Mohd. Arshad vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 10208 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- CRIMINAL REVISION No. - 347 of 2023
 

 
Revisionist :- Mohd. Arshad
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 4 Others
 
Counsel for Revisionist :- Nisha Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

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

2. In view of the order proposed to be passed, notice to opposite party nos.2 to 5 is dispensed with.

3. The instant criminal revision has been filed for setting aside the order dated 03.02.2023 passed by learned Chief Judicial Magistrate, Bahraich, in Criminal Misc. Case No.2731/12/2021, Mohd. Arshad vs. Arvind Kumar Yadav & Others, Police Station Nanpara, District Bahraich, whereby learned trial Court rejected the application under Section 156(3) Cr.P.C. of the revisionist.

4. Brief facts are that the revisionist 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 03.02.2023 rejected the same.

5. Foremost submission of learned counsel for the revisionist 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 or treated the same 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 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.

6. Per contra, learned A.G.A. has supported the impugned order and has submitted that the learned trial Court after taking into consideration the entire gamut of the facts and circumstances of the case has rightly rejected the application filed by the revisionist under Section 156 (3) Cr.P.C. The revisionist shall still have an opportunity to file a private complaint in respect of the same incident in the learned trial Court. 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.

7. 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)

8. 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."

9. 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)

10. 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.?

11. 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 the same.

12. In view of what has been discussed above, this Court does not find any illegality, material irregularity or perversity the impugned order dated 03.02.2023 passed by learned Magistrate, whereby he has rejected the application moved by the revisionist under Section 156 (3) Cr.P.C. Therefore, the instant criminal revision lacks merit.

13. It is pertinent to mention that the present revisionist has always an option of filing a private complaint in respect of the alleged incident, in the learned trial Court concerned having jurisdiction, in accordance with law.

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

Order Date :- 7.4.2023

A.Dewal