Ambuj Yadav vs State Of U.P. & Ors.
2021 Latest Caselaw 8682 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 28
 

 
Case :- U/S 482/378/407 No. - 2357 of 2021
 

 
Applicant :- Ambuj Yadav
 
Opposite Party :- State Of U.P. & Ors.
 
Counsel for Applicant :- Devendra Gupta,Prashant Shukla
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

1. Heard Sri Prashant Shukla, learned counsel for the applicant and Sri Rajesh Kumar, learned AGA for the State and perused the record.

2. The instant application under Section 482 Cr.P.C. has been preferred against the order dated 06.07.2021 passed by the Court of Special Chief Judicial Magistrate (Custom), Lucknow with regard to the Misc. Criminal Case No. 35393 of 2021 (Ambuj Yadav Vs. Amit Kumar Chaudhary and Ors.), whereby the application moved by the applicant under Section 156(3) Cr.P.C. has been treated as complaint.

3. Learned counsel for the applicant while referring to the judgment of Hon'ble Single Judge of this Court dated 18.12.2020 passed in Criminal Revision No. 1611 of 2020 (Lalaram Vs. State of U.P. & Ors.) submits that the impugned order is a case of non application of mind by the Magistrate concerned as it was the incumbent duty of the Magistrate to apply his/her judicial mind at the time of considering the prayer of the applicant with regard to the application moved under Section 156(3) Cr.P.C. and order of the Magistrate passed thereon must reflect that he has taken pains not only marshelling the facts but also in appreciation the evidence so as to show as to why the Magistrate is not inclined to order for investigation as provided under Section 156(3) Cr.P.C.

4. It is further submitted that the Magistrate concerned has also not considered the factual position of the case in right perspective and has held that all the particulars of the accused persons were in the knowledge of the applicant, therefore, this is not a case where any investigation is required.

5. Highlighting the para no. 40.06 and 40.11 of the judgment Lalaram (supra), it is vehemently submitted that the Magistrate has not acted in accordance with the procedure suggested by this Court and, therefore, the order of the Magistrate whereby the application moved under Section 156(3) Cr.P.C. of the applicant has been treated as complaint, may be quashed and a direction may be given to the Magistrate concerned for the purpose of passing an appropriate order for lodging of the FIR and investigation of the same.

6. Learned AGA on the other hand submits that it is settled law that the Magistrate is not bound to order for investigation in each and every case and it is the duty of the Magistrate before when an application under Section 156(3) Cr.P.C. is moved to pose a question to himself/herself as to why an investigation in that particular case is required or necessary. He further submits that it is not required that in each and every case where the commission of the cognizable offence is apparent on the face of the application the Magistrate must order for investigation under Section 156(3) Cr.P.C.

7. Having heard learned counsel for the parties and having perused the record, it is evident that an application under Section 156(3) Cr.P.C. was moved by the applicant before the Magistrate concerned alleging therein that the applicant was engaged by opposite party nos. 2 and 3 for providing his services pertaining to the construction of a building at the remuneration of Rs.5,00,000/-. The construction of the building was started in May, 2018 and during construction the applicant was paid only Rs.2,00,000/- and the rest of the amount was not paid to the applicant despite repeated requests and when the applicant demanded the balance amount from opposite party nos. 4 and 5, they also shown inability to pay the same and lastly, on 03.03.2021 when the applicant contacted the opposite party no.2 for the purpose of demanding his balance money, the opposite parties started shouting and hurling abuses and had stated that they will not pay anything to him. In these background of facts, application under Section 156(3) Cr.P.C. was moved by the applicant which has been treated as complaint by the Magistrate.

8. So far as the law with regard to the procedure which is required to be adopted by the Magistrate while dealing with an application under Section 156(3) Cr.P.C. is concerned, the same is no more res integra and has been settled by catena of decisions passed by this Court as well as by the Hon'ble Supreme Court. There cannot be any doubt in the proposition that at the time of dealing with an application under Section 156(3) Cr.P.C. it is the duty of the Magistrate to apply his judicial mind only for the purpose of proceeding further. It is within the power of Magistrate enshrined under Section 156(3) Cr.P.C. that whenever such application has been moved he may take the cognizance of the offence on the same and may move further according to the procedure provided under Chapter XV of the Cr.P.C. or if in his judicial discretion the case is such that an investigation is required he, before taking cognizance of the offence, may order such investigation. However, there is no bounded duty on the Magistrate to order for such investigation in each and every case where cognizable case is emerging from the complaint. However, the discretion of the Magistrate is to be exercised on some well settled judicial principles. In Sukhwasi Vs. State of U.P., (2007) 59 ACC 739, a Divisional Bench of this Court has categorically opined as under:-

