Smt. Shahnaz vs State Of U.P. & Others
2021 Latest Caselaw 10337 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 28
 
Case :- U/S 482/378/407 No. - 2597 of 2021
 
Applicant :- Smt. Shahnaz
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Applicant :- Dhananjai Kumar Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Sri Dhananjai Kumar Tripathi, learned counsel for applicant, learned Additional Government Advocate for State and perused the record.

The instant application under Section 482 Cr.P.C. has been moved by the applicant/complainant with a prayer to quash the impugned order dated 22.7.2021, passed by the Additional Sessions Judge/Special Judge, POCSO Act, Bahraich in Criminal Case No.287/12/2021, Smt.Shahnaz v. Mohd.Kamruddin @ Pam Hafiz and others, pertaining to P.S.Kotwali Dehat, District Bahraich whereby the application moved by the complainant/applicant under Section 156(3) Cr.P.C. has been treated as complaint.

Learned counsel for applicant while relying on Lalita Kumari v. Government of U.P., AIR 2014 Supreme Court 187, particularly on para-111 and a judgment of this Court passed in Criminal Misc.Application No.16425 of 2013, dated 28.5.2013, submits that the Magistrate has committed a manifest illegality in treating the application of the applicant moved under Section 156(3) Cr.P.C. as complaint as in view of the law laid down by the Hon'ble Supreme Court in the case of Lalita Kumari (supra) and by this Court in the above mentioned case he was duty bound to order for registration of the FIR and investigation of the same.

It is further submitted that the trial court has completely disregarded the facts of the case while it was apparent on the face of the complaint that it is a case wherein the minor daughter of the complainant/applicant was molested and, therefore, the instant case requires thorough investigation by police.

Learned Additional Government Advocate, on the other hand submits that the disputes appears to be of civil nature and even if an application moved by the applicant under Section 156 (3) Cr.P.C. has disclosed the commission of cognizable offence, the Magistrate is not bound to order for investigation and having regard to the facts of the instant case, no illegality appears to have been committed by the Magistrate in treating the application of the applicant as complaint.

Having heard learned counsel for parties and having perused the record it is evident that the applicant is aggrieved by the order of the Magistrate whereby his application moved under Section 156 (3) Cr.P.C. has been treated as complaint. Learned counsel for applicant has relied on the case of Lalita Kumari (supra), specifically on para-111, whereby the Hon'ble Supreme Court has directed that it is mandatory for any police officer to record the FIR whenever an information either written or oral with regard to the commission of a cognizable case is reported.

The other law which has been relied by learned counsel for applicant is of Hon'ble Single Judge of this Court in the background of the facts that a minor school going girl was being eve-teased by the accused persons and in that scenario it was observed that while treating the application moved under Section 156(3) Cr.P.C. as complaint the Magistrate has acted in a most casual manner.

Coming to the facts of the instant case, the complaint filed by the complainant under Section 156 (3) would reveal that the parties are inimical to each other on the basis of some civil dispute as in the application moved under Section 156 (3) Cr.P.C. allegation against the applicant has been levelled with regard to the fact that they, without paying the consideration, got a sale deed executed by the husband of the complainant, namely, Abdul Wakif, who is mentally retarded and she has also filed objections in the proceedings of Section 34 of L.R.Act which were pending before the Tehsildar concerned. Allegations have also been levelled against the accused persons that they had promised to pay Rs. 4 lacs to the applicant but subsequently denied and thereafter the applicant/complainant had also issued a cheque of Rs.2,40,000/- and one blank cheque of Rs.2 lacs was also given by her to the accused persons but they have not returned the land by executing the sale deed in her favour and on 14.6.2021 at 9.30 a.m. the incident in question had occurred.

The question which falls for the consideration of this Court is that whether the Magistrate on an application moved by a complainant/applicant under Section 156(3) Cr.P.C. is bound to order for investigation ? The law in this regard is not now res integra, as by catena of judgment of this Court and Hon'ble Supreme Court it has been resolved that whenever an application under Section 156 (3) Cr.P.C. is placed before the Magistrate, he is duty bound to go through the allegations and if in the peculiar facts and circumstances of that case the matter requires investigation, he may order for investigation, however the opinion has to be formed Judiciously, and if the facts and circumstances of the cases are such which does not warrant issuance of any direction for investigation, he may treat the case as complaint and may follow the procedure as provided under Chapter XV of the Cr.P.C. and he may also reject the application of the applicant. No straight jacket formula in this regard could be provided to the Magistrate.

This Court speaking through a Division Bench in Sukhwasi v. State of U.P., reported in 2007 (59) SCC 739 has categorically opined that the Magistrate in any case is not bound to order for investigation in each and every case wherein the cognizable offences are emerged and observed as under :

"25. Applications under Section 156(3) Cr.P.C. are now coming in torrents. Provisions under Section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual or extra ordinary like miscarriage of justice, which warrants a direction to the Police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) Cr.P.C.

26. The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under Section 156(3) Cr.P.C. and there is no such legal mandate.

27. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint."

Hon'ble Supreme Court in the case of Priyanka Srivastava And Another v. State Of. Uttar Pradesh And Others: (2015(6) SCC 287) opined as under :

"24. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order.....

26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.

27. In our considered opinion, a stage has come in this country where Section 156 (3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can 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......."

The law which has been mentioned herein before clearly indicates that in the matter of ordering investigation in a particular case the discretion is always of the Magistrate and the same has to be exercised keeping in view the peculiar facts and circumstances of the case and no straight jacket formula can be formulated for this purpose.

Having regard to the facts of the instant case and keeping in view the order passed by the Magistrate concerned it could not be said that the Magistrate has not applied his judicial mind to the facts of the instant case and as such no illegality appears to have been committed by him.

Thus in the considered opinion of this Court the facts and circumstances of this case does not warrant for issuing any direction to the Station House Officer concerned for investigation of the case and Magistrate appears to have not committed any illegality in passing the impugned order.

However, before parting it would he fruitful to state that even if the Magistrate has chosen to adopt the procedure provided under Chapter XV of the Cr.P.C., Section 202 Cr.P.C. empowers the Magistrate that in certain conditions he could postpone the issue of process against the accused persons and order inquiry into the case or direct an investigation to be made by the police officer or by such other persons as he thinks fit. Thus if any investigation at all is required in the case, the same can be taken care of by the Magistrate while exercising power under Section 202 of the Cr.P.C.

In view of above, the application appears to be without any merit and the same is dismissed.

Order Date :- 16.8.2021

Irfan