Allahabad High Court
Arjun vs State Of U.P. And 3 Others on 17 February, 2023
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 88
Case :- CRIMINAL REVISION No. - 4507 of 2022
Revisionist :- Arjun
Opposite Party :- State Of U.P. And 3 Others
Counsel for Revisionist :- Brijesh Pratap Mishra,Sriram Dhar Dubey
Counsel for Opposite Party :- G.A.,Rakesh Kumar
Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the revisionist, learned counsel for opposite party Nos. 2 to 4 and learned A.G.A. for the State.
2. This revisions has been preferred against the judgment and order dated 03.09.2022 passed by learned Additional Civil Judge (Jr. Div.), Court No. 1, Hasanpur, Amroha, in Criminal Misc. Case No. 556/2021, whereby application filed by the revisionist under Section 156(3) Cr.P.C. has been rejected.
3. It has been argued by learned counsel for revisionist the impugned order is against the facts and law and thus liable to be set aside. It was stated that revisionist has sold his land to opposite party No. 2 Sompal by way of registered sale deed dated 31.12.2018, whereby regarding consideration, it has been mentioned that Rs. 2,00,000/- (Two Lakhs) have been received by the revisionist as advance and Rs. 2,00,000/- (Two Lakhs) have been transferred by the opposite party No.2 into the account of the revisionist, but in fact, the said amount was never transferred into the account of revisionist. Learned counsel has referred copy of the statement of bank account of revisionist and submitted that the alleged amount of Rs. 2,00,000/- (Two Lakhs) has never been transferred into the account of the revisionist and thus, the opposite party No. 2 got executed the sale deed by way of cheating and that a prima facie case is made out against opposite party Nos. 2 to 4. It is further submitted that the court below did not consider the material in correct perspective and committed error by rejecting the application of the revisionist.
4. Learned counsel for opposite party Nos. 2 to 4 has opposed the revision and argued that the whole amount of consideration was paid to the revisionist and that after 4 years of the alleged sale deed, the revisionist has moved this application under Section 156(3) Cr.P.C. After the said sale deed, the revisionist has executed even two more sale deeds in favour of the opposite party No. 2 but the revisionist never raised any such objection that the alleged amount of Rs. 2,00,000/- (Two Lakhs) has not been transferred into the account of the revisionist in pursuance of said sale deed dated 31.12.2018. Further, there is absolutely no allegation against the opposite party Nos. 3 and 4, who were witnesses of the said sale deed. It was stated that there is no illegality or perversity in the impugned order.
5. I have considered the rival submissions of learned counsel for the parties and perused the record.
6. Law regarding jurisdiction under Section 156(3) is well settled. In case of Sukhwasi vs. State of UP 2007 (59) ACC 739, after considering the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench of this court has held 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. If the allegations made in the application undersection 156(3)Cr.P.C. prima-facie appear to be without any substance, then in such case the Magistrate can refuse to direct registration of the FIR and its investigation by the police, even if the application contains the allegations of commission of a cognizable offence. In such case, the Magistrate is fully competent to reject the application. It was also held that even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application undersection 156(3)Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application undersection 156(3)Cr.P.C. can be treated as complaint.
7. In caseMrs. Priyanka Srivastava and another vs. State of U.P. and others;2015 AIR(SC)1758, the Hon'ble Apex Court held as under:
"At this stage it is seemly to state that power underSection 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage ofSection 154of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."
8. Thus, it is apparent that that while dealing with application underSection 156(3)Cr.P.C., Magistrate/court is required to apply its mind to find out whether the first information sought to be lodged by the appellant had any substance or not. Magistrate is not bound to pass an order of investigation as a matter of course but the discretion has to be exercised judicially. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application undersection 156(3)Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and can treat such application as complaint.
9. In the instant case, it has been shown that the opposite party No. 2 has purchased the land from revisionist vide sale deed dated 31.12.2018, wherein it was mentioned that the vender has received Rs. 2,00,000/- (Two Lakhs) in advance and Rs. 2,00,000/- (Two Lakhs) have been transferred into his account. The case of revisionist is that the said amount of Rs. 2,00,000/- (Two Lakhs) was never transferred into his account. The application under Section 156(3) Cr.P.C. has been moved after 4 years of the alleged sale deed. It was also shown that after said sale deed, the revisionist has executed two more sale deeds in favour of opposite party No. 2. Here, it may also be mentioned that if the alleged amount of Rs. 2,00,000/- (Two Lakhs) was not transferred into the account of the revisionist, he has a remedy for seeking cancellation of the sale deed. Further, there are no specific allegations against opposite party Nos. 3 and 4. It may also be mentioned that the revisionist has also an alternate remedy to file a complaint case. Considering the aforesaid facts and circumstances, it cannot be said that the impugned order is suffering from any such material illegality or perversity so as to require any interference by this Court and thus the revision is liable to be dismissed.
10. The revision is dismissed.
Order Date :- 17.2.2023
Suraj
