Allahabad High Court
Mohini Devi vs State Of U.P. Thru. Prin. Secy ... on 17 July, 2023
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:46462
Court No. - 29
Case :- CRIMINAL APPEAL No. - 518 of 2023
Appellant :- Mohini Devi
Respondent :- State Of U.P. Thru. Prin. Secy Home, Sectt. Lko. And 2 Others
Counsel for Appellant :- Ashish Kumar Tiwari
Counsel for Respondent :- G.A.,Rakesh Kumar Mishra,Shri Prakash Pandey
Hon'ble Mrs. Renu Agarwal,J.
The present appeal is moved against the order dated 01.12.2022 passed by the Special Judge (SC/ST) Act, Hardoi on an application moved by the appellant under Section 156 (3) Cr.P.C whereby the application of the appellant has been rejected.
As per the prosecution case the victim was going to computer center on 29.09.2022 at about 3:30pm when she reached DNS School opposite party caught hold of her and started teasing her. The opposite party also gave her their mobile number and ask her to call them. When the father of victim went to the house of respondent No. 2 and 3 to complain, their father abused him and addressed him with caste based address. He tried to lodge the FIR but could not succeed. The victim then moved an application to the Senior Superintendent of Police, Hardoi also but in vain thereafter the application under Section 156(3) Cr.P.C was moved for lodging case against the opposite party.
It is submitted by the learned counsel for the appellant that learned trial court while rejecting the application of the appellant observed that there were already estranged relations between the appellant and the opposite party. Proceedings under Section 107/116 Cr.P.C has already been drawn against them and the instant application for lodging case has been preferred on exaggreated facts only to pressurize the opposite party and rejected the application relying on the judgment of this Court passed in the case of Vishwanath Vs. State of U.P. 2009 Cr.L.J 149 (Alld). It is submitted by the learned counsel for the appellant that though there are estranged relationship between the appellant and the opposite party No.2, there is no adverse report in the duration of 29.09.2022 to 02.01.2023 regarding Section 107 and 116 Cr.P.C. as is evident by the certificate copy obtained from the office of Sub Divisional Magistrate, hence, the order of trial court based on the assumption that the proccedings are undertaken only to settle old scores and ignores the factual position, is irregular and illegal and liable to be set aside.
Learned A.G.A as well as learned counsel for the opposite party submit that no such incident has taken place, there is no witness to the aforesaid incident, the present prosecution has been undertaken just to settle score of the proceedings under Section 107/116 Cr.P.C. It is further submitted that the appellant has directly moved an application under Section 156 (3) Cr.P.C without following the procedure as laid down in law.
Heard rival submissions and perused the record.
From the perusal of the record it is clear that nothing has been brought on record to shown that the appellant has moved an application to the Superintendent of Police, Hardoi for the registration of FIR in case police has refused to do so.
Apex Court in the case of Sakiri Vasu and others Vs. State of U.P. Criminal Appeal No. 1685 of 2007 has held thus:
?11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application (2008) 2 SCC 409 under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation."
The aggrieved party if the FIR is not registered under Section 154 Cr.P.C may submit an application in writing to the Superintendent of Police according to Section 154(3) Cr.P.C. The aggrieved party can apply under Section 156(3) Cr.P.C before the Magistrate if he does not find the any satisfactory outcome meaning that either the FIR is not got registered or that even after it has been registered no proper investigation is conducted. Therefore, to register a case under Section 156 (3) Cr.P.C two conditions must be met:
(1) The Superintendent of Police and Police have not file the FIR.
(2) Although the Superintendent of Police and Police filed the FIR adequate investigation has not been conducted.
The Judicial Officer is given authority in cases where the police refuses register the FIR.
Since the aggrieved were required to come to court under Section 156(3) Cr.P.C if the FIR is not registered the above two condition are to be fulfilled that he tried to lodge the FIR in the police Station and moved an application in writing to the Superintendent of Police concerned for registration of FIR, or if the FIR is registered and not investigated properly then move an application under Section 156 (3) Cr.P.C before the Court.
There is nothing on record to show that appellant moved an application under Section154(3) Cr.P.C before the Superintendent of Police hence, the appeal is a misuse of process of law and there is no illegality or irregularity in the judgment passed by the learned trial court. Equally efficacious remedy is available to the appellant to file a complaint against the opposite party or move the Superintendent of Police under Section 154 (3) Cr.P.C.
In view of the above discussion, this Court is of the view that the appeal has no force and is liable to be dismissed and is accordingly dismissed.
(Renu Agarwal,J.)
Order Date :- 17.7.2023/Nadeem
