Allahabad High Court
Smt. Chhunni Devi vs State Of U.P. And 5 Others on 13 December, 2019
Author: Umesh Kumar
Bench: Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 13.11.2019 Delivered on: 13.12.2019 Court No. - 88 CRIMINAL REVISION No. - 2954 of 2018 Revisionist :- Smt. Chhunni Devi Opposite Party :- State Of U.P. And 5 Others Counsel for Revisionist :- Avijit Saxena Counsel for Opposite Party :- G.A.,Rajan Tripathi Hon'ble Umesh Kumar,J.
1. This Criminal Revision has been filed challenging the impugned order dated 31.07.2018 passed by learned Special Judge (POCSO) /Addl.Sessions Judge, Court No. 14, Kanpur Nagar in Misc. Application No. 958 of 2017 ( Smt. Chhunni Devi vs. Rupan @ Fakire and others) rejecting an application under Section 156(3) Cr.P.C. filed by the revisionist.
2. Briefly stating the facts giving rise to this revision are that the revisionist filed an application under Section 156(3) Cr. P.C. in the Court of Addl. Sessions Judge bearing Misc. Application No. 958 of 2017 ( Smt. Chhunni Devi Vs. Rupan @ Fakire & others) praying therein to register FIR under Sections 147, 148, 452, 323, 504, 506, 376, 511 IPC and Section ¾ POCSO Act alleging therein that on 23.5.2017 when the opposite parties were constructing house on road, the revisionist raised objection, upon which they started quarrelling by using filthy language; that the applicant contacted police 100 and the police came on the spot, stopped the opposite parties from raising construction and gone; that due to this incident, the opposite parties on 24.5.2017 at about 5.00 PM entered the house of applicant and tried to outrage the modesty of her minor daughter-Mamta aged about 15 years and on resistance, her daughter received injuries on her neck; on raising alarm, the people of locality came and the opposite parties ran away giving threat; that the revisionist went to police Bithoor, Kanpur Nagar, but Police did not lodge her report ; that when the police did not take any action in the matter, the revisionist sent application on 25.5.2017 to the SSP, Kanpur Nagar through registered post, but when no action was taken by the police, the revisionist filed application under Section 156(3) Cr.P.C. referred above, was dismissed by learned Court below vide order dated 31.7.2018 which has been assailed in this revision.
3. I have heard learned Counsel for the revisionist, learned A.G.A and have gone through the materials available on record.
4. Submission of learned Counsel for the revisionist is that since some altercation between the parties took place on 23.5.2017 in respect to making encroachment on road by the opposite parties and therefore, there is every likelihood of committing alleged offence by them; that the medical prescription issued by the private doctor has not been taken into consideration by learned Court below; that findings recorded by learned Court below in this respect is wrong; that the matter was lingered in making compliance under the provisions of Section 19 @ 20 of POCSO Act and thus, the impugned order is liable to be set aside.
5. Learned A.G.A. vehemently opposed the arguments advanced by learned Counsel for the revisionist by submitting that learned Court below has passed a detailed and reasoned order taking into consideration the police report dated 11.6.2018 submitted by C.O. Kalyanpur, Kanpur Nagar, the NCR No. 57/17 under Section 323, 504 IPC against the husband of the revisionist, the inquiry report dated 28.7.2017 submitted by the police after investigation in which, it was found that some altercation took place between the revisionist and opposite parties regarding construction on road and no such incident as alleged by the revisionist in her application under Section 156(3) Cr. P.C. has taken place. Learned A.G.A. has further submitted that while deciding the matter, the learned Court below has taken into consideration the decision of Apex Court in Mohd. Yusuf Vs. Ashfaq Jahan & others 2006(54) ACC and the decision of Full Bench of this Court in Ram Babu Gupta & others Vs. State of U.P. 2001 Crl. L.J 3363 (Alld.) and therefore, the argument of learned Counsel for the revisionist has no substance.
6. Submission of learned Counsel for the revisionist that learned Magistrate/Court concerned is always bound to pass an order for investigation in a case brought before it under Section 156(3) Cr. P.C. in case cognizable offence is made out and learned Court concerned/Magistrate has got no discretion to apply mind or to pass an order of rejection of application or to treat the application as complaint.
7. I feel it necessary to note that there is no dispute that if a cognizable offence is made out, the police is duty bound to register the F.I.R. In case, the local police did not lodge report, there is provision under Section 154(3) Cr. P.C. to send application to the concerned Superintendent of Police and any person aggrieved by non registration of FIR, may approach the Magistrate under sub-section 3 of Section 156 Cr.P.C.
8. In Section 156(3) Cr. P.C. the word used is "may" while in Section 154(3) Cr. P.C. the word used is "shall" and it makes the intention of the legislature clear. In case the legislature intended to close options for the Magistrate, then word " shall" might have been used instead the word "may". This distinction is very significant and it indicates that the Magistrate has the discretion in the matter, and in appropriate cases, refuse to order of registration of F.I.R. In Sukhwasi Vs. State of U.P. 2008(1) JIC 792(All.), this Court has held that the Magistrate is not bound to order for registration of an F.I.R. in all cases where a cognizable offence has been disclosed. It is clear from the decision of Apex Court in Suresh Chandra Jain Vs. State of M.P. and another 2001(42) ACC 459 (SC) that Magistrate has the authority to treat an application under Section 156(3) Cr. P.C. as a complaint.
9. The facts are always different in each case from the other one and thus, each case is to be considered on its own merit. In the present case, the learned Court below has called reports from the police and after perusing the same, has come to a conclusion that the application filed under Section 156(3) Cr.P.C is devoid of merits and is liable to be rejected. The Court has always to apply its mind and satisfy itself as to whether the complaint has sufficient material facts so as to constitute alleged offence. It is not mandatory in all cases to direct the investigation of the offence alleged blindly without having sufficient material facts.(see R.P. Venugopal Vs. S.M. Krishna 2004 Cr.L.J.(NOC) 32.
10. In the case in hand, from perusal of impugned order, it transpires that learned Court below has satisfied itself in arriving on a conclusion that the revisionist has failed to establish prima facie a cognizable offence after making enquiry under the provisions of Section 19 and 20 of the POCSO Act.
11. In view of above, discussion, I am of the view that the impugned order suffers from no illegality or infirmity. It is a reasoned and speaking order which needs no interference by this Court.
12. The revision lacks merit and is accordingly, dismissed.
Order Date :- 13.12.2019 Shahid