Smt. Sadhna v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko. and 6 Others

Court No. - 14 Case :- APPLICATION U/S 482 No. - 11751 of 2024 Applicant :- Smt. Sadhna Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And 6 Others Counsel for Applicant :- Alok Kr. Misra Counsel for Opposite Party :- G.A. Hon'ble Ajai Kumar Srivastava-I,J.

¶1Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

¶2In view of the order proposed to be passed, notice to opposite party nos.2 to 5 is dispensed with.

¶3The instant application under Section 482 Cr.P.C. has been filed for quashing the order dated 31.07.2024, passed in Misc. Case No.462 of 2024, whereby the trial Court has treated the applicant's application under Section 156(3) as a complaint case as well as order dated

20.11.2024, whereby the criminal revision filed by the present applicant against order dated 31.07.2024 came to be rejected.

¶4Brief facts are that the applicant moved an application under Section 156 (3) Cr.P.C. for registration and investigation of the case which was heard and learned Magistrate vide order dated 31.07.2024 treated the same as a complaint. Thereafter, the applicant assail the said order by means of a criminal revision, which came to be rejected vide order dated

20.11.2024.

¶5Foremost submission of learned counsel for the applicant is that the impugned orders are not sustainable in the law, insofar as the same are against the law laid down by the Hon'ble Apex Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and another, reported in 2014 (2) SCC 1. His further submission is that by means of impugned order dated 31.07.2024 the learned trial Court has directed to treat the application filed under Section 156(3) Cr.P.C. as a complaint, which is against the provisions contained in Section 156(3) Cr.P.C. He, thus, submitted that the only option available to the learned Magistrate was to allow the application filed under Section 156 (3) Cr.P.C. with a direction to the Station House Officer concerned for registration of F.I.R. regarding the matter. The impugned orders are thus, patently illegal which would cause miscarriage of justice, therefore, the same are liable to be quashed. He has also submitted that it was the duty of learned Magistrate concerned to issue a direction to the police station concerned to get the FIR lodged on the basis of application moved by the applicant under Section 156(3) Cr.P.C. He, thus, prays that the impugned orders are illegal, which could not be sustained and deserve to be set aside.

¶6Per contra, learned A.G.A. has supported the impugned orders and has submitted that the learned trial Court after taking into consideration the entire gamut of the facts and circumstances of the case has rightly treated the the application filed by the applicant under Section 156 (3) Cr.P.C. as a complaint. His further submission is that in Lalita Kumari (supra) Hon'ble the Apex Court has not referred, discussed and overruled the law laid down by the Division Bench of this Court in Sukhwasi vs. State of Uttar Pradesh; 2008 Cri LJ 452. Therefore, the impugned orders cannot be termed to be illegal and no miscarriage of justice would be caused by the impugned order.

¶7The scope and ambit of law laid down by the Hon'ble Supreme Court in Lalita Kumari (supra) can be ascertained from para no.6 of the judgment, which is quoted hereinbelow : "6) Therefore, the only question before this Constitution Bench relates to the interpretation of Section 154 of the Code and incidentally to consider Sections 156 and 157 also." (Emphasis supplied)

¶8In case of Lalita Kumari (supra) the controversy revolved around the registration of F.I.R in cognizable cases by the Police Officer. However, it did not dwelve upon scope and ambit of power vested in Magistrate by virtue of provision of Section 156 (3) Cr.P.C. which is, for ready reference, quoted hereinbelow : "156. Police officer' s power to investigate cognizable case.

(1) ........…

(2) ............

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."

¶9In Sukhwasi (supra) the Division Bench of this Court in paragraph nos.6, 7, 8 & 9 has held as under: "6. It will also be noticed that the law was, and has always been, that if a cognizable offence is made out, the Police are bound to register the First Information Report. In case, the Police do not register the First Information Report, there is provision under Section 154(3) Cr.P.C. to send an application to Superintendent of Police, who shall direct the registration of a First Information Report, if a cognizable offence is disclosed. There was as such, no need for an authority in this regard being given to the Magistrate. That, this has been done and such authority as given to the Magistrate indicates, that this has been done, because the Magistrate will bring to bear upon the matter a judicial and judicious approach, which will be necessarily implication be selective. That gives a clear inkling to the intention of the legislature, that the Magistrate may consider the feasibility and propriety, of passing an order of registration of the First Information Report.

