Magistrate Can Order Preliminary Inquiry If Application U/S 156(3) CrPC Prima Facie Doesn't Disclose A Cognizable Offence: Allahabad HC

The court, however, added that the scope of the 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.

A bench of Justice Anish Kumar Gupta further observed that when the application u/S 156(3) CrPC discloses the commission of a cognizable offence, then the concerned Magistrate must direct the registration of the FIR.

These observations were made by the Court while dismissing a challenge made to a Magistrate's order directing for a preliminary inquiry by the Sub Divisional Magistrate, concerning the allegations made in an application u/s 156(3) CrPC moved by the petitioners before the HC.

The case in brief

Essentially, it was the applicants' case that after one Satyendra Pal was murdered, the Police officials arrested the son of the deceased and when they were taking him in a police van after getting his remand, the applicants, being advocates, escorted the police and after maintaining a distance, they were recording the search operation and making videography of the search operation by the police.

It was their further case that when the police officials, on reaching the spot where the alleged recovery had been conducted, realized that the entire incident was being recorded in the video camera, they stopped the videography, then snatched the video camera of the applicant and the police team forcibly confined the applicant and other persons accompanying the applicant and put them in a car and took at some distance and tried to throw them in a nahar.

Now, complaining that the aforesaid act of the police team was beyond scope and was in violation of the remand order, they filed an application u/s 156(3) CrPC for registering the offence against the erring police officers.

However, instead of directing the registration of an FIR, the Magistrate concerned directed the preliminary inquiry to be conducted by the Sub Divisional Magistrate. Challenging this order, the applicants moved the HC.

Against the backdrop of the facts of the case, the Court, at the outset, referred to the Supreme Court's judgments in the cases of Lalita Kumari vs. Govt. of U.P. and Ors 2014 and Priyanka Srivastava and Anr. Vs. State of U.P. and others 2015 to note thus:

“…if the application u/S 156(3) Cr.P.C, filed before the Magistrate, in the considered opinion of the learned Magistrate, does not discloses the cognizable offence per se, but it is indicative of commission of some cognizable offences, the Magistrate has the discretion to direct a preliminary inquiry before directing the registration of the F.I.R”.

Further, observing that the discretion of the Magistrate, while directing for the preliminary inquiry cannot be questioned, the Court noted that from the facts of the case, a cognizable offence per se was not indicated in the said complaint.

Therefore, finding justification in the Magistrate's order to direct for a preliminary inquiry in the matter, the Court upheld the impugned order passed by the Chief Judicial Magistrate, Ghaziabad and dismissed the instant plea.

Petitioner's Counsels - Sanjay Kumar Rajbhar and Pramod Kumar

Case title - Khalid Khan And Another Vs. State Of U.P. And Another 2023 LiveLaw (AB) 426 [APPLICATION U/s 482 No. - 29284 of 2023]

Case Citation: 2023 LiveLaw (AB) 426

Click Here To Read/Download Order