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2023 DIGILAW 1261 (ALL)

Rameshwari v. State Of U. P.

2023-05-08

JYOTSNA SHARMA

body2023
JUDGMENT : 1. Heard Sri Arvind Kumar Dixit, learned counsel for the revisionist, Sri Brijesh Kumar Srivastava, Advocate holding brief for Sri Rajendra Kumar Srivastava, learned counsel for the respondent nos. 2 to 6 and Sri O.P. Mishra, learned AGA for the State. 2. This criminal revision has been filed on behalf of the revisionist challenging the order dated 09.01.2023 passed by Special Judge, (POCSO Act)/Additional District and Session Judge, Firozabad in Criminal Misc. Case No. 1910 of 2022 (Rameshwari vs. Rabul and others) rejecting the application under Section 156(3) Cr.P.C. 3. The relevant facts are as below:- The complainant/the first informant Rameshwari filed an application under Section 156(3) Cr.P.C. naming 5 persons therein with the allegation that her minor daughters were intercepted by 3 persons with malafide intention and were molested; when they protested, all the 3 persons namely, Rabul, Dinesh and Kuldeep ran away; the same evening the applicant i.e. the mother of the victims complained to mother of Dinesh but they began abusing them; Kalicharan exhorted his sons to teach them a lesson and they assaulted the applicant and her daughters and also tore away the clothes of one of them; it is further alleged in the application that the applicant tried to lodge an FIR but the police did not take any action, therefore she sent an application to the S.S.P. but no action has been taken till now. 4. It is contended on behalf of the revisionist that from the allegations in the application under Section 156(3) Cr.P.C., a cognizable case is disclosed; the learned Special Judge, (POCSO Act) has passed the order in arbitrary manner without considering the facts as alleged; my attention has been drawn to para no. 2 of the order where a line written appears to be rather incomplete; on the basis of this fact the order is being assailed as having passed in a casual and cavelier manner. 5. 2 of the order where a line written appears to be rather incomplete; on the basis of this fact the order is being assailed as having passed in a casual and cavelier manner. 5. The revision is opposed by the other side submitting that incomplete sentence occuring in a portion of the impugned order on which the attention of the court has been attracted, prima facie appears to be a typing mistake; it is further submitted on behalf of the respondents that the order is speaking; the material facts have been discussed in last para of the 2nd page of the order; the real facts are that this application has been filed just to create a defence; actually a day after the alleged incident the respondents were challaned under Sections 151, 107 and 116 Cr.P.C. on the application of the present revisionist and proceeding under Section 107/116 Cr.P.C. was drawn against the rest of the two respondents; nothing happened beyond the facts calling for an action by the police under Sections 151, 107 and 116 Cr.P.C.; this application has been given with false and distorted facts to wreck vengeance by making false assertions. This application is nothing but a clear attempt to misuse the law. 6. Learned AGA has contended that the correct position of law is that police officials ought to register the F.I.R. whenever facts brought to its notice show that cognizable offence has been made out. In case the police fails to do so, the modalities to be adopted, are as set out in Section-190 read with Section-200 of the Code of Criminal Procedure as held in Aleque Padamsee vs. Union of India, 2007 (3) ILR 469. 7. I went through all the material on record. The Magistrate/court concerned cannot be expected to act upon an application in a mechanical manner. He shall be failing in his duty in case he fails to apply his mind. Settled position of law is that the Magistrate shall order for registration of a case if application 'discloses' commission of cognizable offence. In my view, the disclosure of cognizable offence cannot be construed to mean replication of words or the facts in such a manner as may fit within four corners of an offence defined in statutes. Settled position of law is that the Magistrate shall order for registration of a case if application 'discloses' commission of cognizable offence. In my view, the disclosure of cognizable offence cannot be construed to mean replication of words or the facts in such a manner as may fit within four corners of an offence defined in statutes. This is a common knowledge that applications under Section 156(3) Cr.P.C. may be drafted cleverly and may be dotted with sham assertions or half truths with legal advice, so as to persuade the courts to spring into action. If such a narrow and short sighted interpretation is done, it will be like playing in the hands of unscrupulous litigant. While passing an order on application under Section 156(3) Cr.P.C. the court is expected to apply its judicial mind. He is expected to be judicious, discreet and cautious and not to be swayed by mere use of certain words and legal terminology. He can certainly look for substance in the allegations and existence of life in the assertions. 8. It may usefully be noted that that despite dismissal of the application under Section 156(3) Cr.P.C. the revisionist/complainant still has certain remedies open in law. 9. It is not so that once application under section-156(3) Cr.P.C. has been filed, the Magistrate has no option but to order for registration of F.I.R. just because it discloses a cognizable offence on paper irrespective of the broad probabilities of the case. In my view the concerned court has applied judicial discretion correctly; As far as incomplete sentence in para no. 2 of the order is concerned, prima facie it appears that it is just a typing mistake which does not effect the merits of the matter. 10. There does not appear sufficient ground calling for intervention in the order by this court in exercise of revisional powers, therefore this criminal revision is dismissed.