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Synopsis

The Allahabad High Court recently ordered the Superintendent of Police in Moradabad to file an FIR based on a woman's application under Section 156(3) CrPC. The woman alleged that her gang rapists, using their influence, had an imposter pose as her in court and created a forged affidavit claiming she had no objections to the final report in her case.

She stated that the accused forged her thumb impression and photograph, falsely indicating she did not want to file a protest petition and that the police's final report in the rape case should be accepted by the trial court.

The woman maintained that she always intended to file an FIR against the accused persons and did not wish her case to be closed.

The woman initially filed an FIR on October 10, 2021, against the accused for offences under Sections 452, 376-D, and 506 IPC. After investigation, a final report was submitted on December 31, 2021.

The woman alleged that no notice was issued to her regarding the final report and the trial court on the basis of above referred forged affidavit accepted the final report.

The woman subsequently filed an application under Section 156(3) CrPC against the accused persons and an unknown woman who had posed as her imposter, seeking an FIR for offences including cheating and forgery.

The Chief Judicial Magistrate of Moradabad considered this application and, in an order dated March 31, 2023, treated it as a complaint instead of directing the lodging of an FIR. The case was then scheduled for recording the complainant's statement under Section 200 CrPC.

The woman's counsel argued that she was aggrieved by the trial court's decision, which stated that all relevant facts were within the complainant's knowledge and thus, an FIR was unnecessary.

The bench of Justice Saurabh Shyam Shamshery noted that in the rape case, the trial court had passed the order accepting the final report on basis of material available and not much being influenced by the affidavit allegedly filed by the victim woman's imposter. 

However, it noted that the attempt of the woman to lodge FIR by filing an application before the Superintendent of Police failed though in view of the judgment of Lalita Kumari vs. Government of U.P. and others, 2013 (14) SCR 713, since it was a cognizable offence, police ought to have lodged an FIR.

"Trial Court has placed reliance on Mona Panwar (supra) and has referred the same, however, it has been observed therein that on an application filed under Section 156(3) Cr.P.C., Magistrate could either direct to lodge FIR or could direct to register as a complaint mainly to ascertain that whether there is a prima facie case against accused persons on basis of contents of complaint or not," it observed. 

Referring to the top court's ruling in XYZ vs. State of Madhya Pradesh and others, (2023), the high court held that in such cases where contents of application filed under Section 156(3) Cr.P.C. not only disclosed that a cognizable offence was committed but bare facts of complaint clearly indicate that there is a need for thorough police investigation, then the discretion granted in Section 156 (3) Cr.P.C. can only be read as it being the Magistrate duty to order the police to investigate.

Court opined that trial court did not appreciate contents of complaint in its correct perspective and failed to consider that contents of complaint and allegation showed prima facie that a serious offence had been committed by proposed accused persons.

As such, bare facts indicate that it requires police investigation and for that learned Magistrate does not require to wait till stage of 202 Cr.P.C. and it ought to have been exercised his discretion to direct for police investigation, it said. 

Therefore, court directed the concerned SHO and the SP, Moradabad to lodge an FIR and proceed further for investigation in accordance with law.

Case Title: Saida v. State of UP and 3 Others