Ashok Kumar Vs State of Up and 5 Others

Neutral Citation No. - 2025:AHC:2812

Court No. - 73

Case :- APPLICATION U/S 482 No. - 23845 of 2024

Applicant :- Ashok Kumar Opposite Party :- State Of Up And 5 Others Counsel for Applicant :- Ashwani Tripathi,Ramanuj Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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The instant application under Section 482 Cr.P.C. has been preferred against the order dated 29.07.2022, passed by learned Additional Civil Judge (J.D.), Court No. 4, Aligarh in Complaint Case No. 1415 of 2021, police station Banna Devi, district Aligarh, whereby the application filed by the applicant under Section 156(3) Cr.P.C. has been rejected, as well as against the order dated 18.05.2024, passed by learned Additional Sessions Judge, Court No. 6, Aligarh in criminal revision no. 286 of 2022, whereby the revision filed against the order dated 29.07.2022 has been dismissed.

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Heard learned counsel for applicant and learned A.G.A. for the State.

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It has been argued by learned counsel for applicant that the uncle of applicant, namely Sonpal Singh has executed a lease deed (patta) in favour of the father of applicant, namely Mahipal in the year 1992 and since then applicant is in possession of the disputed land but in the year 2020 after death of Sonpal Singh, his sons have asked the applicant to hand over the said land and when applicant demanded the consideration amount, they have filed a civil suit. It was further submitted that the allegations made in the application disclose commission of cognizable offence. Further, in the complaint the applicant has alleged that the opposite party nos.

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2 to 6 have trespassed into his house and assaulted him but the learned Magistrate as well as learned Sessions Judge have not considered that fact. Referring to the facts of the matter, it was submitted that the impugned orders are against facts and law and thus, liable to be set aside.

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Learned A.G.A. has opposed the application and argued that there is no illegality or perversity in the impugned orders.

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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 cognizance 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

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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.

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In case 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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"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 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 case it may be mentioned that the allegation of applicant is that in the year 1992, his uncle Sonpal Singh has executed a lease deed (patta) in favour of the father of applicant, namely Mahipal but after death of Sonpal Singh in the year 2020, his sons have asked to hand over the said land to them. When applicant told that this land was given to his father against consideration of Rs. 1,50,000/-, the private opposite parties have filed a civil suit. Essentially the dispute between the parties is civil in nature and matter is pending before the civil court. The learned Magistrate has considered the entire facts and the application of applicant under Section 156(3) Cr.P.C. was rejected. Similarly, the revisional court has considered the entire facts and law and dismissed the revision by a reasoned order. Considering the nature of allegations made by applicant and position of law, it cannot be said that impugned orders are suffering from any such patent illegality or abuse of the process of law so as to require any interference by this Court in exercise of powers conferred under Section 482 Cr.P.C.

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In view of the above, the application under Section 482 Cr.P.C. is dismissed.

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Order Date :- 7.1.2025 Anand

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

Ashok Kumar v. State of Up and 5 Others

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Ashok Kumar v. State of Up and 5 Others

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