Allowed

Smt. Santosh Rathi v. State of U.P. and Another

Allahabad HC8 Aug 2023CRLR/677/2023

Case brief

AI extract

What is this about?

The Allahabad High Court allowed the criminal revision, setting aside the Special Judge's order that dismissed a Section 156(3) application. The Court held that the lower judge erred in rejecting the application based on an unverified police report that denied a property dispute. Finding cognizable offences on the bare reading of the serious domestic allegations, the High Court remanded the matter

What did the court decide?

Impugned order set aside; matter remanded to Special Judge, POCSO Act for hearing and decision afresh.

Smt. Santosh Rathi Vs State of U.P… — Constitutional and Fundamental Rights | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:159320

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Court No. - 50

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Case :- CRIMINAL REVISION No. - 677 of 2023

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Revisionist :- Smt. Santosh Rathi Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Desh Ratan Chaudhary,Himanshu Chaudhary

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Counsel for Opposite Party :- G.A.,Dharmendra Pratap Singh

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Hon'ble Ram Manohar Narayan Mishra,J.

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Learned counsel for the revisionist, learned counsel for the private respondent and learned A.G.A. for the State are present.

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Instant criminal revision has been filed against the order dated 26.9.2022 passed by learned Additional District and Sessions Judge/Special Judge, (POCSO Act), Muzaffarnagar, on application under Section 156(3) Cr.P.C. moved by the revisionist-applicant. By the impugned order, learned court below has dismissed the application under Section 156(3) Cr.P.C. moved by the revisionistapplicant with prayer to direct S.H.O. concerned to register and investigate the case.

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Factual matrix of the case are that revisionist in application under Section 156(3) Cr.P.C. has stated that she was working in C.H.C. in District Muzaffar Nagar. After death of her husband, Lt. Satyapal Singh Rathi, she came into contact with Dinesh Nayan (opposite party). He gained her confidence by his visits to the place of revisionist. He even used to come to her place along with her mother, sister and on persuasion of opposite party and his family members, she contracted marriage with him in 2017, however, in marriage documents, he wrongly showed her name as Sangeeta in place of Santosh Rathi as opposite party was trying to grab her property from the very beginning and her intention got unfolded after marriage. She was residing with her eight years old nephew Shubham in his house and her differently abled daughter was staying in Dehradoon. Opposite party, his mother and sister stolen her ornaments and cash to the tune of Rs. 1,40,000/- in her absence. On 15.8.2022, he threatened her by making a telephone call at 11:30 hours on mobile phone of revisionist. On same day, in the evening, opposite party visited her along with two unknown persons and abused her and engaged with her in mar-peet. He also threatened her with life. She approached the local police but no

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action was taken. Opposite party molested his minor differently abled daughter on 29.6.2021 in absence of application with intention to commit rape on her and used criminal force against her. On hearing cries of victim, her son Shubham intervened and thereupon opposite party threatened both the children that if they disclosed this fact to anyone, he will kill them, however, when the revisionist came back to home, her daughter and nephew disclosed this event to her. She informed the police on the next day on dial 100 and police visited the place. Opposite party got her signature on a paper with the assistance of his parents and tried to show that this was a minor incident. Some unknown persons are chasing the revisionist for last one month and she apprehends danger to her life from them.

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Learned counsel for the revisionist submitted that learned court below dismissed application under Section 156(3) Cr.P.C. moved by the revisionist on placing reliance on P.S. report filed on application under Section 156(3) Cr.P.C., wherein it is stated that there is some property dispute between the revisionist and opposite party and application has been moved by exaggerating the facts. The opposite party was challaned under Section 151 Cr.P.C. on 1.8.2022 at the instance of police. The allegations of molestation of minor daughter of the are false and baseless. He next submitted that learned court below rejected the application moved by revisionist without considering the fact that allegations are of very serious nature. Opposite party has not only committed theft in the house of the revisionist but also harassed, abused and engaged in mar-peet with her and threatened her with life. She was even tried to be crushed by some vehicle on 19.7.2022 by an unknown white colour car. Truthfulness of the facts mentioned in application can only be adjudicating upon on the basis of proper investigation.

