Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 10.11.2020, passed by the Judicial Magistrate/Additional Civil Judge (Junior Division) Room No.22, Deoria in Misc. Case No. 666 of 2020 (Vyash Nishad vs. Ram Sarikha and others), under Section 156(3) Cr.P.C. P.S. Kotwali Deoria, District Deoria, pending in the Court of Judicial Magistrate/Additional Civil Judge (Junior Division) Room no.22, Deoria.
It has been argued by the learned counsel for the applicant that the applicant has filed an application under Section 156(3) Cr.P.C. against the private respondents, which discloses commission of cognizable offence but the said application has been registered as a complaint case and the prayer for investigation by police was declined. Learned counsel submitted that there are allegations against the private respondents that they armed with 'Lathi' and 'danda', came at the house of applicant, abused and assaulted the applicant and his wife. It has been submitted that regarding the same incident, a first information report has been registered from the side of private respondents vide Crime No. 722 of 2020, under Sections 147, 323, 504 and 506 IPC against the applicant and others and thus, regarding version of applicant, the first information report must have been registered. It has been submitted that the injured were got medically examined by the police and their medical examination reports are also lying with police but the police has not registered the case and that the application filed by the applicant under Section 156(3) Cr.P.C. has also been rejected vide impugned order dated 10.11.2020. It has been submitted that impugned order is against law and thus, not sustainable.
Per contra, learned A.G.A. has opposed the prayer and argued that there is no illegality or perversity in the impugned order.
It may be stated that in view of law laid down by the Division Bench of this Court in the case of Sukhwasi Lal vs. State of U.P. 2007(59) ACC 739, 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. It is also clear from the said case law that Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint case.
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."
Thus, 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, considering the nature of allegations and all attending facts and circumstances of the case, it cannot be said that impugned order dated 10.11.2020 suffers from material illegality or perversity. Merely because a first information report has been lodged from the side of private respondents, it cannot be a ground for allowing the instant application of applicant for registration of first information report and investigation of the case. The instant application lacks merit and thus, liable to be dismissed.
In view of aforesaid, the instant application under Section 482 Cr.P.C. is rejected.
Order Date :- 3.2.2021 A. Tripathi