Dismissed

Pooja Yadav v. State of Up and 4 Others

Allahabad HC20 Sept 2024A227/4892/2024

Case brief

AI extract

What is this about?

Petition under Article 227 challenged the conversion of a Section 156(3) Cr.P.C. application into a complaint case and rejection of the revision. The High Court held the Magistrate has judicial discretion under Sections 156(3) and 190 Cr.P.C., found no illegality, and dismissed the petition.

What the court decided

AI extract

Pooja Yadav vs State of Up and 4 Others — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:164313

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Court No. - 85

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Case :- MATTERS UNDER ARTICLE 227 No. - 4892 of 2024

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Petitioner :- Pooja Yadav Respondent :- State Of Up And 4 Others Counsel for Petitioner :- Amit Kumar Shukla Counsel for Respondent :- G.A.,Rajesh Kumar Tiwari

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Hon'ble Saurabh Srivastava,J.

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Heard Sri Amit Kumar Shukla, learned counsel for the petitioner, Sri Rajesh Kumar Tiwari, learned counsel for the private respondents no.2 to 5 and learned A.G.A. for the State.

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The present petition under Article 227 of the Constitution of India has been preferred to set-aside the order dated 24.04.2023 passed by learned Chief Judicial Magistrate, Court No.11, Jaunpur in Criminal Misc. Application No.1212 of 2022 (Pooja Yadav vs. Jawahar Lal and others), through which application under section 156(3) preferred by the petitioner has been treated as compliant case as well as to set-aside the order dated 19.03.2024 passed by learned Additional Session Judge, Court No.1, Jaunpur in Criminal Revision No.180 of 2023 (Pooja Yadav vs. State of U.P. and Others), which has been rejected.

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Learned counsel for petitioner submitted that without perusing the evidences available on record and without applying its judicial mind, learned concerned court vide its order dated 24.04.2023, treated the application under Section 156(3) Cr.P.C as complaint case which was preferred by the appellant. Learned counsel for appellant further submitted that cognizable offence is made out against respondent nos.2 to 5 and the recovery of cheque of Rs.5 lac is necessary, which is not possible without investigation, which has not been considered by learned concerned courts, as such the impugned order is liable to be set-aside by directing the court concerned to give direction to register FIR against the respondent nos.2 to 5.

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Per contra, learned A.G.A. for the State and learned counsel for the respondent nos.2 to 5 vehemently opposed the prayer as made in the petition and submitted that after considering the material on record, learned concerned court rightly passed the impugned order through which no prejudice has been caused to the petitioner.

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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 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 not made out. The Magistrate is fully competent to use its judicial discretion in the matter. This is wrong notion that if an application has been moved under Section 156(3) Cr.P.C., the only order can be passed for registration of F.I.R. in the matter. The Magistrate has been empowered under Section 190 Cr.P.C. to take cognizance directly or to pass an order directing 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 discretion of the Magistrate. Even Hon'ble Apex Court also held that the Magistrate has got a judicial discretion to pass an order to register the case and investigate under Section 156(3) Cr.P.C. or to treat an application as a complaint case.

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In the present case, 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 order of the Magistrate.

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In view thereof, the petition lacks merit and is hereby dismissed .

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Order Date :- 16.10.2024 Saif

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Digitally signed by :- SHAIKH SAIF ABDIN High Court of Judicature at Allahabad

Pooja Yadav v. State of Up and 4 Others

Case brief

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Pooja Yadav v. State of Up and 4 Others

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