Mansur Ali vs State Of U.P. Thru. Prin. ...
2022 Latest Caselaw 8357 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 15
 

 
Case :- APPLICATION U/S 482 No. - 4928 of 2022
 

 
Applicant :- Mansur Ali
 
Opposite Party :- State Of U.P. Thru. Prin. Secy.Home Civil Sectt. Lko. And Others
 
Counsel for Applicant :- Ambrish Kumar Dwivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

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

2. The instant application u/s 482 Cr.P.C. has been filed by the applicant for quashing the impugned order dated 16.10.2020 passed by Chief Judicial Magistrate, Gonda in Criminal Misc. Case No.1890/2020, Yusuf Ali vs. Inayat Ali and others in application under Section 156(3) Cr.P.C.

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 learned Magistrate vide order dated 16.10.2020 treated the same as complaint case and fixed the date 18.11.2020 for recording the statement u/s 200 Cr.P.C.

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. He has also submitted that learned trial Court while passing the impugned order has lost sight of the fact that the question of recovery of alleged tractor in question was also involved which is otherwise not possible in a case instituted upon private complaint and the same would cause miscarriage of justice to the revisionist/complainant. He has also submitted that it was the duty of learned Magistrate concerned to issue a direction to the police station concerned to get the FIR lodged on the basis of application moved by the revisionist under Section 156(3) Cr.P.C. He, thus, prays that the impugned order is illegal which could not be sustained and deserves to be set aside.

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. The Hon'ble Supreme Court in the case of Ramdev Food Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439 in paragraph no.32 has held as under:-

"32. We now come to the last question whether in the present case the Magistrate ought to have proceeded under Section 156(3) instead of Section 202. Our answer is in the negative. The Magistrate has given reasons, which have been upheld by the High Court. The case has been held to be primarily of civil nature. The accused is alleged to have forged partnership. Whether such forgery actually took place, whether it caused any loss to the complainant and whether there is the requisite mens rea are the questions which are yet to be determined. The Magistrate has not found clear material to proceed against the accused. Even a case for summoning has not yet been found. While a transaction giving rise to cause of action for a civil action may also involve a crime in which case resort to criminal proceedings may be justified, there is judicially acknowledged tendency in the commercial world to give colour of a criminal case to a purely commercial transaction. This Court has cautioned against such abuse."

10. It is, thus, abundantly clear that in view of law laid down by the Division Bench of this Court in Sukhwasi (supra) and Ramdev Food Products (P) Ltd. (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.

11. So far as the question of recovery of alleged tractor is concerned, it is pertinent to mention that keeping in view the provisions contained in Section 202 Cr.P.C. in its entirety it is held in M/s. Cucusan Foils Pvt. Ltd. vs. State (Delhi Admn.), 1991 Cr.LJ 683 in paragraph No.16, as under :-

"16. Even this judgment says that once the Magistrate proceeds on the basis of the original complaint, then he must first proceed to examine on oath the complainant and his witnesses under Section 200 and thereafter either hold an enquiry himself or direct the enquiry to be held by police officer under Section 202 of the Code, as he thinks fit and then either dismiss the complaint or issue the process, as the case may be."

(emphasis supplied)

12. Therefore, it is also open to the learned Magistrate, at the appropriate stage, to do the needful in this regard, keeping in view the provisions of Section 202 Cr.P.C. and law laid down by Delhi High Court in M/s. Cucusan Foils (Supra).

13. In view of what has been discussed above, the impugned order passed by learned Magistrate, whereby he has treated the application filed under Section 156 (3) Cr.P.C. as a complaint, 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.

14. In view of the aforesaid discussion, the present application is disposed of.

Order Date :- 28.7.2022

A.Dewal

[Ajai Kumar Srivastava-I, J]