Court No. - 49
Case :- CRIMINAL REVISION No. - 2863 of 2018 Revisionist :- Smt. Poonam Sharma Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Kamlesh Kumar Dwivedi Counsel for Opposite Party :- G.A.,Ashok Tiwari,Bharat Garg,Piyush Dubey
Hon'ble Saumitra Dayal Singh,J.
1. Ms. Deeplata and Sri Anubhav Chandra, learned counsel have filed Vakaltnama on behalf of opposite party nos.2 and 3, is taken on record.
2. Heard Sri Dharmesh Singhal, learned counsel for the applicant, learned A.G.A. for the State and learned counsel for the opposite party nos. 2 and 3.
3. The present criminal revision has been filed against the order dated 7.8.2018 passed by learned Special Chief Judicial Magistrate, Agra. By that order, the learned Magistrate has rejected the application filed by the present applicant under Section 156(3) Cr.P.C and has thereby refused to get registered an FIR in respect of the allegation made by the applicant alleging commission of offence under Sections 376, 313, 504, 506, 406, 323, 386 IPC.
4. Learned counsel for the applicant submits that a bare perusal of the application, a copy of which has been annexed as Annexure-4 discloses commission of cognizable offence. The allegations are claimed to be specific with details as contained in that application. He further submits that it was not open to the learned Magistrate to consider, at this stage the correctness of the factual allegations and or to draw any inference as to the reason or motive of the complaint, as all such matters would fall outside the jurisdiction under Section 156(3) Cr.P.C.
5. It has been submitted, at this stage learned Magistrate was only to look at the contents of the application and see if any cognizable offence stood made out from a plain reading of the same. As to the police report, the same had to be called only to ascertain whether any FIR had already been registered with respect to the same allegation.
6. In view of the fact that the cognizable offence is disclosed in the application under Section 156(3) Cr.P.C. and it stood admitted in the police report that no other case had been registered with respect to such allegation, it is further submitted that the learned Magistrate ought to have directed registration of the case.
7. The reasoning given by the learned Magistrate to reject the application on the basis of four earlier cases lodged by the opposite party no.2 against the applicant, prior in time, would remain an extraneous issue for the purpose of exercise of power under Section 156(3) Cr.P.C.
8. Sri Anubhav Chandra, learned counsel for the opposite party nos.2 and 3 has vehemently opposed the present application. He submits that the present application filed under Section 156(3) Cr.P.C. was a malafide application occasioned solely by way of counter blast to the earlier four cases lodged by the opposite party no.2 and his family members against the present applicant. It is also submitted that while the four cases came to be lodged against the applicant from January, 2018 to June 2018, the application under Section 156(3) Cr.P.C. was filed thereafter on 28.7.2018 on wholly false and frivolous allegation. He further submits that the learned Magistrate has rightly rejected the application filed by the applicant. He has relied on the decision of the Supreme Court in the case of Priyanka Srivastava and Ors. Vs. State of U.P. and Ors. reported in (2015) 6 SCC 287.
9. Having considered the argument so advanced by learned counsel for the parties, in the first place it is seen that the judgment of the Supreme Court in the case of Priyanka Srivastava and Ors. Vs. State of U.P. and Ors. (supra) would be inapposite to the facts of the present case. In that case, the Supreme Court had found that the action had been taken by the bank employee that too in exercise of powers of the bank/ secured creditor, under the SARFAESI Act as also the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The protection of action taken in good faith, in view of Section 32 of the SARFAESI Act was also considered. In that factual and legal background, it had been observed that the learned Magistrate should have made a judicial application of mind and should have sought to verify the truth and also verified the veracity of the allegation as may constitute offence as alleged against the bank official, in discharge of their statutory function against defaulting the borrower.
10. In the context of the facts of the present case while it remained open to the learned Magistrate to apply his judicial mind to the extent it may be permissible in the context of the factual allegations made, however, no elaborate inquiry could have been conducted at this stage even as to the correctness or otherwise of the fact allegations. It was never open to the learned Magistrate to consider the facts and circumstances pertaining to other cases that may have been instituted by the opposite party nos. 2, 3 and their family members against the applicant. All that was required to be seen at this stage was whether on the plain reading of the application under Section 156(3) Cr.P.C. ingredient of cognizable offence alleged was made out or not. To that limited extent only, the application of judicial mind was required. Thus, in my opinion the learned Magistrate has rejected the application on reasoning and factors that are extraneous to the issue.
11. The order dated 7.8.2018 passed by learned Special Chief Judicial Magistrate, Agra, therefore, set aside. The matter is remitted to the learned Magistrate to pass a fresh order strictly in accordance with law, as expeditiously as possible, preferably within a period of one month from the date of the production of a certified copy of this order.
12. It is further made clear that while exercising his powers, the learned Magistrate may make an independent of application of mind and may not be prejudiced in any manner by any observation made in this order.
13. The present criminal revision thus allowed.
Order Date :- 5.9.2018 Mini