Bhupesh Gupta v. Ritika and others)

4. Brief facts of the case are that an application U/S 156(3) was moved by the applicant mentioning therein that his sister namely, late Kanchan Gupta resides nearly one kilometer from his residence. Kanchan Gupta had adopted Ritika and Harshita. There was no legal heirs of Kanchan Gupta except Ritika and Harshita whom she has adopted. Applicant's brother-in-law namely, late Ramchandra Gupta died on 10.10.2020, who was working as Builder after his retirement. Ritika performed marriage with Nitish Kumar against the wishes of sister and brother-in-law of the applicant. Annoyed by the same, sister and brother-in-law of the applicant evicted Ritika from their movable and immovable property. After the death of brother-in-law of the applicant, Ritika (opposite party no.2) alongwith her husband Nitish Kumar (opposite party no.2) and in-laws frequently visited the house of applicant's sister and by pressurizing and threatening his sister, they started living forcibly in her house. By alluring the sister of the applicant, Ritika illegally got the entire property registered in her name through a fake will deed and by hiding the fact of the second daughter Harshita being an adopted daughter, a fake will deed was executed on 01.03.2021. Later on applicant's sister Kanchan Gupta also died and her funeral was conducted in a hurry without the presence of any relative. In this regard, an application was given by the applicant before the police authorities suspecting murder of his sister as he thought that his sister was not treated properly and died in suspicious situation. Details of will deed and other materials have been elaborated in the application moved under Section 156(3).

5. Learned counsel for the applicants submits that the impugned orders have been passed in a mechanical manner without application of judicial mind and without any reason stating therein that matter is of civil nature. He further submits that application under Section 156 (3) Cr.P.C. clearly discloses the commission of a cognizable offence. He, therefore, submits that once the application filed by the applicant under Section 156 (3) Cr.P.C. disclosed the commission of a cognizable offence, the Magistrate has erred in law in rejecting the same by means of impugned order dated 12.10.2021. He further submits that factual dispute has been raised about adoption and property of applicant's sister and brother-in-law. A ground has also been taken that the application regarding death of sister of the applicant has also not been consider while passing the orders impugned. He next submits that the applicant u/s 156(3) Cr.P.c. has been rejected in a routine manner by the the court of Chief Judicial Magistrate, Ghaziabad vide order dated 12.10.2021, against which, the applicant preferred Criminal Revision No.306 of 2021 (Bhupesh Gupta Vs. State of U.P. and others) which too has been illegally rejected vide order dated

31.10.2022by the learned revisional Court without considering the factual and legal aspects of the matter and therefore, the impugned orders are liable to be quashed by this Court.

6. Learned counsel for opposite party nos.2 and 3 and learned A.G.A. have supported the impugned orders and have pointed out that the grievance of the applicant has not gone unattended by the court below. They further submits that the impugned order dated

12.10.2021 has been passed after appraising the evidence available on the face of record, this order has rightly been upheld by the learned revisional Court, therefore the impugned orders are perfectly, legal just and proper which calls for no interference by this Court in exercise of powers conferred under 482 Cr.P.C. jurisdiction. They next submits that there is proper remedy available to the applicant to approach appropriate forum of the aforesaid matter instead of moving an application giving criminal color to the civil proceedings.

7. Considered the rival submissions made by the learned counsel for the parties and gone through the records of the present application.

8. Before adverting to the merits of the present case, it would be worthwhile to reproduce Sections 154 and 156 Cr.P.C., which provide procedure for registration and investigation of complaint. The same are quoted herein under:- "154. Information in cognizable cases- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.: [Provided that if the information is given by the woman against whom an offence under section 326A, Section 326B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that - (a) in the event that the person against whom an offence under section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be; (b) the recording of such information shall be videographed; (c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of Section 164 as soon as possible]. (2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

156. Police officer' s power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."

9. From the perusal of the aforesaid provision as well as Section 154 Cr.P.C., it is evident that the police can investigate into matters relating to commission of 'cognizable offences' brought to its notice under section 154 Cr.PC. Officer-in-charge of police station has power to investigate U/S 156(1) in such case.

10. Magistrate has power to take cognizance u/s 190 CrPC on receiving the 'complaint'. Thus the matter relating to section 156 (3) relates to power of Magistrate to order investigation by police in matters relating to cognizable offences brought before it through complaint. Complaint has been defined in section 2(d) CrPC of as follows : "complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include a Police report." Code of Criminal Procedure has given different type of powers to deal with such matters relating to commission of cognizable offences when brought before it.

