Sumit Jain vs State Of U.P. And 4 Others
2023 Latest Caselaw 25505 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?A.F.R.
 
Neutral Citation No. - 2023:AHC:182633
 
Court No. - 93
 
Case :- CRIMINAL REVISION No. - 4739 of 2023
 
Revisionist :- Sumit Jain
 
Opposite Party :- State Of U.P. And 4 Others
 
Counsel for Revisionist :- Anmol Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Manoj Bajaj,J.

1. Sumit Jain-petitioner has filed this criminal revision to challenge the impugned order dated 10.8.2023 passed by Additional Chief Judicial Magistrate, Ist, Agra, whereby he has refused to exercise jurisdiction under Section 156(3) Code of Criminal Procedure, 1973, upon revisionist's complaint titled "Sumit Jain Vs. Neeraj Gupta and others."

2. Briefly, the facts leading to the revision petition are that the complainant-Sumit Jain brought a criminal complaint under Section 156(3) Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') before the Additional Chief Judicial Magistrate-Ist, Agra, wherein it is alleged that in the year 1971 his father Subhash Chandra Jain and uncles namely, Darshan Kumar Jain and Indra Kumar Jain had jointly taken a factory situated at 12/15 Navalganj, District Agra, on rent, where a joint business in the name of M/S Mahaveer Iron Foundry, was being run. Presently, applicant, Smt. Urmila Jain and Indra Kumar Jain are continuing with the said business. The rent of the demised premises is being paid to accused persons namely, Neeraj Gupta, Pankaj Gupta, Ayush Gupta R/o 31/29 Rawatpada, Police Station Kotwali, District Agra, but these accused persons have sold the above mentioned property to unlawful elements including the accused-Shekhar Yadav, who claims himself to be a leader of Samajwadi Party. As per the allegations, accused no.4-Shekhar Yadav, by using his influence and with the assistance of unsocial elements forcibly trespassed in the factory and caused damage. In this regard, an information was given to the police, but no action was taken. The accused persons are threatening the complainant in order to get the property vacated from him and there is every likelihood that the accused persons may cause damage to his machinery, who are not even allowing the complainant to enter in the factory premises. The complainant also came to learn that the accused persons have taken away lot of material from the factory in the tempo, but the police is not taking any action against them, therefore, complainant filed a complaint dated 24.4.2023 before the Magistrate with a prayer to send it to the S.H.O., Police Station, Etamadaula District Agra for registration of F.I.R. and investigation.

3. The Additional Chief Judicial Magistrate-Ist, Agra vide impugned order dated 10.8.2023 has refused to exercise the jurisdiction under Section 156(3) Cr.P.C. and has chosen to adopt the procedure contained in Chapter XV Cr.P.C. and fixed the case for recording evidence under Section 200 Cr.P.C. Hence, this revision petition.

4. Learned counsel has argued that revisionist is a tenant in the subject property and his dispute with the landlord is pending, but the landlord/accused are bent upon to take possession of the property in question by illegal means and use of force. He submits that in this regard, though a complaint was given to the police, but it has failed to do its statutory duty, therefore, the complainant was compelled to move a complaint before the Chief Judicial Magistrate, Agra. According to him, it would be appropriate, if his complaint dated 24.4.2023 is sent to police for investigation as the complaint discloses commission of cognizable offences. He further submits that the magistrate has erroneously refused to exercise the powers vested in him, therefore, the interference is warranted by this Court by exercise of revisional jurisdiction.

