Allahabad High Court
Sudarshan Nishad vs State Of U.P. And Another on 10 January, 2024
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Neutral Citation No. - 2024:AHC:4721 Court No. - 65 Case :- CRIMINAL REVISION No. - 915 of 2023 Revisionist :- Sudarshan Nishad Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ashish Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the revisionist and learned A.G.A. for State and perused the record.
2. This criminal revision has been preferred against the order dated 07.12.2022, passed by the learned Additional District & Sessions Judge/Special Judge (Prevention of Corruption Act), Special Court No.4, Gorakhpur in Criminal Misc. Case No.456 of 2022 (Sudarshan Nishad vs. S.I. Suraj Singh Chauki Incharge Naushad), under Section 156(3) Cr.P.C.. P.S. Gida, District Gorakhpur, whereby, the application filed by the revisionist under Section 156(3) Cr.P.C. has been rejected.
3. Learned counsel for the revisionist submitted that the impugned order is against facts and law and thus, liable to be set aside. The revisionist has filed an application under Section 156(3) Cr.P.C. alleging that in connivance with the respondent No.2 S.I. Suraj Singh In-charge Police Post, Naushad, Gorakhpur, one Ram Nath and his sons were taking possession over the land of revisionist and that when revisionist objected, they have assaulted his wife and mother. It was also alleged that regarding the said incident the police have registered merely a non-cognizable report and the respondent No.2 brought the revisionist and his family members to the police post and demanded Rs.1,00,000/- from him by threatening that if amount was not paid, he would send them to jail in some false case. The medical examination of the wife of revisionist was got conducted by the police with a long delay after 15 days. It was further alleged that on 16/05/2022 a false case was registered against revisionist and his sons and the respondent No.2 has made a demand of Rs.1,00,000/- from him. When the revisionist refused, the respondent No.2 has sent a challani report under section 107, 116 Cr.P.C. The revisionist further alleged that on 21/05/2022 the respondent No.2 has caught him and he has snatched Rs. 32,000/- from him and by showing false arrest he was sent to jail.
4. Learned counsel for the revisionist submitted that the allegations made in the application under Section 156 (3) Cr.P.C. make out a prima facie cognizable offence but the court below has rejected his application seeking investigation by police. It was submitted that the application under Section 156 (3) Cr.P.C. has been rejected by the court below mainly on the ground that in view of the law laid down in case of Satish Chandra Gupta versus the State [W.P. (Crl) 4645 of 2013], decided on 18/11/2013, prior sanction is necessary for investigation against a public servant. The said observation of the court below is wholly against facts and law. It was submitted that the alleged mischief of the respondent No.2 of demanding illegal gratification, forcibly snatching money from the revisionist and registration of false case against revisionist and his family members, cannot be said to have been committed in discharge of official duty. There is no nexus between the act of respondent No.2 and his official duty as a public servant, and thus, in the instant matter no sanction was required for registration of the case and investigation against respondent No.2. In this connection, learned counsel has placed reliance upon the following case laws:-
(i) State of U.P. Vs. Paras Nath Singh [2009 0 Supreme (SC) 925]
(ii) S.K. Zutshi and another Appellants Vs. Bimal Debnath and another Respondents [AIR 2004 Supreme Court 4174]
(iii) A. Sreenivasa Reddy Vs. Rakesh Sharma [2023 0 Supreme (SC) 989]
(iv) Dr S.M. Mansoori Vs. Surekha Parmar and others [(2023) 2 Supreme Court Cases (Cri) 761]
5. It was submitted that in view of the facts of the matter and the law pronounced in aforesaid cases, a case for investigation by police was made out and thus, the impugned order is liable to be set aside.
6. Per contra, learned A.G.A. has opposed the revision and argued that there is no illegality or perversity in the impugned order. Merely a vague allegation has been levelled that the respondent No.2 has demanded an amount of Rs.100,000/-from the revisionist. Whether the case registered against revisionist and his family members was false or otherwise, it can only be decided by the court concerned. At this stage, it cannot be said that a false case has been registered against revisionist. Further, he has a right to challenge the proceedings of alleged false case before higher Courts in accordance with law. The allegation that the respondent No.2 has snatched Rs.32,000/- from the revisionist and he was falsely shown arrested, is not reliable and the facts of the matter show that revisionist has moved the application under section 156 (3) CrPC merely because the respondent No.2 has done proceedings against him, wherein, the revisionist was arrested. Referring to facts of the matter, it was submitted that there is no illegality or perversity in the impugned order.
