Urmila vs State Of U.P. & 4 Others
2021 Latest Caselaw 426 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 80
 

 
Case :- APPLICATION U/S 482 No. - 20164 of 2020
 

 
Applicant :- Urmila
 
Opposite Party :- State Of U.P. And An 4others
 
Counsel for Applicant :- Pradeep Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

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

2. The present application under Section 482 Cr.P.C., has been filed for setting aside the judgment and order dated 22.10.2020, passed by the Additional Sessions Judge/Special Judge POCSO Act, Azamgarh in Criminal Misc. Case No. 46 of 2020 (Urmila vs. Sajid and others), P.S. Phulpur, District Azamgarh, pending  before the Court of Additional Sessions Judge/Special Judge, POCSO Act, Azamgarh, whereby the application of applicant under Section 156(3) Cr.P.C. has been registered as a complaint case.

3. It has been argued by learned counsel for the applicant that the application filed by the applicant under Section 156(3) Cr.P.C. discloses commission of cognizable offence but despite that the said application has been registered as a complaint case and no direction was made to police for registration of FIR and investigation of the case. Learned counsel submitted that there were allegations that respondent nos. 2 to 5, did obscene activities with 17 years old daughter of applicant, took her photographs in naked condition and made an attempt to commit rape upon her and thus, in view of nature of allegations, the Court below must have issued a direction to police for investigation of the matter and therefore, the impugned order is not sustainable and liable to be set aside.

4. Per contra, learned A.G.A. has submitted that there is no illegality or perversity in the impugned order. It was stated that version of applicant that four respondents did obscene activities and tried to commit rape upon daughter of applicant, are thoroughly improbable.

5. 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."

6. 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.

7. 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."

8. 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).

9. In the instant case, perusal of record shows that the police in its report has alleged that some altercation has taken place between the parties on 13.10.2020 and in that regard, respondent no.5 Ratan has made an application to police and that later on the applicant has filed an application under Section 156(3) Cr.P.C. making false allegation to exert undue pressure upon private respondents and that no such incident has taken place. It may be observed that both the parties are known to each other and that allegations have been made that all the four private respondents simultaneously did obscene activities with daughter of applicant and made an attempt to commit rape upon her. Considering relevant facts and law, there does not appear any illegality or perversity in the impugned order and that there is nothing to indicate that there has been any abuse of the process of Court or any miscarriage of justice, so as to require any interference by this Court in exercise of power under Section 482 Cr.P.C.

10. In view of aforesaid, the application under Section 482 Cr.P.C. lacks merit and it is, accordingly, rejected. 

Order Date :- 8.1.2021

A. Tripathi