Dismissed

Ramjeet v. State of U.P. and 3 Others

Allahabad HC24 Feb 2022CRLR/3024/2021

Case brief

AI extract

What is this about?

In a criminal revision, the Allahabad High Court dismissed the appellant's plea to set aside an order treating a Section 156(3) Cr.P.C. application as a complaint. The Court held that the appellant possessed evidence and did not require police assistance, so the lower court exercised discretion properly.

What did the court decide?

Impugned order dated 28.09.2021 confirmed; revision dismissed.

Ramjeet Vs State of U.P. and 3 Others — Constitutional and Fundamental Rights | Allahabad HC (2022)

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Court No. - 90 Case :- CRIMINAL REVISION No. - 3024 of 2021 Revisionist :- Ramjeet Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Jai Prakash Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Sadhna Rani (Thakur),J.

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This revision under Section 397/401 of Cr.P.C. has been filed by the revisionist with a prayer to set aside the judgement and order dated 28.09.2021 passed by the court of A.C.J.M. 1st Jaunpur in Complaint Case No.319 of 2021 (Ramjeet Vs. Arvind Singh and others) under Section 156(3) Cr.P.C., P.S. Jalalpur, District Jaunpur, whereby the court below has ordered the application under Section 156 (3) of Cr.P.C. to be treated as complaint.

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The order dated 28.09.2021 is appended at page- '7' of the paper book.

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As per facts of the application under Section 156(3) Cr.P.C., the revisionist is having two sons. One of his son, namely, Raj Kumar (opposite party no.3) has developed a bad society and on pretext of preparing papers regarding old age pension he took the revisionist to Tehsil and with mala fide intention alongwith his friend Arbind Singh (opposite party no.2) got prepared an agreement to sell, wherein payment of Rs. 9,50,000/- by way of cheque has been mentioned. On 12.08.2021 at 10:00 AM, when Arvind came and asked the revisionist to execute the sale deed in relation to the agreement to sell dated 04.07.2021 then the revisionist got checked the documents. He has neither executed any agreement to sell nor any cheque of Rs. 9,50,000/- has been deposited in his account nor he had any need of disposing of his property. Both opposite party no.3 Raj Kumar (son of the revisionist) and Arvind have committed fraud with him and got his signatures on the said agreement to sell on the pretext of preparing paper of old age pension.

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Vide order dated 28.09.2021 the learned lower court treated this application under Section 156 (3) Cr.P.C. as a complaint.

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It is argued by the counsel for the revisionist that as the cognizance offence is said to have committed by the opposite parties so the magistrate was bound to pass order for registration of F.I.R. and order for investigation by the police. It is also argued that some more persons may be involved in this conspiracy. The lower court has passed the impugned order in

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mechanical manner without applying its judicial mind, hence, the impugned order, which is totally against the law, is liable to be set aside.

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Learned A.G.A. has argued that in the application under Section 156(3) Cr.P.C., Sarvjeet (the elder brother of the revisionist) and Sabajeet resident of the village of the revisionist are also said to be present at the place of incident so the witnesses are also known to the revisionist and the amount i.e. cheque of Rs.9,50,000/- was given to the revisionist or it was encashed or not it is a matter of documentary evidence, which can be very well summoned on the application of the revisionist from the Bank. Hence prayer is made to dismiss the revision.

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

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The trial court held that the evidence which is needed for proving the allegations against the opposite parties is well within the knowledge of the revisionist. The revisionist is very well acquainted of all the facts of the application under section 156 (3) Cr.P.C. and on the basis of judgement passed in Sukhwasi Vs. State of U.P., 2007 (59) ACC 739 and Rambabu Vs. State of U.P. & anotehr, 2001 (40) ACC 50, the application of revisionist under Section 156 (3) Cr.P.C. was ordered to be registered as a complaint.

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To deal with the contention of the learned counsel for the revisionist, it would be apposite to look into the relevant provisions as under:-

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Chapter XII of the Code deals with information to the police and its power to investigate the offences Section 156 of the Code included in this chapter speaks of the power of the police officers to investigate cognizable cases and sub clause (3) thereof lays down that any Magistrate empowered under Section 190 of Code may order such an investigation. Chapter XV of the Code deals with complaints to a Magistrate and the procedure to be adopted by the Magistrate after taking cognizance of an offence. This chapter provides an alternative as well as additional remedy to a complainant whose complaint is either not entertained by the police or who does not feel satisfied by the investigations being conducted by the Police.

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It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant

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himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156(3) of the Code to get register an F.I.R. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to held the complainant. The police assistance can be taken by a Magistrate even Under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 20001 (1) Supreme Page 129 titled "Suresh Chand Jain Vs. State of Madhya Pradesh & Ors."

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This Court in judgement of Sukhwasi Vs. State of U.P., 2008 CRL 475 took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that Magistrates should act under Section 156(3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusations.

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In the present case, the allegation is that the son of the revisionist- Raj Kumar with a connivance of his friend Arvind on the pretext of preparing papers regarding old age pension took the revisionist to tehsil and got prepared an agreement to sell wherein payment of Rs. 9,50,000/- by way of cheque is said to have made but neither such payment is said to have been received by the revisionist in his account nor he is said to be in need of disposing of his property. His son and his friend both are said to have committed fraud on him and get his signatures on the said agreement to sell fraudulently. The witnesses are known to the revisionist. Bank documents can be easily summoned by him. Admittedly no suit has been filed for cancellation of agreement to sell.

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Thus, it is clear that all the facts mentioned in the application under Section 156(3) Cr.P.c. are know to the revisionist. Though, a cognizable offence is alleged to have been committed but all the facts and evidence are within the personal knowledge of the revisionist. In judgement Mona Pawar Vs. High Court of Judicature at Allahabad, (2011) 1 SCC Criminal 1181 , the Hon'ble Apex Court held that while dealing with the application under Section 156(3) Cr.P.C. the Magistrate has two options one is to pass order as contemplated under

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Section 156(3) Cr.P.C. and second is to register it as a complaint case.

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In the present case, learned Magistrate has opted to register application 156(3) Cr.P.C. as complaint which is very well in his discretion.

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Therefore, considering the nature of allegations made in the application filed under section 156(3) Cr.P.C. before the court below, this court is of the considered view that the lower court had exercised its discretion properly and in accordance with law by declining the request of the revisionist to make over the investigation by the police under section 156(3) Cr.P.C. No interference is called for by this Court.

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The revision is hereby dismissed. The impugned order dated 28.09.2021 above is confirmed.

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Order Date :- 24.2.2022 Radhika

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Digitally signed by RADHIKA VISHWAKARMA Date: 2022.03.05 18:03:32 IST Reason: Location: High Court of Judicature at Allahabad

Ramjeet v. State of U.P. and 3 Others

Case brief

What is this about?

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Ramjeet v. State of U.P. and 3 Others

Case brief

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