Appeal
3. The controversy considered in the present appeal reflects whether the athletes under training at OREA, who wanted to control the mind and body of a horse, have lost the calmness, suppleness and flexibility while being trained at OREA. The Criminal Appeal concerns the complaint filed by Respondent No. 2 on 29.04.2018 before SHO P.S. Fatehpur Beri, South Delhi under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, “the Act of 1989”) against the Appellants herein and the application dated 09.05.2018 filed under section 156(3) of the Code of Criminal Procedure, 1973 (for short, “the CrPC”) before the Ld. Metropolitan Magistrate, South Saket Court, Delhi.
Petition filed under section 156(3) crpc
3.4 The grievance of Respondent No. 2 is that the information lodged on 29.04.2018 was not taken up, inquired, or investigated by the SHO of P.S. Fatehpur Beri. Respondent No. 2, alleges to have sent complaints/grievance petitions complaining inaction on the Complaint dated 29.04.2018, between 29.04.2018 and 08.05.2018, to all the authorities who matter in giving apt and appropriate directions to the SHO of P.S. Fatehpur Beri for timely investigation of the information lodged on 29.04.2018. Respondent No. 2 has a grievance that the inquiry/investigation, on the complaint dated 29.04.2018, did not happen as mandated by the Act of 1989. Hence, on 09.05.2018, Respondent No. 2 filed an application under section 156(3), read with section 200 of the CrPC before the Ld. Chief Metropolitan Magistrate, South Saket Court for the following prayers: “It is therefore most humbly prayed that this Hon’ble Court may kindly be pleased:
a) To order registration of FIR under appropriate provisions of law and order full fledged investigation, as may be mandatory and necessary in accordance of law.
b) Pass such further order, as this Hon’ble Court may deem fit, just and proper in the interest of justice.”
9. We have heard Mr. Siddharth Luthra, Ld. Senior Advocate for the Appellants and Ms. Aishwarya Bhati, Ld. ASG for Respondent No. 1. We have also heard from Mr. Kapil Nath Modi, the Ld. Advocate, who is also the administrator and supervisor of OREA. Mr. Kapil Modi has been noted as a witness on one of the occasions to the casteist slur allegedly made by the Appellants at Respondent No. 2. Therefore, a faint objection to Mr. Kapil Modi appearing as the Counsel for Respondent No. 2 has been raised by Mr. Siddharth Luthra. Mr. Siddharth Luthra in support of his objection to Advocate Kapil Modi appearing in the appeal relied on a decision reported in Kokkanda B. Poondacha & Ors. v. K.D. Ganapathi & Anr [(2011) 12 SCC 600] In reply, Advocate Kapil Modi invited our attention to section 15A(12) read with section 20 of the Act of 1989 and contended that the prescription in either the Advocates Act, 1961 or Bar Council of India Rules is subject to the special protection granted by section 15A(12) read with section 20 of the Act of 1989 to a victim. To be fair to the Ld. Counsel appearing for the parties, allowing Mr. Kapil Modi to appear as Advocate for Respondent No. 2, is entirely left open to the discretion of this Court. However, as a principle, it may not be understood that we have considered the rigor of the Advocates Act read with the Code of Conduct on the one hand and section 15A(12) read with section 20 of the Act of 1989 on the other hand, when we allow Advocate Kapil Modi to appear for Respondent No. 2. At this juncture, we advert to an excerpt from Kokkanda B. Poondacha (supra), wherein it was observed that:
“12. …Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness, and loyalty.”
Respondent No. 2 rightly believes in Mr. Kapil Modi’s training in an equestrian sport and in the effective representation of the case of Respondent No. 2. Without deciding the objection raised by the Counsel for the Appellants, we have proceeded and heard Mr. Kapil Modi, from now on, the Ld. Counsel for Respondent No. 2.
Points for consideration
12. We have taken note of the rival submissions and perused the record relevant to the issue arising under the Act of 1989. The above raises the following points for our decision:
A. Whether the order dated 09.07.2018 of the Metropolitan Magistrate conforms to the material on record and satisfies the mandate of section 156(3) of the CrPC?
B. Whether the complaint(s) dated 29.04.2018/09.05.2018 make out a prima facie case of an offence under section 3(1)(r) and 3(1)(s) of the Act 1989?
C. Whether the impugned order is valid, legal and tenable in the facts and circumstances of the case?
III. Analysis
Amendments made for SC/ST amendment Act 2018
13. On 20.03.2018, this Court delivered judgment in Dr. Subhash Kashinath Mahajan v. the State of Maharashtra & Anr [AIR 2018 SC 1498] In Union of India v. State of Maharashtra [(2020) 4 SCC 761], the directions in Dr. Subhash Kashinath Mahajan (supra) have been substantially reviewed/modified. In the interregnum, the Parliament stepped in and made the amendments vide the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 (for short, “Act No. 27 of 2018”) to the parent act.
