Shailesh Tiwari v. State of U.P. and Others) as well as order dated

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Purushottam Mani Tripathi, learned counsel for the petitioner, Sri Anand Pal Singh, learned counsel for the respondent nos.2 to 5 and learned A.G.A. for the State.

2. The instant petition has been preferred with following reliefs :- "(i) to set-aside the judgement and order dated 09.08.2024 passed by learned District and Session Judge, Kushinagar at Padrauna in Criminal Revision No.125 of 2024 (Shailesh Tiwari Vs. State of U.P. and Others) as well as order dated 04.06.2024 passed by learned Judicial Magistrate, Kushinagar at Padrauna in Misc. Case No.906 of 2024 (Shailesh Tiwari Vs. Malit Devi and Others), under section 156(3) Cr.P.C., P.S. Nebua Naurangiya, District- Kushinagar. (ii) to issue a direction to the Chief Judicial Magistrate, Kushinagar to exercise his discretionary power and decide afresh the application dated 15.05.2024 under section 156(3) Cr.P.C. moved by the petitioner/applicant and to pass appropriate order in accordance with law."

3. Factual matrix of the matter derives that at the initial stage an application under section 156(3) Cr.P.C. preferred on behalf of the petitioner has been allowed by way of treating the same as complaint case and it is the admitted fact by learned counsel for the petitioner that the complaint case has not been registered and as such the stage for recording the statement under sections 200 & 202 Cr.P.C. is yet to come up.

4. The instant petition has been preferred having grievances with regard to certain prejudice caused to the petitioner by way of treating complaint case over application under section 156(3) Cr.P.C. and learned counsel for the petitioner submitted that in place of direction for registering the F.I.R., learned court concerned illegally treated the application under section 156(3) Cr.P.C. as complaint case, which is contradictory to the dictum pronounced by co-ordinate Bench of this Court in case of Mukesh Kharwar Vs. State of U.P. and Others, decided on 02.09.2024 passed in Application under Section 482 Cr.P.C. No.24716 of 2024. For substantiating the arguments raised by learned counsel for the petitioner, he sought the attention of Court over para-19 of the judgement passed in Mukesh Kharwar (supra), which is reproduced herein under:- "19. Perusal of the impugned order shows that no sufficient reason has been disclosed, on the basis of which, the Magistrate has proceeded to treat the application under section 156(3) Cr.P.C. as a complaint. Merely because the facts are in the knowledge of the applicant, direction to lodge FIR cannot be refused. The gravity/seriousness of the offence; the requirement of the evidence for the purpose of launching a successful prosecution, and basically the interest of justice depending on the facts of each case, need be considered in passing the order under Section 156(3) Cr.P.C. The impugned order does not assign any valid reason nor reflects application of judicious mind and has been passed in a mechanical manner only on the ground that the facts of the case were within the knowledge of the applicant, thus, the same is liable to be set-aside."

5. Sri Anand Pal Singh, learned counsel appearing on behalf of respondent nos.2 to 5 vehemently opposed the prayer as made in the petition and rebutted the stand taken up by learned counsel for the petitioner on the basis of certain documentary evidences, which would go to show that there is hardly any presence of persons, who have been made as proposed accused in application under section 156(3) Cr.P.C. preferred at the behest of petitioner. Learned A.G.A. has seconded the arguments raised by learned counsel for respondent nos.2 to 5.

6. After having rival submissions extended by learned counsel for the parties, one thing is crystal clear that this Court under Article 226 of Constitution of India is not exactly empowered to receive the evidences of the matter, which has been showed by learned counsel for the petitioner as well as learned counsel for the respondents, however it comes under the strict instruction of the learned concerned court for appreciating the same in proceedings whatsoever has been initiated at the pretext of application under section 156(3) Cr.P.C. Regarding prejudice caused to the petitioner by way of treating the matter as complaint case over application under section 156(3) Cr.P.C., which has been submitted in consonance with the finding and the gist regarded co-ordinate Bench of this Court in case of Mukesh Kharwar (supra) that the application under section 156(3) Cr.P.C. cannot be denied to be ordered for registering F.I.R. and treating the matter as a complaint case only on the ground that the entire facts and the material are available with the complainant/applicant and as such matter may be treated as a complaint case.

