Court No. - 73
Case :- APPLICATION U/S 482 No. - 27964 of 2019
Applicant :- Om Prakash And 3 Others Opposite Party :- State Of Up And Another Counsel for Applicant :- Vijay Praksah Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
1. Heard learned counsel for the applicant and learned AGA for the State.
2. The present application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash the entire proceeding of Complaint Case No. 5624 of 2018 (Smt. Shimla Vs. Om Prakash and others) under Sections 323, 506, 341, 447 IPC, Police Station Loni, District Ghaziabad pending in the court of Additional Chief Judicial Magistrate, Court No. 1, Ghaziabad.
3. It is submitted by learned counsel for the applicants that application under Section 156(3) Cr.P.C. was moved belatedly. Reason assigned in the application for non lodging of the FIR to the police concerned is not appealable. It is further submitted that a general and vague allegation has been levelled against the applicants. Summoning order passed in the matter is illegal. It is further submitted that concerned Magistrate treating the application under Section 156(3) Cr.P.C. has committed illegality. There is contradiction in the statement recorded on the complaint on material points. It is also argued that no such incident ever took place as alleged in the complaint. Mandatory provisions provided under State of U.P. amendment under Section 441 IPC have also not been followed. No notice was issued. At this juncture, learned counsel for the applicants referred to the contents of the complaint and also placed reliance on the law laid down in para no. 16 and 17 of Mrs. Priyanka Srivastava and another Vs. State of U.P. and others, 2015 Lawsuits (SC) 335.
4. On the other hand, learned AGA opposed the prayer.
5. I have considered the rival submissions and have gone through the entire record.
6. In this matter, as is evident from the record, initially one application u/s 156(3) Cr.P.C. was moved by the opposite party no. 2 but it was treated as complaint vide order dated 23.04.2018. Thereafter, statements of the complainant and witnesses were recorded under Sections 200 & 202 Cr.P.C. and thereafter summoning order was passed vide order dated 25.03.2019.
7. Before advertising to the submissions raised at the Bar, I find it necessary to quot para nos. 16 & 17 of Mrs. Priyanka Srivastava (supra) case are runs as under:-
17. The learned Magistrate, as we find, while exercising the power under Section 156(3) Cr.P.C. has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C., cannot be marginalized. To understand the real purport of the same, we think it apt to reproduce the said provision:
"156. Police officer's power to investigate cognizable case.-(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was no empowered under this Section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned."
18. Dealing with the nature of power exercised by the Magistrate under Section 156(3) of the Cr.P.C., a three Judge Bench in Devarapalli Lakshminarayana Reddy and others Vs. V. Narayana Reddy and others (1976) 3 SCC 252, had express thus:
"It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or chargesheet under Section 173."
8. In the present matter, as is evident from the record, specific allegations have been levelled against the applicants in the application u/s 156(3) Cr.P.C. that on the day of incident, accused persons entered into the house of the opposite party no. 2 at about 02:00 AM in the night, thereafter, they committed the present offence.
9. As far as the submission regarding State Amendment under Section 441 IPC is concerned, allegation against the applicants is that they entered into the house of the complainant for committing the offence, thereafter, they left the house. If such is the position, there was no need to issue notice to the applicants. It is also clarified that if offence under Section 447 IPC is not made out, court concerned will pass appropriate order during trial. As far as the role assigned to the applicants are concerned, specific allegations have been levelled in the complaint as well as in the statement recorded under Sections 200 & 202 Cr.P.C. If there is minor deviation in the statement of the complainant and witnesses on any point, at this stage it will not be sufficient to allow the application and quash the entire proceedings on that ground. Applicants also do not get any help with the law laid down in the case of Mrs. Priyanka Srivastava (supra) case as the order for treating the application u/s 156(3) Cr.P.C. was not challenged by the complainant.
10. On close scrutiny of entire evidence, a prima facie case is made out to proceed with trial. The court dealing with the matter, at this stage, has to see only a prima facie case. Thus, prayer made in the present application is not liable to be allowed and is hereby refused.
11. At this stage, learned counsel for the applicants prays that a direction may be issued to the court below for expeditious disposal of the bail application of the applicants.
12. Hence, it is directed that in case the applicants surrender before the court below and apply for bail within thirty days from today, the same shall be considered and decided in view of the settled law. For a period of thirty days from today, no coercive action shall be taken against the applicants.
It is made clear that no further time shall be allowed to the applicants for surrender before the court concerned.
13. With the above observations, the application stands disposed of.
Order Date :- 22.8.2019 Sanjeet