Ankit Kumar vs State Of U.P. And Another
2021 Latest Caselaw 307 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 80
 

 
Case :- APPLICATION U/S 482 No. - 218 of 2021
 
Applicant :- Ankit Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Anurag Vajpeyi,Syed Imran Ibrahim
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

The instant application under Section 482 Cr.P.C. has been filed for quashing the order dated 07.05.2019 passed by learned A.C.J.M.-3rd, Gautam Budh Nagar in Criminal Misc. Case No. 158 of 2019 (Ankit Kumar Vs. Neha Sahu And Another), police station Bisrakh, district Gautam Budh Nagar, whereby the said court has treated the application of the applicant under Section 156(3) Cr.P.C. as a complaint.

Heard learned counsel for applicant and learned A.G.A. for the State.

It has been argued by learned counsel for applicant that applicant has filed an application under Section 156(3) Cr.P.C. against opposite party no. 2, which clearly discloses commission of cognizable offence, but the prayer for investigation was declined by the court below and the said application has been registered as a complaint case. It was submitted that opposite party no. 2 is wife of applicant, but after marriage, she used to demand money from him and used to threat to get applicant lodged in jail on the basis of some false cases and that she was also not establishing physical relations with him and that in the month of November, 2018, when applicant came to know that she is pregnant, she again threatened the applicant to implicate him in some cases and later on she got terminated her pregnancy. Since 2018 she was demanding Rs. 50 lacs from the applicant and also to get divorce from him and that applicant came to know that she has developed illicit relation with one Ashish Dhaiya and she has stayed with him in a Hotel at Chandigarh. Learned counsel has further submitted that in the application it was also alleged that on 07.04.2019. She has put a lock at his house and took away his Honda car and when applicant contacted her, she asked to give Rs. 50 lacs to her and also to get divorced and she also demanded that the flat may be transferred in her name. Learned counsel has also submitted that in view of these facts, it was necessary that matter must have been investigated by the police, but the court below has registered the application of applicant under Section 156(3) Cr.P.C. as a complaint case vide impugned order dated 07.05.2019. Learned counsel has further submitted that the impugned order is against facts and law and thus, the same is liable to be set aside and that the application of the applicant under Section 156(3) Cr.P.C. may be allowed with a direction to the police to register and investigate the case.

Learned A.G.A. has opposed the application and argued that no cognizable offence is made out and that the application of applicant has already been registered as a complaint and that there is no illegality or perversity in the impugned order. It was further submitted that essentially the dispute is between husband and wife and that applicant has knowledge of all the facts and thus, he can lead his evidence in the complaint case and that in view of the nature of allegations, no investigation by police is warranted.

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 applicant 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 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 it may be mentioned that impugned order was passed on 07.05.2019 and thus, instant application has been filed after about one and half years. Though since March, 2020 there has been no regular functioning of several courts due to Covid-19 Pandemic, but there is no explanation that why the applicant did not take any action from May, 2019 to February, 2020. Though no period of limitation period is prescribed under the statute for filing an application under Section 482 Cr.P.C., but nevertheless it is well settled view that such an application must be filed within a reasonable period.

Be that as it may, in the instant mater, the dispute is between husband and wife. So far as this allegation is concerned that opposite party no. 2 has developed illicit relation with one Ashish Dhaiya, it may be stated that adultery is no more a crime. The other allegation against opposite party no. 2 is that she is demanding Rs. 50 lacs from applicant and asking him to get divorced and that she used to threaten the applicant. Considering the nature of allegations and position of law, it appears that investigation by police is not warranted. The court below has considered entire facts and has also referred several case laws and the application of applicant was registered as a complaint case. All the facts relating to dispute are in the knowledge of the applicant and thus, he can pursue the complaint case. Considering the nature of allegations made by applicant and position of law, it cannot be said that impugned order is suffering from any illegality or perversity or that there has been any abuse of the process of court or miscarriage of justice so as to call any interference by this Court in exercise of powers conferred under Section 482 Cr.P.C.

In view of the above, the present application under Section 482 Cr.P.C. has no force and the same is accordingly rejected.

Order Date :- 7.1.2021

Anand