Jayveer Singh vs State Of U.P. And 2 Others
2013 Latest Caselaw 7178 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 13
 
Case :- CRIMINAL REVISION No. - 3211 of 2013
 
Revisionist :- Jayveer Singh
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- Shiva Tripathi
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Aditya Nath Mittal,J.

Heard learned counsel for the revisionist, Learned A.G.A. and perused the record.

This criminal revision has been filed against order dated 18.10.2013 passed by A.C.J.M.-I, Gautam Buddh Nagar, in Complaint Case no. 2654 of 2013 under Sections 420, 406 I.P.C, Police Station Kasna, District Gautam Buddh Nagar by which the application of revisionist under Section 156(3) has been registered as complaint. Learned counsel for the revisionist has submitted that it was not the jurisdiction of the Magistrate concerned to have come to the conclusion that whether the matter should be investigated by the police or not. The Magistrate concerned has not exercised the jurisdiction properly.

In view of Father Thomas vs. State of U.P. (2011) 100 AIC 273 (Alld.), no revision or 482 Cr.P.C. proceedings or writ lies against the order whereby the application under Section 156(3) Cr.P.C is rejected. It has further been held that the only remedy for the revisionist is to file the complaint.

In the present case the Court has come to the conclusion that it is within the knowledge of the revisionist that who are the accused persons and the evidence is also within the knowledge of the applicant. The Court has further concluded that there is no fact involved in the application in which it is required that police should collect the evidence. Relying upon Sukhwasi vs. State of U.P. (2007) 59 S.C.C. page 739 (Alld.), the application under Section 156(3) Cr.P.C. has been registered as complaint case.

In Sukhwasi vs. State of U.P. (Supra), this Court has laid down certain guidelines relying on provision of Section 156(3) Cr.P.C and in view of Sukhwasi vs. State of U.P. (Supra), the Court has every power to treat the application under Section 156 (3) Cr.P.C. as complaint, if it comes to the conclusion that there is no necessity of police investigation. The present case relates to the sale and purchase of shares and it is alleged that the accused persons had mis-appropriated the amount of complainant which was given for purchase of shares. Admittedly, the complainant was having a Demat account. For making transaction form Demat Account, the account holder has to authorised the concerned service provider to transfer the particular shares and for this purpose the receipt book is also given to him. Certainly, all these evidences must be available to the complainant that what shares have been purchased by him and how many shares have been sold by him. Certainly, in such matter the police investigation is not required because the information is available to the account holder.

Learned counsel for the revisionist has relied upon Smt. Geeta vs. State of U.P., Criminal Misc. Writ Petition No. 11729 of 2012 in which a direction has been issued to the Magistrate concerned to pass a fresh order on the application of the petitioner in accordance with law. In this case, the allegations were regarding loot of the valuable articles and burning of house as well as destruction of other goods. No such law has been laid down in the aforesaid Criminal Misc. Writ Petition that decisions of this Court in Sukhwasi vs. State of U.P. (Supra) and Father Thomas vs. State of U.P. is not applicable.

Learned counsel for the revisionist has further relied upon Manju Devi vs. State of U.P. ADJ-2011-9-112 (Alld.) in which the Chief Judicial Magistrate, Chandauli had rejected the application under Section 156(3) Cr.P.C. and this Court has held as under:-

"It is a established law that at the time of considering an application under Section 156(3) Cr.P.C., the Magistrate has only to see whether cognizable offence is disclosed. The Magistrate is not empowered to critically analyze the material on record and to come to a finding that no case for investigation is made out. Learned Magistrate committed illegality in rejecting the application under Section 156(3) Cr.P.C. on the ground that petitioner's case in the application and the medical evidence were contradictory on the point of time. If the Magistrate had any doubt, he must have left this point to be probed by the investigating officer and application under Section 156(3) Cr.P.C. cannot be rejected on such ground."

In the present case, the application under Section 156(3) Cr.P.C. has not been rejected but that has been treated to be a complaint. Therefore, the aforesaid law which also appears to be contrary to the Full Bench decision in Father Thomas vs. State of U.P. (Supra) is not applicable.

Learned counsel for the revisionist has further relied upon Harprasad vs. State of U.P. ADJ-2006-10-412, in which the matter has been remanded back to Special Judge (D.A.A.), Budaun to reconsider the application under Section 156(3) Cr.P.C. afresh. This law is prior to the case of Father Thomas vs. State of U.P. (Supra) in which the controversy has been set at rest.

Learned counsel for the revisionist has further relied upon Lalita Kumari vs. Government of U.P. LAWS (SC)-2013-11-15, in which Hon'ble Apex Court has considered the scope of Section 156, 157, 173, 190 and Section 204 Cr.P.C. In this case, Hon'ble Apex Court has at length considered the provisions of Section 154 Cr.P.C. and had held as under:-

"(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. (ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. (iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. (v) The scope of 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. (vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes / family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay / laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. (vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. (viii) Since the General Diary / Station Diary / Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

In the aforesaid ruling, the scope of Section 156(3) Cr.P.C., has not been considered at all and the law laid down in Father Thomas (Supra) and Sukhwasi vs. State of U.P. have not been overruled.

It is settled position of law that the Magistrate has the power to treat the application under Section 156(3) Cr.P.C. as a complaint and in case the application under Section 156(3) Cr.P.C. is rejected, the remedy is available to file the complaint.

In the present case, the application of the revisionist has been treated as complaint which is in accordance with law and I do not find any error of law or perversity in the impugned order.

I fail to understand as to why the revisionist is scared of in giving his evidence as complainant.

For the facts and circumstances mentioned above, the revision has no merit, therefore, rejected.

Order Date :- 28.11.2013

sailesh