Heard learned counsel for the revisionist, learned A.G.A. and perused the record.
The present revision has been filed for setting aside the order dated 16.12.2020 passed by learned the Additional Chief Judicial Magistrate, Court No.1, District Ghaziabad in Criminal Misc. Application No. 913 of 2020 (Smt. Reena Maan Vs.Faizan @ Rishabh), whereby application under Section 156 (3) Cr.P.C. filed by the applicant has been treated as complaint case.
It has been argued by learned counsel for revisionist that revisionist has moved an application under Section 156 (3) Cr.P.C. for registration of F.I.R. against the opposite party nos. 2 but the prayer for investigation by police has been declined in an arbitrary manner. It was submitted that allegations made in application under Section 156 (3) Cr.P.C. disclose commission of cognizable offence but despite that application was registered as complaint vide impugned order dated 16.12.2020. It was further submitted that the revisionist, in her application under Section 156 (3) Cr.P.C., has clearly alleged that the opposite party no.2 has committed rape upon her and thereafter by concealing his real name and religion, he got married with revisionist by obtaining her signature on some papers. She has further alleged that opposite party no.2 has also demanded Rs. 4 lacs from her and in pursuance of the same, the revisionist has paid Rs. 3,48,000/-. Later on, revisionist came to know that real name of the opposite party no.2 is Faizan and he is already married and has four children. She has further alleged that opposite party no.2 has also mis-appropriated Rs. 8 lacs by way of cheating from the credit card of her father and hat he has also got terminated her pregnancy. Learned counsel further submitted that the above stated allegations makes out a cognizable offence and that in view of allegations it was necessary that the matter must be investigated by the police but the prayer of revisionist for investigation by police has been declined in an arbitrary manner. It was further argued that the impugned order has been passed ignoring the settled principles of law and thus the same is liable to be set aside.
On the rival side, learned A.G.A. has opposed the application. It was further submitted that the Court below has considered entire relevant facts and that prayer of application for investigation by police has been rightly rejected by the Court below. It was also argued that there is no illegality or impropriety in the impugned order.
It may be stated here that from the law laid down by the Division Bench of this Court in the case of Sukhwasi vs. State of U.P. reported in 2007 (59) ACC 739, it is clear 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 and he may or may not allow the application in his discretion and that the Magistrate has a discretion to treat an application under section 156(3) Cr.P.C. as a complaint.The 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 (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 reported in 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, while 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 (supra).
In the instant case, the allegations of revisionist is that the opposite party no.2 by representing himself as one Rishabh got married with the revisionist through the Court by obtaining signature of revisionist on some papers by way of cheating and that he has also mis-appropriated Rs. 8 lacs from the account of her father but later on, revisionist came to know that opposite party no.2 belongs to Mohammedan religion and his name is Faizan and that he is already married and having four children. The revisionist herself alleged that her marriage with the opposite party no.2 has taken place through Court. It is apparent that all the facts are in knowledge of the revisionist and that if required, the Magistrate has power under Section 202 (1) Cr.P.C. to refer the matter for investigation. In view of nature of allegations and position of law, it cannot be said that impugned order is suffering from any illegality or perversity. There is nothing to show that there has been any abuse of process of Court or miscarriage of justice so as to require any interference by this Court in exercise of powers conferred under Section 482 Cr.P.C.
In view of aforesaid, the instant revision lacks merit and it is accordingly, dismissed.
Order Date :- 9.2.2021 S.Ali