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IN THE HIGH COURT OF ALLAHABAD
RAVI NATH TILHARI, J.
Anmol Singh – Appellant
Versus
State of U.P. and Others – Respondents
Application U/s 482 No. 13804 of 2020
Decided On : 07-01-2021
Code of Criminal Procedure, 1973 - Section 156(3) and 482 - Criminal case - They also threatened the applicant to kill him - Case as per the application/petition are that the accused opposite party nos. 2 to 4 forcibly entered in the house of the applicant armed with lathi and danda, abused and misbehaved the applicant and her mother –
Finding of the Court:
Perusal of the order clearly shows that the Magistrate has not applied judicious mind to the facts of the case and in particular paragraph no. 3 of the application, which not only made out commission of a cognizable offence but an offence of molestation and sexual assault on the mother of the applicant - Application clearly stated that the accused persons are related to influential persons and as such neither the FIR was being lodged nor the medical of the applicant’s mother was carried out. In such matters the medical examination of the victim is necessary - Medical report of the victim is of importance. Merely because the facts are in the knowledge of the applicant, direction to lodge FIR cannot be refused - 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 - Offence, as per the contents of the application is not a matrimonial, commercial or family dispute –
Result: Application allowed
JUDGMENT :
RAVI NATH TILHARI, J.
1. Heard Shri Hari Prakash Singh, learned counsel for the applicant and learned A.G.A. appearing for the State and perused the material brought on record.
2. This application/petition under Section 482 Code of Criminal Procedure (Cr.P.C.) has been filed challenging the order dated 17.07.2020, passed by learned Chief Judicial Magistrate, Court No. 11, Janupur in Criminal Misc. Application No. 180 of 2020 (Anmol Singh vs. Krishan Kumar Singh and Others) under Section 156(3) Cr.P.C. Police Station-Sarai Khwaja, District-Jaunpur, whereby the said application has been registered as a complaint case.
3. Considering the nature of the order under challenge; the pre-cognizance stage of the case at which the proposed accused have no right of hearing, that keeping this application pending would serve no fruitful purpose which would delay the proceedings of the criminal case as well as the order proposed to be passed, the notice to the private respondents is dispensed with.
4. Briefly stated the facts of the case as per the application/petition are that on 05.05.2020 at about 8.30 a.m. the accused opposite party nos. 2 to 4 forcibly entered in the house of the applicant armed with lathi and danda, abused and misbehaved the applicant and her mother. They also threatened the applicant to kill him. The accused committed sexual assault on the mother of the applicant. The applicant was medically examined but no medical examination of the mother was conducted in spite of request. The accused are related to influential persons. The applicant's report was not being registered, therefore, the application under Section 156(3) Cr.P.C. was filed on which the order under challenge was passed.
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 the registration of the first information report and investigation by police, instead of treating the application as a complaint case. He further submits that the order under challenge 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. He has placed reliance on the cases of Lalita Kumari vs. Government of India and Others, 2014 (2) SCC 1, Jitendra Kumar vs. State of U.P. and Others, Criminal Revision No. 1768 of 2018, decided on 29.05.2018, Shiv Mangal Singh vs. State of U.P. and Others, Criminal Revision No. 715 of 2019, decided on 25.02.2019 and Ashok Kumar Pathak vs. State of U.P. and Another, passed in application under Section 482 Cr.P.C. No. 43271 of 2018, decided on 30.11.2018.
6. Learned AGA has submitted that the Magistrate has the jurisdiction to direct the police to register the F.I.R. and make investigation without taking cognizance. But, he has also the jurisdiction to take cognizance and proceed to inquire the matter by himself, registering the application as a complaint case. In such circumstance he has to follow the procedure prescribed for complaint case. He has submitted that the Magistrate while proceeding as a complaint case has still the power to direct for police investigation, in view of Section 202(1) Cr.P.C. If the Magistrate in his discretion has adopted the option of registering the application as a complaint case, no illegality has been committed by the Magistrate. Learned A.G.A. has placed reliance on the case of Sukhwasi vs. State of U.P. and Others, 2007 (59) ACC 739 (All) in support of his contention that it is in the discretion of the Magistrate to direct for police investigation before taking cognizance under Section 156(3) Cr.P.C. or after taking cognizance to proceed with the application as a complaint case.
7. I have considered the submissions as advanced by the learned counsel for the applicant, the learned AGA and perused the material brought on record.
8. In the cases of Suresh Chandra Jain vs. State of M.P.
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