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2020 Supreme(All) 694
IN THE HIGH COURT OF ALLAHABAD
MANJU RANI CHAUHAN, J.
Geeta Devi — Appellant
Versus
State Of U.P. and others — Respondent
Application U/S 482 No. 3761 of 2020
Decided on : 03-02-2020
Advocate Appeared:
Om Prakash Vishwakarma, Advocate
Point of law: Provisions under section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice which warrants a direction to the Police to register a case. Such application should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of section 156(3) Cr.P.C.
Headnote:
Criminal Procedure Code,1973 – Sections 482, 156(3) – Prevention of Atrocities Act – Indian Penal Code,1860 – Sections 354C, 509 – Looted Property– While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
Facts of the case:
The right and interest of the applicant is involved in the present case as the property of applicant has been looted – The learned counsel for the applicant has contended with vehemence that the court below has passed the impugned order in a mechanical manner and has ignored the judgment of the Apex Court rendered in the case of Lalita Kumari Vs. Government of U.P. and others
Finding of the court: –
concerned court below i.e. Special Judge, S.C./S.T (Prevention of Atrocities) Act, Jaunpur is directed to exercise his discretionary power and decide afresh the application under section 156(3) Cr.P.C. moved by the applicant and to pass appropriate order, in accordance with law, keeping in view the observations made by this court, within a period of one month from the date of production of a certified copy of this order.
Result: – Application Allowed
JUDGMENT :
Manju Rani Chauhan, J.
Heard Mr. Om Prakash Vishwakarma, learned counsel for the applicant, and the learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed challenging the order dated 30.10.2019, passed by the Special Judge, S.C./S.T (Prevention of Atrocities) Act, Jaunpur in Misc. Case No. 117 of 2019 (Geeta Devi vs. Satya Narayan and others), under Section 156(3) Cr.P.C., Police Station-Sikrara, District-Jaunpur by which the application under Section 156(3) Cr.P.C. filed by the applicant has been directed to be treated as complaint case.
3. Learned counsel for the applicant submits that a perusal of the complaint filed by the applicant clearly discloses the commission of a cognizable offence. He, therefore, submits that once the application filed by the applicant under Section 156 (3) Cr.P.C. disclosed the commission of a cognizable offence, the Magistrate has erred in law in directing to proceed with the application as a complaint case. He further submits that the right and interest of the applicant is involved in the present case as the property of applicant has been looted. The learned counsel for the applicant has contended with vehemence that the court below has passed the impugned order in a mechanical manner and has ignored the judgment of the Apex Court rendered in the case of Lalita Kumari Vs. Government of U.P. and others, (2014) 2 SCC 1.
4. 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.
5. Considered the rival submissions made by the learned counsel for the parties.
6. A 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.
7. From the record, it transpires that in the present case, the right and interest of the applicant in her property is involved. The allegations made in the application filed under section 156 (3) Cr.P.C. are not only serious, but also show the commission of a cognizable offence. The applicant has alleged in the complaint that on 19.06.2019 at about 09:00 p.m., the accused persons came at the house of applicant and destroyed her house and when the applicant objected the same, accused-Sunil Mishra and Anil Mishra threatened the applicant by putting gun on applicant's chest and, thereafter, Sunil Mishra entered into the house of applicant and misbehaved with the daughter-in-law of applicant. They also forcefully took away several properties of the applicant. However, the Magistrate vide order dated 30.10.2019 directed that the said application shall be treated as a complaint. A perusal of the order impugned passed by the Magistrate shows that the Magistrate was of the view that since all the evidence required in respect of the incident which occurred on the alleged date can be given by the applicant, there is no necessity of police investigation in the matter.
8. In view of the nature of the allegations made by the applicant in the application filed under Section 156 (3) Cr.P.C., the Special Judge, S.C./S.T (Prevention of Atrocities) Act, Jaunpur ought to have allowed the application and directed the police of Police Station Sikrara, Jaunpur to investigate into the matter and, thereafter, submit a report.
9. Sections 154 and 156 Cr.P.C. provide procedure for registration and investigation of complaint. The same are quoted herein under:-
"154. Information in cognizable cases- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a
