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2024 DIGILAW 232 (ALL)

Bharat Singh Kushawaha v. State of U. P.

2024-01-23

SURENDRA SINGH I

body2024
JUDGMENT : SURENDRA SINGH-I, J. 1. Heard Sri Ajay Sengar, learned counsel for the revisionist, Sri Subhash Gosain, Advocate, holding brief of Sri Gaurav Singh Tomar, learned counsel for the opposite party no. 2 and learned A.G.A. for the State. 2. This criminal revision has been filed against impugned order dated 22.03.2023 passed by Chief Judicial Magistrate, Jalaun at Orai in Criminal Misc. Case No. 19 of 2023 (Bharat Singh Kushwaha vs. Smt. Vijay Lakshmi @ Bulbul), Police Station Kotwali Orai, District Jalaun. 3. By the impugned order, learned Magistrate rejected the application u/s 156 (3) Cr.P.C. filed by the revisionist. 4. The revisionist/applicant, Bharat Singh Kushwaha, had filed application u/s 156 (3) Cr.P.C. on 17.01.2023 contending that his son, Gopal Krishna alias Rinku aged 32 years, was living from long duration separately from him with his wife Smt. Vijay Lakshmi @ Bulbul and his children. On 04.09.2022, Gopal Krishna alias Rinku, after working as electrician, returned to his house at 10.30 p.m. After sometime, the revisionist was informed that his son became unconscious. There were mark of injuries on his neck. He was taken to the hospital for treatment where the doctor declared him brought dead. His postmortem was done through police of Police Station-Kotwali Orai. His son’s wife, Smt. Vijay Lakshmi @ Bulbul, used to quarrel with him and insult him for sending half of his income to her matrimonial home. On the date of the incident, opposite party no. 2, Smt. Vijay Lakshmi @ Bulbul had quarrelled and insulted his son for sending half of his income to her matrimonial home. Due to the insult suffered by him, his son committed suicide by hanging. On 05.09.2022 and 24.09.2022, the revisionist/applicant submitted application to Police Station-Kotwali Orai and higher police authorities for registration of first information report but no F.I.R. was registered. The revisionist/applicant has submitted copy of Misc. Case No. 149 of 2022 dated 19.10.2022 (Smt. Vijay Lakshmi @ Bulbul and Another vs. Bharat Singh Kushwaha) filed u/s 372 of the Indian Succession Act, 1925. He has also filed his son’s Gopal Krishna alias Rinku postmortem report dated 05.09.2022, application dated 15.12.2022 sent to S.P. Jalaun for registration of F.I.R. newspaper cutting regarding death of his son by hanging. 5. He has also filed his son’s Gopal Krishna alias Rinku postmortem report dated 05.09.2022, application dated 15.12.2022 sent to S.P. Jalaun for registration of F.I.R. newspaper cutting regarding death of his son by hanging. 5. It has been submitted by learned counsel for the revisionist that the learned Magistrate passed the impugned illegal order without appreciation of evidence and without application of his mind. It has next been submitted that the learned Magistrate passed the impugned order on the basis of report sent by police station without considering the averments made in the application u/s 156 (3) Cr.P.C. It has also been submitted that the learned Magistrate passed the impugned order presuming that the application u/s 156 (3) Cr.P.C. was filed as a counterblast to the Misc. Case No. 149 of 2022 (Smt. Vijay Lakshmi @ Bulbul and Another vs. Bharat Singh Kushwaha) filed u/s 372 of the Indian Succession Act, 1925 by opposite party no. 2. It has also been submitted that from the basis of averments made in the application u/s 156 (3) Cr.P.C. and the documents filed in support thereof, prima facie, case u/s 306 and 201 I.P.C. was made out against opposite party no. 2 but by exceeding his jurisdiction, Magistrate illegally rejected the application. He has prayed for quashing the impugned order and directing the Magistrate to pass a fresh order on his application. 6. Per contra, learned counsel for the opposite party no. 2 has submitted that the learned Magistrate after considering the evidence on record and the provisions of the law has rightly passed the impugned order. It has next been submitted that there is no merit in the revision and it may be rejected. It has also been submitted that after the death of his first wife, the revisionist married another woman, Mithila Devi, who started quarrelling with husband of opposite party no. 2 over trivial matters. When her husband could not bear the family dispute, he decided to stay separately from his father/revisionist. In the meanwhile, the husband of opposite party no. 2 underwent depression due to quarrel with his father and consequently committed suicide by hanging himself on 04.09.2022. Last