¶7The matter may be looked into from another angle, and that is, in Section 154(3) Cr.P.C. where the Superintendent of Police has been given the authority for registration of First Information Report, the word used is 'shall' Section 143(3) Cr.P.C. is as hereunder "154.

Information

of cognizable cases —

(1)

(2)

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance

of

such information, in writing, and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made, by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer incharge of the police station in relation to that offence."

¶8In Section 156(3) Cr.P.C. the word used is 'May' Section 156(3) Cr.P.C. is as follows;

¶156Police Officer's power to investigate cognizable case—

(1)

(2)

(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.

¶9The use of the word 'shall' in Section 154(3) Cr. P.C: and the use of word 'May' in Section 156(3) Cr.P.C. should make the intention of the legislation clear. If the legislature intended to close options for the Magistrate, they could have used the word 'shall' as has been done in Section 154(3) Cr.P.C. Instead, use of the word 'May' is, therefore, very significant, and gives a very clear indication, that the Magistrate has the discretion in the matter, and can, in appropriate cases, refuse to order registration." (emphasis supplied)

¶10It is, thus, abundantly clear that in view of provisions contained in 156(3) Cr.P.C., it cannot be said that the Magistrate is bound to order for registration of case and its investigation invariably; rather as discussed above he has been vested with discretionary power for doing so as held by the Division Bench of this Court in Sukhwasi (supra).

¶11Now adverting to the second aspect of this case, which relates to the direction issued by the learned Magistrate to treat the application filed by the applicant under Section 156(3) as a complaint, it is pertinent to refer to para no.15 of the judgment rendered by Division Bench of this Court in Sukhwasi (supra), which is quoted herein under:- "15. It is hardly possible to infer from the aforesaid observations that the Magistrate cannot treat an application under Section 156(3) Cr. P.C. as a 'Complaint'. Even a nebulous of far fetched interpretation will not lead to that inference. The inference drawn by Hon'ble Vinod Prasad, J. is not logical."

¶12In a judgment rendered by a coordinate Bench of this Court in Chandrika Singh v. State of U.P. : (2007) 58 ACC 777 has held that a Magistrate can treat an application under Section 156(3) Cr. P.C. as a complaint.

¶13Thus, in view of what has been held by a Division Bench of this Court in Sukhwasi (supra) and by a coordinate Bench of this Court in Chandrika Singh (supra), the direction issued by the learned trial Court, while rejecting the application filed by the applicant under Section 156(3) Cr.P.C. to treat such application as a complaint, cannot be said to be illegal.

¶14Therefore, in view of the aforesaid overall reasons, this Court does not find any illegality, material irregularity or perversity the impugned order dated 31.07.2024 whereby the trial Court has treated the applicant's application under Section 156(3) as a complaint case as well as order dated 20.11.2024, whereby the criminal revision filed by the present applicant against order dated 31.07.2024 came to be rejected Therefore, the instant application under Section 482 Cr.P.C. lacks merit.

¶15Accordingly, the prayer for quashing the impugned order dated

31.07.2024 as well as order dated 20.11.2024 is refused as this Court does not find any illegality, impropriety and incorrectness in the same. There is no abuse of court's process either.

¶16It is needless to mention that, after the complainant/applicant gets his statement under Section 200 Cr.P.C. and the statements of his witnesses are recorded under Section 202 Cr.P.C., the learned trial Court shall be at liberty, having regard to the facts of this case, to resort to the provisions contained in Section 202(1) Cr.P.C., whereby the trial Court is undoubtedly vested with the power to send the complaint for investigation to the police in appropriate cases.

¶17In view of the aforesaid discussion, the present application is finally disposed of. (Ajai Kumar Srivastava-I, J.) Order Date :- 20.12.2024 A.Dewal High Court of Judicature at Allahabad, Lucknow Bench