Dismissed

Sita Devi v. State of U.P. and 9 Others

Allahabad HC24 May 2023CRLA/5200/2023

Case brief

AI extract

What is this about?

Criminal Appeal filed by Sita Devi challenging the rejection of her Section 156(3) Cr.P.C. investigation application by the Special Court. The court held it is not mandatory to order investigation in every case but must exercise judicial discretion based on specific factual circumstances. Finding no illegality in the impugned order, the appeal was dismissed, though the appellant may file a complai

What did the court decide?

Appeal dismissed. Notice to opposite parties dispensed with. Appellant may file a complaint on the same facts.

Sita Devi Vs State of U.P. and 9 Others — Civil Procedure and Limitation | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:115523

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Court No. - 81

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Case :- CRIMINAL APPEAL No. - 5200 of 2023

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Appellant :- Sita Devi Respondent :- State Of U.P. And 9 Others Counsel for Appellant :- Rishabh Kumar Pandey,Santosh Kumar Upadhyay

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Counsel for Respondent :- G.A.

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Hon'ble Mohd. Faiz Alam Khan,J.

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Heard Shri Rishabh Kumar Pandey, learned counsel for the appellant as well as learned Additional Government Advocate for the State and perused the record.

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The instant appeal under Section 14-A(1) SC/ST (Prevention of Atrocities) Act has been filed by the appellant, namely, Sita Devi with the prayer to allow this appeal and set-aside the order dated 06.04.2023 passed by Special Judge SC/ST Act, Allahabad in Misc. Application No. 01/2023 Computer Case No. 53/2023 (Sita Devi Vs. Akbar Ali and others), whereby the learned court below has proceeded to reject the application moved by the appellant under Section 156(3) Cr.P.C.

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Learned counsel for the appellant/ complainant submits that with regard to the atrocities committed with the appellant the appellant had moved an application under Section 156(3) Cr.P.C. before the Special Court for the purpose of lodging FIR and investigation of allegations mentioned in the application under Section 156(3) Cr.P.C. however, Special Court has not considered the seriousness of the offences and has cursory rejected the application moved by the appellant.

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It is further submitted that some of the accused persons belong to Uttar Pradesh Police Force and they in connivance with the other accused persons had assaulted the appellant and so much so the injuries sustained by her was also not medically examined and the medical examination of the appellant could only be done under the orders of the Sub Divisional Magistrate, concerned.

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It is also submitted that with regard to the same incident a cross FIR has already been lodged on the behest of opposite party no.4Gulzar Ali.

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It is further submitted that when the commission of cognizable offence was / is emerging from the contents of the application moved under Section 156(3) Cr.P.C. it was incumbent duty of the Special Court to have directed the investigation under Section 156(3) Cr.P.C. and thus patent illegality has been committed.

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Learned AGA on the other hand supported the impugned order by submitting that it is not mandatory for Magistrate or Special Court to order for investigation in each and every case, even if the commission of cognizable offence is emerging as decision is to be taken as to why the investigation is required/ necessary?

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Keeping in view the order intended to be passed the issuance of notice to opposite parties no. 2 to 9 is hereby dispensed with.

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Having heard learned counsel for the parties and having perused the record, it is transpired that the appellant is aggrieved by the impugned order passed by the Special Court whereby the application moved by the appellant under Section 156(3) Cr.P.C. has been rejected. Perusal of the application moved by the appellant before the Special Court under Section 156(3) Cr.P.C. would reveal that apart from the private opposite parties/ accused persons the appellant has also named the Chauki Incharge of Police Chauki Ramfal Nari, Police Station Mauaima, Prayagraj who is in connivance with the opposite parties no.2 to 8 is alleged to have committed atrocities/ physical assault with the informant. It is also admitted that a civil dispute is pending in the appropriate court pertaining to cancellation of the sale deed which appears on the basis of contention between the parties.

