Allahabad High Court
Vidya Singh vs State Of U.P. & Another on 20 June, 2014
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No.7 RESERVED A.F.R. Case :- U/S 482/378/407 No. - 2433 of 2014 Applicant :- Vidya Singh Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Sanjay Kumar Pandey Counsel for Opposite Party :- Govt. Advocate Hon'ble Rajan Roy,J.
Heard learned counsel for the applicant and learned Additional Government Advocate for the State.
This is an application under section 482 Cr.P.C. challenging the order dated 12.5.2014 passed by the Additional Chief Judicial Magistrate IV, Court No.28, Lucknow, whereby the learned Magistrate has treated the application of the applicant under section 156(3) Cr.P.C. as a complaint under section 190 (9) Cr.P.C. and has fixed the date for recording of statement of the complainant under section 200 Cr.P.C. The applicant has also challenged the revisional order passed by the District & Sessions Judge, whereby the revision filed by the applicant has been rejected.
The contention of the learned counsel for the applicant is that the applicant is an old lady aged about 65 years. She had purchased House No.SS 83, Sector D near Akilapur, Secretariat Colony, Jankipuram, Lucknow from the respondent no.2 way back in the year 1998. As the value of the house increased manifold with the passage of time, the respondent no.2 wanted to take back the possession of the house and to grab the same. The incident is said to have occurred on 30.3.2014 wherein the respondent no.2, his son along with other criminal associates are alleged to have visited the house of the applicant and tried to oust her. Another incident is said to have taken place on 13.4.2014 involving the respondent no.2 and certain criminal elements wherein they are said to have unauthorisedly entered into her premises and after breaking open the lock had taken away household goods, ornaments and cash etc. The police reached the place of incident on the call of the applicant to the police control room, whereupon the miscreants ran away along with aforesaid valuables.
Based on the aforesaid incident, she tried to lodge a first information report which was not registered by the concerned police. Her complaint to the Senior Superintendent of Police on 30.3.2014 was also not taken cognizance of.
Being aggrieved, the applicant filed an application under section 156(3) Cr.P.C. on 2.5.2014 before the learned Magistrate, whereupon, the learned Magistrate has passed the impugned order on 12.5.2014 treating it as a complaint and proceeded with the same accordingly.
Being aggrieved, the applicant filed a revision before the learned District & Sessions Judge, Lucknow, which has been rejected by the order dated 14.5.2014.
The contention of the learned counsel for the applicant is that in view of the allegations made by the applicant regarding the household goods and other valuable ornaments and cash having been taken away by the respondent no.2 and his criminal associates, an investigation by the police is a must, especially for the recovery of said valuables, therefore, the learned Magistrate has erred in treating the aforesaid application under section 156(3) Cr.P.C. as a complaint.
Learned A.G.A. appearing for the State did make an effort to defend the order passed by the courts below, but ultimately he very fairly stated that an investigation by the police would have been the proper course of action.
On a perusal of the summoning order dated 12.5.2014 passed by the learned Magistrate, it is revealed that the learned Magistrate has taken note of the allegations contained in the application, wherein it has been specifically mentioned that the respondent no.2 and his criminal associates had taken away her valuables from her house in a tempo and they ran away on seeing the police.
Learned Magistrate has treated the application under section 156(3) as a complaint on the ground that as the applicant is aware of all the facts, she can prove the incident on her own and no investigation is required in this regard.
Learned Magistrate has relied upon the judgments of this Court in the case of Sukhwasi vs. State, 2007(59) ACC 739 and in the case of Chandrika Singh 2000(68) ACC 777.
Having heard the learned counsel for the applicant and having perused the record, I am of the view that the learned Magistrate has erred in law in passing the impugned order dated 12.5.2014. In view of the pronouncement of the Court in Sukhwasi case (supra), there can be no dispute about the legal position that the learned Magistrate has the power to treat the application under section 156(3) Cr.P.C. as a complaint and to this extent the learned Magistrate cannot be faulted. However, the relevant question in this case is as to whether the learned Magistrate has exercised the said powers and the discretion bestowed on him judiciously or not.
This Court in the case of Gulab Chand Upadhyaya vs. State of U.P. and others, 2002 Cri.L.J. 2907 has already observed that the powers and the discretion available to a Magistrate to treat an application under section 156(3) Cr.P.C. as a complaint and to proceed under Chapter XV of Code of Criminal Procedure cannot be unguided or arbitrary. This Court laid down the guidelines for exercise of such power and discretion in the said case which are extracted as under:
"21. In these circumstances, the question arises that when a Magistrate is approached by a complainant with an application praying for a direction to the police under Section 156(3) to register and investigate an alleged cognizable offence, why should he-
(A) grant the relief of registration of a case and its investigation by the police under Section 156(3) Cr.P.C, and when should he (B) treat the application as a complaint and follow the procedure of Chapter XV of Cr.P.C.
22. The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example (1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.
23. But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr.P.C. order investigation, even though of a limited nature {see para 7 of JT (2001)2 (SC) 81:(AIR 2001 SC 571)"
It is pertinent to mention that the aforesaid judgment in Gulab Chand Upadhyaya case (supra) has been noticed by the Division Bench in Sukhwasi case in paragraph 19 while quoting the relevant extract of the judgment in Chandrika Singh case, which has been relied upon by the learned Magistrate.
Tested on the anvil of the aforesaid guidelines, the conclusion is irresistible that as recovery of stolen property is required to be made and unknown criminal associates of Respondent no.2 are required to be traced by conducting raids or searches at suspected places or persons and evidence is required to be collected for the purpose of launching a successful prosecution of the accused, the appropriate course to be adopted in this regard was to order an investigation by the police in exercise of power under section 156(3) Cr.P.C. The learned Magistrate has erred in treating the application as a complaint case under misconception that the applicant was already aware of all the facts ignoring her specific allegations about the valuables stolen and taken away by the suspected persons including some criminal associates of respondent no.2. The learned Magistrate has erred in not considering the judgment in Gulab Chand Upadhyaya case (supra), which has been taken note of in Chandrika Singh case referred by the learned counsel for the applicant and also in Sukhwasi case (supra).
For the aforesaid reasons, the order passed by the learned revisional court is also not sustainable as it has affirmed the order of the learned Magistrate with reference to the two judgments in Sukhwasi case and Chandrika Singh case without considering the matter in the light of the judgment in Gulab Chand Upadhyaya case (supra), which has already been referred above.
Learned courts below have failed to appreciate that while power and discretion was vested in the Magistrate, the exercise of such powers was to be guided by the decision in Gulab Chand Case (Supra). Both the courts below have ignored this aspect of the matter.
As the matter is at a pre-investigation stage, the respondent no.2 is at best a proforma party, accordingly, no notice is being issued to him.
In view of the above discussion and considering the facts and circumstances of the case and the law, as referred above, the impugned order dated 12.5.2014 passed by the learned Magistrate is set aside. Learned Magistrate is directed to reconsider the matter in the light of the observations made above and pass a fresh order on the application of the applicant under section 156(3) Cr.P.C.
The application is, accordingly, allowed.
Order Date :- 20.6.2014 sc