High Court
Case Details
Neutral Citation No. - 2024:AHC:197250 Court No. - 75 Case :- APPLICATION U/S 482 No. - 24921 of 2024 Applicant :- Mohammad Shareef Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mohammad Atif 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 29.04.2024, passed by learned Judicial Magistrate, Court No. 4, Prayagraj, in Case No. 215 of 2024, police station Cantt., district Prayagraj, whereby the application filed by the applicant under Section 156(3) Cr.P.C. has been registered as a complaint case.
Legal Reasoning
law so as to require any interference by this Court in exercise of powers conferred under Section 482 Cr.P.C. 11. The application under Section 482 Cr.P.C. has no force and the same is accordingly dismissed. Order Date :- 17.12.2024 Anand
Arguments
2. Heard learned counsel for applicant and learned A.G.A. for the State. 3. It has been argued by learned counsel for applicant that the impugned order is against facts and law and thus, liable to be set aside. Applicant and opposite party no. 2 are real brothers. The applicant has filed an application under Section 156(3) Cr.P.C. against the private opposite parties, alleging that he along with his brother (opposite party no 2) is joint tenure-holders in the disputed property of Arazi No. 213 but opposite party no. 2 has executed a sale-deed in favour of his wife. The applicant has filed a civil case, wherein said sale-deed was declared null and void. It was further alleged that meanwhile the wife of opposite party no. 2 has executed a Will in favour of her son-in-law. It was submitted that the cognizable offence was made out but the learned Magistrate has declined for investigation of the matter by police and the application of the applicant was registered as a complaint case. 4. Learned A.G.A. has opposed the application and submitted that no cognizable offence is made out against the private opposite parties and that the application of applicant has rightly been registered as a complaint case 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, the allegation of applicant is that he as well as opposite party no. 2 are real brothers and they are joint tenure-holders of the disputed property but the opposite party no. 2 has executed a sale-deed in favour of his wife, however, that sale- deed was declared null and void by the Civil court. It was further alleged that meanwhile the wife of opposite party no. 2 has executed a Will in favour of her son-in-law. Considering the nature of allegations and entire facts of the matter, it cannot be said that impugned order, by which the application of applicant under Section 156(3)Cr.P.C. has been registered as a complaint case, is suffering from any such patent illegality or abuse of the process of