Dismissed

Mohd. Alim v. State of Up and 3 Others

Allahabad HC18 Oct 2024A227/3867/2024

Case brief

AI extract

What is this about?

This petition under Article 227 CrPC sought to quash orders refusing to register an FIR under Section 156(3) CrPC. The High Court held that the magistrate was not bound to direct investigation and could proceed under Section 200 CrPC, finding no illegality. The petition was dismissed.

What did the court decide?

None. The petition was dismissed with no direction issued to the lower court.

Mohd. Alim vs State of Up and 3 Others — Writ and Judicial Review | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:166522

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Court No. - 85

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Case :- MATTERS UNDER ARTICLE 227 No. - 3867 of 2024

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Petitioner :- Mohd. Alim Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Suneel Kumar Mishra Counsel for Respondent :- G.A.

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Hon'ble Saurabh Srivastava,J.

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Heard learned counsel for the parties.

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The instant petition has been preferred with the following prayers:-

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"i. set aside the order dated 19.01.2024 passed by learned Session Judge, Rampur, in Criminal Revision no. 170 of 2023 (Mohd. Alim vs. State of U.P. & others) and order dated 15.07.2023 passed by Civil Judge (J.D)/F.T.C., Rampur in Criminal Misc. Application No. 15 of 2023 (Mohd. Alim vs. Sahil Gandhi & others) in application under Section 156(3) of Cr.P.C, Police Station Milak Khanam, District Rampur (Annexure No. 1) to the instant petition.

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ii. Issue a direction to the Civil Judge (J.D.)/F.T.C., Rampur to reconsider for registration of case and investigate the same on the Criminal Misc. Application No. 15 of 2023 (Mohd. Alim vs. Sahil Gandhi & others), in application under Section 156(3) of Cr.P.C., Police Station Milak Khanam, District Rampur."

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Learned counsel for petitioner submitted that petitioner moved an application under Section 156(3) Cr.P.C before learned Additional Chief Judicial Magistrate-III, Rampur on 14.12.2022 against respondent nos. 2 to 4 for the offence committed by them which was registered as Criminal Misc. Application no. 15 of 2023. It is stated that by impugned order dated 15.07.2023, learned Civil Judge (J.D.)/F.T.C., Rampur has treated the said application as complaint. Being aggrieved with the order dated 15.07.2023, petitioner filed a revision before learned Session Judge, Rampur which was registered as Criminal Revision no. 170 of 2023 but learned Session Judge, Rampur rejected the said revision of petitioner vide order dated 19.01.2024 which has been challenged through the instant petition.

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Learned counsel for petitioner challenged the impugned orders on the ground that at the time of passing order on application

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under Section 156(3) Cr.P.C, the Magistrate would only had to see that prima facie cognizable offence is made out or not but he has decided the case on merit which is illegal. Further the accused persons are residing out of territorial jurisdiction of learned Civil Judge (J.D.)/F.T.C., Rampur and enquiry under Section 202(1) of Cr.P.C is necessary but learned Civil Judge (J.D.)/F.T.C., Rampur failed to consider the said aspect and orders impugned has been passed in a routine manner. Learned counsel for petitioner further argued that once it is apparent that offence committed by the private respondents, is cognizable and petitioner is not able to collect evidence, in such situation, order for registering the FIR has to be passed by the court concerned and as such, both the impugned orders are not sustainable in the eye of law and the same may be quashed.

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Per contra, learned AGA for the State vehemently opposed the prayer as made in the petition and submitted that after considering the material on record, learned court concerned passed the orders and as such, there is no illegality in the same.

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After having the rival submissions of learned counsel for parties and perusal of the impugned order, it appears that the concerned court after considering the material available on record, passed the order impugned. The Magistrate is not bound in each and every case to pass an order to register a case and investigate if cognizable offence is made out. The Magistrate is fully competent to use its judicial direction in the matter. This is wrong notion that if an application has been moved under Section 156(3) Cr.P.C then the only order can be passed for registration in the matter. The magistrate has got direction under Section 190 Cr.P.C. to take the cognizance directly or to pass an order that the police to investigate and then take cognizance on submissions of a report under Section 173 Cr.P.C. The Magistrate is also expected to act under some guidelines and it should not be left at the arbitrary discretion of the Magistrate to pass an order or not to pass an order to register the case and investigation under Section 156(3) Cr.P.C. In Gulab Chandra Upadhyaya v. State of U.P. [2002 (44) SCC 670] , a Coordinate Bench of this Court laid down the guidelines for the guidance of Magistrate while deciding the application under Section 156(3) Cr.P.C. and the guidelines cannot be said against any provision of law or check on the judicial direction of the Magistrate.

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The Hon'ble Apex Court in the case of Ramdev Food Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439 also observed that under Section 156(3) of Cr.P.C., Magistrate was not bound to

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direct investigation by police and such direction could be given only on application of mind. It was also observed that each case must be viewed depending upon the facts and circumstances involved. The directions for investigation could not be granted even if all allegations made in the complaint constituted a cognizable offence and in cases where the complainant could prove the facts alleged in the complaint without assistance of police, then Magistrate might proceed under Section 200 of Cr.P.C.

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In the instant case, the facts were within the petitioner's knowledge, which could be adduced during the inquiry conducted by the court concerned under Section 200 of Cr.P.C. Hence, Investigation was not required and also it is not the special case to invoke the extraordinary jurisdiction under under Article 227 of the Constitution as there is no miscarriage of justice or illegality in the approach adopted by the concerned court or the revisional court. The court concerned passed an order in the circumstances of the case that it may be registered as a complaint case and proceed to record the statement under Sections 200 Cr.P.C. There appears no illegality and impropriety in the orders of the court concerned or the revisional court.

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In view of the aforementioned facts and circumstances, the petition lacks merit and is hereby dismissed .

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Order Date :- 18.10.2024 Shaswat

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Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad

Mohd. Alim v. State of Up and 3 Others

Case brief

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Mohd. Alim v. State of Up and 3 Others

Case brief

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