High Court disposed of a writ petition under Article 227 challenging orders treating a Section 156(3) application as a complaint and proceeding under Chapter XV. The Court held no illegality and observed a Magistrate has discretion not to order registration under Section 156(3).
Prayer in the petition was refused by dismissing the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Order reserved on : 27.9.2019
Case :- MATTERS UNDER ARTICLE 227 No. - 7070 of 2019
Petitioner :- Sumitra Devi Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Manish Kumar Tripathi Counsel for Respondent :- G.A.
Hon'ble Om Prakash-VII,J.
This petition under Article 227 of the Constitution of India has been filed by the petitioner with the prayer to quash the order dated 12.06.2019 passed by Sessions Judge, Jaunpur in criminal revision no.252 of 2018 (Sumitra Vs. State of U.P. & 7 Others) as well as order dated 28.9.2018 passed by Judicial Magistrate-I, Jaunpur in Case No.188 of 2018 (Sumitra Vs. Jeet Lal and others). Further prayer has been made to direct the concerned Police to register the case against the accused and to investigate the matter.
Heard Sri Manish Kumar Tripathi, learned counsel for the petitioner and learned A.G.A. for the State.
Submission of learned counsel for the petitioner was that application under section 156 (3) Cr.P.C. moved by the petitioner was illegally and arbitrarily treated as complaint by the Magistrate concerned vide order dated 28.9.2018. A criminal revision was filed which was also dismissed on insufficient grounds. It was further argued that it was incumbent upon the Magistrate concerned to direct the concerned police to lodge the F.I.R. on the basis of application moved under section 156 (3)
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Cr.P.C. on behalf of the applicant. Referring to the above facts, it was submitted that the Magistrate concerned as well as the lower revisional court have committed illegality in passing the impugned orders. In support of his contention, reliance was also placed by the learned counsel for the petitioner on the following case laws :
1. Upkar Singh Versus Ved Prakash and others, 2004 (3) CCSC 1272 (Supreme Court)
2. Jai Singh Versus State of U.P., [2001 (43) ACC 731]
On the other hand, learned A.G.A. argued that since the Magistrate concerned vide impugned order passed on the application under section 156 (3) Cr.P.C. has proceeded to enquire the matter entering into Chapter XV of Cr.P.C., thus procedure adopted by the Magistrate concerned cannot be said to be illegal. There is no illegality, infirmity or perversity in the impugned orders.
I have considered the rival contentions raised by learned counsel for the parties and have gone through the record.
Before dealing with the submissions made by the parties at Bar, this Court finds it necessary to quote relevant paragraphs of Upkar Singh (supra) case.
23. Be that as it may, if the law laid down by this Court in T.T. Antony's case is to be accepted as holding a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused he takes the first
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opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question consequently he will be deprived of his legitimated right to bring the real accused to books. This cannot be the purport of the Code.
24. We have already noticed that in the T.T. Antony's case this Court did not consider the legal right of an aggrieved person to file counter claim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible.
25. In the instant case, it is seen in regard to the incident which took place on 20th May, 1995, the appellant and the 1st respondent herein have lodged separate complaints giving different versions but while the complaint of respondent was registered by the concerned police, the complaint of the appellant was not so registered, hence on his prayer the learned Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the High Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a
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statement to be recorded by the police in the course of the investigation and its evidentiary value.
In Jai Singh (supra) case, while dealing with the bail application, this Court directed the Police Authorities to issue circular to the effect that if any application regarding crossversion is brought forth by accused side, the same be registered and investigated.
If the law laid down in the above-cited cases relied upon by the learned counsel for the petitioner is compared with the facts and evidence of the present matter, in Upkar Singh (supra) case, the Court has held that order directing for registration of the case and to investigate in cross-versions was legal one.
In the present matter, on the application under section 156 (3) Cr.P.C., the Magistrate considering the entire facts and evidence of the case treated the application as complaint and proceeded for enquiry under Chapter XV of Cr.P.C. after taking cognizance.
Having regard to the facts and circumstances of the case, after perusing the entire record and having considered the submissions made by the learned counsel for the parties, I am of the view that no case is made out to interfere with the impugned order. The impugned orders do not suffer from any infirmity or illegality. As per the settled legal position, the Court / Magistrate is not always bound to pass order for registering the case and investigation on the application under Section 156(3) Cr.P.C. disclosing a cognizable offence. It may exercise its discretion judiciously and if it is of the view that in the facts and circumstances of the case, it will be appropriate to treat the application as a complaint case then the Magistrate may proceed
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with according to the procedure provided under Chapter XV of Cr.P.C. It is also clarified that if report is necessary on any point, the learned Magistrate is competent enough to call for report from the police concerned on given points. Further, it is open to the petitioner to raise the question before the court concerned at the appropriate stage. Hence, the prayer made in the present petition is refused.
The petition is dismissed.
Order dated : 08.11.2019 ss
3 issues framed by the court
Whether the High Court can interfere with the impugned orders on the premise that a complaint lodged under Section 156(3) Cr.P.C. must be treated as such and not as a cross-complaint.
Whether a Magistrate is bound to direct police registration of a case and investigation on an application under Section 156(3) Cr.P.C. if it chooses to treat it as a complaint and proceed under Chapte
Whether the impugned orders passed by the Sessions Judge and Judicial Magistrate suffer from any infirmity or illegality.
Colour shows how this judgement treated each authority
Upkar Singh Versus Ved Prakash and othersReferred¶15
Upkar Singh Versus Ved Prakash and others, 2004 (3) CCSC 1272
Jai Singh Versus State of U.P.Referred¶23
Jai Singh Versus State of U.P., 2001 (43) ACC 731
T.T. Antony's caseReferred¶16
T.T. Antony's case
3 provisions across 2 enactments
Sumitra Devi
State Of U.P.
Om Prakash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
