Allahabad High Court
Sandeep Kumar vs State Of U.P. And Anr on 28 August, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 53 A.F.R. Case :- APPLICATION U/S 482 No. - 17793 of 2018 Applicant :- Sandeep Kumar Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Nirmal Kumar Chaturvedi,Narendra Singh Chahar Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
1. This application under Section 482 Cr.P.C. has been filed from an order of the Judicial Magistrate, Sikohabad, District Firozabad, dated 14.04.2018 passed in Criminal Misc. Application no.510 of 2017, Smt. Reena Devi vs. Sandeep Kumar and others, under Section 156(3) Cr.P.C., Police Station Matsaina, District Firozabad allowing the same and directing registration of a case under the appropriate provisions of law by the police attended with a further direction to investigate the same.
2. The facts giving rise to this application are these that opposite party no.2 filed an application under Section 156(3) Cr.P.C. on 11.04.2017 alleging therein that on 9th of April, 2017 the applicant along with another unknown man intruded into her house and raped her during day time. The Magistrate called for a report on the said application from the police of Police Station Matsaina, who filed a report saying that the applicant is a relative, a brother-in-law (Nandoi) of the second opposite party, and no incident of the kind as alleged, for a fact occurred; that upon considering the said report, the Judicial Magistrate, Sikohabad rejected the application brought by the second opposite party vide order dated 20.07.2017; that this took the second opposite party in revision to the learned Sessions Judge, Firozabad, where her revision was registered as Criminal Revision no.81 of 2017; that the aforesaid criminal revision was transferred to the determination of the Additional Sessions Judge, Court no.5. Firozabad, who after hearing both parties and perusing the record allowed the revision by his judgment and order dated 15.01.2018, set aside the order dated 20.07.2017 rejecting the second opposite party's application and directed the Magistrate to decide the application preferred before him under Section 156(3) Cr.P.C. afresh after giving opportunity to both parties; and, that the Judicial Magistrate, Sikohabad, District Firozabad by his order dated 14.04.2018 has proceeded to allow the application under Section 156(3) Cr.P.C. directing registration of a case as, already said.
3. Heard Sri N.S. Chahar, learned counsel for the applicant in support of the application and Sri M.P. Singh Gaur, learned A.G.A. appearing on behalf of the State.
4. The submission of Sri Chahar is that the impugned order passed by the Magistrate is bad in law, inasmuch as the learned Magistrate has proceeded to allow the application without application of mind, acting as if it were, on the directions of the Revisional Court. He submits that the Revisional Court did not give any such direction nor could the Revisional Court issue directions to the Magistrate to exercise his discretion in a particular manner. However, the Magistrate while writing the order impugned has taken the order of the Sessions Judge in revision to be a blanket fiat to allow the second opposite party's application under Section 156(3) Cr.P.C. without sparing his own thoughts to the issue. He has sought to impeach the approach of the learned Magistrate by emphasizing the finding recorded by the Magistrate that reads as under (translated into English from Hindi vernacular):
"Heard. On the basis of facts mentioned in the application, the documents on record and in the light of the findings of the Revisional Court in the order dated 15.01.2018, a prima facie case disclosing commission of a cognizable offence appears to be made out."
5. The aforesaid finding of which much has been made by Sri Chahar as an instance of non-application of mind is preceded by a paragraph full of description of the allegations carried in the application under Section 156(3) Cr.P.C., followed by a short paragraph devoted to the documents annexed to the application that largely show evidence of the steps taken by the second opposite party mandated by law before the police authorities, antecedent to a motion before the Magistrate under Section 156(3) Cr.P.C., and, also, a C.D. There is also a mention, amongst the documents, to a dying declaration which ex facie appears to be the product of some clerical error.
6. The order impugned, in the opinion of this Court has to be read as a whole to conclude whether the Magistrate has applied his mind to the entire facts and circumstances on record, while passing that order pursuant to the remand. It is not that the few words said formally by way of a finding alone reflect application of mind. It is also reflected from what is said about the case of the applicant and the other facts and circumstances on record mentioned for a narration and attendant circumstances, followed by a brief finding that would fulfill the requirement of the law. This parameters about judging application of mind by the Magistrate would vary according to the nature of proceedings of which the Magistrate is in seisin. Different standards would apply to show due application of mind if the Magistrate were passing a summoning order, or still different while considering a motion for discharge under Section 239 Cr.P.C., and, still more different, writing a judgment. In each of these kinds of cases the expectation from the Magistrate regarding application of mind would be different; not in the quality of that application but in the elaboration and detail of treatment of the issues, shown by words through which it is expressed.
7. Learned counsel for the applicant has relied upon a decision of the Hon'ble Supreme Court in Rajendra Rajoriya vs. Jagat Narain Thapak and another, 2018(103) ACC 332 to submit that an order passed by a Magistrate mechanically echoing what the Revisional Court has held in substitution of his independent conclusions, is illegal. In this connection the law in Rajendra Rajoriya (supra) has been summarized thus:
"17. On a perusal of the order of the learned Magistrate taking cognizance, it is apparent that the learned Magistrate observes that the Sessions court has already made out a prima facie case. Such finding would be difficult to sustain as the revisional court only observed certain aspects in furtherance of remanding the matter. Such observations could not have been made by the Magistrate as he was expected to apply his independent mind while taking cognizance. In the case on hand, we recognize the limitation on the appellate forum to review subjective satisfaction of the Magistrate while taking cognizance, but such independent satisfaction unless reflected in the order would make it difficult to be sustained. There is no dispute that Justice should not only be done, but should manifestly and undoubtedly be seen to be done. It is wrought in our constitutional tradition that we imbibe both substantive fairness as well as procedural fairness under our criminal justice system, in the sense of according procedural fairness, in the making of decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."