11. A Division bench of this Court in the case of Sukhwasi v. State of U.P., reported in 2007(59) ACC 739 held as under: "Applications under section 156(3) Cr.P.C. are coming in torrents. Provisions under section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice which warrants a direction to the Police to register a case. Such application should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of section 156(3) Cr.P.C. The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application section 156(3) Cr.P.C. and there is no such legal mandate".

12. In case of Lalita Kumari Vs. Government of U.P. and others reported in 2014 (2) SCC 1, specifically in paragraph 111, the Apex Court has observed as follows:- "111) In view of the aforesaid discussion, we hold: "(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. (ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. (iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. (v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. (vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/ family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

13. Having considered the submissions made by the learned counsel for the parties and perused the impugned orders dated

12.10.2021 and 31.10.2022, this Court finds that the application u/s 156(3) Cr.P.C. as well as revision have been rightly rejected by the court below after taking into consideration all the facts and circumstances of the case, recording sound reasoning that effort has been made by the applicant to cloak the civil dispute with criminal nature by exaggerating the allegations. The Apex Court in case of Indian Oil Corporation Limited Vs. NEPC India Limited 2006 (6) SCC 736 has observed that now it is necessary to take notice of growing tendency to convert civil dispute into criminal cases. Recently, the Apex Court, on 15.2.2019 in case of Professor R.K. Vijayasarathy and another Vs. Sudha Seetharam and another, (2019) 16 SCC 739 in Criminal Appeal No. 238 of 2019 has held that cloaking a civil dispute with a criminal nature without ingredients necessary to constitute a criminal offence is abuse of process of court.

14. In view of above, I find no illegality or manifest error of law or perversity in the impugned orders dated 12.10.2021 and

31.10.2022, therefore, no interference is required in the said impugned order.

15. The present application lacks merit and deserves to be dismissed. It is accordingly dismissed. Order Date :- 17.3.2025 Abhishek Singh ABHISHEK SINGH High Court of Judicature at Allahabad

4. Brief facts of the case are that an application U/S 156(3) was moved by the applicant mentioning therein that his sister namely, late Kanchan Gupta resides nearly one kilometer from his residence. Kanchan Gupta had adopted Ritika and Harshita. There was no legal heirs of Kanchan Gupta except Ritika and Harshita whom she has adopted. Applicant's brother-in-law namely, late Ramchandra Gupta died on 10.10.2020, who was working as Builder after his retirement. Ritika performed marriage with Nitish Kumar against the wishes of sister and brother-in-law of the applicant. Annoyed by the same, sister and brother-in-law of the applicant evicted Ritika from their movable and immovable property. After the death of brother-in-law of the applicant, Ritika (opposite party no.2) alongwith her husband Nitish Kumar (opposite party no.2) and in-laws frequently visited the house of applicant's sister and by pressurizing and threatening his sister, they started living forcibly in her house. By alluring the sister of the applicant, Ritika illegally got the entire property registered in her name through a fake will deed and by hiding the fact of the second daughter Harshita being an adopted daughter, a fake will deed was executed on 01.03.2021. Later on applicant's sister Kanchan Gupta also died and her funeral was conducted in a hurry without the presence of any relative. In this regard, an application was given by the applicant before the police authorities suspecting murder of his sister as he thought that his sister was not treated properly and died in suspicious situation. Details of will deed and other materials have been elaborated in the application moved under Section 156(3).

5. Learned counsel for the applicants submits that the impugned orders have been passed in a mechanical manner without application of judicial mind and without any reason stating therein that matter is of civil nature. He further submits that application under Section 156 (3) Cr.P.C. clearly discloses the commission of a cognizable offence. He, therefore, submits that once the application filed by the applicant under Section 156 (3) Cr.P.C. disclosed the commission of a cognizable offence, the Magistrate has erred in law in rejecting the same by means of impugned order dated 12.10.2021. He further submits that factual dispute has been raised about adoption and property of applicant's sister and brother-in-law. A ground has also been taken that the application regarding death of sister of the applicant has also not been consider while passing the orders impugned. He next submits that the applicant u/s 156(3) Cr.P.c. has been rejected in a routine manner by the the court of Chief Judicial Magistrate, Ghaziabad vide order dated 12.10.2021, against which, the applicant preferred Criminal Revision No.306 of 2021 (Bhupesh Gupta Vs. State of U.P. and others) which too has been illegally rejected vide order dated

31.10.2022by the learned revisional Court without considering the factual and legal aspects of the matter and therefore, the impugned orders are liable to be quashed by this Court.