rites were performed by family members. The opposite party no. 2 moved an application on 15.10.2022 to the Branch Manager, IDBI Bank, Branch-Jalaun at Orai, requesting not to permit anyone to withdraw amount from the account no. 2 underwent depression due to quarrel with his father and consequently committed suicide by hanging himself on 04.09.2022. Last rites were performed by family members. The opposite party no. 2 moved an application on 15.10.2022 to the Branch Manager, IDBI Bank, Branch-Jalaun at Orai, requesting not to permit anyone to withdraw amount from the account no. 1483102000002219 of her deceased husband except with the permission of the court. The opposite party no. 2 filed a Misc. Case No. 149 of 2022 (Smt. Vijay Lakshmi @ Bulbul and Another vs. Bharat Singh Kushwaha) filed u/s 372 of the Indian Succession Act, 1925 for issuance of succession certificate to her and her minor son, Rishabh. When the revisionist came to know about the aforesaid misc. case, he threatened her with dire consequences. To pressurize her, the revisionist moved an application dated 15.12.2022 before S.P., Jalaun at Orai followed by application u/s 156 (3) Cr.P.C. dated 17.01.2023 before the court of Chief Judicial Magistrate, Jalaun at Orai arraigning opposite party no. 2 as accused. On the direction of the Magistrate, an enquiry was conducted and police report dated 22.01.2023 was submitted before him to the effect that false and fictitious allegations were levelled by the revisionist against opposite party no. 2. Meanwhile on 28.02.2023, the revisionist withdrew Rs.4,00,000/- from the account of the husband of opposite party no. 2. The opposite party no. 2 has filed true copy of the application dated 15.10.2022 given to the Branch Manager and statement of account of her husband’s account as Annexure Nos. C.A.1 and C.A.2 to her counter affidavit. In support of his arguments, learned counsel for the opposite party no. 2 has relied on the judgment of the Hon’ble Supreme Court in Criminal Appeal No. 781 of 2012, Mrs. Priyanka Srivastava and Another vs. State of U.P. and Others, 2015 (6) SCC 287 . 7. Learned counsel for the revisionist, learned counsel for the opposite party no. 2 and learned A.G.A. for the State have been heard. Perused the entire trial court record and record of the revision. 8. In the case of Mrs. Priyanka Srivastava (supra), the Hon’ble Apex Court has given following directions to the Magistrate for passing order u/s 156 (3) Cr.P.C. for registration of a first information report to the S.O. of the concerned police station: 29. Perused the entire trial court record and record of the revision. 8. In the case of Mrs. Priyanka Srivastava (supra), the Hon’ble Apex Court has given following directions to the Magistrate for passing order u/s 156 (3) Cr.P.C. for registration of a first information report to the S.O. of the concerned police station: 29. 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 fellow citizens, efforts are to be made to scuttle and curb the same. 30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. 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 the 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. 31. We have already indicated that there has to be prior applications under Sections 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. 31. We have already indicated that there has to be prior applications under Sections 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 application under Section 156(3) be supported by an affidavit is 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). 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, (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524 are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR. 9. In the judgment propounded by the Hon’ble Apex Court in the case of Lalita Kumari vs. Govt. of U.P. and Others, (2014) 2 SCC 1 cited by the revisionist relates to registration of first information report u/s 154 (1) Cr.P.C. on the application of the informant by the S.O. In the aforesaid case of Lalita Kumari (supra), the Hon’ble Apex Court has laid down law for registration of first information report by the S.O. of concerned police station. In this case, the Hon’ble Apex Court has not given directions to the Magistrate regarding passing of the order on the application u/s 156 (3) Cr.P.C. The Hon’ble Apex Court has expressed the desirability of registration of first information report u/s 154 (1) Cr.P.C. by the S.O. on the application of the informant. The Hon’ble Apex Court had issued following guidelines for registration of first information report u/s 154 (1) Cr.P.C. by the S.O. concerned: 49. The Hon’ble Apex Court had issued following guidelines for registration of first information report u/s 154 (1) Cr.P.C. by the S.O. concerned: 49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. 