Allahabad High Court
Kusum Sharma vs State Of U.P. And 2 Others on 12 January, 2021
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 80
Case :- CRIMINAL REVISION No. - 51 of 2021
Revisionist :- Kusum Sharma
Opposite Party :- State Of U.P. And 2 Others
Counsel for Revisionist :- Vikash Chandra Tiwari
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
This revision has been filed for quashing the impugned judgment and order dated 31.10.2020 passed by Chief Judicial Magistrate, District Ghaziabad in Misc. Case No. 3528 of 2020, (Kusum Sharma Vs. Puskar Lal Meghwal and others) under Section 156(3) Cr.P.C., Police Station Indirapuram, District Ghaziabad, whereby the application filed by applicant under Section 156(3) Cr.P.C. has been registered as a complaint case.
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. against respondent nos. 2 and 3, 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. It was submitted that initially applicant and respondent no.2 have developed friendship through Facebook and that on 08.02.2017 the respondent no.2 came at her house at Ghaziabad and committed rape upon her, however later on, he has married with applicant on 07.03.2019 and that thereafter, applicant has also given birth to a child in Rajasthan but after that she was harassed by respondent no.2. It was alleged that respondent no.2 was already married and he has a five-year-old son from his first marriage but that fact was concealed by him. It was further alleged that the respondent no.2 has also snatched golden chain from her and also took away Rs.15,000/- forcibly from her. Learned counsel submitted that in view of nature of allegations the court below must have issued a direction to police for registration of case but the same was declined. Learned counsel further submitted that impugned order is against facts and law and thus, liable to be set aside.
Learned AGA has submitted that there is no illegality or perversity in the impugned order and that there appears dispute between the parties.
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, considering the nature of allegations and entire facts of the matter, it cannot be said that there is any illegality or perversity in the impugned order. No patent error of law or fact could be shown so as to require any interference in impugned order by invoking revisional jurisdiction.
In view of the above, the present Criminal Revision is dismissed.
Order Date :- 12.1.2021
Mohit
