Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Sec.156(3) Cr.P.C., Powers Of Magistrate, Correctness Of Dictum In Cr..M..Appl. 6152/06 Doubted-referred To Larger Bench.
JUDGEMENT TITLE : Sukhwasi Vs. State Of U.P. On 18/05/2007 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 9297 OF 2007
CORAM : Hon'ble Yatindra Singh,J. And Hon'ble Raghunath Kishore Rastogi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD


Reserved
Crl. Misc. Application No. 9297 Of 2007
Sukhwasi Vs. State Of U.P.


Hon'ble R.K.Rastogi,J

This Is An Application Under Section 482 Cr. P. C. To Quash The Order Dated 20.9.2006 Passed By Sri Gunendra Prakash, Metropolitan Magistrate, Court No. 5, Kanpur Nagar In Criminal Case No. 499 Of 2006, Sukhbasi Vs. Sheeru And Others And The Judgement And Order Dated 26.2.2007 Passed By Sri D.K.Garg, Addl. Sessions Judge,Court No. 10, Kanpur Nagar In Criminal Revision No. 256 Of 2006, Suhhbasi Vs. State Of U.P. And Others Arising Out Of The Order Of The Metropolitan Magistrate In Criminal Case No. 499 Of 2006.

The Facts Relevant For Disposal Of This Application Are That The Complainant Applicant Sukhbasi Had Moved An Application Under Section 156 (3) Cr.P.C. Before The II Addl. Chief Metropolitan Magistrate, Kanpur Nagar On 7.7.2006 With These Allegations That The Applicant Shukhbasi Was Resident Of 174-E Gram Bargadiyapurwa Panki, Kanpur Nagar . He Had Filed O.S. No. 1350 Of 2000, Sukhbasi Vs. K.D. A. And Others In Which He Had Got An Injunction That He Should Not Be Dispossessed From The Aforesaid House Nor The House Should Be Damaged. Accused Sheeru, Lalta , Kamta, Sanjay And Other Persons Of Their Caste Were Residing Near The Above House . Accused Jai Singh And Sheeru Wanted To Demolish Sukhbasi's Above House And To Evict Him From It. They Stated That They Had Very Good Terms With The Local Police And Sri Sonkar , Sub Inspector Of The Police Station Used To Visit Their House. Sheeru , Lalta, Kamta , Pappu , Sanjay Etc. Threatened Him That If He Does Not Vacate The House, It Will Be Demolished And All His Family Members Will Be Crushed Below The Ruins. The Applicant Went To The Police Station For Lodging Report Of The Incident But No Report Was Written . Then He Sent An Application To The S.S.P., Kanpur Nagar On 30.5.2006 But No Action Was Taken. On The Other Hand , Mr. Sonkar, S.I. Of P.S. Panki Started To Pressurise Him. Sri Sonkar S.I. Also Asked Him To Vacate The House Threatening Him Of Dire Consequences In Case Of Failure To Do So. On Account Of His Coercion And Fear , Sukhbasi Went To The House Of His Relative At Barra For Some Time; And When He Returned Back On 28.6.2006, He Found That The Accused Lalta Etc. Had Put One More Lock Above The Lock Of The Complainant On The House And The Goods Kept By Him In The Verandah Outside The House Had Been Removed By The Accused Persons. When He Tried To Open The Lock , The Accused Lalta , Kamta, Sanjay,Sheeru And Other Persons Belonging To Their Caste Having Dandas Reached There And Beat The Complainant With Dandas , Kicks And Fists And Abused Him . His Valuable Goods Like Colour T.V. , One Big Box , Utensils, Clothes Jewelleries Etc. Were Kept Inside The House, Which Had Been Locked By The Accused Persons. He Went To The Police Station Panki To Lodge Report Of The Incident But His Report Was Not Written . Then He Sent An Application To The S.S.P. Kanpur Nagar On 29.6.06 But No Action Was Taken . It Was, Therefore, Prayed That The Police Should Be Directed To Take Action Against The Accused After Registering A Case Against Them.

The Above Application Was Transferred To The Metropolitan Magistrate, Court No. 5, Kanpur Nagar Who Heard And Decided The Same Vide Order Dated 20.9.06. He Pointed Out In That Order That The Complainant Had Filed A Copy Of Compromise Deed Reached Between The Parties In Which The Complainant Had Stated That On 2.5.06 He Gave Possession Of Plot No. 174 To Sri Chandra Without Any Coercion Or Undue Influence And That There Was Now No Dispute Between The Parties In Respect Of This Plot, And The Parties Did Not Want Any Police Action. He Further Pointed Out That There Was An Allotment Order Passed By The K.D.A. In Favour Of Sri Chand And Not In Favour Of The Applicant. He, Therefore, Rejected The Application Under Section 156(3) Cr.P.C.

