Misc. Application No. 100 of 2023 · High Court
Case Details
Neutral Citation No. - 2024:AHC:185803 Court No. - 75 Case :- APPLICATION U/S 482 No. - 27230 of 2024 Applicant :- Santosh Kumar Opposite Party :- State Of U.P. And 6 Others Counsel for Applicant :- Ashish Goyal 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 22.02.2024, passed by learned Special Judge, S.C./S.T. Act, Auraiya, in Criminal Misc. Application No. 100 of 2023, police station Phaphund, district Auraiya, whereby the application filed by the applicant under Section 156(3) Cr.P.C. has been registered as a complaint.
Legal Reasoning
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 applicant has filed an application under Section 156(3) Cr.P.C. against opposite party nos. 2 to 7, which discloses commission of cognizable offence but the prayer for investigation was declined by the concerned court and the said application has been registered as a complaint case. It was submitted that opposite party nos. 2 to 7 are police officials and in view of the allegations, it was necessary that matter must have been investigated by the police but the court concerned has registered the application of applicant under Section 156(3) Cr.P.C. as a complaint case vide impugned order dated 22.02.2024. 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 F.I.R. 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 case it may be mentioned that the complainant has filed an application under section 156(3) Cr.P.C., alleging that one Adesh Kumar has made complaint regarding robbery and in that matter applicant was illegally apprehended by the police and he was released after extracting Rs. 5,000/- from the applicant. It appears that opposite party nos. 2 to 7 are police officials. The concerned court has considered entire facts and the application of applicant was registered as a complaint case. All the facts relating to dispute are in the knowledge of the applicant and thus, he can pursue the complaint case. Considering the nature of allegations made by applicant and position of law, it cannot be said that impugned order is suffering from any such patent illegality or abuse of the process of law so as to require any interference by this Court in exercise of powers conferred under Section 482 Cr.P.C.
Decision
11. In view of the above, the present application under Section 482 Cr.P.C. has no force and the same is accordingly dismissed. Order Date :- 27.11.2024 Anand