Discretion and Jurisdiction under section 156(3) crpc
14.1 Let us examine the discretion and jurisdiction of a Magistrate on the application filed under section 156(3), CrPC. Whether the Magistrate has to act and accept mechanically a complaint presented to him and direct registration of FIR or in his discretion, upon the examination of allegations order preliminary enquiry then proceed in the matter. The answer to the question centres around section 156(3) of the CrPC. The position in law is fairly well-settled and we advert to a few decisions on the point. In Priyanka Srivastava & Anr. v. State of Uttar Pradesh & Ors [2015 6 SCC 287], this Court observed that the Magistrate can look into the veracity of an application under section 156(3) because ordering inquiry requires the application of judicial mind and affidavit by the applicant and has held thus:
“30. In our considered opinion, a stage has come in this country where Section 156(3) of the CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the jurisdiction of the Magistrate. That apart, in an appropriate case, the Ld. Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever, only to harass certain persons…”.
Investigation agency can conduct preliminary inquiry even after direction under section 156(3) Cr.P.C
14.2 In Khalid Khan & Anr. v. State of U.P. & Anr [(2023) SCC OnLine All 2277], dealing with a converse situation, the High Court of Judicature of Allahabad observed that when the application under section 156(3) of the CrPC discloses the commission of a cognizable offence, then the concerned Magistrate must direct the registration of the FIR. Under the provisions of section 156(3) of the CrPC, a Judicial Magistrate has the discretion to direct a preliminary inquiry before ordering the registration of the FIR in cases where no cognizable offence is made out. Referring to Priyanka Srivastava (supra), the High Court highlighted the importance of verifying the veracity of allegations levelled in a complaint to keep in check the filing of applications under section 156(3) as a tool to harass people. Thus, from the above judgments, it is crystal clear when the application under section 156(3) of CrPC discloses a cognizable offence, then it is the duty of the concerned Magistrate to direct registration of the FIR, which is investigated by the investigation agency, in accordance with the law. Conversely, when the information received does not prima facie disclose the commission of a cognizable offence, but indicates the necessity for inquiry, in that case, the preliminary inquiry may be conducted in order to ascertain whether the offence complained is cognizable or not. The purpose of the preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information received reveals a cognizable offence or not.
14.3 We do not propose to multiply citations on the point and succinctly stated, the Magistrate, under section 156(3) of the CrPC, asks himself a question: whether the complaint, as presented, makes out a case for directing the registration of an FIR or calls for inquiry or report from the jurisdictional police station. The inner and outer limit of the exercise of this jurisdiction is on a case-to-case basis dependent on the complaint, nature of allegations and offence set out by such a complaint. Therefore, it is fairly well-settled and axiomatic by the decisions rendered under section 156(3) of the CrPC that the Magistrate does not act mechanically and exercises his discretion judiciously by applying mind to the circumstances complained of and the offence alleged against the accused for taking one or the other step. The case on hand principally concerns deciding whether the discretion is invalidly exercised by the Magistrate while ordering a report from the SHO.
If vague allegation in the complaint then no direction for registration of FIR
18. There cannot be two views on the proposition that to cause or register an FIR and consequential investigation based on the same petition filed under section 156(3) of the CrPC, the complaint satisfies the essential ingredients of the offences alleged. In other words, if such allegations in the petition are vague and do not specify the alleged offences, it cannot lead to an order for registration of an FIR and investigation.
Learned Metropolitan Magistrate is justified in ordering a preliminary inquiry and ask for action taken report from the police station
26. From the above consideration, the available conclusion is that firstly, the Metropolitan Magistrate at the relevant point of time was justified in ordering a preliminary inquiry on the application dated 09.05.2018 and receiving the Action Taken Report from the jurisdictional police station. Further, the accusations in the complaints do not satisfy as having been made in any place within public view. Therefore, in a case such as the present, directing registration of FIR and further steps is unsustainable. Points A and B are answered in favour of the Appellants.
Party
PRITI AGARWALLA AND OTHERS … APPELLANT(S) VERSUS THE STATE OF GNCT OF DELHI AND OTHERS … RESPONDENT (S) – CRIMINAL APPEAL NO (S). 348 OF 2021 – 2024 INSC 437 –
Further study on the subject
Author’s note
Kindly note that the Hon’ble Supreme Court nowhere said that the Investigation Officer or the Station House Officer can neglect the direction and may do preliminary inquiry. To the contrary, Hon’ble Supreme court has held that the Magistrates are empowered to give direction for preliminary enquiry and ask for action taken report from the Station House Officer. Hence, if there is direction from the Magistrate to register the application the SHO has no other option to register the FIR failing which SHO is liable for the offence under Section 21 read with Section 44 of the District Police Act for which sanction is not necessary.