Aggrieved With The Aforesaid Order, The Complainant Filed Criminal Revision No. 256 Of 2006 Before The District & Sessions Judge, Kanpur Nagar Which Was Heard And Decided By Sri D.K.Garg, Learned Addl. Distt & Sessions Judge , Court No. 10, Kanpur Nagar . He Pointed Out In His Judgement That No Date And Time Of The Incidents Of Threats And Of His Departure From The House Had Been Mentioned. He Further Pointed Out That If The Accused Were Doing Acts In Violation Of The Injunction Order Passed In His Favour In O.S. No. 1350/2000, He Could Have Taken Proceedings Against Them For Contempt Of Court, But He Did Not Do So; And It Is Alleged That Due To Fear Of The Accused The Complainant Went Out Of Station After Locking The House And Leaving Some Goods In The Outer Verandah Of The House And That The Accused Put Their Lock Upon The Lock Of The Complainant At The Main Door Of The House In His Absence And They Also Removed His Goods Which Were Kept In The Verandah. He Pointed Out That This Allegation Does Not Appeal To Reason As No Body While L Going Out Of Station Would Leave His Goods In The Open Outer Verandah Of The House . He Was , Therefore, In Agreement With The View Of The Magistrate That There Appeared To Be A Dispute Of Civil Nature In Respect Of The Disputed Premises, And So, Prima Facie No Cognizable Offence Was Made Out . He, Therefore, Rejected The Revision . Aggrieved With Both The Above Impugned Orders, The Complainant Has Filed This Application Under Section 482 Cr.P.C.

I Have Heard The Learned Counsel For The Applicant As Well As The Learned A.G.A. For The State.

It Was Submitted By The Learned Counsel For The Applicant That The Allegations Made In The Application Under Section 156 (3) Cr.P.C., Prima Facie, Made Out A Cognizable Offence Against The Accused Persons And So Both The Courts Below Erred In Law By Rejecting The Application Under Section 156(3) Cr.P.C. He Further Submitted That In This Case The Accused Had Dispossessed The Complainant From The Disputed House By Putting Their Lock Upon The Main Door Of The House, And It Was A Cognizable Offence. He Further Submitted That The Goods Of The Complainant Which Were Kept In The Outer Verandah Of The House, Were Removed By The Accused And It Was Also A Cognizable Offence, And So An Order Under Section 156(3) Cr.P.C. Should Have Been Passed On His Application.

A Perusal Of The Orders Passed By The Courts Below Reveals That The Learned Magistrate Relied Upon An Agreement Allegedly Executed Between The Parties, Which Had Been Filed By The Complainant Himself Along With His Application Under Section 156(3) Cr.P.C. And In That Agreement It Was Written That The Complainant Sukhbasi Had Delivered Possession Of The Disputed House ( Plot No. 174) To Sri Chand Willingly Without Any Coercion Or Fear, And In View Of That Compromise There Remained No Dispute Regarding The Disputed Plot Between The Parties. He Also Relied Upon The Allotment Order Issued By The KDA Which Was In The Name Of Accused Sri Chand. It Is To Be Seen That Both These Documents Were Filed By The Complainant Himself And If It Is Found That The Complainant Had Delivered Possession Of The House To The Accused Sri Chand On 2.5.06, The Subsequent Act Of Sri Chand To Put His Lock On The House Could Not Be Considered To Be An Offence. It Was Also Pointed Out That The Complainant Had Alleged That His Goods Kept In The Outer Verandah Of The House Had Been Taken Away By The Accused Persons But He Had Not Given Particulars Of Those Items And Had Made A Vague Allegation That His Goods Kept In The Verandah Had Been Stolen By The Accused Persons And It Appeared Highly Improbable That Any Person Going Out Of Station Would Leave His Goods In A Verandah Outside The House In An Unprotected Condition. Such Allegations Of So Called Unlawful Dispossession And Removal Of Goods Did Not Appear To Be Probable. The Remaining Allegations Of Marpit , Abuses And Threats As Stated In The Application Under Section 156(3) Cr.P.C. Did Not Constitute Any Cognizable Offence.

