Prem Nath vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 20027 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:51012
 
Court No. - 29
 

 
Case :- CRIMINAL APPEAL No. - 2212 of 2023
 

 
Appellant :- Prem Nath
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And 4 Others
 
Counsel for Appellant :- Sharvan Kumar Pandey,Km. Anjali Gautam
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Renu Agarwal,J.

The present criminal appeal under Section 14(a)(1) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act has been filed against the judgment and order dated 06.05.2023 passed in Criminal Misc. Case No. 47 of 2023; Sri Prem Nath Vs. Madhuri and Others, relating to the Police Station Sirsiya, District Shravasti by which the trial court rejected the application under Section 156(3) Cr.P.C.

According to the contents of the application under Section 156(3) Cr.P.C., the appellant Prem Nath and opposite party no. 2 are husband and wife and 'Kurmi' by caste. Father of the revisionist is owner and in possession of Gata no. 426 area 0.445. The opposite party no. 2 with collusion of opposite party nos. 3 and 4 got executed the sale deed on 30.07.2022 fraudulently in favour of opposite party no. 2 without consideration and without obtaining sanction of Collector, Shravasti. When it came to the knowledge of the appellant and inquired about the fact, the opposite parties abused and threatened him with life and property and abused him by caste. He tried to lodge the FIR in the police station and sent a letter also to the Superintendent of Police concerned but his FIR was not registered in the Police Station concerned. Thereafter, he moved an application under Section 156(3) Cr.P.C.

It is submitted that the trial court rejected the application under Section 156(3) Cr.P.C mentioning that dispute is civil in nature. The trial court did not consider that the land of the appellant was forcibly taken through sale deed from his father who was suffering from mental disorder and rejected the application under Section 156(3) Cr.P.C. arbitrarily.

Learned AGA opposed the prayer of the appellant and submitted that from the contents of the application under Section 156(3) Cr.P.C., it transpires that it is a case of civil in nature and no medical report is filed in the matter and equally efficacious remedy is available to the appellant, therefore, the appeal is liable to be rejected.

I have heard the rival submissions of leaned counsel for the parties and perused the record.

The allegation made against opposite parties nos. 2 to 5 are that they forcibly get executed the sale deed in favour of opposite party no. 2 without consideration and without permission of the Collector by taking advantage of mental disorder of his father. The contents of the application does not disclose any cognizable offence the allegation of abusing by caste and threatening, as mentioned in the application. It also transpires that there is no allegation of beating or assaulting the appellant. There is no medical report on record in this regard. This is not denied that the property was transferred through the registered sale deed which can be challenged in the court of competent jurisdiction. The application under Section 156(3) Cr.P.C. is moved only to pressurize opposite party no. 2.

From the perusal of the impugned judgment, it is clear that the application has been rejected on the ground that it is purely civil dispute.It also transpires from the impugned order that the registered sale deed was produced before the trial court/Additional Sessions Judge, SC/ST Act.

Section 156 CrPC reads as under:

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

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

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

A magistrate may use his authority U/s 156(3) CrPC on pre and post cognizance. The power may include the police officers incharge on recording the case and concluding an investigation. Anyone can begin the legal procedure by reporting a cognizable offence to the police. The police are required by law to open an investigation and record a case after receiving such information.

According to the section 154(1) of the CrPC, any information relating to the commission of cognizable offence provided to an in-charge of the police station whether verbally or in writing must be reduced to writing and signed by them. FIR is an essential document in our nations criminal justice system.

The Hon'ble Apex Court has already made it clear that the police authorities must register an FIR upon receiving complaint in Lalita Kumari vs. State of U.P. and others. The police authorities are required to carry out such application moved U/s 156(3) CrPC. The magistrate is not merely a simple office just to register the case without applying his judicial mind. He must believe that there is justification for the police to register the case and conduct an investigation. The police as well as magistrate is permitted to look into the offence without FIR whether any cognizable offence is made out or not. Before passing an order for registering the FIR, the court has to see at the very outset whether a cognizable offence is made out.

In Hari Singh vs. State of U.P. (2006) SCC, it was decided that the complainant may move a complaint before the magistrate having jurisdiction to take cognizance, if the police fails to investigate the incident. The law does not allow the magistrate to order an investigation U/s 156(3) CrPC, magistrate is required to enquiry in the complaint as provided in Chapter XIV of the Code before taking cognizance U/s 190, 200 and 204 CrPC. During the pre-cognizance phase, if a person is aggrieved that his FIR is not registered U/s 154 CrPC and a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station U/s 154(3) CrPC by an application in writing. Even if that does not find any satisfactory result in the same, the FIR is not registered or even after it registering the FIR, proper investigation is not made, it is open for aggrieved person to file an application under Section 156(3) CrPC before magistrate. If such application is filed, then magistrate may order for registration of FIR and proper investigation. In Mohd Yousuf vs. Smt. Afaq Jahan and Anr 2006 (1) SCC 10 and Dilawar Singh vs. State of Delhi 2007 (10) SCC 585, the Hon'ble Apex Court took similar view.

The Hon'ble Apex Court affirmed the Sakiri Vasu ruling in case of M. Subramaniam and Others v. S. Janaki and Others (2020) SCC, citing an earlier decision in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others (2010) SCC. The remedy for aggrieved party is to approach the concerned Magistrate U/s 156(3) CrPC, if they have grievance with the police have not registered the FIR U/s 154 of the CrPC and envisages that if the police refused to register the FIR and after registering the FIR did not conduct the investigation properly, the informant has a right to move an application before the S.P.. when the victim requested U/s 156(3) CrPC, they must follow all the steps provided in Section 154(1) and 154(2) of the CrPC.

From the above discussion, it is evident that no cognizance offence is made out on the basis of the contents disclosed in application moved U/s 156(3) Cr.P.C.. The contents regarding SC/ST Act are to be read in the light of substantive offence. The informant has equally efficacious remedy to file a complaint before the magistrate having jurisdiction to try the case. The Supreme Court discussed the above mentioned provisions of law in its judgements very well. Hence, the order of the trial court suffers with no illegality, irregularity or perversity. To file an appeal without adopting due procedure is the misuse of process of law.

In the light of the above discussions, the appeal is hereby dismissed.

[Renu Agarwal,J.]

Order Date :- 1.8.2023

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