Allahabad High Court
Smt Raj Kumari Dubey vs State Of U.P. And 2 Others on 24 April, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:63461
Court No. - 71
Case :- APPLICATION U/S 482 No. - 1780 of 2025
Applicant :- Smt Raj Kumari Dubey
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Indra Prakash Tiwari
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
1. The instant application under Section 482 Cr.P.C. has been preferred against the order dated 13.03.2024, passed by the Additional Civil Judge (J.D.)/Judicial Magistrate-02, Ghazipur, in Criminal Case No. 2480 of 2023, police station Dullahapur, district Ghazipur, whereby the application filed by the applicant under Section 156(3) Cr.P.C. has been registered as a complaint.
2. Heard Sri Ravi Kant Vikram, holding brief of Sri Indra Prakash Tiwari, learned counsel for applicant and learned A.G.A. for the State.
3. It has been argued by learned counsel for applicant that the applicant has filed an application under Section 156(3) Cr.P.C. against the opposite party Nos. 2 and 3, which discloses commission of cognizable offence but the prayer for investigation was declined by the concerned learned Magistrate and the said application has been registered as a complaint case. It was further submitted that in the application under Section 156(3) Cr.P.C., the applicant has made allegations against the opposite party Nos. 2 and 3 that they have assaulted her. The applicant is a lady and in view of attending facts and circumstances, it was necessary that matter must have been investigated by the police but learned Magistrate has registered the application of applicant under Section 156(3) Cr.P.C. as a complaint case vide impugned order dated 13.03.2024. Learned counsel further submitted that the impugned order is against facts and law and thus, the same is liable to be set aside and that the application of the applicant under Section 156(3) Cr.P.C. may be allowed with a direction to the police to register first information report and investigate the case.
4. Learned A.G.A. has opposed the application and argued that no cognizable offence is made out and that the application of applicant has rightly been registered as a complaint and that there is no illegality or perversity in the impugned order.
5. I have considered the rival submissions and perused the record.
6. The issue whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156(3) Cr.P.C. containing allegation of commission of a cognizance offence is no more 'res-integra', as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. After considering the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi vs. State of U.P. (supra) has answered the question referred to it, in paragraph 23 of the judgment as under:-
"The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under section 156(3) Cr.P.C. as a complaint."
7. Thus, it is apparent that Magistrate is not bound to pass order of investigation by police, even if such application discloses cognizable offence. The Magistrate is required to apply its mind to find out whether the first information sought to be lodged by applicant had any substance or not. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156(3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint.
8. In case Mrs. Priyanka Srivastava and another vs. State of U.P. and others;2015 AIR(SC)1758, the Hon'ble Apex Court held as under:
"At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."
9. Thus, while dealing with application under Section 156(3) Cr.P.C., Magistrate is required to apply its mind to find out whether the first information sought to be lodged by the applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appear to be without any substance, then in such case the Magistrate can refuse to direct registration of the FIR and its investigation by the police, even if the application contains the allegations of commission of a cognizable offence. In such case, the Magistrate is fully competent to reject the application. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint, as held by the Division Bench in the case of Sukhwasi vs. State of U.P. (supra).
10. In the instant matter it appears from record that both the parties are neighbours. The applicant/complainant has made allegations that on 18.08.2023 opposite party Nos. 2 and 3 were putting CCTV camera in front of her main gate and when objected, they have abused and assaulted her. The alleged medical examination report of applicant has been shown of 21.08.2023, wherein some contusions have been shown. In view of position of law it is clear that in appropriate cases, the Magistrate may register the application under section 156(3) Cr.P.C. as a complaint case. In the instant matter considering nature of accusations and all attending facts, the application of applicant under section 156(3) Cr.P.C. has been registered as a complaint case by learned Magistrate by a reasoned order. No material illegality or perversity could be shown in the impugned order. There is nothing to indicate that there has been any abuse of the process of court or miscarriage of justice so as to require any interference by this Court in exercise of powers conferred under 482 Cr.P.C. The application under Section 482 Cr.P.C. lacks merit and thus, the same is liable to be dismissed.
11. Accordingly, the application under Section 482 Cr.P.C. is hereby dismissed.
Order Date :- 24.4.2025
Anand