6. Learned counsel for opposite party nos.2 and 3 and learned A.G.A. have supported the impugned orders and have pointed out that the grievance of the applicant has not gone unattended by the court below. They further submits that the impugned order dated

12.10.2021 has been passed after appraising the evidence available on the face of record, this order has rightly been upheld by the learned revisional Court, therefore the impugned orders are perfectly, legal just and proper which calls for no interference by this Court in exercise of powers conferred under 482 Cr.P.C. jurisdiction. They next submits that there is proper remedy available to the applicant to approach appropriate forum of the aforesaid matter instead of moving an application giving criminal color to the civil proceedings.

7. Considered the rival submissions made by the learned counsel for the parties and gone through the records of the present application.

8. Before adverting to the merits of the present case, it would be worthwhile to reproduce Sections 154 and 156 Cr.P.C., which provide procedure for registration and investigation of complaint. The same are quoted herein under:- "154. Information in cognizable cases- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.: [Provided that if the information is given by the woman against whom an offence under section 326A, Section 326B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that - (a) in the event that the person against whom an offence under section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be; (b) the recording of such information shall be videographed; (c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of Section 164 as soon as possible]. (2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

156. Police officer' s power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."

9. From the perusal of the aforesaid provision as well as Section 154 Cr.P.C., it is evident that the police can investigate into matters relating to commission of 'cognizable offences' brought to its notice under section 154 Cr.PC. Officer-in-charge of police station has power to investigate U/S 156(1) in such case.

10. Magistrate has power to take cognizance u/s 190 CrPC on receiving the 'complaint'. Thus the matter relating to section 156 (3) relates to power of Magistrate to order investigation by police in matters relating to cognizable offences brought before it through complaint. Complaint has been defined in section 2(d) CrPC of as follows : "complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include a Police report." Code of Criminal Procedure has given different type of powers to deal with such matters relating to commission of cognizable offences when brought before it.

11. A Division bench of this Court in the case of Sukhwasi v. State of U.P., reported in 2007(59) ACC 739 held as under: "Applications under section 156(3) Cr.P.C. are coming in torrents. Provisions under section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice which warrants a direction to the Police to register a case. Such application should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of section 156(3) Cr.P.C. The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application section 156(3) Cr.P.C. and there is no such legal mandate".

12. In case of Lalita Kumari Vs. Government of U.P. and others reported in 2014 (2) SCC 1, specifically in paragraph 111, the Apex Court has observed as follows:- "111) In view of the aforesaid discussion, we hold: "(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. (ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. (iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. (v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. (vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/ family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

13. Having considered the submissions made by the learned counsel for the parties and perused the impugned orders dated

12.10.2021 and 31.10.2022, this Court finds that the application u/s 156(3) Cr.P.C. as well as revision have been rightly rejected by the court below after taking into consideration all the facts and circumstances of the case, recording sound reasoning that effort has been made by the applicant to cloak the civil dispute with criminal nature by exaggerating the allegations. The Apex Court in case of Indian Oil Corporation Limited Vs. NEPC India Limited 2006 (6) SCC 736 has observed that now it is necessary to take notice of growing tendency to convert civil dispute into criminal cases. Recently, the Apex Court, on 15.2.2019 in case of Professor R.K. Vijayasarathy and another Vs. Sudha Seetharam and another, (2019) 16 SCC 739 in Criminal Appeal No. 238 of 2019 has held that cloaking a civil dispute with a criminal nature without ingredients necessary to constitute a criminal offence is abuse of process of court.

14. In view of above, I find no illegality or manifest error of law or perversity in the impugned orders dated 12.10.2021 and

31.10.2022, therefore, no interference is required in the said impugned order.

15. The present application lacks merit and deserves to be dismissed. It is accordingly dismissed. Order Date :- 17.3.2025 Abhishek Singh ABHISHEK SINGH High Court of Judicature at Allahabad