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Learned court below has rejected the application only on personal perception, conjecture and surmises without considering the nature of allegations made in application. Cognizable offences of serious nature are made out, as per allegations made in application.

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Learned counsel for the revisionist placed reliance on a judgment of Hon'ble Apex Court in XYZ v. State of Madhya Pradesh & Ors, Crl. Appeal No. 1184 of 2022, decided on 5.8.2022 . Hon'ble Apex Court in paragraph nos. 20 and 21 of the judgment held as follows:-

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"20. A division bench of this Court in Sakiri Vasu v. State of U.P.6 expounded upon the Magistrate's powers under Section 156(3) of the CrPC. In this decision, the Court noted:

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11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file anapplication under Section 156(3) Cr.P.C. before the learned Magistrate concerned.If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

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13. The same view was taken by this Court in Dilawar Singh v. State of Delhi3 (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC.

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15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

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17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

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26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court

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by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section200 Cr.P.C.Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?"

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(emphasis supplied)

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It is clear from the above extract that the Magistrate has wide powers under Section 156(3) which ought to be exercised towards meeting the ends of justice. A two- judge Bench of this Court in Srinivas Gundluri v. SEPCO Electric Power Construction Corpn.,7 further clarified the powers of a Magistrate and held that whenever a cognizable offence is made out on the bare reading of complaint, the Magistrate may direct police to investigate:

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"23. To make it clear and in respect of doubt raised by Mr Singhvi to proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the case on hand, the learned Single Judge and the Division Bench of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, we are of the view that the Magistrate has not committed any illegality in directing the police for investigation. In the facts and circumstances, it cannot be said that while directing the police to register FIR, the Magistrate has committed any illegality. As a matter of fact, even after receipt of such report, the Magistrate under Section 190(1) (b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the police report by the investigating officer, hence, by directing the police to file charge-sheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in sub-section (3) of Section 156."

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Hon'ble Apex Court in paragraph no. 20 of the judgment held that in such cases, where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint, but also such facts are brought to the Magistrate's notice which clearly indicate the need for police investigation, the discretion granted in Section 156(3) can only be read as it being the Magistrate's duty to order the police to investigate. In cases such as the present, wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation.

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Per contra, learned counsel for the private respondents submitted that there is no illegality, irregularity or perversity in the impugned

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order passed by learned court below. The allegations made in application under Section 156(3) Cr.P.C. are concocted and applicant was filed with ulterior to implicate the opposite party in false and serious charges. Even after dismissal of application under Section 156(3) Cr.P.C., applicant was having option to file criminal complaint in the matter instead of filing present revision before this Court against the order passed by learned court below by which the application under Section 156(3) Cr.P.C. has been dismissed.

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Considering rival submissions of learned counsel for the parties, nature of allegations of the offence alleged in the impugned order and the fact that no cogent reason has been shown by learned magistrate while dismissing the application moved by the revisionist who is a widow lady and tied nuptial knot with the opposite party after death of her husband, finding of learned court below that matter is related to property dispute is based on report of P.S. concerned filed on application under Section 156(3) Cr.P.C. and the said report is not based on any proper investigation as this is admitted fact that no F.I.R. has been lodged or complaint has been filed in the matter as yet, and finding of court below that no cognizable offence appears to be made out, is also not in consonance with the allegation made in application under Section 156(3) Cr.P.C., contrary to this, on perusal of application under Section 156(3) Cr.P.C., a cognizable offence is made out in the matter and, therefore, impugned order appears to be vitiated by legal error and is not sustainable. Impugned order passed by learned court below is set aside. Revision stands allowed, accordingly.

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Matter is remanded to learned Special Judge, POCSO Act for hearing and decision afresh after giving opportunity of hearing to the applicant revisionist in the light of observations made in present revision.

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Learned Special Judge concerned is supposed to pass reasoned order in the matter, in accordance with law.

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Order Date :- 8.8.2023 A.P. Pandey

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Digitally signed by :- ANAND PRAKASH PANDEY High Court of Judicature at Allahabad

Smt. Santosh Rathi v. State of U.P. and Another

Case brief

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Smt. Santosh Rathi v. State of U.P. and Another

Case brief

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