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The law with regard to the manner in which application moved under Section 156(3) Cr.P.C. is to be dealt with is now no more res integra and the same has been settled by the Catena of judgments passed by the Hon'ble Supreme Court as well as by the Division Bench of this Court.

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Hon'ble Supreme Court in Priyanka Srivastava Vs. State of U.P.; MANU/SC/0344/2015 : AIR 2015 SC 1758 has opined as under:

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'26 . At this stage it is seemly to state that power Under Section

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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 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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27. In our considered opinion, a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or Under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

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We have already indicated that there has to be prior applications Under Section 154(1) and 154(3) while filing a petition Under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application Under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate Under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes,

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commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.'

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Hon'ble Supreme Court in Aleque Padamsee & others Vs. Union of India (UOI) (2007) 6 SCC 171 : MANU/SC/2975/2007 has also opined as under:

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'5. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate, after recording evidence, finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and could issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg) through its President v. Union of India and Ors. MANU/SC/1769/1996 : (1996)11SCC582 . It was specifically observed that a writ petition in such cases is not to be entertained.

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6. The above position was again highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra MANU/SC/0830/2004 : 2004CriLJ4623 ,M inu Kumari and Anr. v. State of Bihar and Ors. MANU/SC/8098/2006 : 2006CriLJ2468 andH ari Singh v. State of U.P. MANU/SC/8203/2006 : 2006CriLJ3283.

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7. Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what

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course is to be adopted if the police does not do it. As was held in All India Institute of Medical Sciences's case (supra) and reiterated in Gangadhar's case (supra) the remedy available is as set out above by filing a complaint before the Magistrate. Though it was faintly suggested that there was conflict in the views in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra), Minu Kumari's case (supra) and Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari's case (supra) related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari's case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Minu Kumari's case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case (supra) was re- iterated in Lallan Chaudhary and Ors. v. State of Bihar MANU/SC/4524/2006 : AIR2006SC3376 . The course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra) and Minu Kumari's case (supra). The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Sections 190 read with Section 200 of the Code. It appears that in the present case initially the case was tagged by order dated 24.2.2003 with WP(C) 530/2002 and WP(C) 221/2002. Subsequently, these writ petitions were de-linked from the aforesaid writ petitions.'

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In Mohd. Yousuf Vs. Afaq Jahan (Smt.) and another; MANU/SC/8888/2006 : (2006) 1 SCC 627 the question before the the Supreme Court was against with regard to the treating an application moved under Section 156(3) Cr.P.C. as complaint by the magistrate and the Hon'ble Supreme Court was of the following view:

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'4. In order to appreciate rival submissions Section 156 of the Code needs to be quoted; the same reads as follows:

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156. Police officer's power to Investigate cognizable cases. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

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(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

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(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.

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5 . Section 156 falling within Chapter XII, deals with powers of police officers to investigate cognizable offences. Investigation envisaged in Section 202 contained in Chapter XV is different from the investigation contemplated under Section 156 of the Code.

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6. Chapter XII of the Code contains provisions relating to "information to the police and their powers to investigate", whereas Chapter XV, which contains Section 202 deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint Provisions of the above two chapters deal with two different facets altogether i.e., complaint filed by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizance offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated Section 156 of the Code.

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7. The various steps to be adopted for investigation under Section 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer in charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code; The investigation contemplated in that chapter can be

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commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence;

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8. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. or direct an investigation to be made by a 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

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9. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.

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10. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code, If he does so, he is not to examine the complaint on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involved only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3)" of the Code that an

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FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.'

