Allahabad High Court
Bijendra Singh vs State Of U.P. And 3 Others on 25 January, 2021
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 80
Case :- CRIMINAL REVISION No. - 162 of 2021
Revisionist :- Bijendra Singh
Opposite Party :- State Of U.P. And 3 Others
Counsel for Revisionist :- Mithilesh Kumar Mishra,Umeshkumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
The instant revision has been filed for setting aside the order dated 16.12.2020 passed by Chief Judicial Magistrate, Buland Shahr, in Case No. 2145 of 2020, Computer Case No. 1800 of 2020, (Bijendra Vs. Rakesh and others), under Sections 452, 323, 504, 506, 392, 343, 166 of IPC, Police Station Khurja Nagar, District Buland Shahar, whereby the said court has treated the application under Section 156(3) Cr.P.C. as a complaint.
Heard learned counsel for revisionist and learned AGA for State.
It has been argued by learned counsel for revisionist that revisionist has filed an application under Section 156(3) Cr.P.C., which discloses commission of cognizable offence but despite that the said application has been registered as a complaint case and that prayer for investigation by police was declined. Learned counsel submitted that there were allegations against private respondents that they outraged modesty of one Lajja Rani and snatched her golden chain and that this version is supported by CCTV footage of the same. It was necessary that investigation be conducted by police. Learned counsel submitted that impugned order dated 16.12.2020, by which the application of revisionist under Section 156(3) Cr.P.C. has been registered as a complaint case, is against law and thus, liable to be set aside.
Learned AGA has opposed the revision and argued that both the parties are neighbours and that all the facts are known to the revisionist and thus, there is no illegality or error of jurisdiction in the impugned order.
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."
Thus, it is apparent that Magistrate is not bound to pass order of investigation by police, even if such application discloses cognizable offence. The Magistrate is required to apply its mind to find out whether the first information sought to be lodged by revisionist had any substance or not. 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). Thus, though, in appropriate cases, learned Magistrate can make a direction for police to investigate the matter but this jurisdiction has to be exercised cautiously and such order cannot be passed in a routine manner.
In case Mrs. Priyanka Srivastava and another vs. State of U.P. and others;2015 AIR(SC)1758, the Hon'ble Apex Court held as under:
"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."
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 revisionist 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 matter, from perusal of record it is apparent that both the parties appears neighbours and that allegations of robbery have been made against private respondents, who includes husband and wife and one another person.
In view of the facts and circumstances of the matter, it cannot be said that court below has committed any illegality or perversity in registering the application of the revisionist under Section 156(3) Cr.P.C. as a complaint case. No error of jurisdiction could be shown in the impugned order so as to require any interference by this Court.
In view of the above, the present criminal revision has no force, hence dismissed.
Order Date :- 25.1.2021
Mohit
