Jang Bahadur Singh vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 20381 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4804 of 2022
 

 
Petitioner :- Jang Bahadur Singh
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others
 
Counsel for Petitioner :- Ram Prakash Singh,Vivek Kumar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Ram Prakash Singh, learned counsel for the petitioner as well as learned A.G.A. for the State and perused the record.

The instant petition has been filed by the petitioner/complainant namely Jang Bahadur Singh with the prayer to set aside the order dated 01.12.2021 passed by the Chief Judicial Magistrate, Gonda in Misc. Case No.509 of 2021 (Jang Bahadur Singh Vs. Dinesh Chandra and others), under Section 156(3) Cr.P.C., Police Station Golonelganj, District Gonda and order dated 06.10.2022 passed by the Additional Sessions Judge, Court No.6, Gonda in Criminal Revision No.36 of 2022 and also to direct for lodging of F.I.R.

Learned counsel for the petitioner while referring to Sections 39 and 156(3) Cr.P.C. submits that an application under Section 156(3) Cr.P.C. was moved by the petitioner before the trial court for the purpose of investigating the serious allegations of misappropriation of government money by three Village Development Officers pertaining to Blocks namely Colonelganj, Itiyathok and Chhapiya, District Gonda, however, the trial court without appreciating the seriousness of the allegations without considering Section 39 Cr.P.C. dismissed the request and the revisional court has also not considered the matter in right perspective and dismissed the revision filed by the petitioner.

It is also submitted that the allegations as contained in the application moved under Section 156(3) Cr.P.C. reflecting the commissions of cognizable offence pertaining to which evidence could only be collected after investigation and thus both the orders passed by the courts below be quashed and directions be given to the magistrate to order for investigation under Section 156(3) Cr.P.C.

Learned A.G.A. on the other hand submits that the petitioner is not an aggrieved person and the application, which has been given by the petitioner under Section 156(3) Cr.P.C. is vague and no specific allegations have been levelled moreover the application has been registered as complaint, therefore, the petitioner should not feel aggrieved by the impugned orders.

Having regard to the facts and circumstances and keeping in view the order intended to be passed, the service of notice on respondent nos.3 to 5 is hereby dispensed with.

Perusal of the record would reveal that by passing the impugned order, application moved by the petitioner under Section 156(3) Cr.P.C. has been treated as complaint. The question before this Court is whether the magistrate was empowered to treat the application moved by the petitioner under Section 156(3) Cr.P.C. as complaint.

This Court through its Full Bench Judgment in Ram Babu Gupta and others Vs. State of U.P. and Others, MANU/UP/0681/2001 has held as under:

"17 In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate's order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter XV of Cr.P.C.. This first question stands answered thus.

"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.

A Division Bench of this Court in Sukhwasi Vs. State of U.P.; MANU/UP/1115/2007 has held as under:

"22. 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.

23. 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."

In Mohd. Yousuf Vs. Afaq Jahan (Smt.) and another; MANU/SC/8888/2006 : (2006) 1 SCC 627 the question before the the Supreme Court was against with regard to the treating an application moved under Section 156(3) Cr.P.C. as complaint by the magistrate and the Hon'ble Supreme Court was of the following view:

"4. In order to appreciate rival submissions Section 156 of the Code needs to be quoted; the same reads as follows:

156. Police officer's power to Investigate cognizable cases. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.

5. Section 156 falling within Chapter XII, deals with powers of police officers to investigate cognizable offences. Investigation envisaged in Section 202 contained in Chapter XV is different from the investigation contemplated under Section 156 of the Code.

6. Chapter XII of the Code contains provisions relating to "information to the police and their powers to investigate", whereas Chapter XV, which contains Section 202 deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint Provisions of the above two chapters deal with two different facets altogether i.e., complaint filed by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizance offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated Section 156 of the Code.

7. The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code; The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence;

8. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. or direct an investigation to be made by a police officer or by such other person-as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

9. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.

10. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code, If he does so, he is not to examine the complaint on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involved only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3)" of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter."

Keeping in view the fact that application under Section 156(3) Cr.P.C. are coming in bulk, Hon'ble Supreme Court in Priyanka Srivastava Vs. State of U.P.; MANU/SC/0344/2015 : AIR 2015 SC 1758 while conscious of the fact that the application under Section 156(3) Cr.P.C. are being filed as a matter of routine had issued certain guidelines in the following manner:

"26. 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.

27. In our considered opinion, a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or Under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

We have already indicated that there has to be prior applications Under Section 154(1) and 154(3) while filing a petition Under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application Under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate Under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

The above laws are suffice to project that the magistrate in each and every case is not bound to order for investigation as provided under Section 156(3) Cr.P.C. and he will have to visualize the allegations on the touchstone of probability and also to consider whether there is any necessity to investigate the allegations and he very well in appropriate cases may treat the application moved under Section 156(3) Cr.P.C. as complaint case.

Having regard to the fact that the vague allegations have been made in the application moved by the petitioner under Section 156(3) Cr.P.C. against three Village Development Officers pertaining to misappropriation of government money and also keeping in view the mechanism of audit prevalent in State financial matters being regularly conducted at government offices, I do not find any illegality in the impugned orders. Thus the petition appears to be devoid of merit and is dismissed as such.

Order Date :- 8.12.2022

Anupam S/-