Court No. - 80
Case :- APPLICATION U/S 482 No. - 18113 of 2020
Applicant :- Pooran Chand Sharma
Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Vinay Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
This application under Section 482 Cr.P.C. has been filed for quashing the order dated 16.03.2020 passed by Additional District Judge, Court No.5, Mathura in Criminal Revision No. 74 of 2019 (Pooran Chand Sharma Vs. State of U.P. and others) as well as order dated 19.01.2019 passed by Chief Judicial Magistrate, Mathura in Misc. Application No. 2751 of 2018 (Pooran Chand Sharma Vs. Ram Singh and another), Police Station Sadar Bazar, District Mathura.
Heard learned counsel for applicant and learned AGA for State.
It has been argued by learned counsel for applicant that the applicant has filed an application under Section 156(3) Cr.P.C. which discloses commission of cognizable offence but despite that the said application has been registered as a complaint case and that the prayer for investigation by police was declined vide impugned order dated 19.01.2019. The revision against that order was also dismissed arbitrarily vide impugned order dated 16.03.2020. It was stated that applicant and private respondents were working in same office and there is evidence that applicant has paid amount to respondent no.2 but his money was returned back and that even service payment of his bills were not made by the private respondents. It was also alleged that the respondents have got the applicant compulsorily retired by preparing forged documents.
Learned AGA submitted that there is no illegality or perversity in the impugned orders and a prima facie case is made out against applicant.
Perusal of record shows that applicant and private respondents were working in the same office. Basically, the matter pertains to money transaction and service matter of applicant.
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."
Thus, it is apparent that Magistrate is not bound to pass order of investigation by police, even if such application discloses cognizable offence. The Magistrate is required to apply its mind to find out whether the first information sought to be lodged by applicant had any substance or not. 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). Thus, though, in appropriate cases, learned Magistrate can make a direction for police to investigate the matter but this jurisdiction has to be exercised cautiously and such order cannot be passed in a routine manner.
In case Mrs. Priyanka Srivastava and another vs. State of U.P. and others;2015 AIR(SC)1758, the Hon'ble Apex Court held as under:
"At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."
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 the instant case, essentially the matter pertains about simple money transaction and departmental action against applicant. Considering nature of allegations, no case for investigation by police is made out. No illegality or perversity could be shown in the impugned orders.
In view of the facts and circumstances of the matter, it cannot be said that learned court below has committed any illegality or perversity in registering the application of the applicant under Section 156(3) Cr.P.C. as a complaint case. There is nothing to indicate any miscarriage of justice or abuse of the process of Court.
In view of the above, the present application under Section 482 Cr.P.C. has no force, hence rejected.
Order Date :- 6.1.2021 Mohit