8. The aforesaid principle is an authoritative pronouncement about the law by the Hon'ble Supreme Court and binds this Court. However, the principle enunciated by their Lordships in Rajendra Rajoriya (supra) is one rendered in the context of an order taking cognizance by a Magistrate after remand by the learned Sessions Judge, where as already noticed, a different standard would apply to show due application of mind, depending upon the nature of the proceedings - not the quality of it but the detailed reflection of that application in words. The present case is one under Section 156(3) Cr.P.C. that does not involve satisfaction of the Magistrate to take cognizance of an offence. All that it involves is to judge whether a case worth investigating is disclosed with some credibility about it. Thus, the Magistrate while writing an order after remand, allowing an application under Section 156(3) Cr.P.C. cannot be expected to disclose as much in words as he would be required to do in a case while passing an order of cognizance, or even more, while passing orders at subsequent stages, such as one refusing to discharge, framing a charge, or ultimately writing the judgment. Thus, in the opinion of this Court the decision in Rajendra Rajoriya (supra) would not be of much assistance to the applicant in the facts and circumstances of the present case.
9. In dealing with applications under Section 156(3) Cr.P.C., a definite change in perspective has come about that is most eloquently expressed by the Hon'ble Supreme Court in Priyanka Srivastava and another vs. State of U.P., 2015 (6) SCC 287. In the said decision, their Lordships, concerned about the unscrupulous resort to proceedings under Section 156(3) Cr.P.C. against statutory authorities acting under the SARFAESI Act, and, depending upon a Constitution Bench decision of their Lordships in Lalita Kumar vs. Government of Uttar Pradesh and others, 2014(2) SCC 1, emphasized the need for application of judicial mind at the stage of dealing with an application under Section 156(3) Cr.P.C. It has been held in Priyanka Srivastava (supra):
26. 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.
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
28. The present lis can be perceived from another angle. We are slightly surprised that the financial institution has been compelled to settle the dispute and we are also disposed to think that it has so happened because the complaint cases were filed. Such a situation should not happen.
29. At this juncture, we may fruitfully refer to Section 32 of the SARFAESI Act, which reads as follows :
"32. Protection of action taken in good faith.-
No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act."
30. In the present case, we are obligated to say that learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156(3) Cr.P.C. It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needles to emphasize, the legislative mandate, has to be kept in mind."
10. While it is trite that the directions of their Lordships in Priyanka Srivastava (supra) require a careful application of mind by the Magistrate, it is evident from the principles laid down that the purpose is to eschew misuse, rather abuse, of the remedy under Section 156(3) Cr.P.C., to settle scores. It is for this reason that the Constitution Bench of their Lordships in Lalita Kumari (supra) and the decision in Priyanka Srivastava (supra) have particularly focused on certain categories of cases, such as matrimonial disputes, commercial offences, medical negligence, corruption cases, cases where the application is brought with an abnormal delay/ laches; it is in these categories of cases where applications under Section 156(3) Cr.P.C. are to be approached with more caution by the Magistrate. The enunciation of principles in Priyanka Srivastava (supra) though of universal application in cases brought under Section 156(3) Cr.P.C., the same would have a slightly different dimension to it where the offence reported or alleged is a heinous offence like rape. To the understanding of the Court once a heinous offence like rape, as the case here, or any other heinous offence for that matter like murder, dacoity etc. is brought to the attention of the Magistrate, the threshold of caution to be observed, though not the requirement of application of mind, would certainly not be as high as in cases specified in Priyanka Srivastava (supra) or the categories specified by their Lordships in Lalita Kumari (supra). Going by the prima facie evidence available in case of heinous offences, of course after approaching the police, as required by Section 154 Cr.P.C., the Magistrate would be well within his jurisdiction to act swiftly, expressing himself in relatively fewer words; and, with not as much scrutiny required to verify allegations, as in cases like matrimonial disputes, commercial matters, medical negligence cases, corruption cases and cases against statutory authorities, where the chances of abuse of process of criminal law to settle scores are high.
11. The present case is one where the applicant has come up with a definite allegation of gang rape, and has supported her application by an affidavit together with copies of the application sent under Section 154 Cr.P.C. to the S.P. Firozabad and copies of postal receipts showing dispatch by registered post to the S.P. She has also filed a CD, as appears from a perusal of the impugned order dated 17.04.2018. The Magistrate has, as recorded hereinbefore, elaborately noticed the allegations including the allegation of gang rape against the nominated accused, Sandeep Kumar and an unknown companion of his, who ravished her by turns. In passing the order directing registration of a Case, the Magistrate has taken into consideration the documents on record and facts mentioned in the application and has formed his independent opinion bearing in mind the observations of the Revisional Court that he has chosen to describe in his words as "in the light of observations of the Revisional Court". The words employed in the impugned order by the Magistrate, in the opinion of this Court are not reflective of a surrender of the Magistrate's mind or his discretion to that of the Revisional Court. Rather, all that it shows is that he has considered after remand the facts mentioned in the application, the documents on record bearing in mind the observations of the Revisional Court, and, arrived at an independent conclusion of his, that cannot be castigated as vitiated by a mechanical approach.
12. In the opinion of this Court looking to the order impugned, the entire materials on record and principles of law applicable and, in particular, bearing in mind the nature of the offence involved, there is no infirmity to be found in the impugned order passed by the learned Magistrate.
13. In the result, this application fails and is dismissed.
Order Date :- 28.8.2018 Anoop