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ALLAHABAD HIGH COURT
Manju Rani Chauhan, J.
Mukesh Kharwar – Applicant
versus
State of U.P. and 3 Ors. – Opp. Parties
Application U/S 482 No.24716 of 2024
Decided on 2.9.2024
Criminal Procedure Code, 1973 – Section 156(3) [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 175(3)] – Direction for Police investigation – Option to direct registration of case and its investigation by police should be exercised where some “investigation” is required, which is of a nature that is not possible for private complainant and which can only be done by police upon whom statute has conferred powers essential for investigation – Where complainant is in possession of complete details of all accused as well as witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by police, no “investigation” would normally be required and procedure of complaint case should be adopted – Adding unnecessary cases to diary of police would impair their efficiency in respect of cases genuinely requiring investigation – Besides even after taking cognizance and proceeding under Chapter XV Magistrate can still under Section 202(1) Cr. P.C. order investigation, even though of a limited nature – Gravity/seriousness of offence; requirement of evidence for the purpose of launching successful prosecution, and basically interest of justice depending on facts of each case, need be considered in passing order under Section 156(3) Cr.P.C. – Impugned order does not assign any valid reason nor reflects application of judicious mind and has been passed in a mechanical manner – Impugned order set aside with direction to court concerned to pass a fresh order on application under Section 156(3) Cr.P.C. filed by applicant.(Paras 15, 16, 19, 20 and 21)
Result: Application allowed.
JUDGMENT
Heard Mr. Manish Kumar Singh, Advocate holding brief of Mr. Kailash Pati Singh, learned counsel for the applicant as well as Mr. D.P. Singh, learned AGA for the State and perused the record.
2. This application under Section 482 Cr.P.C. has been filed to quash the impugned order dated 08.05.2024 passed by Special Judge SC/ST Act Chandauli in Criminal Misc. Case No.78 of 2024 (Mukesh Kharwar vs. Arun Kumar and Others), Police Station- Baluwa, District- Chandauli as well as stay the further proceedings of the aforesaid case, pending in the court of Special Judge SC/ST Act Chandauli.
3. Considering the nature of the order under challenge as well as order proposed to be passed, as purely equal question is involved, no fruitful purpose will be served in keeping this matter pending, therefore, the matter is being decided at this stage without calling for counter affidavit.
4. Brief facts of the case are that an application under Section 156(3) Cr.P.C. was moved by the applicant with the allegations that the applicant is an elected Member of Kshetra Panchayat, Kshetra Sankhya 83, Kshetra Papaura Vikas Khand Chahaniya, District- Chandauli. On 04.03.2024, the applicant along with 66 Kshetra Panchayat Members had gathered at the office of the District Magistrate, Chandauli to propose no confidence motion against Arun Kumar Jaiswal, Block Pramukh Chahaniya, District-Chandauli. Annoyed by the aforesaid, on 14.03.2023 at about 08:15 am when the applicant was performing pooja at the village’s Radha Krishna Mandir, villagers namely Gopal Singh @ Bablu and Monu Singh reached there and forced the applicant to sign on the affidavit in favour of Block Pramukh. When the applicant refused to sign the same, they used abusive language, caste indicative words and assaulted him. They forcefully tried to take him on the motorcycle and assaulted him with hand and fist. Hearing the noise, the applicant’s wife and other villagers reached there and tried to intervene. It has been further alleged that the applicant tried to lodge an FIR by giving an application before the concerned police station but of no avail, therefore, the present application has been filed. The aforesaid application was treated as complaint case thus, refusing the prayer to issue direction to lodge the FIR on the ground that the facts of the case were known to the applicant.
5. Learned counsel for the applicant submits that the application under Section 156(3) Cr.P.C. discloses commission of cognizable offence and as such the Magistrate must have directed for registration of first information report and investigation by the police, instead of treating the application as a complaint case. He further submits that the order impugned has been passed mechanically and in a routine manner, which does not manifest the application of judicious mind to the facts of the case and law applicable therein. In support of his submission, he has placed reliance upon the judgment passed by this Court in the case of Anmol Singh vs. State of U.P. and Others reported in 2021 (1) ADJ 400.
6. Learned A.G.A. on the other hand has supported the impugned order and has pointed out that the grievance of the applicant has not gone unattended by the court below. The court below after taking into consideration the entire gamut of the facts and circumstances of the case has rightly concluded to treat the application filed by the applicant under Section 156 (3) Cr.P.C. as a complaint. The applicant shall still have an opportunity to prove his case before the court below.
7. Having heard the learned counsel for the parties, the following question has come up for consideration before this Court:-
8. 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 F.I.R. and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not ap
Direction for Police Investigation – Option to direct registration of case and its investigation by police should be exercised where some “investigation” is required, which is of a nature that is not....
The Magistrate must judiciously exercise discretion in registering FIRs under Section 156(3) Cr.P.C., ensuring that mechanical refusals are avoided when cognizable offences are disclosed.
The Magistrate has discretion under Section 156(3) of the CrPC to determine whether to direct an investigation, particularly in civil disputes masquerading as criminal matters.
The court ruled that a Magistrate must exercise careful judicial discretion when considering an application under Section 156(3), ensuring each complaint is evaluated adequately before deciding on FI....
distinction between the investigation by the police officer under Section 156(3) and under Section 202(1) Cr.P.C. is that the former is at the pre-cognizance stage and the latter is at post cognizanc....
The Magistrate has discretion under Section 175(3) of the BNSS to decide whether to register an FIR based on the application, assessing whether a cognizable offense is made out.
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