Om Prakash vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 5783 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 15
 

 
Case :- APPLICATION U/S 482 No. - 4206 of 2022
 

 
Applicant :- Om Prakash
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home. Deptt. And Others
 
Counsel for Applicant :- Anil Kumar Awasthi,Santosh Kumar Sharma
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

1. Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

2. This application under Section 482 Cr.P.C. has been filed by the applicant for quashing order dated 01.12.2020 passed by the learned Chief Judicial Magistrate, Raibareli in Crl. Misc. Case No.390/2020, Om Prakash vs. Ram Shankar Gupta and others, by which learned Magistrate rejected the application of under Section 156 (3) Cr.P.C. of the petitioner and judgement and order dated 14.09.2021 passed by learned Session Judge, District Raibareli in Criminal Revision No.25/2021, Om Prakash vs. State of U.P., contained in Anneuxre No.1 and 2 to this petition.

3. Brief facts are that the applicant moved an application under Section 156 (3) Cr.P.C. for registration and investigation of the case which was heard and disposed of by learned Magistrate vide order dated 01.12.2020. Thereafter, the applicant preferred a criminal revision bearing Criminal Revision No.25/2021, which was also dismissed by the court below vide order dated 14.09.2021.

4. Foremost submission of learned counsel for the applicant is that the impugned order is not sustainable in the law, insofar as the same is against the law laid down by the Hon'ble Apex Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and another, reported in 2014 (2) SCC 1. He, thus, submitted that the only option available to the learned Magistrate was to allow the application filed under Section 156 (3) Cr.P.C. with a direction to the Station House Officer concerned for registration of F.I.R. regarding the matter. The learned Magistrate was not competent to direct that the application filed under Section 156 (3) Cr.P.C. be treated as complaint. The impugned order is thus, patently illegal which would cause miscarriage of justice, therefore, the same is liable to be quashed.

5. Per contra, learned A.G.A. has supported the impugned order and has pointed out that the grievance of the applicant has not gone unattended by the court below. The court below after taking into consideration the entire gamut of the facts and circumstances of the case has rightly decided to treat the application filed by the applicant under Section 156 (3) Cr.P.C. as a complaint. The applicant shall still have an opportunity to prove his case before the court below. His further submission is that in Lalita Kumari (supra) Hon'ble the Apex Court has not referred, discussed and overruled the law laid down by the Division Bench of this Court in Sukhwasi vs. State of Uttar Pradesh; 2008 Cri LJ 452. Therefore, the impugned order cannot be termed to be illegal and no miscarriage of justice would be caused by the impugned order.

6. The scope and ambit of law laid down by the Hon'ble Supreme Court in Lalita Kumari (supra) can be ascertained from para no.6 of the judgment, which is quoted hereinbelow :

"6) Therefore, the only question before this Constitution Bench relates to the interpretation of Section 154 of the Code and incidentally to consider Sections 156 and 157 also."

(Emphasis supplied)

7. In case of Lalita Kumari (supra) the controversy revolved around the registration of F.I.R in cognizable cases by the Police Officer. However, it did not dwelve upon scope and ambit of power vested in Magistrate by virtue of provision of Section 156 (3) Cr.P.C. which is, for ready reference, quoted hereinbelow :

"156. Police officer' s power to investigate cognizable case.

(1) ...........

(2) ............

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

8. In Sukhwasi (supra) the Division Bench of this Court in paragraph nos.6, 7, 8 & 9 has held as under:

"6. It will also be noticed that the law was, and has always been, that if a cognizable offence is made out, the Police are bound to register the First Information Report. In case, the Police do not register the First Information Report, there is provision under Section 154(3) Cr.P.C. to send an application to Superintendent of Police, who shall direct the registration of a First Information Report, if a cognizable offence is disclosed. There was as such, no need for an authority in this regard being given to the Magistrate. That, this has been done and such authority as given to the Magistrate indicates, that this has been done, because the Magistrate will bring to bear upon the matter a judicial and judicious approach, which will be necessarily implication be selective. That gives a clear inkling to the intention of the legislature, that the Magistrate may consider the feasibility and propriety, of passing an order of registration of the First Information Report.

7. The matter may be looked into from another angle, and that is, in Section 154(3) Cr.P.C. where the Superintendent of Police has been given the authority for registration of First Information Report, the word used is 'shall' Section 143(3) Cr.P.C. is as hereunder

"154. Information of cognizable cases --

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing, and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made, by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer incharge of the police station in relation to that offence."

8. In Section 156(3) Cr.P.C. the word used is 'May' Section 156(3) Cr.P.C. is as follows;

156. Police Officer's power to investigate cognizable case--

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

9. The use of the word 'shall' in Section 154(3) Cr. P.C: and the use of word 'May' in Section 156(3) Cr.P.C. should make the intention of the legislation clear. If the legislature intended to close options for the Magistrate, they could have used the word 'shall' as has been done in Section 154(3) Cr.P.C. Instead, use of the word 'May' is, therefore, very significant, and gives a very clear indication, that the Magistrate has the discretion in the matter, and can, in appropriate cases, refuse to order registration."

(emphasis supplied)

9. It is, thus, abundantly clear that in view of law laid down by the Division Bench of this Court in Sukhwasi (supra), it cannot be said that a Magistrate, while entertaining an application filed under Section 156 (3) Cr.P.C. cannot reject or treat the same to be a complaint.

10. In view of what has been discussed above, the impugned order passed by learned Magistrate, whereby he has rejected the application filed under Section 156 (3) Cr.P.C., cannot be said to be illegal. The impugned order cannot be said to be an abuse of process of the Court either. Therefore, the present application lacks merit and is liable to be dismissed.

11. In view of the aforesaid discussion, the present application is dismissed.

12. However, it is made clear that this order does not preclude the applicant to file a criminal complaint in respect of the incident in question in the Court of competent Magistrate, in accordance with law.

Order Date :- 4.7.2022

Mahesh/A.Dewal