Court No. - 85 Case :- CRIMINAL REVISION No. - 1556 of 2021 Revisionist :- Ramniwas Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Ashok Kumar Counsel for Opposite Party :- G.A.
Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the revisionist, learned A.G.A. and perused the record.
The present criminal revision has been filed against the order dated 25.02.2020 passed by Additional District and Session Judge 3rd, Agra in Criminal Misc. Case No.30 of 2020 (Ram Niwas vs. Anand Pal Singh and others) and entire proceedings under sections 156(3) Cr.P.C., P.S.- Bah, District- Agra, whereby application under Section 156 (3) Cr.P.C. filed by the revisionist has been rejected.
It has been argued by learned counsel for revisionist that revisionist has filed an application under Section 156 (3) Cr.P.C. for lodging of F.I.R. and for investigation against the opposite party nos. 2 and 3 by police but the said application has been rejected by the Court below in an arbitrary manner. Learned counsel further argued that the allegations made in application under Section 156 (3) Cr.P.C. disclose prima facie cognizable offence and thus it was quite desirable that investigation must have been conducted by the police and therefore the Court below has committed an error by rejecting the application of revisionist. It was further submitted that the Court below has conducted preliminary enquiry into the matter which is not permissible under the law and therefore, the impugned order is against facts and law and thus is liable to be set aside.
On the rival side, learned A.G.A. has submitted that allegations levelled in the application under Section 156 (3) Cr.P.C. are highly improbable. Learned A.G.A. further submitted that learned Court below has considered entire relevant facts in detail and that application of revisionist has been rightly rejected by the Court below which calls for no interference by this Court.
Law regarding jurisdiction under Section 156(3) Cr.P.C. is well settled. Power under Section 156(3) Cr.P.C. has to be exercised by Magistrate judicially on proper grounds and not in a mechanical manner. If application does not indicate that any evidence is required to be collected and preserved and applicant is familiar with names of accused persons and witnesses then in such a case, no investigation by police may required.
In the case of Sukhwasi Vs. State of U.P. 2007 (59) ACC 739, the Division Bench of this Court held as follows:-
"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 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."
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. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appears 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). 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 the instant case, it is apparent that the main allegation is regarding illegal possession over the land of revisionist which is civil in nature. In preliminary enquiry got conducted by the Court below police did not find the commission of cognizable offence.
In view of the facts and circumstances of the present case and also considering nature of allegations made in the application under Section 156(3) Cr.P.C., the rejection of application under Section 156(3) Cr.P.C by learned Court below vide impugned order dated 25.02.2020 cannot be said against the provisions of law or suffering from any perversity or error of jurisdiction.
Considering entire facts, it cannot be said that impugned order suffers from any such illegality, perversity or any of error jurisdiction, so as to warrant any interference by this Court in revisional jurisdiction.
The present revision lacks merit and accordingly, it is dismissed.
Order Date :- 24.8.2021 shiv