Bhoop Singh v. Umesh Chandra Sharma and others), under Section
Case Details
Court No. - 88 Case :- CRIMINAL APPEAL No. - 8383 of 2022 Appellant :- Bhoop Singh Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Upendra Kumar Pushkar Counsel for Respondent :- G.A.,Avinash Pandey Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the appellant, learned counsel for the respondent Nos. 2 to 6, learned A.G.A. for the State and perused the record. 2. This criminal appeal has been preferred under Section 14-A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC/ST Act') against order dated 17.08.2022 passed by the Special Judge (SC/ST Act), Aligarh in Criminal Misc. Case No. 396/2022 (Bhoop Singh Vs. Umesh Chandra Sharma and others), under Section 156(3) Cr.P.C., Police Station Akarabad, District Aligarh, whereby the application filed by appellant under Section 156(3) Cr.P.C., has been treated as a complaint case.
Legal Reasoning
3. Learned counsel for the appellant argued that the impugned order is against facts and law and thus liable to be set aside. In the application under Section 156(3) Cr.P.C., the appellant has made allegations that on 22.06.2022 the private respondents were trying to dispossess him from his land and when the appellant has shown order of SDM regarding land, they have abused him by using caste indicative words and assaulted the appellant and his family members. The application filed by the appellant discloses commission of cognizable offence but despite that court below did not pass order for registration of case and investigation by police. Referring to the facts of the matter it was submitted that the impugned order is against facts and law and thus liable to be set aside. 4. Learned A.G.A. and learned counsel for respondent nos. 2 to 6 have opposed the appeal and argued that there is a land related dispute between the parties and that regarding the incident of 22.06.2022, a first information report was lodged against the appellant and others and thereafter, the application under Section 156(3) Cr.P.C. was moved by the appellant as a counterblast. It was submitted that there is no illegality or perversity in the impugned order. 5. I have considered the rival submissions of learned counsel for the parties and perused the record. 6. Law regarding jurisdiction under Section 156(3) is well settled. In case of Sukhwasi vs. State of UP 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 of this court has held 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. 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. It was also held that 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. 7. 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." 8. Thus, it is apparent that that while dealing with application under Section 156(3) Cr.P.C., Magistrate/court is required to apply its mind to find out whether the first information sought to be lodged by the appellant had any substance or not. Magistrate is not bound to pass an order of investigation as a matter of course but the discretion has to be exercised judicially. 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 can treat such application as complaint. 9. In the instant case, perusal of record shows that appellant has filed an application under Section 156(3) Cr.P.C. making general allegations that all five accused persons have abused and assaulted him and his family members by using caste indicative words. No specific role was assigned to any of the alleged accused person. Injuries sustained by appellant are simple in nature. In view of the facts and circumstances of the case, the discretion of the court below in declining the prayer for registration of case and instead registering the application under Section 156(3) Cr.P.C. as a complaint case, cannot be termed as illegal, perverse or suffering from any other material irregularity. 10. Considering the averments of the application under Section 156(3) Cr.P.C. and other material on record and also considering the law as discussed above, it cannot be said that
Decision
the impugned order is suffering from any patent illegality or perversity and thus, the instant appeal has no force and the same is liable to be dismissed. 11. Accordingly, the instant criminal appeal is hereby dismissed. Order Date :- 25.1.2023 Suraj/Anand Digitally signed by :- ANAND VERMA High Court of Judicature at Allahabad