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2021 DIGILAW 1404 (ALL)

Anil Kumar v. State of U. P.

2021-11-25

VIKAS BUDHWAR

body2021
JUDGMENT : 1. Heard Sri Arvind Nath Agrawal, learned counsel for the applicant and Sri K.K. Rajbhar, learned counsel, who appears for the opposite party No.1. 2. The applicant has filed present application purported to be under Section 482 Cr.P.C. challenging the order dated 7.6.2019 passed in Complaint Case No.519 of 2019, Anil Kumar Vs. Akram Guddu Mistri and others, under Sections 419, 420, 466, 467, 471, 120(B), 34, 406 I.P.C. against opposite parties no.2, 3 & 4 as well as the order dated 20.8.2019 passed in Criminal Revision No.115 of 2019, Anil Kumar Vs. Akram Guddu Mistri and others, under Section 397 Cr.P.C. passed by Additional District and Sessions Judge, Court No.8, Jhansi. 3. According to the applicant Gata No.313 Rakba 0.24 hectare situate in Village Mau, Tehsil Mauranipur, which is recorded as Pokhar in the revenue records. However, the opposite parties have illegally encroached the said Pokhar and have constructed Panchyat Bhawan over it. 4. In the nutshell, according to the applicant, opposite party no.2 is a Gram Prdhan, opposite party no.3 is a Lekhpal and opposite party no.4 is a Gram Panchayat Adhikari, who convinced each-other, have illegally encroached the said piece of land which has been recorded as Pokhar for the purposes of construction of Panchayat Bhawan after passing illegal and unwarranted resolution in this regard. 5. As per the case set forth by the applicant, the applicant preferred an application under Section 156(3) Cr.P.C. before the C.J.M. Jhansi for issuance of an appropriate direction for lodging an FIR under Sections 419, 420, 466, 467, 471, 120(B), 34, 406 I.P.C. which was numbered as Case No.519 of 2013, Anil Kumar Vs. Akram Guddu Mistri and others. The application so preferred by the applicant before C.J.M. Jhansi came to be rejected by virtue of passing an order dated 7.6.2019. 6. The applicant being aggrieved against the order dated 7.6.2019 preferred a revision which was numbered as Criminal Revision No.115 of 2019, Anil Kumar Vs. Akram Guddu Mistri and others. A copy of memo of revision has been annexed as annexure-5 to the application. That the court of Additional District and Sessions Judge, Court No.8, Jhansi has now passed an order dated 20.8.2019 rejecting the revision so preferred by the applicant upholding and affirming the order dated 7.6.2019. 7. The applicant now is before this Court challenging the aforesaid both orders. 8. That the court of Additional District and Sessions Judge, Court No.8, Jhansi has now passed an order dated 20.8.2019 rejecting the revision so preferred by the applicant upholding and affirming the order dated 7.6.2019. 7. The applicant now is before this Court challenging the aforesaid both orders. 8. Before proceeding further this Court finds necessary to quote provisions contained under Section 154 and Section 156 of the Code of Criminal Procedure which reads as under: “154. Information in cognizable cases. (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.” “156. Police officer's power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.” 9. Sub-section (1) of Section 154 Cr.P.C. itself provides that every information relating to commission of cognizable offence, if given orally to an officer-in-charge of a police station shall be reduced to writing by him or under his direction and to read over to the informant and every such information whether given in writing or reduced to writing shall be signed by a person giving it and the substance thereof shall be entered in the book to be kept by the officer. 10. Further Sub-section (3) of Section 154 itself mandates that any person aggrieved by a refusal on the part of an officer-in-charge of police station to record the information referred to in Sub-section (1) may send the substance of the information in writing and by post to Senior Superintendent of Police concerned, who have satisfied that such information discloses the commission of cognizable offence shall either investigate case himself and direct an investigation to be done by a police officer subordinate to it. 11. Thus two opportunities have been provided under Section 154 of the Cr.P.C. at first instance before the concerned police authorities at the concerned police station and secondly before the Senior Superintendent of Police. 12. In case the officer-in-charge of the police station and also the Senior Superintendent of Police does not register the FIR on the basis of the information of the informant regarding commission of cognizable offence then under Section 156(3) of the Cr.P.C. Magistrate may direct for lodging of the FIR. 13. The issue with respect to exercise of powers under Section 156(3) of the Code of Criminal Procedure has also been taken note in the case of Priyanka Srivastava and Ors. vs. State of U.P. and Ors. reported in AIR 2015 SC 1758 wherein para 26 and 27 following has observed:- “26. 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. reported in AIR 2015 SC 1758 wherein para 26 and 27 following has observed:- “26. 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. 