Court No. - 80
Case :- APPLICATION U/S 482 No. - 18943 of 2020 Applicant :- Ashok Kumar Opposite Party :- State Of U.P. And 7 Others Counsel for Applicant :- Anand Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
This application under Section 482 Cr.P.c. has been filed for quashing the order dated 23.10.2020 passed by Special Judge (Dacoity Affected Area)/Additional Sessions Judge, Court No.3, Agra in Misc. Application No. 260 of 2020, UPAG010074822020 (Ashok Kumar Vs. Anil kumar and others), under Section 156(3) Cr.P.C., Police Station Nai Ki Mandi, District Agra.
Heard learned counsel for applicant and learned AGA for State.
It has been argued by learned counsel for applicant that applicant has filed an application under Section 156(3) Cr.P.C., but the court below has not made any direction for investigation by police, rather the said application was registered as a complaint case. Learned counsel submitted that application filed by the applicant discloses commission of cognizable offence and that there were allegations that the private respondents have prepared a forged document on stamp paper and it was used in court and thus, investigation by police was necessary. It has been further submitted that impugned order being against facts and law is liable to be set aside.
Learned AGA has opposed the application and argued that application of applicant under Section 156(3) Cr.P.C. has already been registered as a complaint case and he can lead his evidence in the complaint.
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 having considered 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."
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).
In the instant case, perusal of record shows that private respondents are family members of applicant and there appears some dispute over ancestral property. No specific allegations have been made against private respondents. It may also be seen that even the lady family members have been arraigned as accused in the application under Section 156(3) Cr.P.C. Considering entire facts there is nothing to indicate that impugned order has resulted into any miscarriage of justice or that there has been any abuse of process of Court.
In view of the facts and circumstances of the matter, it cannot be said that learned Magistrate has committed any illegality in registering the application of the applicant under Section 156(3) Cr.P.C. as a complaint case, so as to call any interference in exercise of powers under Section 482 Cr.P.C.
In view of the above, the present application under Section 482 Cr.P.C. has no force, hence rejected.
Order Date :- 5.1.2021 Mohit