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Allahabad High Court · body

2007 DIGILAW 2315 (ALL)

Gulista v. State of U. P.

2007-09-10

SHIV SHANKAR

body2007
ORDER :- This criminal revision has been directed against the impugned order dated 30-7-2007 passed by the Civil Judge (Junior Division)/Judicial Magistrate, Gautam Buddh Nagar in Misc. Case No. 2 of 2007, Ahmad Hasan v. Kami and others by which the application moved under Section 156(3) of the Code of Criminal Procedure on behalf of opposite party No. 2 Hassan Ahmad was allowed and it was ordered to register and investigate the case. 2. Heard Sri Sunil Kumar, learned counsel appearing on behalf of revisionists and learned A.G.A. as well as perused the materials available on record. 3. Learned counsel for the revisionists has contended that a false case has been concocted against Kamli and other revisionists by opposite party No. 2 in the application moved under Section 156(3), Cr. P. C. It is further contended that first a complaint had to be filed before the concerned Magistrate upon which, the procedure under Chapter XV of the Code of Criminal Procedure was to be adopted. Thereafter, finding out a prima facie case, the procedure of Chapter XII of the Code of Criminal Procedure is to be adopted. Therefore, the impugned order has not been passed in accordance with the law. 4. It is further contended that the dispute had already been referred to the larger bench by Honble Mr. Justice R. K. Rastogi in Sukhwasi v. State of U. P., 2007 (5) ADJ 560 : (2007 (4) ALJ (NOC) 672) regarding the decision given by Honble Mr. Justice Vinod Prasad in the case of Smt. Masuman, etc. etc. v. State of U. P. and others. 2006 (8) ADJ 377 : 2007 (1) ALJ 221. Therefore, this matter be also preferred to the larger Bench and till then the protection be given to the revisionists. 5. It is further contended that the dispute in between both the parties can be decided by resorting the conciliation and mediation and till then the protection be also given to the revisionists. 6. On the other hand, learned A.G.A. has urged that the revision is not maintainable against the impugned order passed by the concerned Magistrate on the application moved under Section 156(3), Cr. P.C. 7. There are several pronouncements of the Apex Court that the Magistrate can pass order under Section 156(3), Cr.P.C. On the basis of disclosing the prima facie cognizable offence according to the facts mentioned in the application. P.C. 7. There are several pronouncements of the Apex Court that the Magistrate can pass order under Section 156(3), Cr.P.C. On the basis of disclosing the prima facie cognizable offence according to the facts mentioned in the application. Some of them are as under:- 1. T. Vengama Naidu v. T. Dora Swamy Naidu and Ors., JT 2007 (4) SC 240 : 2007 AIR SCW 4266. 2. Harischandra Prasad Mani and Ors. v. State of Jharkhand and Anr., JT 2007 (3) SC 229 : AIR 2007 SC 1117 . 3. Mohd. Yousuf v. Smt. Afq Jahan and Anr., AIR 2006 SC 705 . 4. Ram Swarup v. Mohd. Javed Razack and Anr., 2005 Cri LJ 1725 : AIR 2005 SC 2005 . 8. So far the decision of Apex Court in the case of Aleque Padamsee and others v. Union of India and others reported in (2007) 6 SCC 171 : (2007 AIR SCW 4783) is concerned, it relates regarding the complaints and writ petitions in such a case as not maintainable. Therefore, the Magistrate is empowered to pass an order under Section 156 (3), Cr.P.C. If the first information report is not registered by the Police under Section 154, Cr.P.C. for cognizable offence. In this view of the matter, the contention of the learned A.G.A. has much force that the order, passed under Section 156(3), Cr.P.C. In respect of registering and investigating the case, is an interlocutory order. Therefore, criminal revisions/petitions against such orders, are not maintainable. 9. It has been observed in the decision of this Court rendered by Honble Mr. Justice Vinod Prasad in the case of Ram Kishore Purohit v. State of U. P. and Ors. reported in 2007 (2) Judicial Interpretation on Crimes, 194 (Allahabad High Court) that the prospective accused does not have any right to say that Magistrate does not have any power to direct police to lodge the FIR for cognizable offence. It has also been observed in the decision rendered by Honble Mr. Justice Vinod Prasad in the case of Rakesh Kumar and Ors. v. State of U. P. and Ors. reported in 2007 (2) 191 (All) (sic) as under:- "The proposed accused cannot appear and say that the F.I.R. should not be registered against him of a cognizable offence. Once a cognizable offence is disclosed, it is the law that F.I.R. must be registered. v. State of U. P. and Ors. reported in 2007 (2) 191 (All) (sic) as under:- "The proposed accused cannot appear and say that the F.I.R. should not be registered against him of a cognizable offence. Once a cognizable offence is disclosed, it is the law that F.I.R. must be registered. Pre-registration of F.I.R., hearing is not contemplated under the Code of Criminal Procedure. The Code of Criminal Procedure does not give any right to anybody to challenge the registration of F.I.R. against him when he is alleged to have committed a cognizable offence. If allowed such a procedure will be against the statutory provision." 10. It has further been held in decisions of Apex Court in Amar Nath and Ors. v. State of Haryana and Anr., 1977 SCC (Cri.) 585 : AIR 1977 SC 2185 and Union of India v. W. N. Chadha, 1993 SCC (Cri.) 1171 : AIR 1993 SC 1082, that the revision is not maintainable. 11. Therefore, in view of the decisions of this Court, the revision is not maintainable against the order passed under Section 156(3), Cr.P.C. for registering and investigating the case. In such circumstances, the contention made by the learned counsel for the revisionists has no force. 11-A. So far as the second contention is concerned, it has been observed by Honble Mr. Justice Vinod Prasad in his judgment rendered in the case of Smt. Masuman v. State of U. P. and Ors. (supra) that no order can be passed on the application under Section 156 (3), Cr.P.C. Regarding treating the complaint and the application moved under Section 156(3), Cr.P.C. be allowed for ordering to register and investigate the case. This question has been referred to the larger Bench by Honble Mr. Justice R. K. Rastogi in the case of Sukhwasi v. State of U. P. (supra). In the present revision, the above question is not disputed. In the case in hand, the application moved under Section 156(3), Cr.P.C. has been allowed by the concerned Magistrate. In such circumstances, this question is not liable to be referred to the larger bench. 12. So far as the third question is concerned, the matter may be referred by resorting the proceedings of reconciliation and mediation. In the case in hand, the application moved under Section 156(3), Cr.P.C. has been allowed by the concerned Magistrate. In such circumstances, this question is not liable to be referred to the larger bench. 12. So far as the third question is concerned, the matter may be referred by resorting the proceedings of reconciliation and mediation. Therefore, the record of the case be put up before the Registrar, Reconciliation/Mediation Center, High Court, Allahabad who will issue notice to both the parties fixing a date to personally appear before him and will then refer the matter for reconciliatory proceedings. The conciliator is allowed two months time to go into the conciliatory proceedings between the parties but no further order regarding any protection can be passed. 13. For the reasons mentioned above, I am of the opinion that the criminal revision filed against the impugned order passed on the application moved under Section 156(3), Cr.P.C. is not revisable. 14. Consequently, the revision is hereby dismissed. Revision dismissed.