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2023 DIGILAW 669 (ALL)

Jagdish Prasad Saroj v. State of U. P.

2023-03-04

RAJ BEER SINGH

body2023
JUDGMENT : 1. Counter affidavit filed by learned counsel for the respondent No. 6, is taken on record. 2. Heard learned counsel for the appellant, learned counsel for the respondent Nos. 2 to 5, learned counsel for respondent No. 6 and learned A.G.A. for the State. 3. This criminal appeal has been preferred against the order dated 25.08.2022, passed by the learned Special Judge, (SC/ST Act)/Additional Sessions Judge, Court No. 2, Bhadohi, Gyanpur in criminal case no. 114 of 2022, whereby the application filed by appellant under Section 156(3) Cr.P.C. has been registered as a complaint case. 4. It has been argued by learned counsel for the appellant that impugned order is against the facts and law and thus liable to be set aside. In his application under Section 156(3) Cr.P.C., the appellant has made allegations that the private respondents have abused the appellant by using caste indicative words and they have assaulted him and that in the alleged incident, the appellant has sustained as many as 11 injuries and thus a cognizable offence was made out but the court below did not make direction for investigation by police and instead registered the said application under Section 156(3) Cr.P.C. as complaint. Referring to the facts of the matter, it was submitted that the medical examination of appellant was conducted after four days of the incident on the direction of District Magistrate, Bhadohi. It was submitted that in view of facts and circumstances of the case, it was necessary that court below must have passed an order for investigation of the matter by police and thus the court below committed error by registering the said case application under Section 156(3) Cr.P.C. as a complaint. 5. Learned counsel for private respondents have opposed the appeal and argued that the application under Section 156(3) Cr.P.C. was filed by the appellant making false and baseless allegations. It was pointed out that regarding the said application, police have submitted report before the court, wherein, it was mentioned that the allegations made in the application are false and no incident of assaulting the appellant has taken place and that the application was moved by the appellant to exert undue pressure upon respondents regarding land dispute. It was submitted that there is no illegality or perversity in the impugned order. Learned counsel for respondents also placed reliance upon the case of Naresh Kumar Valmiki Vs. It was submitted that there is no illegality or perversity in the impugned order. Learned counsel for respondents also placed reliance upon the case of Naresh Kumar Valmiki Vs. State of U.P. and others (Application U/s 482 No. 14443 of 2022), decided on 17.10.2022. 6. I have considered the rival submissions of learned counsel for the parties and perused the record. 7. Law regarding jurisdiction under Section 156(3) is well settled. In case of Sukhwasi vs. State of U.P., 2007 (59) ACC 739, after considering 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 of this court has held 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. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appear 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. It was also held that 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. Similarly, in case of Naresh Kumar Balmiki (Supra), it was held that even in cases, where commission of an offence under SC/ ST Act is alleged, the special Judge (SC/ST Act) can register an application under Section 156(3) Cr.P.C. as a complaint case. 8. It is well settled that while dealing with application under Section 156(3) Cr.P.C., Magistrate/court is required to apply its mind to find out whether the first information sought to be lodged by the appellant had any substance or not. Magistrate is not bound to pass an order of investigation as a matter of course but the discretion has to be exercised judicially. Magistrate is not bound to pass an order of investigation as a matter of course but the discretion has to be exercised judicially. 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 can treat such application as complaint. However, it does not mean that in a case where facts and circumstances show that investigation by police is warranted, would also be registered as a complaint case. Each case has to be considered in specific facts and circumstances of that case. The discretion under Section 156(3) Cr.P.C. has to be exercised judicially. Recently in the case of XYZ Vs. State of M.P., 2022 LiveLaw(SC) 676, Hon’ble Apex Court has held as under : 22. In the present case, the narration of facts makes it clear that upon the invocation of the jurisdiction of the Magistrate under Section 156(3) of CrPC, the JMFC came to the conclusion that serious allegations had been levelled against the accused by the appellant and, that, from a perusal of the documents in this regard, the statements of the complainant were satisfactory. After taking note of the fact that the police had at an earlier stage reported that the occurrence of an incident or offence was not found, the JMFC opined that, from the facts which were set out by the complainant in the complaint, prima facie, the occurrence of an offence was shown. 23. It is true that the use of the word “may” implies that the Magistrate has discretion in directing the police to investigate or proceeding with the case as a complaint case. But this discretion cannot be exercised arbitrarily and must be guided by judicial reasoning. An important fact to take note of, which ought to have been, but has not been considered by either the Trial Court or the High Court, is that the appellant had sought the production of DVRs containing the audio-video recording of the CCTV footage of the then Vice-Chancellor’s (i.e., the second respondent) chamber. An important fact to take note of, which ought to have been, but has not been considered by either the Trial Court or the High Court, is that the appellant had sought the production of DVRs containing the audio-video recording of the CCTV footage of the then Vice-Chancellor’s (i.e., the second respondent) chamber. As a matter of fact, the Institute itself had addressed communications to the second respondent directing the production of the recordings, noting that these recordings had been handed over on his oral direction by the then Registrar of the Institute as he was the Vice-Chancellor. Due to the lack of response despite multiple attempts, the Institute had even filed a complaint with PS Gole Ka Mandir on 29 October 2021 for registering an FIR against the second respondent for theft of the DVRs. 24. Therefore, in such cases, where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint but also such facts are brought to the Magistrate’s notice which clearly indicate the need for police investigation, the discretion granted in Section 156(3) can only be read as it being the Magistrate’s duty to order the police to investigate. In cases such as the present, wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation.” 9. In the instant case, perusal of record shows that the appellant has filed an application under Section 156(3) Cr.P.C., alleging that all the five accused persons/private respondents have abused him by using caste indicative words and assaulted him and resultantly, he has sustained injuries. As per the medical examination report, appellant/complainant has sustained as many as 11 injuries. In his application under Section 156(3) Cr.P.C., the appellant has clearly stated that he is a member of scheduled caste and that he has no resources to contest the proceedings in complaint case, as in complaint case the complainant is required to deposit sufficient amount for examination of the concerned doctor as witness. The appellant has also stated that all the accused persons/private respondents have abused him by using caste indicative words like 'Chamar', 'Siyar', 'Suar' etc. The appellant has also stated that all the accused persons/private respondents have abused him by using caste indicative words like 'Chamar', 'Siyar', 'Suar' etc. In view of the facts and circumstances of the case, particularly considering the injury report of the appellant, it was quite desirable that the court below must have exercised jurisdiction under Section 156(3) Cr.P.C. for directing the police to register the case and investigate the matter. Merely because the court has jurisdiction to register an application under Section 156(3) Cr.P.C. as a complaint case, does not mean that each and every such application under Section 156(3) Cr.P.C. has to be registered as a complaint case, without considering the nature of allegations and the desirability of investigation. It appears that the learned Special Judge did not consider the facts and law in correct perspective and committed error by declining the prayer for investigation by police and by registering the application under Section 156(3) Cr.P.C. as a complaint case and thus, the impugned order is liable to be set aside. 10. In view of aforesaid the impugned order dated 25.08.2022 is set aside and matter is remitted back to the court below and reconsider the matter and pass an order on application under Section 156(3) Cr.P.C. afresh in accordance with law and keeping in view the observations made in this order. 11. The appeal is allowed in above terms.