Allahabad High Court
Smt. Anara Devi vs State Of U.P. And 7 Others on 26 August, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 50 Case :- CRIMINAL REVISION No. - 997 of 2020 Revisionist :- Smt. Anara Devi Opposite Party :- State Of U.P. And 7 Others Counsel for Revisionist :- Sanjay Vikram Singh,Praveen Kumar Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.
2. The present revision has been filed for setting aside the order dated 07.12.2019 passed by learned Chief Judicial Magistrate, Allahabad in Misc. Application No. 426/12/2018 (Smt. Anara Devi Vs. Suraj Kumar Patel and others), whereby application under Section 156 (3) Cr.P.C. filed by revisionist for registration of F.I.R. and to investigate the matter against the opposite party nos. 2 to 8 has been dismissed.
3. It has been submitted by learned counsel for the revisionist that an application under Section 156 (3) Cr.P.C. filed by the revisionist against opposite party nos. 2 to 8 before learned Chief Judicial Magistrate, Allahabad has been rejected in an arbitrary manner, without considering the relevant facts and law. In application under Section 156 (3) Cr.P.C. revisionist had inter-alia alleged that there is a drainage (nali) near her land which was being obstructed by her neighbour opposite party no.7 Ram Prakash and opposite party no.8 namely, Pawan and his brother Vimal. It was alleged that in connivance with opposite party nos. 7 and 8, the opposite party nos. 2 to 6, who comprise Revenue Inspector Suraj Kumar Patel, Lekhpals namely, Ram Kumar Verma, Ramesh Kumar and Mool Chandra as well as Revenue Inspector namely Onkar Nath respectively, have prepared a forged report, after taking illegal gratification, showing possession of opposite party nos.7 and 8 on her land. It was also alleged that said forged report was submitted by the Revenue Inspector on the basis of false report submitted by opposite party nos. 3 to 5, the Lekhpals. On 10.08.2017 the said revenue officials along with opposite party nos. 7 and 8 came at her house for enquiry and they all abused and assaulted the revisionist. When her son Praveen Kumar and Ratnesh objected, said persons also assaulted them and they have also destroyed the household articles of the revisionist. Learned counsel has further submitted that allegations made in the application under Section 156 (3) Cr.P.C. disclose commission of cognizable offence but the learned Court below has committed manifest error by rejecting the application of revisionist. Learned counsel has also referred to various documents pertaining to revenue proceedings and submitted that in view of above facts and circumstances it was incumbent on the part of learned Court below to pass order for registration of F.I.R. and investigation by police but the same was not done, hence the impugned order suffers from material illegality and error of jurisdiction and therefore, the same is liable to be set aside by this Court.
4. Learned A.G.A. has opposed the revision and argued that matter pertains to the dispute of drainage and essence of matter is civil in nature. The allegations regarding abusing and assault are vague and improbable and thus no cognizable offence was made out requiring investigation by the police. It was further submitted that even if allegations constitutes cognizance offence, in such type of cases, investigation by police is not required and that revisionist has option to file a complaint. It was submitted that there is no illegality or error of jurisdiction in the impugned order requiring any interference by this Court in exercise of powers conferred under revisional jurisdiction.
5. I have considered rival submissions and perused the record.
6. 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. Whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156 (3) Cr.P.C. containing allegation of commission of a cognizance offence is no more a 'res-integra', as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. In the case of Smt. Masuman vs. State of U.P. & others 2007 (1) ALJ 221 and some other cases, the single judges of the Court have taken a view that if the application under section 156 (3) Cr.P.C. discloses the commission of a prima-facie cognizable offence, then it is obligatory for the magistrate to direct investigation after registration of the FIR on the basis of that application.
7. Disagreeing with this view, the following question was referred to the larger Bench for decision in the case of Sukhwasi vs. State of U.P. (supra) "Whether the Magistrate is bound to pass an order on each and every application under section 156(3)Cr.P.C. containing allegations of commission of a cognizable offence for registration of the FIR and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases"
8. After having considered the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi vs. State of U.P. has answered the question as under:-
"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."
9. 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).
10. 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.
11. In Anil Kumar vs. M.K. Aiyappa (2013) 10 SCC 705, Hon'ble Apex Court held :
"11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
12. 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.
13. In the instant case, perusal of record shows that matter in dispute essentially pertains to the issue of drainage between revisionist and opposite party nos. 7 and 8 and that matter was being pursued before the revenue authorities by both the parties. So far as allegations that revenue officials, who have been arrayed in this revision as opposite party nos. 2 to 6, have prepared a forged report, it may be observed that an incorrect report cannot be termed as forged document. The essence of revisionist is that revenue officers presented an incorrect report regarding possession over the drainage land but this allegations would not show that the report was forged one and further it is a question of fact that whether said report was false or correct, therefore it cannot be adjudicated by this Court in revisional jurisdiction. One important aspect of the matter is that no revenue officer/Court, before whom alleged false report was presented, has given any such finding that said report was false and forged.
14. Another aspect in the matter is that, revisionist has made allegations that opposite party nos. 2 to 6 have prepared the forged report in consideration of illegal gratification. It is clear that these revenue officers have prepared the said report while working in their official capacity and preparation of report is directly connected with discharge of their official duty. Learned Court below has referred the case of Anil Kumar and others Vs. M.K.Aiyappa and another and another 2014 Cr.L.J. page 1 and observed that F.I.R. cannot be registered against a public servant under Prevention of Corruption Act without there being sanction of competent authority. However, in the case Manju Surana Vs. Sunil Arora, Criminal Appeal No. 457 of 2018 decided on 27.03.2018, the question whether prior sanction is required for registration of F.I.R. for the offence under Prevention of Corruption Act has been referred by Hon'ble Apex Court to a Larger Bench. Here it would be pertinent to mention here that only vague allegations have been made that opposite party nos. 2 to 6 have prepared the alleged forged report after receiving illegal gratification but no specific details have been given that how and what illegal gratification has been received by them.
15. So far as the allegations regarding abusing and assaulting the revisionist and her sons are concerned, again vague allegations have been made. In this regard the version that these revenue officials along with opposite party nos. 7 and 8 came at the house of revisionist and they abused and assaulted her as well as her sons is quite vague. No specific allegations were made and said allegations appears to be improbable. Thus, it is apparent that allegations regarding abusing and assaulting are not supported by any cogent evidence and the same would hardly constitute commission of cognizable offence so as to require any investigation by police.
16. It may also be observed that all the facts of the matter are in knowledge of revisionist and identity of alleged persons is not in dispute. No recovery has to be effected in the alleged matter and in these facts and circumstances of the case, revisionist has option to file a complaint case.
17. 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., rejection of application under Section 156(3) Cr.P.C by learned trial court vide impugned order dated 07.12.2019, cannot be said against the provisions of law or suffering from any perversity or error of jurisdiction.
18. 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.
19. The present revision lacks merit and accordingly, it is dismissed.
Order Date :- 26.8.2020 S.Ali