7. I have considered rival submissions and perused the record.
8. The legal position regarding exercise of powers under section 156(3) CrPC is well settled. In view of law laid down by the Division Bench of this Court in the case of Sukhwasi Lal vs. State of U.P. 2007(59) ACC 739, 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. It is also clear from the said case law that Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint case. The Magistrate / Court is not bound to pass order of investigation by police, even if such application discloses cognizable offence. The Magistrate / Court is required to apply its mind to find out whether the first information sought to be lodged by applicant had any substance or not. 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). 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.
9. 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."
10. Thus, dealing with application under Section 156(3) Cr.P.C., Magistrate is required to apply its mind to find out whether the first information sought to be lodged by the applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appear 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).
11. In the instant case, perusal of record shows that the revisionist has made allegations that one Ramnath and his sons have illegally taken over possession on his land and when revisionist objected, they have assaulted his family members but in that connection the police have registered merely a non-cognizable report and the respondent No.2 S.I. Suraj Singh brought the revisionist and his family members to police post Naushad and made a demand of Rs.100,000/- from revisionist. It was also alleged that on 16/05/2022 the respondent No.2 got lodged a false case against him and made demand of Rs.1,00,000/- and when he refused, a challani report under section 107, 116 Cr.P.C. was filed. It was further alleged that on 21.02.2022 the respondent No.2 has snatched Rs. 32,000/- from the revisionist and he was falsely arrested in a case. So far as the grievances of the revisionist regarding registration of alleged false cases or his alleged arrest in unjustified manner or submission of challani report under section 107, 116 Cr.P.C., are concerned, the revisionist has remedy to challenge those proceedings in accordance with law but it cannot be a ground for registration of case against the respondent No.2. Similarly, regarding registration of non-cognizable report, he may raise plea before the Magistrate concerned by moving application under Section 155 (2) Cr.P.C. So far as the allegation regarding demand of Rs.100,000/- from the revisionist and alleged snatching of Rs.32,000/- from revisionist is concerned, the same cannot be said to have been done in discharge of official duty. In case of S.K. Zutshi and another (supra) the Hon'ble Apex Court held that official duty implies that act or omission must have been done by the public servant in course of his service and said act or omission must have been performed as a part of duty which further must have been official in nature. But where such officer commits an act not in discharge of his duty and without any jurisdiction than the bar under section 197 CrPC is not attracted. Similarly, in case of Dr S.M. Mansoori (supra), the court observed that where a police official without any authority entered the house of appellant early in the morning and committed offences alleged against them, the such acts cannot be said to have been committed in discharge of official duty. In state of State of U.P. Vs. Paras Nath Singh (supra), similar observation was made. In case of A. Sreenivasa Reddy (supra), it was observed that there must be nexus between the act or omission and official duty of public servant to attract the provisions of Section 197 Cr.P.C. Applying the aforesaid position of law, in the instant matter the allegation of demand of Rs.100,000/- and snatching of Rs.32,000/- from revisionist by the respondent no.2, who was a police sub-inspector, cannot be said to have been committed in discharge of official duties nor there was nexus between the alleged act and his official duty. However, merely a bald allegation has been levelled that the respondent No.2 has made demand of Rs.100,000/- from the revisionist and that he has falsely arrested the revisionist and Rs.32,000/- were snatched from him. There is no allegation that after his arrest, the revisionist has raised such plea before the concerned Magistrate that while he was arrested Rs.32,000/- were snatched from him. The allegation lacs cogency and credibility.
12. Even if the provisions of 197 CrPC are not attracted, the Magistrate/Court is not bound to order of registration of a case and investigation by invoking provisions of section 156 (3) CrPC. As stated above, the Magistrate has to apply his mind whether allegation has any substance. In the instant matter, the allegations levelled by revisionist lack cogency and credibility. The veracity of allegations is doubtful. It is well settled that while dealing with under section 156 (3) CrPC the Magistrate/court is required to apply its mind as to whether the allegation levelled by revisionist have any substance or not.
13. In the instant matter, considering nature of allegations and all attending facts and circumstances of the matter, it cannot be said that the impugned order is suffering from any such material illegality or perversity so as to require any interference by this Court in criminal revision.
14. The criminal revision is dismissed.
Order Date :- 10.01.2024 Neeraj