Dismissed

Mithilesh v. State of U.P. and 4 Others

Allahabad HC24 May 2022A227/1175/2022

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court examined whether to interfere with an order where a Magistrate treated a Section 156(3) Cr.P.C. application as a complaint and recorded statements. The Court held the Magistrate acted within discretion and dismissed the petition.

What did the court decide?

The petition under Article 227 of the Constitution of India was dismissed.

Mithilesh Vs State of U.P. and 4 Others — Civil Procedure and Limitation | Allahabad HC (2022)

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Court No. - 73

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Case :- MATTERS UNDER ARTICLE 227 No. - 1175 of 2022

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Petitioner :- Mithilesh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shivajee Singh Sisodiya Counsel for Respondent :- G.A.,Sarveshwar Singh

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Hon'ble Rajiv Gupta,J.

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Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the record.

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This petition under Article 227 of the Constitution of India has been filed by the petitioner with a prayer to stay the effect and operation of the order dated 15.11.2021 passed by Special Judge (SC/ST Act), Bareilly in Criminal Revision No. 51 of 2021 (Smt. Mithilesh Vs. State of U.P. and others) as well as order dated 07.12.2020 passed by Judicial Magistrate, Faridpur, District Bareilly in Misc. Application No. 272 of 2020 (Smt. Mithilesh Vs. Kamlesh and others), by which application under Section 156(3) CrPC filed by the petitioner, has been directed to be registered as a complaint and to record the statement of the witness under Section 200 CrPC.

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Brief facts of the case are that an application was filed by the petitioner on 18.08.2020 under Section 156(3) Cr.P.C. before the learned Judicial Magistrate, Faridpur, District Bareilly and the learned Magistrate after considering the entire allegations and material on record directed the application to be registered as a complaint and for recording the statement of the complainant under Section 200 Cr.P.C.

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Learned counsel for the petitioner has submitted that from the allegations made in the application under Section 156(3) CrPC, cognizable offence is clearly disclosed, as such, it was incumbent upon the learned Magistrate to direct the police to register a case under Section 154 CrPC and investigate the same.

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Per contra, learned A.G.A. has submitted that upon receiving the application under Section 156(3) Cr.P.C., the Magistrate may in its discretion either direct the police to register the case under Section 154 Cr.P.C. and investigate the same or may treat the application under Section 156(3) Cr.P.C. as a complaint and proceed further by recording the statements of the witnesses under Sections 200 and 202 Cr.P.C.

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Learned AGA has further submitted that there is no provision that the Magistrate may not treat the application under Section 156(3) Cr.P.C. as a complaint and make an enquiry by recording

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the statements of the witnesses under Sections 200 and 202 Cr.P.C.

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Looking to the circumstances that the petitioner has full knowledge of the facts of the case and accused as well as his witness can lead his evidence in the court, the view taken by the learned Magistrate in treating the application under Section 156(3) Cr.P.C. as a complaint is just, proper, legal and do not call for any interference.

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It is well settled principle of law that in case, an application under Section 156(3) Cr.P.C. filed by the applicant, the Magistrate in its discretion may direct for registration of F.I.R. under Section 154 Cr.P.C. or treat the same as a complaint and proceed further by recording the statements of the witnesses as held by Hon'ble Apex Court in the cases of Mohd Yusuf Vs. Afaq Jahan (Smt) and another reported in (2006) 1 SCC 627, Fakhruddin Ahmad Vs. State of Uttaranchal and another , reported in (2008) 17 SCC 157 and Ram Babu Gupta Vs. State of U.P. and others reported in 2001 (43) ACC 50 (FB).

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From the aforesaid decisions, it is ample clear that upon an application received under Section 156(3) Cr.P.C., which discloses cognizable offence, the Magistrate may in its discretion direct the police to register an F.I.R. or may direct it to be treated as a complaint and proceed therewith by recording the statements under Sections 200 and 202 Cr.P.C. and in case, if the Magistrate, during the course of enquiry, feels that any investigation is required, he may under Section 202 Cr.P.C. direct for investigation to be made by the police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding in the present case. The complainant is having full knowledge of facts and material evidence and is in a position to lead the evidence and therefore, order passed by learned Magistrate does not suffer from any illegality, impropriety or jurisdictional error so as to warrant any interference.

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In view of the aforesaid facts, this court is not inclined to exercise its supervisory jurisdiction under Article 227 of the Constitution of India. This petition lacks merit and is accordingly dismissed.

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Order Date :- 24.5.2022 Nadim

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Digitally signed by NADIM ALAM Date: 2022.05.24 17:02:28 IST Reason: Location: High Court of Judicature at Allahabad

Mithilesh v. State of U.P. and 4 Others

Case brief

What is this about?

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Mithilesh v. State of U.P. and 4 Others

Case brief

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