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A Division Bench of this Court Sukhwasi Vs. State of U.P. & others ; MANU/UP/1115/2007: ACC 2007 (59) 739 has opined as under:

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'20. The Full Bench decision of Ram Babu Gupta Vs. State of U.P. reported in MANU/UP/0861/2001 also lays down that the Magistrate can treat an application under Section 156(3) Cr.P.C. as a complaint. This will appear from the following observations:

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Coming to the second question noted above, it is to be at once stated that a provision empowering a Court to Act in a particular manner and a provision creating a right for an aggrieved person to approach a Court or authority, must be understood distinctively and should not be mixed up. While Sections 154, 155 Sub-section (1) and (2) of 156, Cr.P.C confer right on an aggrieved person to reach the police, 156(3) empowers a Magistrate to act in a particular manner in a given situation. Therefore, it is not possible to hold that where a bare application is moved before Court only praying for exercise of powers under Section 156(3) Cr.P.C, it will remain an application only and would not be in the nature of a complaint. It has been noted above that the Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers under Section 156(3) Cr.P.C. In this connection, it may be immediately added that where in an application, a complainant states facts which constitute cognizable offence but makes a defective prayer, such an application will not cease to be a complaint nor can the Magistrate refuse to treat it as a complaint even though there be no prayer seeking trial of the known or unknown accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all practical purposes even such an application would be a complaint. This Court can do no better than refer to the following observations in Suresh Chand Jain (Supra):

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The position is thus clear. Any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section

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156(3) of the Code...could take further steps contemplated in Chapter XII of the Code only thereafter.

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21. Hon'ble Mr. Justice Amar Saran in Criminal Misc. Application No. 7484 of 2004 Mohan Shukla and Ors. v. State of U.P., Hon'ble Mr. Justice Alok Singh in Criminal Misc. Application No. 671 of 2007 Ram Sabad v. Sessions Jude, Bahraich and Ors. have also held that the Magistrate is empowered under Section 156(3) Cr.P.C. to treat an application as a 'Complaint'.

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22. Applications under Section 156(3) Cr. P.C. are now coming in torrents. Provisions under Section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice, which warrants a direction to the Police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) Cr.P.C.

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23. 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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The law placed herein before would evidently reveal that at the stage of considering the request for ordering investigation as provided under Section 156(3) Cr.P.C. the Magistrate or Special Court as the case may be amongst other would also consider the necessity of such investigation. This Court is of the considered view that whenever a request under Section 156(3) Cr.PC. is made to any Magistrate or Special Court, the duty of the Magistrate or Special Court is to pose a question to itself as to why the investigation is required and if the answer to that query is in positive the Magistrate or Special Court having regard to the peculiar factual matrix of this Court may order for investigation and in another case keeping in view the peculiar factual position of that case may refuse the same and thus the decision is to be taken having regard tot he allegation made and other surrounding

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circumstances which may persuade the Court to take a decision on the basis of objective satisfaction .

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Thus, it is not mandatory for a Special Court or the Magistrate as the case may be to order for investigation in each and every case wherein such request is prayed for as stated earlier, in this case one of the accused is a Police Officer and a request is being made for investigation by the Police, the accused persons are known and the medical examination of the informant has already been done.

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Thus, in the considered opinion of this Court all the evidence which is required for the purpose of proving the guilt of the proposed accused persons is within the knowledge and control of the informant and in this background, I do not find any illegality so far as the impugned order is concerned whereby the request for investigation has been rejected by the Special Court. In the result the appeal appears to be lacking in merits and is dismissed , as such.

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However, mere rejection of the application moved under Section 156(3) Cr.P.C. may not preclude the appellant to file a complaint on the same set of fact in view of the law laid down by a Full Bench decision of this Court in 'Naresh Kumar Valmiki Vs. State of U.P. & Ors.' reported in MANU/UP3410/2022 as well as a Division Bench Judgment of this Court in 'Gyanendra Maurya Vs. Union of India' reported in MANU/UP/0238/2023. and of Hon'ble Supreme Court passed in Vishnu Kumar Tiwari Vs. State of U.P. and others, (2019)8 SCC 27.

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Order Date :- 24.5.2023 Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad

Sita Devi v. State of U.P. and 9 Others

Case brief

What is this about?

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Sita Devi v. State of U.P. and 9 Others

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