It Was Submitted By The Learned Counsel For The Applicant That At The Stage Of Passing An Order Under Section 156(3) Cr.P.C. The Court Has Simply To See Whether A Cognizable Offence Is , Prima Facie, Made Out Or Not On The Basis Of Allegations Made In That Application And Those Allegations Are Not To Be Examined And Scrutinised On Merits At That Stage. He Cited A Ruling Of Hon'ble Vinod Prasad, J Passed In Criminal Misc. Application No. 6152 Of 2006, Smt. Masuman Vs. State Of U.P. And Others In Which His Lordship Has Observed As Follows:
"Thus When Ever The Magistrate Is Approached By An Aggrieved Person With The Prayer That The Police Has Refused To Register His FIR Of Cognizable Offence The Magistrate Is Required To Look Into His Such Prayer Only To Determine As To Whether Any Cognizable Offence Is Disclosed Thereby Or Not And If It Does Then He Has No Option But To Direct The Police To Register The FIR And Investigate The Offence.
At This Stage It May Be Pointed Out That The Magistrate Is Not Required To Conduct Any Enquiry Under Section 156(3) Of The Code And He Should Not Saddle Himself With Additional Burden Of Discharging The Function Of Police As Crime Prevention And Crime Detection Is The Primary And Foremost Duty Of The Later And So It Must Be Left To It To Perform This Part Of His Duty."

It May Be Mentioned That A Direction Was Also Issued By Hon'ble Vinod Prasad , J For Circulating The Aforesaid Ruling In The Entire State And In Pursuance Of The Same, It Was Circulated To All The Subordinate Courts In U.P. Vide This Court's Circular Letter No. 51/2006 Dated 15.11.06 For Intimation, Guidance And Compliance.

It Was Submitted By The Learned Counsel For The Applicant That In View Of The Above Ruling Of Hon'ble Vinod Prasad , J , The Magistrate Is Duty Bound In Each And Every Case To Pass Order For Registration Of The Case And Investigation By The Police If The Allegations Made In The Application Under Section 156(3) Cr.P.C. Disclose Any Cognizable Offence And It Is Not For The Court To Consider The Genuineness Of Those Allegations And To Refuse To Pass An Order For Registration Of The Case And Its Investigation On The Basis That The Allegations Did Not Appeal To Reason And Did Not Appear To Be Genuine. He Contended That In The Present Case Both The Courts Below Have Adopted An Erroneous Approach By Expressing Opinion On The Veracity Of The Allegations Made In The Application Under Section 156(3) Cr.P.C. .

He Also Cited Before Me Rulings Of Hon'ble Supreme Court In Lallan Chaudhary And Others Vs. State Of Bihar And Others : {2007(1) All JIC 87}, Mohd. Yousuf Vs. Smt. Afaq Jahan And Another : 2006 AIR SCW 95, Ramesh Kumari Vs. State ( NCT Of Delhi) And Others : {2006(55) ACC 256}, And Suresh Chand Jain Vs. State Of Madhya Pradesh And Another ; {2001 (42) ACC 459 And Of Our Own High Court In Khurram Rauf Khan Vs. State Of U.P. : {2006 (55) ACC 223}, Fire Ram Vs.State Of U.P.: {2006 (55) ACC 618}, Ravindra Singh Vs. State Of U.P. And Others : {2006 (55) ACC 657}, And Sukhveer Singh Vs. Sate Of U.P. : {2006(55) ACC 889}.

