Court No. - 68
Case :- APPLICATION U/S 482 No. - 28271 of 2019 Applicant :- Mohan Swroop Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mukesh Kumar Upadhyay Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
Heard Sri Mukesh Kumar Upadhyay, learned counsel for the applicant and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 12.03.2018 passed by Chief Judicial Magistrate, Agra in Misc. Application u/s 156(3) No. 123 of 2018 (Mohan Swroop Vs. Manager, name Uknown Shri Ram Transport and others as well as order dated 24.05.2019 passed by the Additional Sessions Judge, Court no.1, Agra in Criminal Revision No. 270 of 2018 (Mohan Swroop Vs. State of U.P. and others) pending in the court of Additional Chief Judicial Magistrate, Court No.12 Agra.
It has been argued by the learned counsel for the applicant that the impugned orders are against the law. It has been submitted that investigation into the matter is necessary to ascertain that who has committed the alleged forgery. The applicant has never signed as guarantor and in view of specific facts of the matter, it was necessary that matter must have been investigated by police.
Learned A.G.A. has opposed the application and argued that there is no illegality in the impugned order.
Perusal of record shows that by impugned order dated 12.03.2018, the application moved by the applicant under Section 156(3) Cr.P.C. was registered as a complaint, declining the prayer of investigation by police. The criminal revision filed against that order was rejected by order dated 24.05.2019. After perusing complaint, it appears that essentially the matter relates about transaction of loan from opposite party no.2, a finance company. The alleged dispute is regarding guarantee against the loan obtained from Ram Transport Finance Company Ltd.
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 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 :- 25.7.2019 A. Tripathi