Dismissed

Sukhviri v. State of U.P. and Another

Allahabad HC18 Jan 2021A482/18355/2020

Case brief

AI extract

What is this about?

The High Court rejected an application under Section 482 Cr.P.C. seeking to quash an order whereby the trial court dismissed an application for investigation under Section 156(3) Cr.P.C. regarding alleged sexual assault. The court held that the trial court acted within its discretion as it found no substantial ground for investigation.

What did the court decide?

Application under Section 482 Cr.P.C. was rejected and the matter remained pending before the Special Judge.

Sukhviri Vs State of U.P. and Another — Writ and Judicial Review | Allahabad HC (2021)

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 18355 of 2020

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Applicant :- Sukhviri Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vandana Gupta,Ashutosh Gupta Counsel for Opposite Party :- G.A.

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Hon'ble Ajit Singh,J.

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Heard learned counsel for the applicant and learned A.G.A. for the State.

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The present 482 Cr.P.C. application has been filed to quash the impugned order dated 25.09.2020 passed by Special Judge (SC/ST Act), Mathura in Criminal Misc. Case No.172 of 2020, Sukhviri Vs. Balbir Singh and another, under Section 156(3) Cr.P.C., Police Station Magorra, district Mathura, by the impugned order the application filed by the applicant Sukhviri under Section 156 (3) Cr.P.C. was dismissed by the trial court.

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As per prosecution case the opposite party no. 2 is a poor lady, who belongs to Jatav category and for her livelihood she used to work as labour and the applicants used to run a wholesale shop in 'Mandi'. Sometime the applicants call her for labour work. On 9.7.2020 at about 10:00 O'clock in the morning the applicants carried the opposite party no. 2 at the hut in a forest near Adeeg canal on their motorcycle, where they developed sexual relation with her against her wish on gun point. Applicants also threatened her that if she narrates the story to anyone they would kill her and her son.

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Learned counsel for the applicant submitted that the impugned order was passed by the trial court without applying its mind in a mechanical manner and the order should be set aside and case should be registered on the applicant filed by the applicant under Section 156 (3) Cr.,P.C.

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Per contra learned A.G.A. has submitted that the impugned order is totally perfect and valid and there is no illegality in the impugned order. He further submitted that the learned trial court has passed a very detailed order analyzing each and every aspect of the application filed under Section 156 (3) Cr.P.C. The learned trial court has also mentioned that the applicant had gone with the opposite party no.2 out of her own sweet will on his motor-cycle. The trial court has considered that the story put forward in the application under Section 156 (3) Cr.P.C. seems to be unnatural and the trial court has considered the version of the applicant to be false. The trial court has also mentioned that in-laws even own brother of the applicant had levelled serious charges against the character of the applicant. The trial court has also opined that the medical of the applicant was not conducted. The trial court has also opined that it seems that the applicant has initiated the proceeding against the opposite party no.2 to create illegal pressure and considering this scenario the trial court has rejected the application filed under Section 156 (3) Cr.P.C.

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Law regarding jurisdiction under Section 156 (3) Cr.P.C. is well settled. Power under Section 156 (3) Cr.P.C. has to be exercised by Magistrate judicially on proper grounds and not in a mechanical manner. If application does not indicate that any evidence is required to be collected

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and preserved and applicant is familiar with names of accused persons and witnesses then in such a case, no investigation by police is required. Whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156 (3) Cr.P.C. containing allegation of commission of a cognizance offence is no more a 'res-integra', as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi Vs. State of U.P. 2007 (59) ACC 739 . In the case of Smt. Masuman Vs. State of U.P. & others 2007 (1) ALJ 221 and some other cases, the single judges of the Court have taken a view that if the application under section 156 (3) Cr.P.C. discloses the commission of a prima-facie cognizable offence, then it is obligatory for the magistrate to direct investigation after registration of the FIR on the basis of that application.

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Disagreeing with this view, the following question was referred to the larger Bench for decision in the case of Sukhwasi Vs. State of U.P. (supra)

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"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 FIR 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"

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After having considered 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 in the case of Sukhwasi Vs. State of U.P. has answered the question as under:-

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"The reference is, therefore, answered in the manner 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. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under section 156 (3) Cr.P.C. as a complaint."

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Thus, it is apparent that Magistrate is not bound to pass order of investigation by police, even if such application discloses cognizable offence. The Magistrate is required to apply its mind to find out whether the first information sought to be lodged by applicant had any substance or not. 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 legally decline to direct investigation.

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In case Mrs. Priyanka Srivastava and another Vs. State of U.P. and others, 2015 AIR (SC) 1758 , the Hon'ble Apex Court held as under:

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"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

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invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."

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It was also observed by Hon'ble Apex Court that in matters pertaining to matrimonial dispute/family matters, commercial offence, medical negligence cases, corruption cases and in the cases where there is abnormal delay, the Magistrate may even conduct preliminary enquiry to ascertain whether information reveals any cognizable offence.

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In the present case, after considering the facts and circumstances and nature of allegations, this Court is of the opinion that no case is made out so as to require any investigation by police. In view of the facts and circumstances of the present case and also considering nature of allegations made in the application under Section 156 (3) Cr.P.C., the rejection of prayer of investigation by police by learned Court below vide impugned order cannot be said against the law or suffering from any perversity or illegality.

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It is well settled that inherent powers under Section 482 Cr.P.C. have to be exercised to secure the ends of justice, to prevent abuse of process of any Court and to make such orders as may be necessary to give effect to any order under the Cr.P.C. depending upon the facts of given case. In the instant case, no such eventuality could be shown and there is nothing to indicate that there has been any miscarriage of justice. The instant application lacks merits and thus is liable to be dismissed.

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With the aforesaid observations, the present application under Section 482 Cr.P.C. is accordingly, rejected.

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Order Date :- 18.1.2021 R./

Sukhviri v. State of U.P. and Another

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Sukhviri v. State of U.P. and Another

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