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Allahabad High Court · body

2019 DIGILAW 2678 (ALL)

Gyan Prakash Upadhyay v. State Of U. P.

2019-12-02

ANIRUDDHA SINGH

body2019
JUDGMENT : 1. Heard Sri Gyanendra Mishra, learned counsel for the petitioner and Sri Santosh Kumar Mishra, learned A.G.A. for the State. 2. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India to quash the impugned order dated 16.7.2019 passed by learned Chief Judicial Magistrate, Court No. 6, Sultanpur on the application moved by the petitioner u/s 156(3) Cr.P.C. as well as revisional court order dated 13.8.2019 passed by District & Session Judge, Sultanpur whereby application u/s 156(3) Cr.P.C. moved by petitioner was treated as complaint case by trial court and revision filed by the petitioner was also dismissed. 3. Learned counsel for the petitioner submitted that impugned order is against law and fact and has been passed without applying judicial mind. Learned Magistrate has treated the application u/s 156(3) Cr.P.C. moved by the petitioner as complaint case without looking into the facts and circumstances of the case and revision was also dismissed. 4. Learned A.G.A. opposed the prayer and submitted that learned Magistrate has power to treat the application moved u/s 156(3) Cr.P.C. as complaint case. 5. In a nutshell, facts of the case are that application u/s 156(3) Cr.P.C. was moved by petitioner/complainant against opposite parties no. 2 to 5 alleging that they cheated him. On that application, impugned order was passed and that was treated as complaint case, date was fixed on 18.8.2019 for recording statement under Section 200 Cr.P.C. Hence this petition. 6. The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India, it provides power to the High Court to issue writ in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari and under Article 227 of Constitution of India, power of Superintendence over all courts by the High Court without prejudice to the generality of the foregoing provisions the High Court may make and issue general rule and prescribe forms or regulating the practice and proceedings of such courts. 7. At this juncture, it would be proper to quote the Section 190 Cr.P.C. which is as under: ‘190. Cognizance of offences by Magistrates. 7. At this juncture, it would be proper to quote the Section 190 Cr.P.C. which is as under: ‘190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.’ 8. According to Section 190 Cr.P.C. learned Magistrate has power to take cognizance on the conditions given in Section 190 (1)a, b & c of Code of Criminal Procedure. Hence he has full power to take cognizance on an application moved by complainant under Section 156(3) Cr.P.C. as complaint case. 9. In the case of Sukhwasi Son Of Hulasi vs State Of Uttar Pradesh 2008 CriLJ 472, Division Bench of this Court has held that Magistrate has discretionary power to treat application u/s 156(3) Cr.P.C. as complaint case. In this case, there was simple question involved whether Magistrate has power to treat the application moved u/s 156(3) Cr.P.C. as complaint case or not. 10. Considering the law laid down in Criminal Misc. Application No. 6152 of 2006, Smt. Masuman Vs. State of U.P. and 19 others, Ram Babu Gupta [2001 (43)ACC, 201], Chandrika Singh Vs. State of UP and other [2007 (58) ACC,777], Criminal Misc. Application No. 7484 of 2004, Mohan Shukla and others Vs. State of U.P. and in Criminal Misc. Application NO. 671 of 2007, Ram Sabad Vs. Sessions Judge, Bahraich and others, held by division bench of Allahabad High Court that the Magistrate is empowered under Section 190 Cr.P.C. to treat an application u/s 156(3) Cr.P.C as a complaint case. 11. Observations made by Division Bench of Allahabad High Court is reproduced as under: ‘The reference is, therefore, answered in the manner that 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. 11. Observations made by Division Bench of Allahabad High Court is reproduced as under: ‘The reference is, therefore, answered in the manner that 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. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under Section 156(3) Cr.P.C. as a complaint.’ 12. Hence, it is settled law that Magistrate has discretionary power to treat the application moved under Section 156(3) Cr.P.C. as complaint. 13. It is also pertinent to mention here that by the impugned order, no prejudice is caused to the petitioner. He has full opportunity to argue the plea/points raised in this Court, before the trial court. Hence alternative remedy is available to the petitioner. 14. The view taken by Courts below is plausible view, hence no interference is called for by this Court. 15. Having regard to the facts and circumstances of the case and having considered the submissions made by the learned counsel for the petitioner, the Court is of the view that no case is made out to interfere with the impugned order. There is no infirmity or illegality in the said order. The prayer made in the writ petition is refused. 16. The present writ petition is dismissed, accordingly. 17. Copy of this order be sent to the Court concerned within ten days for information and compliance.