Shiv Poojan vs State Of U.P. And 5 Others
2023 Latest Caselaw 17238 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:139386
 
Court No. - 88
 

 
Case :- APPLICATION U/S 482 No. - 23883 of 2023
 

 
Applicant :- Shiv Poojan
 
Opposite Party :- State Of U.P. And 5 Others
 
Counsel for Applicant :- Adarsh Shukla,Ganesh Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Singh,J.

1-Heard learned counsel for the applicant, learned A.G.A. for the State of U.P. and perused the record.

2-This Criminal Misc. Application under Section 482 Cr.P.C. has been filed by the applicant against the order dated 24.02.2023 passed by Chief Judicial Magistrate, Basti in Criminal Misc. Case No. 1447 of 2022 and Misc. Case No. 07/12/2023 (Shiv Poojan Vs. Kanhaiya Lal and others), police station Kalwari, district Basti, whereby the application under Section 156(3) Cr.P.C filed by the applicant seeking direction to register first information report against opposite party nos. 2 to 6 has been treated as a complaint.

3- In short compass, the case of the applicant is that the land measuring area 0.6870 hectare situated at Arazi No. 158, Mauja Naharpur, Tappa Kanaila, Pargana Nagar Purab, Police Station Kalwari, Tehsil and District Basti is a public land of the government and is defined under Section 29-C of U.P. Consolidation of Holdings Act. Opposite party nos. 2 to 5 have illegally encroached the aforesaid grassland and constructed hut over the boundary and toilet, etc. and are using the same for the last 22 years, which is a serious crime. With regard to aforesaid act of accused/opposite party nos. 2 to 5, the applicant made several complaints to the State Authorities. The accused, being annoyed with the applicant, are threatening him to harm by life and property. On 14.11.2022 at 03:00 P.M., Ram Vilas and Amarnath alongwith their three associates came at the house of the applicant and by giving threat to kill him, started kicking, punching and hitting with sticks and also abused him.

In the light of the aforesaid, the applicant moved an application under Section 156 (3) Cr.P.C dated 03.01.2023 before the learned Chief Judicial Magistrate, Basti praying therein that in respect of the criminality committed by the opposite parties, directions be issued to the Station House Officer of Police Station Kalwari, District Basti to register the F.I.R. and investigate the matter. The said application was, however, directed to be treated as a complaint vide order dated 24.02.2023,which is the subject matter of challenge in the instant application.

4-Assailing the aforesaid impugned order, main substratum of argument of learned counsel for the applicant is that the allegations made in the application disclose the commission of cognizable offence and considering the nature of allegations proper investigation by the police is required after registration of F.I.R., therefore the learned Magistrate ought to have allowed the application with direction to the Station House Officer of the concerned Police Station to register the F.I.R. and investigate the same. It is also submitted that till date no further proceedings have been done in the matter pursuant to aforesaid impugned order. Learned counsel for the applicant placed reliance on paragraph no.111 of the judgment of the Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and another, (2014) 2 SCC 1, which are reproduced herein below:-

111) In view of the aforesaid discussion, we hold:

"i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

5- On the other hand, learned Additional Government Advocate for the State of U.P. / opposite party no.1, refuting the aforesaid argument submits that interest of justice have already been served as the Magistrate has not rejected the application but has directed to proceed as a complaint case. Even in a complaint case, conviction of the opposite party is possible, and therefore, the failure on the part of the Magistrate in not allowing the application under Section 156 (3) Cr.P.C. by directing the registration of an F.I.R., is not illegal. He has relied upon the Division Bench judgment of this Court in the case of Sukhwasi Vs. State of U.P. reported in 2007 (59) ACC 739, wherein it has been held that :-

"Applications under section 156(3) Cr.P.C. are 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 application 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. The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application section 156(3) Cr.P.C. and there is no such legal mandate".

6-Having heard learned counsel for the parties and considering the aforesaid judgments, I find that in case of ?Sukhwasi? (supra), which was decided in the year 2007, no reason has been given as to why First Information Report should not be registered in respect of a cognizable offence. Thereafter the Apex Court in case of ?Lalita Kumari? (supra) after wholesome treatment has laid down a complete guideline over the issue of registration of First Information Report. There is no dispute that on receiving application under Section 156 (3) CrPC, three courses are open to Magistrate. He may either take cognizance under 190 CrPC or may forward the application to the police under Section 156 (3) CrPC for investigation or he may dismiss the application having baseless or false allegation, therefore such discretionary power ought to have been exercised cautiously with due application of judicial mind only on reasons and not in a routine or mechanical manner. If Magistrate is prima facie of the view that allegations made in the application constituted commission of cognizable offence requiring thorough investigation, he may direct the police to register the case and investigate the same.

7- At this juncture, it would be apposite to mention that the word ?may? occurring in Section 156(3) CrPC is of utmost significance. It gives the Magistrate a discretionary power to order or not for an investigation into the cognizable offence disclosed in the application. This discretionary power has been given to Magistrate to enable them to deal adequately with both types of the applications (i) the genuine application containing truthful allegations about the commission of cognizable offence, and (ii) the applications having baseless or false allegation, It is the duty of the Magistrate to make it a point that no applicant of later category may succeed in his wicked game. His application need to be dismissed with firmness and boldness. At the same time it is the poise duty of the Magistrate to ensure that no case of the former category may go uninvestigated. The Magistrates are thus saddled with a grate responsibility to keep such balance.

8- Considering the facts of this case and nature of allegations levelled by the applicant, this Court is of the view that proper investigation is needed in the case in hand, therefore impugned order is not sustainable. Accordingly, impugned order dated 24.02.2023 is quashed.

9-The matter is remanded to learned Chief Judicial Magistrate, Basti with the direction to decide the aforesaid application under section 156(3) Cr.P.C. of the applicant afresh by passing appropriate order keeping in view the observations made by this court within a period of two weeks from the date of production of a certified copy of this order before him, if there is no other legal impediment.

10-With the aforesaid observations and directions, the instant application succeeds and stands allowed.

Order Date :- 13.7.2023

Shubham