Smt Shobha Devi vs State Of U.P. And Another
2021 Latest Caselaw 427 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 80
 

 
Case :- APPLICATION U/S 482 No. - 19893 of 2020
 
Applicant :- Smt Shobha Devi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Fakhruzzaman
 
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 21.10.2020 passed by Chief Judicial Magistrate, Jalaun at Orai in Criminal Misc. Application No. 190 of 2020, (Smt. Shobha Devi vs. Deepak Kumar Argal), 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, wherein allegations of rape and viraling the video were made by applicant, but despite that the application of applicant has been registered as a complaint case and no direction was made to police to investigate the matter. It was submitted that the allegations made in application under Section 156(3) Cr.P.C. discloses commission of cognizable offence and in view of nature of allegations, it is necessary that the matter must be investigated by the police. Learned counsel submitted that impugned order is against facts and law and thus, liable to be set aside.

Learned AGA 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.

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 matter, the allegations made inapplication under Section 156(3) Cr.P.C. are that in the year 2013 while applicant along with her family was residing in Gwalior (M.P.), respondent no. 2, who was nephew of her landlord, committed rape upon her and after that he has committed rape upon her for several times and also extorted money by threatening that he would make her video viral. It was further alleged that before four months of alleged incident, applicant returned back to her village in district Jalaun and that on 23.08.2020 respondent no. 2 came there at 8.00 pm and committed rape upon her by threatening that he would make her video viral. Thus, it is apparent that for about seven years, applicant has never made any complaint regarding alleged incident of rape. Even the allegations regarding incident of 23.08.2020 appear quite vague and it has not been clarified that whether any of her family member was residing with her or not or that how respondent no. 2 gained entry into her house.

Considering entire relevant facts, it cannot be said that the court below has committed any illegality and perversity in registering the application of applicant as a complaint case and there is nothing to indicate that there has been any abuse of the process of court or miscarriage of justice so as to require any interference by this Court in exercise of power 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. However, considering entire facts, it is directed that court below shall conclude the proceedings of complaint case expeditiously, in accordance with law.

Order Date :- 8.1.2021

Anand