Allahabad High Court
Mohammad Vasid vs State Of U.P. Thru. Prin. Secy. Home ... on 1 October, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:68204
Court No. - 15
Case :- CRIMINAL MISC. WRIT PETITION No. - 7460 of 2024
Petitioner :- Mohammad Vasid
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 10 Others
Counsel for Petitioner :- Neeta Singh Chandel,Arun Kumar
Counsel for Respondent :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
1. Heard learned counsel for the petitioner as well as learned AGA for the State and perused the record.
2. The instant petition has been preferred by the petitioner- Mohamma Vasid under Article 226 of the Constitution of India with the following prayers:-
"i) issue a writ order or direction in the nature of certiorari to quash the impugned order dated 24.02.2023 passed by the Court of Learned Additional Chief Judicial Magistrate, Court No.17, Barabanki as well as impugned order dated 26.07.2024 passed by the Court of learned Special Judge E.C. Act, Barabanki contained as Annexure No.1 and 2 to this writ petition.
ii) issue a writ, order or direction in the nature of mandamus thereby commanding the opposite parties to allow the application under Section 156(3) Cr.P.C. and lodge the First Information Report against the opposite parties no. 5 to 11.
iii) issue any other suitable order or direction which this Hon'ble Court may deem fit, just and proper in the circumstances of the case in favour of the petitioner."
3. Learned counsel for the petitioner submits that both the courts below have not considered the case of the complainant in right perspective and has passed the order in utter disregard to the settled principles.
4. It is further submitted that it was evident from the application moved under Section 156(3) Cr.P.C. that cognizable offences have been committed but even then no direction has been passed for investigation of the same and so much so the application filed by the petitioner under Section 156(3) Cr.P.C. has not been treated as a complaint, thus the orders passed by the courts below are per se illegal and liable to be set aside.
5. Learned AGA on the other hand submits that even if commission of cognizable offences are emerging from the application moved under Section 156(3) Cr.P.C. the Magistrate or the Trial Court is not bound to order for investigation.
6. In this regard reliance has been placed on Sukhwasi Vs. State of U.P. & others; MANU/UP/1115/2007: ACC 2007 (59)739.
7. Having heard learned counsel for the parties and having perused the record and the order intended to be passed the service of notice on respondents no. 5 to 11 is hereby dispensed with.
8. Perusal of the record would reveal that the petitioner who had moved an application before the Magistrate under Section 156(3) Cr.P.C. is aggrieved by the fact that the order for investigation of the alleged offences have not been passed and even the application moved by the informant/ complainant has not been treated as complaint and he has become remedy-less. The law with regard to the manner in which the application under Section 156(3) Cr.P.C. is to be dealt with is now no more resintegra and the same has been set at rest by the catena of judgment passed by this Court as well as by the Hon'ble Supreme Court:-
1. Ram Babu Gupta Vs. State of U.P. reported in MANU/UP/0861/2001.
2. Mohd. Yousuf Vs. Afaq Jahan (Smt.) and another; MANU/ /8888/2006: (2006)1 SCC 627
3. Sukhwasi Vs. State of U.P. & others; MANU/UP/1115/2007: ACC 2007 (59)739.
4. Priyanka Srivastava Vs. State of U.P., MANU/SC/0344/2015: AIR 2015 SC 1758.
9. The above legal reports would evidently demonstrate that the Magistrate or the trial court is not bound to order for investigation under Section 156(3) Cr.P.C. even if the allegations in the application discloses commission of the cognizable offences and thus whenever an application for investigation is moved by an applicant a question is required to be posed by the court to itself as to what is the need of such investigation and if it is found that there is no such need the trial court/ magistrate may reject such application and this view has been constantly upheld by the Hon'ble Supreme Court in the above mentioned judgments and specifically in Sukhwasi (supra) by this court.
10. Thus, having regard to the above facts and circumstances, I do not find any illegality or to say any irregularity committed by the Magistrate as well as by the revisional court and the same are not required to be interfered. However, so far as the grievance of the petitioner with regard to not treating his application moved under Section 156(3) Cr.P.C. as a complaint is concerned the same may be redressed in terms that if the complaint of the petitioner has not been rendered barred by limitation as provided in the relevant provisions of the Cr.P.C. he can still move an appropriate complaint before the competent Magistrate/ trial court, after all there is difference between the prayer made for investigation and a complaint made disclosing the commission of cognizable or even non -cognizable offences, which may be dealt with by the trial court in view of the procedure provided in Chapter XV of the Code of 1973.
11. Thus, the instant petition filed by the petitioner/ complainant is finally disposed of in terms that if his cause of action is not barred by efflux of time i.e. to say by the limitation provided in the Code of 1973 he may file a complaint with regard to the cause of action given in the application moved under Section 156(3) Cr.P.C. and if the same is filed with utmost urgency to say within 20 days from today, the trial court or the Magistrate as the case may be, shall be under obligation to take the same to its logical end having regard to the provision contained under Chapter XV of the Code of 1973 (Chapter XVI of BNSS, 2023), if the same is not barred by the law of limitation.
Order Date :- 1.10.2024
Muk