53. Investigation of offences and prosecution of offenders are the duties of the State. For “cognizable offences”, a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality. 10. Admittedly, Gopal Krishna alias Rinku, son of revisionist was found dead on 04.09.2022 by hanging in his house. In his postmortem report dated 05.09.2022, following antemortem injuries were found on his person: (1) Ligature mark present below the chin above the thyroid cartilage of size 31 x 1.5 cm with gap of 5 cm right side of neck. (2) Ligature mark 4 cm below the right ear and 6 cm below the chin and 7 cm below the left ear. (3) On dissection of ligature mark, hyoid bone was found intact. (4) Total circumference of nose 26 cm. (5) No other injury seen all over the body. The cause of death was mentioned as shock and asphyxia due to continuous hanging. 11. From the consideration of the averments made by the parties and the documents filed in support thereof, it appears that after the death of her husband, opposite party no. (4) Total circumference of nose 26 cm. (5) No other injury seen all over the body. The cause of death was mentioned as shock and asphyxia due to continuous hanging. 11. From the consideration of the averments made by the parties and the documents filed in support thereof, it appears that after the death of her husband, opposite party no. 2 had submitted an application dated 15.10.2022 to the Bank Manager requesting him not to make payment of the deposits to the revisionist who was made nominee of the bank account. The opposite party no. 2 had filed Misc. Case No. 149 of 2022 (Smt. Vijay Lakshmi @ Bulbul and Another vs. Bharat Singh Kushwaha) filed u/s 372 of the Indian Succession Act, 1925 on 19.10.2022 in the civil court for issuance of succession certificate regarding the aforesaid bank deposit in favour of opposite party no. 2 and her minor son. Only after the opposite party no. 2 had filed aforesaid application regarding the bank deposits of her husband, in order to pressurize her, the revisionist submitted application to S.P., Jalaun on 15.12.2022 and filed application u/s 156 (3) Cr.P.C. on 17.01.2023 against her. In the postmortem report of deceased, apart from the aforesaid ligature marks, no bodily injuries were found on his person. The revisionist has not filed any documentary evidence regarding his averment of harassment and insult done by opposite party no. 2 to her husband due to which he committed suicide. 12. Averment has been made on behalf of opposite party no. 2 that after the death of her husband, his last rites were performed by the family members of the revisionist. In the impugned order, the learned Magistrate has taken into consideration the fact that the revisionist has not given any documentary evidence in support of alleged harassment of his son by her wife. It has also mentioned that no suicide note was found which may corroborate the averment regarding abetment of suicide by the wife of the deceased. The Magistrate has also taken into consideration the fact that a case was filed by the wife of the deceased against the revisionist/applicant, namely, Misc. Case No. 149 of 2022 (Smt. Vijay Lakshmi @ Bulbul and Another vs. Bharat Singh Kushwaha) filed u/s 372 of the Indian Succession Act, 1925, for issuance of succession certificate in favour of opposite party no. Case No. 149 of 2022 (Smt. Vijay Lakshmi @ Bulbul and Another vs. Bharat Singh Kushwaha) filed u/s 372 of the Indian Succession Act, 1925, for issuance of succession certificate in favour of opposite party no. 2 and her son regarding the bank deposit of the deceased. 13. The revisionist has not mentioned that he had filed affidavit in support of application u/s 156 (3) Cr.P.C. nor he has filed certified copy of any such affidavit as mandated by the Hon’ble Apex Court in the case of Mrs. Priyanka Srivastava (supra). 14. Considering the facts and circumstances of the case and prima facie evidence on record in the light of the law propounded by the Hon’ble Supreme Court for passing order by Magistrate on application u/s 156 (3) Cr.P.C., the Court is of the considered opinion that no illegality, irregularity or impropriety has been found in the impugned order passed by the learned Magistrate. 15. There is no merit in the criminal revision and the same is liable to be dismissed. 16. The criminal revision is dismissed, accordingly. 17. Let a copy of this order be sent to the concerned trial court for necessary action.