Sonu Kashyap vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 6436 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 15
 

 
Case :- APPLICATION U/S 482 No. - 4229 of 2022
 

 
Applicant :- Sonu Kashyap
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And Others
 
Counsel for Applicant :- Ambika Prasad Mishra
 
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 entire record.

2. This application under Section 482 Cr.P.C. has been filed by the applicant for quashing the impugned order dated 22.12.2021 passed by the learned Special Judge P.C. Act First, Lucknow in Criminal Revision No.45 of 2021 (Sonu Kashyap vs. State of U.P. and others) and order dated 03.12.2020 passed by the learned Additional Chief Judicial Magistrate-III, Lucknow in Criminal Case No.3150 of 2020 (Sonu Kashyap vs. Vikram Lal and others) on the application under Section 156(3) Cr.P.C., Police Station Madiyaon, District Lucknow as well as to stay the operation of aforesaid both impugned orders dated 22.12.2021 and 03.12.2020 along with further proceeding by directing the Magistrate concerned to pass appropriate order regarding lodging the F.I.R. and to investigate the matter after registering the case.

3. Brief facts are that the applicant, Sonu Kashyap, 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 Additional Chief Judicial Magistrate-III, Lucknow vide impugned order dated 03.12.2020 whereby the learned Magistrate had directed that the application filed under Section 156 (3) Cr.P.C. to be treated as complaint by placing reliance on the law laid down by the Division Bench of this Court in the case of Sukhwasi vs. State of Uttar Pradesh reported in 2008 Cri LJ 452. Thereafter, the applicant has again approached the court below by way of filing a criminal revision for challenging the order dated 03.12.2020 wherein the learned court below has rejected the criminal revision and affirmed the impugned order dated 03.12.2020.

4. Learned counsel for the applicant has submitted that the impugned order dated 03.12.2020 whereby the learned Magistrate has treated the application filed by the applicant as a complaint and directed to proceed accordingly, is patently illegal being in gross violation of Section 157(1) and in contravention with the provision of Section 156(3) Cr.P.C.

5. His further submission is that while passing the impugned orders, the learned Magistrate lost sight of the fact that the matter was such which ought to have been investigated by the Police only after registration of the case.

6. Learned counsel for the applicant has further submitted that in view of law laid down by this Court in Phool Singh vs. State of U.P. and others reported in 2007 (59) ACC 26, the orders impugned do not stand which deserve to be set aside with a direction to the learned Magistrate to direct the police personnel concerned to get the first information report registered.

7. His further submission is that the impugned orders are not sustainable in the eye of 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 orders are thus, patently illegal which would cause miscarriage of justice, therefore, the same is liable to be quashed.

8. Per contra, learned A.G.A. has supported the impugned orders 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 (supra). Therefore, the impugned order cannot be termed to be illegal and no miscarriage of justice would be caused by the impugned order.

9. 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 herein below :

"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)

10. 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 herein below :-

"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."

11. 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."

12. While adverting to the issue, as to whether the learned Magistrate can treat an application filed under Section 156 (3) Cr.P.C. as a complaint, the Division Bench in Sukhwasi (supra) in parapraph nos.13 and 14 has held as under :-

"13. It is clear from the judgment of the Supreme Court in the case Suresh Chandra Jain v. State of Madhya Pradesh, 2001 (42) ACC 459 : ((2001) 2 SCC 628 : AIR 2001 SC 571), that a Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint. This will become clear from the reference in the said report to the case of Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986, in which the following observations were made: (Para 7)

"If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and 'Take' cognizance of a cognizable offence."

14. It becomes clear from the said underlined portion that the Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint. Hon'ble Mr. Justice Vinod Prasad has also referred to the case of Suresh Chand Jain ((2001) 2 SCC 628 : AIR 2001 SC 571), 'supra' and has extracted the following portion therefrom in order to take a different view: (para 7):--

"Section 156, falling within Chapter XII, deals with powers of the police officers to investigate cognizable 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 in Section 156 of the Code."

13. 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 treat the same to be a complaint.

14. In the aforesaid context, assistance can also be taken from a judgment rendered by this Court in Smt. Neeb Devi vs. State of U.P. and Ors. Reported in 2010 Cri LJ 2354, wherein a challenge was made to an order passed by the Magistrate treating the application moved under Section 156 (3) Cr.P.C. as a complaint. In Smt. Neeb Devi (supra), in paragraph nos.6, 7 & 8 it has been observed as under :

"6. I have considered over the respective arguments. In this reference a Full Bench decision of this High Court in Ram Babu Gupta v. State of U.P., 2001 (43) ACC 50 : (2001 All LJ 1587) may be referred in which the Hon'ble High Court held as under:

"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-sections (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 complaint 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."

7. Moreover, this court in the case of Yogendra Singh v. State of UP, 2005 (51) ACC 890 : (2005 All LJ 1518) (Alld), has held that application filed under Section 156(3) Cr. P.C. can be treated as complaint under Section 200 Cr. P.C. and no separate complaint is required to be filed.

8. In the case of Joseph Mathuri @ Vishveswaranand v. Swami Sachchidanand Harishakshi, 2001 (Suppl) ACC 957 (SC), the application was moved by the complainant under section 156(3) Cr. P.C. before the Magistrate for directing the police to register the case against the appellant. In that matter Hon'ble Apex Court has held that there was nothing wrong if the application was directed to be treated as complaint."

15. In view of what has been discussed above, the impugned order dated 03.12.2020 passed by the learned Additional Chief Judicial Magistrate-III, Lucknow whereby he has treated the application filed under Section 156 (3) Cr.P.C. as a complaint and also order dated 22.12.2021 passed by the learned Special Judge P.C. Act First, Lucknow whereby he has dismissed the revision filed against aforesaid order dated 03.12.2020 by the present applicant, cannot be said to be illegal. The impugned orders 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.

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

(Ajai Kumar Srivastava-I, J.)

Order Date :- 11.7.2022

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