Allahabad High Court
Krishna Kumar Sahu vs State Of U.P. And An 11 Others on 5 January, 2021
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 80
Case :- APPLICATION U/S 482 No. - 19497 of 2020
Applicant :- Krishna Kumar Sahu
Opposite Party :- State Of U.P. And An 11 Others
Counsel for Applicant :- Santosh Kumar Jaiswal
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 05.11.2020 passed by Chief Judicial Magistrate, Ghazipur in Misc. Criminal Case No. 1040 of 2020 (Krishna Kumar Sahu vs. Kamlesh and others) under Section 156(3) Cr.P.C., P.S. Kotwali, District Ghazipur.
It has been argued by the learned counsel for the applicant that the application filed by the applicant under Section 156(3) Cr.P.C. discloses cognizable offence but despite that the Court below has not passed the order for investigation by the police rather the said application was registered as a complaint case vide impugned order dated 05.11.2020. It has been submitted that there are allegations against the private respondents that they have attacked the applicant and his daughter with hockey and stick and also snatched ear-rings from the daughter of applicant. Learned counsel submitted that in view of nature of allegations, first information report must have been registered against private respondents and thus, learned court below committed error in registering the application of applicant as complaint case.
Learned A.G.A. has opposed the application and argued that there is no illegality and impropriety in the impugned order.
In the instant matter it may be seen that 11 persons including several girls and ladies were named in the application under Section 156(3) Cr.P.C, besides two unnamed persons. and the allegations have been made that all the said persons have assaulted the complainant and his daughter with lathi and hockey but only three simple injuries have been shown on the person of injured. No specific role has been assigned to any of the respondent.
The issue whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156 (3) Cr.P.C. containing allegation of commission of a cognizance offence is no more 'res-integra', as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. After having considered the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi vs. State of U.P. (supra) has answered the question referred to it, in paragraph 23 of the judgment as under:-
"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. 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."
Dealing with application under Section 156(3) Cr.P.C., Magistrate is required to apply its mind to find out whether the first information sought to be lodged by the applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appear to be without any substance, then in such case the Magistrate can refuse to direct registration of the FIR and its investigation by the police, even if the application contains the allegations of commission of a cognizable offence. In such case, the Magistrate is fully competent to reject the application. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint, as held by the Division Bench in the case of Sukhwasi vs. State of U.P. (supra).
In the instant case, considering the nature of allegations, it can not be said that learned Magistrate has committed any illegality or perversity in registering the application of the applicant under Section 156(3) Cr.P.C. as a complaint case. There is nothing to indicate that there has been any abuse of process of Court or any miscarriage of justice so as to warrant any interference by this Court in exercise of powers under Section 482 Cr.P.C.
In view of the above, the present application under Section 482 Cr.P.C. has no force, hence rejected.
Order Date :- 5.1.2021
A. Tripathi
