Mohd Ibadullah vs State of Up and 6 Others

The instant revision has been filed for setting aside the impugned order dated 25.1.2024 passed by learned Special Judge (D.A.A.)/Additional District & Sessions Judge, Hamirpur in Misc. Case No.08 of 2024 (Mohd Ibadullah Vs. Saif Ullah and others) under Section 156(3) Cr.P.C. P.S. Sumerpur, District Hamirpur, whereby application under Section 156(3) Cr.P.C. moved on behalf of revisionist has been rejected.

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Learned counsel for the revisionist submits that the revisionist was in possession of a shop situated in a residential house, which had fallen to his share in a family settlement, and he was using the said shop for storing and selling animal feed and poultry feed. The shop was secured with a lock. It is submitted that on the night of 09.09.2023, the accused persons, in connivance with each other, got the lock of the revisionist's shop opened by making a duplicate key and affixed their own lock. The said incident was captured in the CCTV footage. The accused persons abused the revisionist in filthy language and extended threats to kill him. It is further submitted that on 11.09.2023 at about 10:52 a.m., opposite party Nos. 2 to 7 forcibly entered the shop and looted the animal feed and poultry feed kept therein, and again abused and threatened the revisionist.

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The incident was also recorded on CCTV. The revisionist approached the police station for lodging a First Information Report, but no action was taken. Thereafter, he sent a registered complaint to the Superintendent of Police on 16.09.2023, but no case was registered.

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Consequently, the revisionist filed an application under Section 156(3) Cr.P.C., seeking a direction for registration of the case. However, the said application was dismissed by the learned Trial Court vide order dated 25.01.2024 on the basis of the police report. The learned Special Judge committed manifest illegality and material irregularity in rejecting the said application in an arbitrary and mechanical manner, without considering the material available on record. Hence, the impugned order is liable to be set aside.

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Per contra, learned A.G.A. submits that the impugned order is legal and suffers from no infirmity. The revisionist and opposite party Nos. 2 to 7 are belonging to the same family. The present application has been filed due to family dispute and personal enmity. Earlier criminal cases have already been registered against the revisionist, and the present proceedings have been initiated as a counterblast on false and concocted allegations. The learned Trial Court has rightly rejected the application under Section 156(3) Cr.P.C. after considering the police report. The revision is, therefore, liable to be dismissed.

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I have heard learned counsel for the parties and perused the material on record.

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Law regarding jurisdiction under Section 156(3) Cr.P.C. is well settled. Power under Section 156(3) Cr.P.C. has to be exercised by Magistrate judicially on proper grounds and not in a mechanical manner. If application does not indicate that any evidence is required to be collected and preserved and applicant is familiar with names of accused persons and witnesses then in such a case, no investigation by police is required. 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 a 'res-integra', as this controversy has been

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settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739 . In the case of Smt. Masuman vs. State of U.P. & others 2007 (1) ALJ 221 and some other cases, the single judges of the Court have taken a view that if the application under section 156 (3) Cr.P.C. discloses the commission of a prima-facie cognizable offence, then it is obligatory for the magistrate to direct investigation after registration of the FIR on the basis of that application. Disagreeing with this view, the following question was referred to the larger Bench for decision in the case of Sukhwasi vs. State of U.P. (supra).

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"Whether the Magistrate is bound to pass an order on each and every application under section 156(3)Cr.P.C. containing allegations of commission of a cognizable offence for registration of the FIR and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases"?

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After having considered 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. has answered the question 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 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

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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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It is the case of the revisionist that he was in possession of a shop in a residential house allotted to him in a family settlement, which he used for storing and selling animal and poultry feed. He alleges that on the night of 09.09.2023, the accused persons broke open the lock by using a duplicate key and affixed their own lock, and that on 11.09.2023 at about 10:52 a.m., opposite party Nos. 2 to 7 forcibly entered the shop, and looted the animal feed and poultry feed kept therein, abused him and extended threats. It is further alleged that, despite approaching the police as well as the Superintendent of Police, no FIR was registered and the application filed under Section 156(3) Cr.P.C. also came to be rejected by the Trial Court.

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From the record, it is evident that the revisionist and opposite party Nos. 2 to 7 belong to the same family and the dispute is essentially of a domestic nature. It further transpires that prior to the present proceedings, Case Crime No. 487 of 2023 under Sections 323, 342, 427 and 506 I.P.C. had already been registered against the revisionist and three other persons. Further, Case Crime No. 495 of 2023 under Sections 495, 500, 504 and 506 I.P.C. was also registered against the revisionist and his brother namely Jiyaullah, in which a charge-sheet has already been submitted.

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The police report clearly indicates that the present application was filed as a counterblast to the aforesaid criminal cases. Thus, there is no illegality, perversity or impropriety in the order impugned and the same has rightly been passed by the Trial Court after considering the entire material available on record. This Court, therefore, finds no illegality, impropriety or jurisdictional error in the impugned order dated 25.1.2024. The order passed by the learned Trial Court does not call for any

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interference in revision.

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