Ratanlal Tiwari v. Hridesh Mishra and others), under section
Case Details
Neutral Citation No. - 2025:AHC:64539 Court No. - 87 Case :- APPLICATION U/S 482 No. - 36474 of 2024 Applicant :- Ratan Lal Tiwari Opposite Party :- State Of U.P. And 7 Others Counsel for Applicant :- Krishn Kumar,Praveen Shrivastav Counsel for Opposite Party :- G.A. Hon'ble Prashant Kumar,J.
Legal Reasoning
1. Heard Shri Praveen Shrivastav, appearing for the applicant, learned A.G.A. for the State and perused the records. 2. The instant application under Section 482 of Cr.P.C. has been filed by the applicants praying for quashing of the order dated 29.04.2024 passed by the learned Additional Civil Judge (Senior Division), Court No. 02/Additional Chief Judicial Magistrate Kanpur Dehat in Criminal Misc. Case No. 559 of 2024 (Ratanlal Tiwari vs. Hridesh Mishra and others), under section 156(3) Cr.P.C., Police Station Bhognipur, District Kanpur Dehat. 3. The submission of learned counsel for the applicant is that a complaint was filed by the applicant under section 156 (3) Cr.P.C. against the opposite parties nos. 4 to 8 before the Additional Civil Judge (Senior Division), Court No. 02/Additional Chief Judicial Magistrate Kanpur Dehat with the allegation that opposite parties with ulterior motive to usurp the property of applicant, hatched conspiracy and got the entire property of applicant fraudulently executed in their favour. Looking to the observation made by the Division Bench in the matter of Sukhwasi vs. State of U.P., 2007(59) ACC 739, the application was treated as complaint vide order dated 29.04.2024 by the trial court. Aggrieved with the order passed by the trial court applicant preferred the instant application assailing the validity of order passed by trial court on the ground that applicant who is 78 years old has been defrauded by the opposite parties and it is a clear case of fraud, falsification of records just to usurp the property of applicant, therefore onus of collecting evidence ought not be shifted upon the applicant. Further submission is that application under Section 156(3) Cr.P.C. contains allegations of commission of cognizable offence for registration of F.I.R., but the learned magistrate in spite of giving direction to lodge the F.I.R. against the opposite parties, has treated the application as complaint case which is a sheer abuse of the process of the law, therefore, order dated 29.04.2024 is liable to be quashed. 4. To buttress his argument, learned counsel for the applicant has placed reliance on the judgement rendered by the Supreme Court in the matter of Lalita Kumari vs. Government of Uttar Pradesh and another report in 2014 (2) SCC 1, and also in Suresh Chand Jain vs. State of M.P. and another reported in (2001) 2 SC 628, wherein it has been settled that a person cannot be relegated for collection of evidence who has already been traumatized. 5. Learned AGA has submitted that the Magistrate has the jurisdiction to direct the police to register the F.I.R. and make investigation without taking cognizance. But, he has also the jurisdiction to take cognizance and proceed to inquire the matter by himself, registering the application as a complaint case. He further submits that the impugned order passed by the learned Magistrate is justified and no interference is required by this Court. 6. Heard the argument advanced by learned counsel for the applicant, the learned AGA and perused the material brought on record. 7. Learned counsel for the applicant submits that the application under Section 156(3) Cr.P.C. discloses commission of cognizable offence and as such the Magistrate must have directed for registration of first information report and investigation by the police, instead of treating the application as a complaint case. He further submits that the order impugned has been passed mechanically and in a routine manner, which does not manifest the application of judicious mind to the facts of the case and law applicable therein. In support of his submission, he has placed reliance upon the judgment passed by this Court in the case of Anmol Singh vs. State of U.P. and Others reported in 2021 (1) ADJ 400. 8. Learned A.G.A. on the other hand has supported the impugned order and has pointed out that the grievance of the applicant has not gone unattended by the court below. The court below after taking into consideration the entire gamut of the facts and circumstances of the case has rightly concluded to treat the application filed by the applicant under Section 156 (3) Cr.P.C. as a complaint. The applicant shall still have an opportunity to prove his case before the court below. 9. Now question before this Court is whether the Magistrate is bound to pass an order on each and every application under Section 156(3) Cr.P.C. containing allegations of commission of a cognizable offence for registration of the F.I.R. and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases? 10. In other words, the question arises that when a Magistrate is approached by a complainant with an application praying for a direction to the police under Section 156(3) Cr.P.C. to register and investigate an alleged cognizable offence, he should :- (a) grant the relief of registration of a case and its investigation by the police under Section 156(3) Cr.P.C. and when should he (b) treat the application as a complaint and follow the procedure of Chapter XV of Cr.P.C. 11. The 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.P.C. Officer-in-charge of police station has power to investigate U/S 156(1) in such case. Magistrate has power to take cognizance u/s 190 Cr.P.C. 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) Cr.P.C. 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. 12. It is clear that the scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example (1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation. 13. The position has been clarified in the judgement passed by the Apex Court in the case of Suresh Chand Jain vs. State of M.P. and Another reported in (2001) 2 SCC 628 which while dealing with the issue has held as follows :- "Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter." 14. A bare 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. I find no reason to keep the matter pending and in view of the aforesaid facts and circumstances, the impugned order dated 29.04.2024 passed by the learned Additional Civil Judge (Senior Division), Court No. 02/Additional Chief Judicial Magistrate Kanpur Dehat in Criminal Misc. Case No. 559 of 2024 (Ratanlal Tiwari vs. Hridesh Mishra and others), under section 156(3) Cr.P.C., is set aside. 15. The instant application filed U/S 482 Cr.P.C. is allowed and the matter is remanded back to the Additional Civil Judge (Senior Division), Court No. 02/Additional Chief Judicial Magistrate Kanpur Dehat to look into the matter and pass a fresh order on the application after affording opportunity of hearing to the applicant, in accordance with law. Order Date :- 24.4.2025 Bhanu Digitally signed by :- BHANU PRATAP KUSHWAHA High Court of Judicature at Allahabad