27. In our considered opinion, a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or Under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications Under Section 154(1) and 154(3) while filing a petition Under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application Under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate Under Section 156(3). It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate Under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.” 14. The Full Bench of this Hon'ble Court in Criminal Misc. Writ Petition No.3672 of 2000 decided on 27.4.2001, Rambabu Gupta Vs. State of U.P. in para 17 observed as under:- “17. In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate's order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter XV of Cr.P.C. The first question stands answered thus.” 15. Yet a Division Bench of this Court in Criminal Misc. Application No.9297 of 2007 decided on 18.9.2007. A Division Bench of this Court in the case of Sukhbali Vs. State of Uttar Pradesh reported in 2007 (59) ACC 739 in para 22 has observed as under:- “22. Applications under Section 156(3) Cr.P.C. are now coming in torrents. Provisions under Section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice, which warrants a direction to the Police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) Cr.P.C.” 16. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) Cr.P.C.” 16. A judicial notice has been taken by this Court in the case of Sukhbali (Supra) that applications under Section 156(3) Cr.P.C. are now coming in torrent and thus exercise of the powers under Section 156(3) Cr.P.C. should be used sparingly and not in routine manner. 17. Admittedly, in the present case, the applicant had preferred an application under Section 156(3) Cr.P.C. for the purposes of issuance of a direction for lodging an FIR against opposite parties no. 2 to 4. The application so preferred by the applicant came to be rejected by virtue of order dated 7.6.2019. The applicant being aggrieved against the same, preferred a revision no. 115 of 2019 which ultimately may be with the same fate. 18. Both the courts below have recorded a categorically findings of fact that the land in question which is being sought to be allotted by the applicant to be a Pokhar and which is being used by the opposite party nos. 2 to 4 for the purposes of construction of Panchayat Bhawan is a matter within realm and purview of civil proceedings. Even in fact both the courts below have also taken notice of the provisions contained under the U.P. Land Revenue Code, 2006 (In short 'Code, 2006') which is containing the provision with respect to dealing with those contingencies whereat the public land is being sought to be encroached or misappropriated by any person. 19. The issue in the present case can also be seen from another point of angle that here the land is being used for construction of a Panchayat Bhawan over a public land. It is not a case wherein the land is being alienated or transferred in favour of any private person but it is for a public purpose. 20. Needless to point out that it is admitted case of the applicant himself that certain resolutions have been passed for the purposes of construction of Panchayat Bhawan which implies that they are the subject matter of civil proceedings which cannot be given tinch. 21. Nevertheless, it is not a case wherein the applicant is remedyless as the entire mechanism as contained under the Code, 2006 is also available to him. 22. 21. Nevertheless, it is not a case wherein the applicant is remedyless as the entire mechanism as contained under the Code, 2006 is also available to him. 22. As already observed held by the Apex Court and this Court that an order under Section 156(3) Cr.P.C. for lodging an FIR cannot be granted or mere asking as in a given case whenever an application is filed for lodging an FIR under Section 156(3) Cr.P.C. then the Magistrate concerned has to apply his mind and accord a prima facie satisfaction as to whether the case warrants direction that order for lodging FIR. 23. Learned counsel for the applicant has relied upon a judgment in Criminal Revision No.4787 of 2005, Rajendra Singh Gurjer & others Vs. State of U.P. & another decided on 7.12.2017 so as to contend that in the disputes of the same nature, criminal proceedings can be instituted. 24. This Court after going through the judgement in the case of Rajendra Singh Gurje (Supra) does not find that the said case is applicable in the present facts of the case. As the facts of the said case are entirely different and no proposition of law so convinced by the applicant has been laid down. 25. Lastly, learned counsel for the applicant has drawn the attention of the court towards order dated 3.8.2021 passed in Application Under Section 482 No.13414 of 2021, Srikant Vs. State of Uttar Pradesh but the said judgment emanates from the issuance of notice, under Section 107/116 Cr.P.C. 26. Looking to the facts of the circumstances of the case as pleaded and canvassed by the learned counsel for the applicant, this Court does not find any legal infirmity in the orders passed dated 7.6.2019 and 20.8.2019 under challenge and hence the present application under Section 482 Cr.P.C. is liable to be dismissed. 27. No other point has been raised by learned counsel for the applicant. 28. Accordingly, the application is dismissed.