7. After perusing in detail the judgement rendered by co-ordinate Bench of this Court in case of Mukesh Kharwar (supra), precise question has been put before learned counsel for the petitioner that the provisions contained under section 202(1) Cr.P.C. has ever been dealt and considered by co-ordinate Bench of this Court while passing judgement dated 02.09.2024, it has been fairly replied that although the provision has been mentioned in the judgement, but no detail discussion has been made by co-ordinate Bench of this Court. For ready reference of Section 202(1) Cr.P.C., the same is reproduced herein below:- "Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : Provided that no such direction for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200."

8. It is the stage of criminal procedure arise after recording statement under sections 200 and 202 Cr.P.C., the legislation has provided smooth functioning of the courts in shape of Cr.P.C, now changed as B.N.S.S., which is crystal clear that once the statement will be recorded by learned concerned court under sections 200 & 202 Cr.P.C. and if found that the allegation whatsoever has been put forward by the complainant and the witnesses will be in nature of conducting detailed inquiry, the provision contained under section 202(1) Cr.P.C. empowered the learned court concerned for issuing direction for conduction of the detailed inquiry, which is available in pursuance to the order, if passed under section 156(3) Cr.P.C. for directing to lodge the F.I.R., meaning thereby the stream of the provisions although initiated from different sections, but meet on one point for arriving the learned courts concerned to determine whether the offence has been made out and who is the person to be convicted in shape of ensuring justice to the aggrieved persons and as such direction for lodging the F.I.R. or treating the matter as complaint case are two parallel proceedings and the ultimate of both the proceedings will be the same in shape of conviction, if required, passed against the concerned accused.

9. In view of the aforementioned facts and circumstances, prima- facie it appears that no prejudice caused to the petitioner, if the application under section 156(3) Cr.P.C. preferred at the behest of petitioner, has been treated as a complaint case by learned concerned court vide order dated 04.06.2024, which was upheld by the learned revisional court vide order dated 09.08.2024 and as such there is hardly any infirmity available in both the orders.

10. In view thereof, no interference is required in the orders impugned to the present petition and as such this petition is hereby dismissed accordingly. Order Date :- 8.1.2025 Saif SHAIKH SAIF ABDIN High Court of Judicature at Allahabad

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Purushottam Mani Tripathi, learned counsel for the petitioner, Sri Anand Pal Singh, learned counsel for the respondent nos.2 to 5 and learned A.G.A. for the State.

2. The instant petition has been preferred with following reliefs :- "(i) to set-aside the judgement and order dated 09.08.2024 passed by learned District and Session Judge, Kushinagar at Padrauna in Criminal Revision No.125 of 2024 (Shailesh Tiwari Vs. State of U.P. and Others) as well as order dated 04.06.2024 passed by learned Judicial Magistrate, Kushinagar at Padrauna in Misc. Case No.906 of 2024 (Shailesh Tiwari Vs. Malit Devi and Others), under section 156(3) Cr.P.C., P.S. Nebua Naurangiya, District- Kushinagar. (ii) to issue a direction to the Chief Judicial Magistrate, Kushinagar to exercise his discretionary power and decide afresh the application dated 15.05.2024 under section 156(3) Cr.P.C. moved by the petitioner/applicant and to pass appropriate order in accordance with law."

3. Factual matrix of the matter derives that at the initial stage an application under section 156(3) Cr.P.C. preferred on behalf of the petitioner has been allowed by way of treating the same as complaint case and it is the admitted fact by learned counsel for the petitioner that the complaint case has not been registered and as such the stage for recording the statement under sections 200 & 202 Cr.P.C. is yet to come up.

4. The instant petition has been preferred having grievances with regard to certain prejudice caused to the petitioner by way of treating complaint case over application under section 156(3) Cr.P.C. and learned counsel for the petitioner submitted that in place of direction for registering the F.I.R., learned court concerned illegally treated the application under section 156(3) Cr.P.C. as complaint case, which is contradictory to the dictum pronounced by co-ordinate Bench of this Court in case of Mukesh Kharwar Vs. State of U.P. and Others, decided on 02.09.2024 passed in Application under Section 482 Cr.P.C. No.24716 of 2024. For substantiating the arguments raised by learned counsel for the petitioner, he sought the attention of Court over para-19 of the judgement passed in Mukesh Kharwar (supra), which is reproduced herein under:- "19. Perusal of the impugned order shows that no sufficient reason has been disclosed, on the basis of which, the Magistrate has proceeded to treat the application under section 156(3) Cr.P.C. as a complaint. Merely because the facts are in the knowledge of the applicant, direction to lodge FIR cannot be refused. The gravity/seriousness of the offence; the requirement of the evidence for the purpose of launching a successful prosecution, and basically the interest of justice depending on the facts of each case, need be considered in passing the order under Section 156(3) Cr.P.C. The impugned order does not assign any valid reason nor reflects application of judicious mind and has been passed in a mechanical manner only on the ground that the facts of the case were within the knowledge of the applicant, thus, the same is liable to be set-aside."

