Vinay Tiwari Vs State of U.P. and 4 Others

Neutral Citation No. - 2025:AHC:3392

Court No. - 73

Case :- APPLICATION U/S 482 No. - 17592 of 2024

Applicant :- Vinay Tiwari Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Prem Chand Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record.

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This application under Section - 482 Cr.P.C. has been preferred against order dated 23.02.2024, passed by learned Chief Judicial Magistrate, Prayagraj in Misc. Case No. Nil of 2023 (Vinay Tiwari Vs. Malyaj Singh and Others), Police Station - Naini, District - Prayagraj, whereby the application filed by the applicant under Section - 156(3) Cr.P.C. has been registered as a complaint case.

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Learned counsel for applicant submitted that applicant has made application under Section - 156 (3) Cr.P.C. against the private opposite parties and serious allegations were levelled against them but despite that the learned Chief Judicial Magistrate declined to make direction for investigation by police and registered the application of applicant as complaint case by observing that all the facts are in the knowledge of the applicant. It was stated that when serious allegations are being levelled in application under section - 156(3) Cr.P.C., Magistrate cannot register the said application as a complaint case. In support of his connection, learned counsel for applicant has placed reliance upon cases of Mukesh Kharwar Vs. State of U.P. and 3 Others 2024:AHC:149752 and Heera Lal Vs. State of U.P. and 3 Others (Application under Section 482 No.

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28401 of 2018), decided on 04.09.2018. Learned counsel has referred contents of the application under Section - 156(3) Cr.P.C. and submitted that a cognizable offence is made out and thus, the impugned order is liable to be set aside.

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Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order and that alleged incident has taken place in Jamshedpur.

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I have considered the rival submissions and perused the record.

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The issue whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156 (3) Cr.P.C. containing allegation of commission of a cognizable offence is no more 'resintegra', as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. After considering the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi vs. State of U.P. (supra) has answered the question referred to it, in paragraph 23 of the judgment as under:-

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"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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Thus, it is apparent that Magistrate is not bound to pass order of investigation by police, even if such application discloses cognizable offence. The Magistrate is required to apply its mind to find out whether the first information sought to be lodged by applicant had any substance or not. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case

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according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint.

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In case of Mukesh Kharwar (supra) , there were allegation of assaulting the complainant with hand and fists and after considering several case laws, the co-ordinate Bench of this Court has held as under :-

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"19. Perusal of the impugned order shows that no sufficient reason has been disclosed, on the basis of which, the Magistrate has proceeded to treat the application under section 156(3) Cr.P.C. as a complaint. Merely because the facts are in the knowledge of the applicant, direction to lodge FIR cannot be refused. The gravity/seriousness of the offence; the requirement of the evidence for the purpose of launching a successful prosecution, and basically the interest of justice depending on the facts of each case, need be considered in passing the order under Section 156(3) Cr.P.C. The impugned order does not assign any valid reason nor reflects application of judicious mind and has been passed in a mechanical manner only on the ground that the facts of the case were within the knowledge of the applicant, thus, the same is liable to be set-aside."

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In case of Heera Lal (supra) , the co-ordinate Bench of this Court has held as under :-

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"From the perusal of the aforesaid provisions, it is evident that the police can investigate into matters relating to commission of 'cognizable offences' brought to its notice under section 154 CrPC. Officer-in-charge of police station has power to investigate U/S 156(1) in such case. Magistrate has power to take cognizance u/s 190 CrPC on receiving the 'complaint'. Thus the matter relating to section 156 (3) relates to power of Magistrate to order investigation by police in matters relating to cognizable offences brought before it through complaint. Complaint has been defined in section 2(d) CrPC of as follows : "complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include a Police report." Code of Criminal Procedure has given different type of powers to deal with such matters relating to commission of cognizable offences when brought before it."

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At this stage, it would be relevant to mention that in case of Mrs. Priyanka Srivastava and another vs. State of U.P. and Others ; 2015 AIR(SC)1758, the Hon'ble Apex Court held as under

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: -

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"At this stage it is seemly to state that power under Section 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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Thus, while dealing with application under Section 156(3) Cr.P.C., Magistrate is required to apply its mind to find out whether the first information sought to be lodged by the applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appear to be without any substance, then in such case the Magistrate can refuse to direct

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registration of the FIR and its investigation by the police, even if the application contains the allegations of commission of a cognizable offence. In such case, the Magistrate is fully competent to reject the application. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint, as held by the Division Bench in the case of Sukhwasi vs. State of U.P. (supra).

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In the instant matter, the applicant has filed an application under Section - 156(3) Cr.P.C. making allegations that opposite party no.2 is known to him and she has filed a case against applicant in Jamshedpur and started blackmailing him with the help of her batchmate K. Vijay Shankar, who was posted as Superintendent of Police at Jamshedpur, the opposite party no.2 has called the applicant to Jamshedpur in order to compromise the matter and threatened him. Similarly on 15.01.2022 the opposite party no.2 has again threatened the applicant on phone. On 17.01.2022, the opposite party no.3 claiming to be S.H.O. of Bistupur Police Station called on mobile phone of applicant to settle the said case lodged by the opposite party no.2 and later on applicant went to Jamshedpur where on pretext of settlement, the opposite party no.3 again threatened the applicant and he was illegally detained and wrongfully confined for 35 hours on 6th and 7th April, 2022 inside Bistupur Police Station - Jamshedpur and he was mentally tortured. It was also alleged that on pretext of compromise, the opposite party no.4 S.I. Amit Kumar Singh called the applicant on phone and asked him to come Jamshedpur for

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settlement of the said case. Applicant went there on 16.08.2022 and at instance of opposite party no.2 and 5, the applicant was forcibly abducted and wrongfully detained in the police station and his mobile phone and pen drive were robbed and he was assaulted and tortured and handcuffed. Thus, it is apparent that entire incident has taken place in or around Jamshedpur. Further, as per his own averment, the opposite party no.2 has lodged a stalking case against applicant but the first information report or the details of said case have not been brought on record. The private opposite parties are stated to be public servants. In view of specific attending facts and circumstances of the matter, it cannot be said that learned Chief Judicial Magistrate has committed any patent illegality or perversity in registering the application of the applicant under Section - 156(3) Cr.P.C. as a complaint case. In the cases referred by learned counsel for the applicant, no such law has been laid down that in each and every application under Section - 156 (3) Cr.P.C., the Magistrate is bound to order the registration of first information report. Considering entire facts and position of law, this Court does not find any such patent illegality or abuse of process in respect of impugned order, so as to require any interference by this Court by invoking extraordinary jurisdiction under Section - 482 Cr.P.C.. The application under Section 482 Cr.P.C. lacks merit and thus liable to be dismissed.

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The application u/s 482 Cr.P.C. is hereby dismissed .

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Order Date :- 8.1.2025 S Rawat

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Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad

Vinay Tiwari v. State of U.P. and 4 Others

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