HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 50 Case :- CRIMINAL REVISION No. - 3722 of 2011 Petitioner :- Swayam Prabha Respondent :- State Of U.P. And Others Petitioner Counsel :- R.B. Sahai,Amrish Sahai Respondent Counsel :- Govt. Advocate Hon'ble S.C. Agarwal,J.
Heard Sri R.B. Sahai, learned counsel for the revisionist and learned A.G.A. for the State.
No notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he/she feels so aggrieved.
This revision under section 397/401 Cr.P.C. is directed against the order dated 1.7.2011 passed by C.J.M., Gorakhpur in criminal misc. application no.5175 of 2011 (Swayam Prabha Vs. Anand and others) whereby the application filed on behalf of the revisionist under section 156 (3) Cr.P.C. for registering the case under sections 394, 504, 506, 356 IPC, P.S. Cantt., District Gorakhpur was directed to be treated as a complaint.
Application u/s 156 (3) Cr.P.C. was moved by the revisionist-complainant Smt. Swayam Prabha against her father-in-law Babban Mishra and husband Anand Kumar alleging therein that she was married with Anand Kumar on 9.7.2000. Her in-laws started treating her with cruelty on account of demand of a four wheeler and Rs.5 lacs in cash, in respect of which, a criminal case under section 498-A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act is pending against her husband and members of his family. A divorce petition and application for maintenance allowance are also pending between the parties in Family Court, Gorakhpur. In the Family Court, 24.3.2011 was fixed for hearing and husband Anand Kumar had to pay a cost of Rs.1000/- to the petitioner on order passed by the Court. Father-in-law of the complainant is a Sub Inspector in Police. On the same day at about 12:30 p.m., when the complainant came out of the court room, her father-in-law, husband and 2-3 others surrounded her, abused and beat her causing injuries. She was also threatened with death. Her handbag containing Rs.3000/- was snatched by Anand Kumar and the gold chain around her neck was also snatched by her father-in-law.
After about 2 months i.e. on 20.6.2011, application u/s 156 (3) Cr.P.C. was filed, whereupon the Magistrate, relying upon a decision of the Apex Court in Mohd. Yusuf Vs. Smt. Afaq Jahan (2006) JIC 705 and Alyque Padamsee Vs. Union of India and another (2007) 6 ACC 171, treated the application u/s 156 (3) Cr.P.C. as a complaint. Hence, this revision.
Learned counsel for the revisionist submitted that where in the application, prima facie cognizable offence is disclosed, the Magistrate is bound to pass an order in terms of section 156 (3) Cr.P.C. directing registration of the F.I.R. and investigation and Magistrate cannot treat the application as complaint. Moreover, the looted money and gold chain are also to be recovered.
Reliance has been placed on Single Judge decision of this Court in Criminal Misc. Writ Petition No.7137 of 2011, Gopal Krishna Vs. State of U.P.
In Sukhwasi Vs. State of U.P. 2007 (58) ACC (754), a Division Bench of this Court had held that on an application under Section 156(3) Cr.P.C., the Magistrate has got the jurisdiction either to order registration of FIR or to treat the application as a complaint.
The present dispute arising out of a family dispute. The allegations that husband and father-in-law looted the complainant inside the court campus is too much to be believed. No doubt, there are some minor injuries on the person of the complainant. It is common experience that in matrimonial dispute, the parties often fight with each other, but looting a sum of Rs.3000/- by the husband and robbery of a gold chain from the complainant of her own father-in-law in court campus prima facie appear to be highly exaggerated. In these circumstances, the Magistrate rightly treated the application u/s 156 (3) Cr.P.C. as a complaint and no good ground for directing registration of the F.I.R. was made out.
As far as the argument of learned counsel for the revisionist that police investigation is a must for recovery of the looted articles is concerned, the Magistrate still has power to order investigation by police at the stage of section 202 Cr.P.C. after recording the statement of the complainant under section 200 Cr.P.C. If the Magistrate, after examining the complainant, comes to the conclusion that prima facie the statement of the complainant is credible and recovery is to be made, he can still direct investigation under section 202 Cr.P.C.
The impugned order, at this stage, does not suffer from any illegality. No ground for interference is made out.
Revision is accordingly dismissed.
Order Date :- 12.9.2011 ss