5. Sri Anand Pal Singh, learned counsel appearing on behalf of respondent nos.2 to 5 vehemently opposed the prayer as made in the petition and rebutted the stand taken up by learned counsel for the petitioner on the basis of certain documentary evidences, which would go to show that there is hardly any presence of persons, who have been made as proposed accused in application under section 156(3) Cr.P.C. preferred at the behest of petitioner. Learned A.G.A. has seconded the arguments raised by learned counsel for respondent nos.2 to 5.

6. After having rival submissions extended by learned counsel for the parties, one thing is crystal clear that this Court under Article 226 of Constitution of India is not exactly empowered to receive the evidences of the matter, which has been showed by learned counsel for the petitioner as well as learned counsel for the respondents, however it comes under the strict instruction of the learned concerned court for appreciating the same in proceedings whatsoever has been initiated at the pretext of application under section 156(3) Cr.P.C. Regarding prejudice caused to the petitioner by way of treating the matter as complaint case over application under section 156(3) Cr.P.C., which has been submitted in consonance with the finding and the gist regarded co-ordinate Bench of this Court in case of Mukesh Kharwar (supra) that the application under section 156(3) Cr.P.C. cannot be denied to be ordered for registering F.I.R. and treating the matter as a complaint case only on the ground that the entire facts and the material are available with the complainant/applicant and as such matter may be treated as a complaint case.

7. After perusing in detail the judgement rendered by co-ordinate Bench of this Court in case of Mukesh Kharwar (supra), precise question has been put before learned counsel for the petitioner that the provisions contained under section 202(1) Cr.P.C. has ever been dealt and considered by co-ordinate Bench of this Court while passing judgement dated 02.09.2024, it has been fairly replied that although the provision has been mentioned in the judgement, but no detail discussion has been made by co-ordinate Bench of this Court. For ready reference of Section 202(1) Cr.P.C., the same is reproduced herein below:- "Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : Provided that no such direction for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200."

8. It is the stage of criminal procedure arise after recording statement under sections 200 and 202 Cr.P.C., the legislation has provided smooth functioning of the courts in shape of Cr.P.C, now changed as B.N.S.S., which is crystal clear that once the statement will be recorded by learned concerned court under sections 200 & 202 Cr.P.C. and if found that the allegation whatsoever has been put forward by the complainant and the witnesses will be in nature of conducting detailed inquiry, the provision contained under section 202(1) Cr.P.C. empowered the learned court concerned for issuing direction for conduction of the detailed inquiry, which is available in pursuance to the order, if passed under section 156(3) Cr.P.C. for directing to lodge the F.I.R., meaning thereby the stream of the provisions although initiated from different sections, but meet on one point for arriving the learned courts concerned to determine whether the offence has been made out and who is the person to be convicted in shape of ensuring justice to the aggrieved persons and as such direction for lodging the F.I.R. or treating the matter as complaint case are two parallel proceedings and the ultimate of both the proceedings will be the same in shape of conviction, if required, passed against the concerned accused.

9. In view of the aforementioned facts and circumstances, prima- facie it appears that no prejudice caused to the petitioner, if the application under section 156(3) Cr.P.C. preferred at the behest of petitioner, has been treated as a complaint case by learned concerned court vide order dated 04.06.2024, which was upheld by the learned revisional court vide order dated 09.08.2024 and as such there is hardly any infirmity available in both the orders.

10. In view thereof, no interference is required in the orders impugned to the present petition and as such this petition is hereby dismissed accordingly. Order Date :- 8.1.2025 Saif SHAIKH SAIF ABDIN High Court of Judicature at Allahabad