"22. ...........This controversy must come to an end that an application under Section 156(3) Cr.P.C. can only be treated as an application for passing an order for registration of the case and investigation cannot be treated as a complaint case. The Magistrate is not bound in each and every case to pass an order to register a case and investigate if cognizable offence is made out The Magistrate is fully competent to use this judicial direction in the matter. This is wrong notion that if an application has been moved under Section 156(3) Cr.P.C. that the only order can be passed for registration in the matter. The magistrate has got direction under Section 190 Cr.P.C. to take the cognizance directly or to pass an order that the police to investigate and then take cognizance on submissions of a report under Section 173 Cr.P.C. The Magistrate is also expected to act under some guidelines and it should not be left at the arbitrary discretion of the Magistrate to pass an order or not to pass an order to register the case and investigation under Section 156(3) Cr.P.C. In Gulab Chandra Upadhyaya v. State of U.P. Hon'ble Single Judge of this Court laid down the guidelines for the guidance of Magistrate while deciding the application under Section 156(3) Cr.P.C. and the guidelines cannot be said against any provision of law or check on the judicial direction of the Magistrate. Even Hon'ble Apex Court also held that the Magistrate has got a direction to pass an order to register the case and investigation under Section 156(3) Cr.P.C. or to treat an application as a complaint case.

In the law laid down by Hon'ble the Apex Court and various judgments of this Court clearly laid down that the Magistrate is not always bound to pass an order to register a case and investigation when application under Section 156(3) Cr.P.C. is moved. It will not be proper to deal with this hypothetical position that if the Magistrate is of opinion that false and frivolous allegation has been made in application than he may reject the application or it is for the investigating officer to decide the truthfulness of the story and if found false then launch prosecution against the applicant But it is discretion of the Magistrate to be used judiciously while disposing of the application.

For the reasons mentioned above, I am of the opinion that the Magistrate is not always bound to pass an order for register of the case and investigation after receipt of the application under Section 156(3) Cr.P.C. disclosing a cognizable offence. The Magistrate may use his discretion judiciously and if he is of the opinion that in the circumstances of the case, it will be proper to treat the application as a complaint case then he may proceed according to the procedure provided under Chapter XV of Cr.P.C. I am also of the opinion that it is not always mandatory in each and every case for the Magistrate to pass an order to register and investigate on receipt of the application under Section 156(3) Cr.P.C. In the present case, the Magistrate is perfectly within the judicial power to treat the application under Section 156(3) Cr.P.C. as a complaint case. There is no illegality or impropriety in the order. The revision is devoid of merit and is liable to be dismissed.

23. The Full Bench decision of Ram Babu Gupta's case ' Supra' also lays down that the Magistrate can treat an application under Section 156(3) Cr.P.C. as a complaint. This ill appear from the following observations:

Coming to the second question noted above, it is to be at once stated that a provision empowering a Court to Act in a particular manner and a provision creating a right for an aggrieved person to approach a Court or authority, must be understood distinctively and should not be mixed up. While Sections 154, 155 Sub-section (1) and (2) of 156, Cr.P.C confer right on an aggrieved person to reach the police, 156(3) empowers a Magistrate to act in a particular manner in a given situation. Therefore, it is not possible to hold that where a bare application is moved before Court only praying for exercise of powers under Section 156(3) Cr.P.C, it will remain an application only and would not be in the nature of a complaint. It has been noted above that the Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers under Section 156(3) Cr.P.C. In this connection, it may be immediately added that where in an application, a complainant states facts which constitute cognizable offence but makes a defective prayer, such an application will not cease to be a complaint nor can the Magistrate refuse to treat it as a complaint even though there be no prayer seeking trial of the known or unknown accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all practical purposes even such an application would be a complaint. This Court can do no better than refer to the following observations in Suresh Chand Jain (Supra):

"The position is thus clear. Any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code...could take further steps contemplated in Chapter XII of the Code only thereafter.

