Sandeep Kumar vs State Of U.P. And 2 Others
2022 Latest Caselaw 6650 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 89
 

 
Case :- CRIMINAL APPEAL No. - 2117 of 2022
 

 
Appellant :- Sandeep Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Avnish Kumar Srivastava
 
Counsel for Respondent :- G.A.,Hemant Kumar,Pradeep Kumar Keshri
 

 
Hon'ble Karunesh Singh Pawar,J.

Present criminal appeal has been filed against judgment and order dated 3.3.2022 passed by the Special Judge (The Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, Meerut whereby the application under section 156(3) CrPC of the appellant has been dismissed.

Heard Mr. Avnish Kumar Srivastava, learned counsel for the appellant, learned A.G.A., Mr. Hemant Kumar, learned counsel private respondents 2 and 3 and perused the record.

Learned counsel for the appellant submits that initially, the appellant regarding the incident in question had approached the local police to register an F.I.R., however, the police refused to register. Therefore, under the provision of Section 154 CrPC, he submitted an application to the Senior Superintendent of Police, Meerut, U.P. on 14.1.2022 by Registered Post. When no first information report was registered, he filed an application under section 156(3) CrPC before the concerned Special Judge, SC/ST Act, Meerut which is on record, in which allegation has been made against the accused persons to the effect that they have abused the appellant who is a member of Scheduled Caste by caste name in public view.

Per contra, learned counsel for private respondents submits that it is an admitted case of the appellant as per averment in paras 1 and 2 of the application under section 156(3) CrPC that the dispute is primarily of civil nature. It is alleged in the application that regarding the balance amount of Rs.50,050/-, the incident took place and therefore, the Magistrate after considering the police report has rightly passed the impugned order exercising his discretion which he is entitled to use.

Having considered the submission of learned counsel for the appellant, learned A.G.A. and learned counsel for private respondents as also the judgment of this Court in Sukhwasi versus State of U.P. passed in Reference No. of 2007 (Crl. Misc. application No.9297 of 2007) wherein this Court has relied on Full court judgment in the case of Ram Babu Gupta [2001(43)ACC 201], I am of the opinion that law in this regard has been settled. Relevant paragraphs from Sukhwasi's case (supra) are reproduced below :

"20. 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 will 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.

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

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.

24. Hon'ble Justice V. Prasad has ordered for circulation in subordinate courts of his aforesaid judgment. Since the view propounded by him has not been upheld by the Division Bench, it is necessary that the subordinate courts are informed about the same, so that they may not be misled. For this purpose, it is essential, that the copy of this judgment, be circulated in all the subordinate courts."

A perusal of the judgment in Sukhwasi's case (supra) shows that after receiving an application under section 156(3) CrPC, the Magistrate has been given three options. He may or may not allow the application under section 156(3) CrPC in his discretion. It is not obligatory on the part of the Magistrate to allow every application given under section 156(3) CrPC. There is no such legal mandate. He can reject the application, he can direct the police to register first information report or he can treat it as a complaint case depending on the peculiar facts of the case.

As regards the appellant of this case, a perusal of the impugned order shows that before passing order, a report has been sought by the Magistrate from the concerned police station who in its report has stated that the accused have asked the appellant to complete some left over work. The appellant was somehow avoiding it for many days. This resulted into altercation. The conclusive part of the report says that it appears that to exert pressure, the provisions of Special Act have been misused.

The Magistrate in my opinion after due consideration to the police report, peculiar facts of this case as also judgment in Sukhwasi's case (supra) has rightly arrived at a conclusion that it will not be proper to direct registering first information report and hence has rejected the application. There is no illegality in the order impugned.

The appeal lacks merit and is accordingly dismissed.

Order Date :- 13.7.2022

kkb.