Allahabad High Court
Deepak Aarya vs State Of U.P. And 2 Others on 24 May, 2023
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:116241
Court No. - 81
Case :- CRIMINAL APPEAL No. - 5532 of 2023
Appellant :- Deepak Aarya
Respondent :- State Of U.P. And 2 Others
Counsel for Appellant :- Ankit Srivastava
Counsel for Respondent :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Satish holding brief of Shri Ankit Srivastava, learned counsel for the appellant, learned Additional Government Advocate representing the State and perused the record of the case.
This criminal appeal has been filed by the appellant challenging the order dated 21.2.2023 passed by the Special Judge (SC/ST) Act/Additional Sessions Judge, Ghaziabad in Criminal Misc. Case No. 408 of 2022 (Deepak Arya vs. Vinod Sharma and another), whereby the application of the appellant filed under Section 156(3) Cr.P.C. has been treated as complaint case.
Learned counsel for the appellant/complainant while drawing the attention of the Court towards the impugned order, whereby an application moved by the appellant under Section 156 (3) Cr.P.C. has been treated as complaint, vehemently submits that the Special Court has committed patent illegality by treating the application under Section 156 (3) Cr.P.C. as complaint. It is further submitted that the allegations in the application were such in nature, where the investigation was required, and therefore, it was obligatory on the part of the Special Court to have directed investigation, more so, when the commission of cognizable offences is emerging, thus, the impugned order be set aside and the application given by the appellant under Section 156(3) Cr.P.C. be allowed.
Learned Additional Government Advocate on the other hand submits that no illegality has been committed by the Special Court in passing the impugned order, as many factors are required to be considered by the court while ordering investigating, as defined under Section 156(3) Cr.P.C., thus, no illegality has been committed by the Special court in passing the impugned order.
Having regard to the order intended to be passed, the service of notice upon opposite party No. 2 is hereby dispensed with.
Having heard learned counsel for the parties and having perused the record, the grievance of the appellant/complainant is to the tune that his application moved under Section 156(3) Cr.P.C. has been treated as complaint case, while according to the learned counsel for the appellant there was sufficient material, on the basis of which, the order for investigation should have been passed.
Perusal of the application, moved by the appellant under Section 156(3) Cr.P.C., a copy of which has been placed on record, would reveal that the allegations have been levelled with regard to non performance of an agreement to sell by one of the accused, namely, Vinod Sharma even after taking the advance money, and thereafter, the maternal uncle of the appellant attempted to commit suicide by the illegal act committed by the Vinod Sharma. The allegations have also been levelled of lending rupees six lacs at an interest of 5% per annum by the aforesaid Vinod Sharma.
Various other allegations have been levelled with regard to the monetary transactions as well as agreement to sell of immovable properties and also misappropriation of money. The complaint is running into five pages. The Special Court instead of referring the matter for investigation by the police took the cognizance of offence under Section 190(1)(a) of the Cr.P.C. and treated this application as complaint.
As stated earlier, even if there is emergence of commission of cognizable offences in the application moved by the complainant under Section 156(3) Cr.P.C. requesting the Magistrate or the Special Court, as the case may be, for passing order of investigation, it is not obligatory on the part of the Magistrate or the Special Court to pass such orders for investigation in each and every case. The duty of the Court is to see the necessity of any investigation having regard to the peculiar facts and circumstances of each case and in an appropriate case, the court may treat the application moved under Section 156 (3) CrP.C. as complaint, as defined under Section 2(d) of the Cr.P.C.
In the considered opinion of this Court, even if an application under Section 156(3) Cr.P.C. is moved before the Magistrate or the Special Court, the same being an application under Section 156(3) Cr.P.C. will not loose its character, of a complaint as defined under Section 2(d) of the Cr.P.C., and if the court proceeds for taking cognizance under Section 190(1)(a) of Cr.P.C., the procedure as prescribed under Chapter XV of the Cr.P.C. shall be followed and if the court considers it necessary the order for investigation may be passed under Section 156(3) Cr.P.C., but such order can only be passed before taking cognizance by the Special Court or the Magistrate, and after taking of cognizance, the order for investigation may only be passed under Section 202 Cr.P.C.
In this regard the law laid down by Hon'ble the Apex Court in Priyanka Srivastava Vs. State of U.P.; MANU/SC/0344/2015 : AIR 2015 SC 1758 and in Mohd. Yousuf Vs. Afaq Jahan (Smt.) and another; MANU/SC/8888/2006 : (2006) 1 SCC 627, Aleque Padamsee & others vs. Union of India (UOI) (2007) 6 SCC 171, as well as Full Bench Judgment of this Court in Ram Babu Gupta Vs. State of U.P. reported in MANU/UP/0861/2001 as well as the Division Bench Judgement of this Court Sukhwasi Vs. State of U.P. & others; MANU/UP/1115/2007: ACC 2007 (59) 739, may be recalled.
Having regard to the factual matrix discussed herein before and the ratio of the law propounded in the reports mentioned above, I do not find any illegality in the impugned order, in result, the appeal is dismissed.
Order Date :- 24.5.2023
Sumaira
