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Allahabad High Court · body

2020 DIGILAW 1324 (ALL)

Pervez Saifi v. State Of U. P.

2020-11-11

RAJ BEER SINGH

body2020
JUDGMENT : 1. This Criminal Revision has been filed against the order dated 06.10.2020 passed by Civil Judge, (Junior Division)/Judicial Magistrate, Shamli in Misc. Case No. 252/11 of 2020 (Parvez Safi Vs. Rajendra Kumar & others) under Section 156 (3) Cr.P.C. Police Station Thana Bhawan, District Shamli. 2. Heard learned counsel for revisionist and learned AGA for State. 3. It has been argued by learned counsel for revisionist that impugned order is against facts and law and thus, liable to be set aside. It was submitted that the application filed by revisionist under Section 156(3) Cr.P.C. discloses commission of cognizable offence but it has been rejected without considering relevant facts and law. Learned counsel submitted that the application was mainly rejected on the ground that the court at Kairana, District Shamli has no territorial jurisdiction to entertain this application, whereas the agreement between the parties was executed at Shamli and thus, the alleged transaction between the parties has taken place partly within the jurisdiction of the court of District Shamli and thus, the court below has jurisdiction to pass an order for investigation by police. Learned counsel submitted that impugned order is against facts and law and thus, liable to be set aside. 4. Learned AGA has submitted that there is no illegality or perversity in the impugned order. 5. Law regarding jurisdiction under Section 156(3) Cr.P.C. is well settled. Power under Section 156(3) Cr.P.C. has to be exercised by Magistrate judicially on proper grounds and not in a mechanical manner. If application does not indicate that any evidence is required to be collected and preserved and applicant is familiar with names of accused persons and witnesses then in such a case, no investigation by police may required. 6. Whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156 (3) Cr.P.C. containing allegation of commission of a cognizance offence is no more a 'res-integra', as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. In the case of Smt. Masuman vs. State of U.P. & others 2007 (1) ALJ 221 and some other cases, the single judges of the Court have taken a view that if the application under section 156 (3) Cr.P.C. discloses the commission of a primafacie cognizable offence, then it is obligatory for the magistrate to direct investigation after registration of the FIR on the basis of that application. 7. Disagreeing with this view, the following question was referred to the larger Bench for decision in the case of Sukhwasi vs. State of U.P. (supra) "Whether the Magistrate is bound to pass an order on each and every application under section 156(3) Cr.P.C. containing allegations of commission of a cognizable offence for registration of the FIR and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases" 8. After having considered the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi vs. State of U.P. has answered the question 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." 9. Thus, it is apparent that Magistrate is not bound to pass order of investigation by police, even if such application discloses cognizable offence. The Magistrate is required to apply its mind to find out whether the first information sought to be lodged by applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appears 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. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appears 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). 10. 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. 11. 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." 12. It was also observed by Hon'ble Apex Court that in matters pertaining to matrimonial dispute/family matters, commercial offence, medical negligence cases, corruption cases and in the cases where there is abnormal delay, the Magistrate may even conduct preliminary enquiry to ascertain whether information reveals any cognizable offence. 13. In the instant case, the gist of allegations of revisionist is that he has got done the mechanical work in factory of private respondents at NOIDA and the agreement for doing the work was executed at Shamli, but the payment of said work was not made by the private respondents. 13. In the instant case, the gist of allegations of revisionist is that he has got done the mechanical work in factory of private respondents at NOIDA and the agreement for doing the work was executed at Shamli, but the payment of said work was not made by the private respondents. The perusal of impugned order and the application filed by revisionist under Section 156(3) Cr.P.C. shows that the dispute between the parties pertains about business transaction and nature of allegation is civil in nature. Irrespectively of the fact whether the court below has territorial jurisdiction or not, it is quite apparent that the matter in dispute is of civil nature and no such cognizable offence is made out so as to require any investigation by police. In view of above, it cannot be said that rejection of application filed by revisionist under Section 156(3) Cr.P.C. is against facts and law. 14. The instant Criminal Revision is, accordingly, dismissed.