Criminal Revision Application No.22 of 2011,Criminal Revision Application No. 42 of 2011

18th August, 2011

Petitioner Counsel: Mr. K. Kerkar
Respondent Counsel: Mr. A. F. Diniz,Mr. C. A. Ferreira

Cases Cited:
Devarapalli Lakshminarayana Reddy and others Vs. Narayana Reddy and others, (1976) 3 SCC 252 [Para 6]

JUDGMENT

JUDGMENT :- Heard learned Counsel for the parties and learned Public Prosecutor.

2. Rule, in both the revision applications. By consent heard forthwith.

3. On 31.03.2010, the petitioner in Criminal Revision Application No. 22 of 2011 filed Criminal Misc. Application No. 38/2010 purportedly under Section 156(3) of Criminal Procedure Code against the Superintendent of Police (North) and the Sub-Divisional Police Officer, Mapusa seeking direction to respondent no.1 to register a crime against Shri Krishna Subaji, ASI - respondent no.1 and Shri S. S. Narvenkar, PSI - respondent no.2 in Criminal Revision application No. 22 of 2011 under Section 218 of the Indian Penal Code. After recording the statement of the informant under Section 200 of Criminal Procedure Code, the Magistrate passed an order dated 18.08.2010 under Section 156 of Criminal Procedure Code directing the respondent no.1 to register FIR against respondent nos. 1 and 2 under Section 218 of Indian Penal Code. Pursuant to the said order dated 18.08.2010, FIR came to be registered at Pernem Police Station.

4. Respondent nos. 1 and 2 filed Criminal Revision Application before the Sessions Court, North Goa, Panaji, which was made over to the Additional Sessions Judge, Panaji. The Additional Sessions Judge by judgment and order dated 30.10.2010 allowed the revision application and cancelled FIR registered against respondent nos. 1 and 2.

5. The judgment and order passed by the Additional Sessions Judge has been challenged by the Superintendent of Police ( North) and another and the original accused. Perusal of record discloses that the application was filed under Section 156(3) of Criminal Procedure Code against the Superintendent of Police, (North) as well as the Sub-Divisional Police Officer, Mapusa. No averment has been made in the application that an attempt was made by the applicant to call upon the officer incharge of Pernem police station to register FIR under Section 154(1) of Criminal Procedure Code. It is well settled that FIR has to be lodged with the officer incharge of police station in terms of Section 154(1) of Criminal Procedure Code and in case he fails or refuses to register FIR, aggrieved party has to approach the concerned Superintendent of Police in terms of Section 154(3) of Criminal Procedure Code. It is also well settled that in an application seeking direction to register FIR under Section 156(3) of Criminal Procedure Code, a direction can only be sought against the officer incharge of police station to register FIR. Such a relief can never be sought against the Superintendent of Police or the Sub- Divisional Police Officer.

6. Perusal of the record further discloses that in the application purportedly filed under Section 156(3) of Criminal Procedure Code, the Magistrate recorded the statement of the informant under Section 200 of Criminal Procedure Code and thereafter chose to pass an order under Section 156(3) of Criminal Procedure Code. It is patently contrary to the provisions of Criminal Procedure Code. It is axiomatic that order under Section 156(3) of Criminal Procedure Code can be made by the Magistrate only before taking cognizance and if a statement of the complainant is recorded under Section 200 of Criminal Procedure Code, the Magistrate is not entitled to pass an order in terms of Section 156(3) of Criminal Procedure Code but he can only proceed to direct inquiry or investigation if he deems fit in terms of Section 202 of Criminal Procedure Code. Devarapalli Lakshminarayana Reddy and others Vs. Narayana Reddy and others, reported in (1976) 3 SCC 252. Therefore, it is evident that the Magistrate also erred in recording the statement of the informant and, thereafter, proceeded to pass an order under Section 156(3) of Criminal Procedure Code.

7. In view of the above legal and factual position, Shri Kerkar, learned Counsel for the petitioner in Criminal Revision Application No. 22 of 2011 seeks leave to withdraw the application dated 31.03.2010.

8. In the peculiar circumstances of the case and considering that the application filed by the petitioner was not maintainable and also that the Magistrate has not followed correct procedure, I deem it appropriate to grant leave to the petitioner to withdraw the application dated 31.03.2010 purportedly filed under Section 156(3) of Criminal Procedure Code with liberty to the petitioner to avail of approp-riate proceedings as may be available in law.

9. In view of the above, I pass the following :

O R D E R

(i) The petitioner in Criminal Revision Application No. 22 of 2011 is permitted to withdraw the application dated 31.03.2010 purportedly filed under Section 156(3) of Criminal Procedure Code.

(ii) Consequently, order dated 18.8.2010 passed by JMFC, Pernem and judgment and order dated 30.10.2010 passed by the Additional Sessions Judge, Panaji in Criminal Revision Application No. 102/2010 stands quashed and set aside.

(iii) FIR filed against respondent nos. 1 and 2 also stands quashed and set aside.

10. Both the revision applications stand disposed of. No order as to costs.

Ordered accordingly.