5. Upon hearing the learned counsel and considering his submissions, this Court finds that jurisdiction under Section 156(3) Cr.P.C. can be exercised by the magistrate directing the police to take cognizance by registering the F.I.R. followed by investigation, if, the allegations in the complaint prima facie disclose commission of the alleged offences as the investigation in a crime is the prime duty of the police. At the stage of exercising discretion under Section 156(3) Cr.P.C., the Magistrate is only reminding the police of its statutory duty to register a case relating to the alleged commission of cognizable offences for investigation and this stage is a pre-cognizance stage. In other words, while sending the complaint to the police, the Magistrate has not taken cognizance of the alleged offences in terms of Section 190 Cr.P.C. Thus, at this juncture, the Magistrate is only required to see, if the complaint discloses commission of cognizable offences. Of course, if the complaint falls short of this requirement, the Magistrate is always justified in refusing to exercise discretion under Section 156(3) Cr.P.C., who can alternatively, proceed with the complaint under Chapter XV Cr.P.C., and therefore, when the Magistrate applies his mind to the complaint for the purpose of proceeding under Section 200 Cr.P.C., the cognizance of the offences is said to be taken in terms of Section 190 Cr.P.C. Here, it would be useful to refer the decision of the Hon'ble Apex Court rendered in the case of Gopal Das Sindhi and others Vs. State of Assam and another, AIR 1961 Supreme Court 986, the relevant extract of the judgment is reproduced here as under:-

".....If the Magistrate had not taken cognizance of the offence on the com-plaint filed before him, he was not obliged 'to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must.' The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence."

(Emphasis supplied)

6. The above view was again reiterated by Hon'ble Apex Court in the case of Devarapalli Lakshminarayana Reddy and others Vs. Narayana Reddy and others, AIR 1976 Suprme Court 1672, the relevant observations read as under:-

".....This raises the incidental question: What is meant by "taking cognizance of an offence`' by a Magistrate within the contemplation of s. 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of s. 190 and the caption of Chapter XIV under which ss. 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under s. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of s. 190(l)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under s. 156(3), he cannot be said to have taken cognizance of any offence."

7. Thus, in view of the above decisions, it is clear that this jurisdiction is to be exercised where the court records the satisfaction that the alleged offences require investigation by police, but on the contrary, if the contents of the complaint do not inspire confidence, the Court is always justified in adopting the alternative procedure contained in Chapter XV Cr.P.C. by asking the complainant to adduce the pre-summoning evidence to make out a prima facie case for issuance of process against the accused persons. During the course of hearing, it is also fairly stated by learned counsel that civil litigation between the parties relating to the subject property is also pending. A perusal of the impugned complaint as well as order dated 10.8.2023 shows that Additional Chief Judicial Magistrate-Ist, Agra has carefully examined the averments in complaint, which lacks material particulars related to alleged occurrence, as well as the fact that the complainant, Sumit Jain and others are already facing prosecution at the instance of the landlord through Case Crime No. 162 of 2023, under Sections 384, 406, 504, 506, 507 I.P.C. and considering the material on record has rightly chosen to try the complaint as a complaint case. The Court has exercised this discretion on sound judicial principles, therefore, the impugned order dated 10.8.2023 does not call for any interference.

8. Further, the Hon'ble Apex Court in the case of Priyanka Srivastava and another Vs. State of U.P. and others (2015) 6 SCC 287, had passed directions that every complaint under Section 156(3) Cr.P.C. should be accompanied with an affidavit, with an object to discourage baseless and frivolous complaints, which are being filed every day by complainants to settle the civil disputes. The relevant paragraph no.27 of the said judgment is reproduced here as under:-

"27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

(Emphasis supplied)

9. Thus, in view of the above decision, this Court finds that the complaint dated 24.4.2023 moved by the petitioner (complainant) could not have been entertained for the purposes of exercise of discretion under Section 156(3) Cr.P.C. for want of necessary affidavit as well as lack of relevant particulars relating to the alleged occurrence of trespass etc., therefore, the magistrate has rightly refused to issue directions under Section 156(3) Cr.P.C. and alternatively, decided to proceed with the complaint under Section 200 Cr.P.C.

10. Consequently, in view of the above discussion, this Court has no hesitation in holding that the impugned order dated 10.8.2023 is based upon correct appreciation of facts and law, and does not suffer from any illegality or impropriety.

11. Resultantly, no interference is warranted by this Court in exercise of revisional jurisdiction. Dismissed in-limine.

(Manoj Bajaj, J.)

Order Date :- 20.9.2023

P.S.Parihar