Court No. - 12
Case :- APPLICATION U/S 482 No. - 42346 of 2018 Applicant :- Smt. Neeraja Kesharwani Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Akhilesh Srivastava,Sangam Lal Kesharwani Counsel for Opposite Party :- G.A.,Yogesh Kumar Tiwari
Hon'ble Neeraj Tiwari,J.
Heard Mr. Ram Sanehi Yadav, learned counsel for the applicant and the learned A.G.A. for the State.
This application under Section 482 Cr. P. C. has been filed for quashing the order dated 20.4.2018 passed by Chief Judicial Magistrate, Kaushambi in Criminal Misc. Application No. 244 of 2018 moved under Section 156(3) Cr.P.C. and order dated 15.10.2018 passed by Additional Sessions Judge, Kaushambi in Criminal Revision No. 44 of 2018.
By means of the order dated 20.4.2018, the Court below rejected the application filed by the applicant under Section 156(3) Cr.P.C. Against the said order, the applicant preferred a revision No. 44 of 2018 which was also dismissed by the Additional Sessions Judge, Kaushambi vide order dated 15.10.2018.
Learned counsel for the applicant submits that a perusal of the complaint filed by the applicant clearly discloses the commission of a cognizable offence. He, therefore, submits that once the application filed by the applicant under Section 156 (3) Cr.P.C. disclosed the commission of a cognizable offence, it is required for the Magistrate to pass order for lodging the F.I.R. and registration of the case. The learned counsel for the applicant has contended with vehemence that the Magistrate has passed the impugned order in a mechanical manner and has ignored the judgement of the Apex Court rendered in the case of Lalita Kumari Vs. Government of U.P. and others reported in 2014 (2) SCC 1. The revisional court also committed jurisdictional error in ignoring the same and in confirming the order dated 20.4.2018. He further submitted that the applicant is a lady and she has been cheated by fraud. Apart from that, he has also placed reliance upon a Division Bench judgment of this Court in the case of Sukhwasi Vs. State of U.P. reported in 2007 (59) ACC 739.
Learned A.G.A. on the other hand has supported the impugned orders and has pointed out that the grievance of the applicant has not gone unattended by the court below. The Magistrate after taking into consideration the entire gamut of the facts and circumstances of the case has rightly rejected the application filed by the applicant under Section 156 (3) Cr.P.C. The applicant shall still have an opportunity to prove his case before the court below. The revisional court has not committed any error in affirming the impugned order of the Magistrate.
Considered the rival submissions made by the learned counsel for the parties.
A perusal of the impugned order shows that no sufficient reason has been disclosed, on the basis of which, the Magistrate has rejected the application under section 156(3) Cr.P.C. The revisional court also failed to exercise the jurisdiction vested in it resulting in miscarriage of justice.
Learned counsel for the applicant submits that in view of the nature of the allegations made by the applicant in the application filed in terms of Section 156 (3) Cr.P.C., the Chief Judicial Magistrate, Kaushambi ought to have allowed the application and directed the police of Police Station Saini, District Kaushambi to investigate into the matter and thereafter submit a report.
In the light of the judgements referred to above, it is explicitly clear that the impugned order dated 20.04.2018 passed by the Chief Judicial Magistrate, Kaushambi is cryptic and does not stand the test laid down by the Apex Court. Consequently, the order of the revisional court dated 15.10.2018 also cannot be sustained, as the revisional court failed to exercise the jurisdiction vested in it resulting in miscarriage of justice.
Accordingly, the present criminal misc. application succeeds and is allowed at the admission stage without issuing notice to the prospective accused persons as they have no right to be heard at pre-cognizance stage. The order dated 20.4.2018 passed by the Chief Judicial Magistrate, Kaushambi under section 156 (3) Criminal Procedure Code, Police Station Saini, District Kaushambi as well as the order dated 15.10.2018 passed by the Additional Sessions Judge, Kaushambi in Criminal Revision No. 44 of 2018, are hereby quashed.
The Chief Judicial Magistrate, Kaushambi is directed to exercise his discretionary power and decide afresh the application under section 156(3) Cr.P.C. moved by the applicant and to pass appropriate order in accordance with law keeping in view the observations made by this court as well as direction contained in the judgment of the Apex Court in the case of Lalita Kumari (Supra), within a period of one month from the date of production of a certified copy of this order.
With the aforesaid directions, the present application is allowed.
Order Date :- 30.11.2018 Arvind