Court No. - 68
Case :- APPLICATION U/S 482 No. - 28346 of 2019 Applicant :- Mukesh Singh Opposite Party :- State Of Up And 5 Others Counsel for Applicant :- Anil Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
Heard 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 impugned order dated 16.04.2019 passed by Additional Chief Judicial Magistrate, Court No. 6, Agra in Misc. Case No. 18221 of 2019 (Mukesh Kumar Versus R.K. Singh and others), under Section 156(3) Cr. P.C., Police Station Hari Parwat, District Agra.
It has been argued by the learned counsel for the applicant that in view of nature of allegations, the investigation by the police was necessary but the learned Magistrate has not considered the matter in correct perspective and registered the application of applicant under section 156(3) Cr. P.C. as a complaint case. It was also pointed out that in the impugned order it has been mentioned that sale deed was executed by Shilpak Sahkari Awas Samiti, Agra in favour of Sweta Sharma is not registered while that sale deed is a registered deed. It has been argued that impugned order is against the law.
Learned A.G.A. opposed and argued that learned Magistrate has rightly considered the matter and rejected the application of the applicant under Section 156(3) Cr.
P.C. and there is no error in the impugned order.
Perusal of the record shows that applicant has filed application under Section 156 (3) Cr. P.C. alleging that a plot was sold to him by Shilpak Sahkari Awas Samiti, Agra but later on it was revealed that this plot was already sold by the society to one Sweta Sharma. In the application, applicant has not clarified that what was the specific role of the private respondents in the alleged incident. Considering the facts of the matter, learned Magistrate declined the prayer for investigation by the police and registered the application as a 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 not 'res-integra' now, 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. has answered the question referred to it in paragraph 23 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."
In fact the 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 light of the above facts and above proposition of law, this Court is of the view that there is no illegality or irregularity in the order impugned and after collecting the report from the police station concerned or the report otherwise the Magistrate was of the view that no prima facie case was made out. Thus, the application was rightly rejected by the order impugned. It has further been submitted by learned AGA that the applicant is at liberty to file a complaint case in which he may produce the evidence under Section 200 and 202 Cr.P.C. and the Court may proceed in accordance with law.
In light of above facts, this Court is of the view that no interference is required in the order impugned. The petition lacks merit and deserves to be dismissed. It is accordingly dismissed .Order Date :- 25.7.2019 T.S.