereby quashed.”
Finally, the Division Bench then concludes by holding in para 20 that, “The petition is allowed to the extent indicated herein-above. No order as to cost(s).”
In conclusion, we thus see that the Chhattisgarh High Court in this notable judgment most decisively leaves not even an iota of doubt to make it crystal clear that separate and independent application under Section 154(3) of CrPC is required after refusal by SHO to register FIR.
It was also made clear that refusal by SHO is imperative for making the application maintainable under Section 154(3) of CrPC. There can be just no denying it!
Sanjeev Sirohi, Advocate