24. Hon'ble Mr. Justice Amar Saran in Criminal Misc. Application No. 7484 of 2004 Mohan Shukla and Ors. v. State of U.P., Hon'ble Mr. Justice Alok Singh in Criminal Misc. Application No. 671 of 2007 Ram Sabad v. Sessions Jude, Bahraich and Ors. have also held that the Magistrate is empowered under Section 156(3) Cr.P.C. to treat an application as a 'Complaint'.

25. Applications under Section 156(3) Cr. P.C. are now coming in torrents. Provisions under Section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice, which warrants a direction to the Police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) Cr.P.C."

9. Coming to the facts in the instant case in the background of the law discussed above, the admitted position is that an unwritten contract is alleged to have happened between the applicant and opposite party nos. 2 and 3 whereby some services were to be provided by the applicant pertaining to the construction of some building in lieu of remuneration of Rs.5,00,000/- to be paid by opposite party nos. 2 and 3 to the applicant. However, only Rs.2,00,000/- have been paid and remaining Rs.3,00,000/- were not paid to the applicant and when he approached them finally on 03.03.2021 he was abused and threatened by the opposite parties.

10. Having gone through the law as well as the fact in the considered opinion of this Court no illegality or to say any irregularity has been committed by the Magistrate concerned. The order of the Magistrate whereby the prayer of the applicant has been refused, by any stretch of imagination could not be said to be cryptic or an order passed without application of mind. The Magistrate in concluding part of its judgment has observed as under:-

"izkFkZuk i= ds voyksdu ls fofnr gS fd ?kVuk ls lEcfU/kr leLr rF; izkFkhZ dh O;fDrxr tkudkjh esa gS] ftls og Lo;a ,oa vius lk{khx.k ds lk{; ds ek/;e~ ls lkfcr dj ldrk gSA foi{khx.k dk uke o irk Hkh izkFkhZ dks Kkr gSA foospuk djk;s tkus ls dksbZ u;k rF; mn~?kfVr gksus dh dksbZ laHkkouk izrhr ugh gksrh gSA mijksDr ifjfLFkfr;kssa esa ekuuh; mPp U;k;ky; dh fof/k O;oLFkk lq[koklh cuke LVsV vkWQ ;wih 2007¼59½ ,0lh0lh0 50 739 ¼bykgkckn [kaMihB½ ,oa jkeckcw xqIrk cuke m0iz0 jkT; 2001¼43½ ,0lh0lh0 50 ¼bykgkckn [kaMihB½ ds izdk'k esa mDr izdj.k dks ifjokn ds :i esa ntZ fd;k tkuk mfpr o U;k;laxr izrhr gksrk gSA

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izkFkhZ dk izkFkZuk&i= vUrxZr /kkjk 156¼3½ n0iz0la0 ifjokn ds :i esa iathd`r fd;k tkrk gSA okLrs c;ku ifjoknh /kkjk 200 n0iz0la0 fnukad 09-08-2021 dks is'k gksA "

11. The above conclusion of the Magistrate fairly demonstrates that he has not only applied its judicial mind but he was also conscious of his legal duty, in the light of the aforesaid decisions when all the facts which are required to be proved by the applicant in order to secure conviction of the opposite parties are within the knowledge of the applicant and the facts are otherwise of such a nature that there is no requirement for passing the order for investigation of the case and therefore, the Magistrate very rightly concluded that the application be treated as complaint. I am not in agreement with the proposition that the shifting of burden of proof to bring home the guilt of the accused is always on the stage and in any case the same could not be shifted to any private party. The legislature in its wisdom has provided different procedures to be followed for trial of different nature of criminal case and one of those procedure has been enshrined under Chapter XV of the Cr.P.C. and therefore, when the Magistrate has taken the cognizance and adopted the procedure under Chapter XV of the Cr.P.C., it could not be said that Magistrate has acted illegally, otherwise also Magistrate even after taking cognizance may order for investigation under Section 202(1) Cr.P.C. for the purpose of deciding whether or not there is sufficient ground for proceeding.

12. Having regard to all the facts and circumstances of the case in the considered opinion of this Court no illegality or to any irregularity has been committed by the Magistrate concerned and the application moved by the applicant is devoid of merits and is hereby dismissed.

13. The Magistrate is directed to proceed with the complaint and decide the same expeditiously in accordance with law.

14. Copy of this order be immediately sent to the Magistrate concerned through the Sessions Judge concerned.

Order Date :- 27.7.2021

Mohit