Allahabad High Court
Nayyar Alam vs State Of U.P. And 2 Others on 4 January, 2021
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 80
Case :- APPLICATION U/S 482 No. - 14733 of 2020
Applicant :- Nayyar Alam
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Sanjay Vikram Singh
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 20.01.2020 passed by A.C.J.M., 1st, Jaunpur in Criminal Misc. Case No. 403 of 2019 (Naiyyar Alam Vs. Irshad Ahmad), whereby the said court has treated the application under Section 156(3) Cr.P.C. as a complaint.
Heard learned counsel for applicants and learned AGA for State.
It has been argued by learned counsel for applicants that applicant has filed an application under Section 156(3) Cr.P.C. against opposite party no.2, 3 as well as 11 other persons 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 the allegations made in application under Section 156(3) Cr.P.C. discloses commission of cognizable offence. There were allegations that forged affidavits were filed on behalf of six persons before the S.D.M., Shahganj regarding fair price shop of Irshad Ahmad and thus, investigation by police is necessary. Learned counsel submitted that impugned order is against 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 applicants 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 vague allegations have been made against opposite party nos. 2, 3 and 11 others persons that they have submitted forged affidavits before the S.D.M. Further in application under Section 156(3) Cr.P.C. 13 persons were arraigned as accused persons but only two of them have been made party in the instant application under Section 482 Cr.P.C. and rest of the alleged persons have not been made party. It may also be stated that as per version of applicants, alleged forged affidavits were filed before Sub Divisional Magistrate, Shahganj but there is nothing to indicate whether the Sub Divisional Magistrate has found those affidavits forged one or he has taken any action in this regard.
In view of the facts and circumstances of the matter, it cannot be said that court below has committed any illegality in registering the application of the applicant under Section 156(3) Cr.P.C. as a complaint case, so as to call any interference 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 :- 4.1.2021
Mohit