The Learned A.G.A. Submitted In Reply That Whenever An

Application Is Moved Under Section 156(3) Cr.P.C. Containing Allegations Of Cognizable Offences, The Magistrate Has Got Right To Ascertain Whether There Appears, Prima Facie , Any Truth In The Allegations Made In That Application Or Not. He Submitted That In The Present Case A Compromise Deed Had Been Filed By The Complainant Himself, According To Which The Complainant Had Delivered Possession Of The House To Sri Chand On 2.5.06. He Further Submitted That The Applicant Had No Where Disclosed As To What Goods Were Kept By Him In The Verandah Outside The House When He Had Left The House For Going Out Of Station. He Pointed That That The Allegations Made In The Application Did Not Appear To Be Genuine Because Any One While Going Out Of Station For A Long Time Would Not Leave His Goods Outside The House In A Verandah . He Further Submitted That In This View Of The Matter, The Learned Courts Below Committed No Illegality By Rejecting The Application Under Section 156(3) Cr.P.C. In Regard To The Ruling Of Hon'ble Vind Prasad, J In The Case Of Smt. Masuman, Referred To Above, Learned A.G.A. Contended That The Interpretation Made By His Lordship That The Magistrate Is Duty Bound To Pass An Order Under Section 156(3) Cr.PC. For Registration Of The Case And Investigation By The Police On All The Applications Containing Allegations Of Cognizable Offence Is Not In Accordance With The Spirit Of Law As Contained In 156(3) Cr.P.C. He Further Pointed Out That The Word Used In Section 156(3) Cr.P.C. Is 'may' And Not 'must' And The Word 'may' Confers Discretion On The Magistrate To Examine The Veracity Of The Allegations Made In The Application Under Section 156(3) Cr.P.C After Examining The Documents Filed In Support Thereof And To Be Satisfied Whether , Prima Facie, There Appears To Be Any Truth In The Allegation Of The Complainant Or Not, And An Order Under Section 156(3) Cr.P.C. For Registration Of The F.I.R. And Investigation By The Police Should Be Passed Only When The Magistrate Is , Prima Facie, Satisfied About Veracity Of The Allegations, And If The Allegations Made Therein Do Not Appeal To Reason, The Magistrate May Refuse To Pass Order Directing The Police To Register A Case. He May, On The Other Hand, Pass An Order For Treating It As A 'complaint' Or May Reject The Same. He Submitted That In The Case Of Suresh Chand Jain (supra) The Same View Was Taken By Hon'ble Apex Court Which Was Followed By This Court In The Full Bench Ruling In Ram Babu Gupta Vs. State Of U.P. : {2001(43) ACC 50} And It Was Held By Full Bench That The Magistrate Has Got Ample Jurisdiction To Treat An Application Under Section 156(3) Cr.P.C. As A ' Complaint ' And Vice-versa And Pass Suitable Orders As The Exigency Of The Case Requires . He Also Cited Before Me A Ruling Of This Court In Shiv Narain Jaiswal And Others Vs. State Of U.P. And Another : {2007(57) ACC 57} In Which, Relying Upon The Aforesaid Judgements Of Hon'ble Apex Court In Suresh Chand Jain ( Supra) And The Full Bench Ruling Of This Court In Ram Babu Gupta(supra), It Has Been Observed That The Magistrate Has Got Ample Jurisdiction To Treat An Application Under Section 156(3) Cr.P.C. As 'complaint' And To Proceed With The Matter As A Compliant Case If The Exigency So Requires. His Contention Was That In The Present Case Also , The Allegations Of Commission Of A Cognizable Offence Were Not Made Out In View Of The Compromise Deed Filed By The Applicant Himself Which Went To Show That He Had Delivered Possession Of The House To The Accused Sri Chand On 2.5.06 , And His Allegation That He Left His Goods ( Particulars Of Which Were Not Disclosed In The Application) Outside The House In The Verandah While He Was Going Out Of Station For A Long Period After Locking The House, Did Not Appeal To Reason And In Such Cases Where The Story Of Cognizable Offence Alleged By The Complainant Does Not Appeal To Reason, The Magistrate Is Not Bound To Pass An Order For Registration Of The Case And Investigation By The Police Merely On The Basis Of This Fact That The Application Under Section 156(3) Cr.P.C. Contained Such Allegations. The Above Arguments Of The Learned A.G.A. Can Not Be Said To Be Unfounded. The Question For Consideration Is That Where An Application Under Section 156(3) Cr.P.C. Contains Such Allegations Of Commission Of A Cognizable Offence As Do Not Appeal To Reason, Can It Be Said That The Magistrate Is Bound In That Case Also To Pass An Order For Registration Of The Case And Its Investigation By The Police ?

According To The Ruling Of Hon'ble Vinod Prasad, J In Smt. Masuman (supra) The Magistrate Is Bound To Pass Order For Registration Of The Case And Its Investigation By The Police In Such A Case Also, And He Has Got No Jurisdiction To Himself Judge Even The Prima Facie Veracity Of The Allegations Before Passing The Order, And That He Has To Pass Order For Registration Of The Case On Each And Every Application Which Contains Allegations Of Commission Of Cognizable Offence . The Above View Of Hon'ble Vinod Prasad, In My Humble Opinion, Does Not Appear To Be In Consonance With The Observations Of Hon'ble Supreme Court In Suresh Chand Jain (supra) And The Full Bench Ruling Of This Court In Ram Babu Gupta(supra). Since There Is Difference Of Opinion On This Point , I Am Of The View That This Question Should Be Referred To A Larger Bench For Decision .

I, Therefore, Frame The Following Question For Reference To The Larger Bench:

" 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 F.I.R. 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"?

Let The Papers Be Placed Before Hon'ble The Chief Justice At His Lordship's Kind Convenience For Passing Suitable Orders For Formation Of A Larger Bench For Determination Of The Above Question.

The Application 482 Cr.P.C. Shall Be Decided On The Basis Of The Verdict Of The Larger Bench On The Above Point.

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