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2008 DIGILAW 289 (ALL)

Siya Ram Agrahari v. State of U. P.

2008-02-07

SHIV SHANKAR

body2008
ORDER :- This petition under Section 482 of the Code of Criminal Procedure has been filed on behalf of the petitioner praying to set aside the impugned orders dated 16-1-2008 passed by the III Addl. Sessions Judge, Room No. 3, Sultanpur and 14-8-2006 passed by Addl. Chief Judicial Magistrate, Sultanpur, whereby the application moved under Section 156 (3), Cr. P.C. on behalf of the opposite party No. 2 Smt. Aarati Ojha was allowed by the concerned Magistrate and concerned police was directed to register and investigate the case against the petitioner. 2. Heard learned counsel for the petitioner and learned A.G.A. as well as perused the materials available on records. 3. Learned counsel for the petitioner has contended that the petitioner is owner in possession of Agrahari Complex situate at H.A.L. Gate No. 2, P. S. Munshiganj, district Sultanpur which has been constructed on the land so purchased by the petitioner from one Ramjas in the year 1999. The opposite party No. 2, who was given one room in the premises of the petitioner for some time, tried to grab the property and that on 19-6-2006, the petitioner asked the opposite party No. 2 and her family members for vacating the premises then they assaulted the petitioner and caused injury on the body of the petitioner. Thereafter the petitioner lodged a F.I.R. on 19-6-2007 for the offence under Sections 147, 148, 149, 323, 504 and 506, IPC at Police Station Munshiganj, district Sultanpur. After lodging of the F.I.R., the husband of the opposite party No. 2 filed Civil Suit No. 622 of 2006 on 1-7-2007. In the aforesaid civil suit, a commission was sent on the spot and the commission report shows that on the premises, there is possession of the petitioner. Thereafter, the opposite party No. 2 filed an application under Section 156 (3), Cr. P.C. alleging offences against the petitioner and two others, namely, Rakesh and Ramesh on 6th July, 2007 i.e. subsequent to the filing of the civil suit and the allegations, which are contained in the application under section 156(3), Cr. P.C. are totally absent in the plaint and, therefore, the allegations under Section 156(3), Cr. P.C. levelled by opposite party No. 2 are proved to be false prima facie and it seems that she has filed application under Section 156 (3), Cr. P.C. are totally absent in the plaint and, therefore, the allegations under Section 156(3), Cr. P.C. levelled by opposite party No. 2 are proved to be false prima facie and it seems that she has filed application under Section 156 (3), Cr. P.C. as a counter blast to the first information report lodged by the petitioner. It is further contended that on the said application, the local police of the concerned police station filed its report which does not support the allegations made in the said application moved under Section 156 (3), Cr. P.C. However, the concerned Magistrate has allowed the application without application of mind and not according to law. Learned counsel for the petitioner has further contended that the impugned order for registering and investigating the case passed by the court below is a judicial order and not an administrative order in nature. The same has been held in the decision of this Court in Sukhwasi v. State of U.P. in Criminal Misc. Application No. 9297 of 2007 decided on 18-5-2007 : (2007 (4) ALJ (NOC) 672) by Honble R. K. Rastogi, J. In such circumstances Honble Mr. Justice Vinod Prasad could not deem such order as administrative in nature. It is also contended that there is a Division Bench decision of the Court i.e. Ajai Malviya v. State of U.P., (2000 (41) ACC 435 : (2000 All LJ 2730) wherein such order deemed as judicial order and the criminal revision is also maintainable and the decision of Honble Mr. Justice Vinod Prasad could not overrule the Division Bench case. It is further contended that in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, (1998) 5 SCC 749 : (1997 All LJ 2406) it was held that petition may be taken either under Article 226 of the Constitution of India or under Section 482, Cr. P.C. Therefore, the petition is also maintainable according to the decision of the Apex Court, It is a case of civil dispute. The said application was moved for the purpose of counter blast as an F.I.R. has already been registered against the opposite party No. 2 including others. Therefore, the order will be deemed as Judicial order and it can be challenged in the petition under Section 482, Cr. P.C. and the same has not been passed by the court below according to law. 4. Therefore, the order will be deemed as Judicial order and it can be challenged in the petition under Section 482, Cr. P.C. and the same has not been passed by the court below according to law. 4. Section 303 of the Code of Criminal Procedure is not applicable in the present case as argued by the learned counsel appearing on behalf of the petitioner. In the present case, an application under Section 156 (3), Cr. P.C. was moved on behalf of opposite party No. 2 Smt. Aarati Ojha against petitioner which was allowed by the concerned Magistrate and the order to register and investigate the case was passed. The said order was challenged by way of filing a revision which too was dismissed. Both the orders have been challenged by way of filing this petition under Section 482, Cr. P.C. by the petitioner, who is the prospective accused. The impugned order under Section 156 (3), Cr. P.C. is a pre-cognizance order as has been held in Suresh Chandra Jain v. State of Madhya Pradesh and another, 2001 (42) ACC 459 : ( AIR 2001 SC 571 ). The prospective accused in the application under Section 156 (3), Cr. P.C. does not have any power to challenge an order of registering the first information report and investigation of the case. The above view of the Apex Court has been followed in a decision of this Court rendered by Hon. Vinod Prasad, J. in the case of Smt. Rekha Verma and others v. State of U.P. and others, reported in 2007 (57) ACC 241 : (2007 (1) ALJ (NOC) 123). The same view has also been taken in a decision of this Court in the case of Chandan v. State of U.P. and others reported in 2007 (57) ACC 508 : (2007 (1) ALJ (NOC) 7). In this decision, the Division Benchs case of Ajai Malviya v. State of U.P. 2000 (41) ACC 435 : (2000 All LJ 2730) has been considered and distinguished by his Lordship by enumerating several reasons. The law precedent shows that if the earlier decision has been considered and distinguished, in such circumstances, the latest decision will prevail. Therefore, no benefit can be given to the petitioner regarding the decision of Ajai Malviyas case. The law precedent shows that if the earlier decision has been considered and distinguished, in such circumstances, the latest decision will prevail. Therefore, no benefit can be given to the petitioner regarding the decision of Ajai Malviyas case. It has also been observed in the decision of Vishwanath and others v. State of U.P. and another reported in 2007 (1) JIC 134 (All) that a prospective accused has got no right to challenge order of registration and investigation as he has got no right to be heard at that stage. In para 22 of the decision in the case of Chandan v. State of U.P. (supra) as under :- "....No doubt, as has been held by me hereinbefore, that the order under section 156(3) Cr. P.C. is a judicial order but it is administrative in nature because of its placement under chapter XII, Cr. P.C. relating to power of the police to investigate a matter." 5. Therefore, it had already been observed in this decision that the order passed under section 156 (3), Cr. P.C. is the judicial order but it is administrative in nature. In such circumstances, the impugned orders passed under Section 156 (3), Cr. P.C. cannot be interfered with in a petition filed under Section 482, Cr. P.C. on behalf of the prospective accused. 6. So far as the decision in the case of Pepsi Foods Ltd. and another v. special Judicial Magistrate and others, (1998) 5 SCC 749 : (1997 All LJ 2406) is concerned, it is well settled principle that a petition under Article 226 of the Constitution of India can be treated after registering the FIR. In the present case, the FIR has not yet been registered as submitted by learned counsel for the petitioner. After registering the case, it will be open to the petitioner to seek remedy under Article 226 of the Constitution of India. Therefore, no interference can be made with the impugned order passed by both the courts below. 7. In view of the discussion made above, this petition is liable to be dismissed. 8. Consequently, it is hereby dismissed. Petition dismissed.