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IN THE HIGH COURT OF ALLAHABAD
RAJESH SINGH CHAUHAN, J.
Dost Mohammad and Another - Applicants
Versus
State of U.P., Thru. Prin. Secy. Deptt. Home Lko. and Another - Opposite Parties
Application U/S 482 No. 2274 of 2024
Decided On : 11-03-2024
156(3) Cr.P.C. - Criminal Procedure Code - [156(3) Cr.P.C.] - The court discussed the application of section 156(3) of the Criminal Procedure Code and the mandatory exercise under section 202(1) Cr.P.C. before issuing summons against the prospective accused on the complaint. The court also referred to the decisions of the Division Bench of the Court, the Apex Court, and the settled proposition of law on the subject. The court quashed the impugned revisional order and consequential order of the magistrate, emphasizing the need for the learned magistrate to carefully follow the mandatory compliance of section 202(1) Cr.P.C. and the settled legal principles on the subject.
Fact of the Case:
The petitioners sought to set aside the judgment and order passed by the learned Additional Session Judge Court No.1 Faizabad and the consequential order passed by the Judicial Magistrate-II, Faizabad/Ayodhya. The petitioners argued that the opposite party no. 2 should not have challenged the order directing the magistrate to treat the application as a complaint and fix a date for the statement of the complainant under section 200 Cr.P.C.
Finding of the Court:
The court quashed the impugned revisional order and consequential order of the magistrate, emphasizing the need for the learned magistrate to carefully follow the mandatory compliance of section 202(1) Cr.P.C. and the settled legal principles on the subject.
Issues: The issues revolved around the application of section 156(3) of the Criminal Procedure Code, the discretion of the magistrate to treat an application under section 156(3) as a complaint, and the necessity for the magistrate to adhere to the mandatory exercise under section 202(1) Cr.P.C. before issuing summons against the prospective accused on the complaint.
Ratio Decidendi: The court emphasized the mandatory compliance of section 202(1) Cr.P.C. and the settled legal principles on the subject, quashing the impugned revisional order and consequential order of the magistrate.
Final Decision: The instant petition was allowed, and the impugned revisional order and consequential order of the magistrate were quashed, with the expectation that the learned magistrate would carefully follow the mandatory compliance of section 202(1) Cr.P.C. and the settled legal principles on the subject.
JUDGMENT :
1. Heard Sri Dinesh Kumar Singh, learned counsel for the petitioners, Ms. Nusrat Jahan, learned AGA for the State and Sri R.B.S. Rathaur, Advocate who has filed 'Vakalatnama' on behalf of opposite party no. 2, same is taken on record.
2. By means of this petition the petitioners have prayed following relief :
It is further prayed that this Hon'ble Court may kindly be pleased to set aside the consequential order dated 20.02.2024 passed by the Judicial Magistrate-II, Faizabad/Ayodhya in Complaint Case No.1217/2021 (Mohammad Ahmad Vs. Dost Mohammad and others), contained as Annexure No.2 to the present petition."
3. The precise contention of learned counsel for the petitioners is that though the complaint / application filed by the opposite party no. 2 u/s 156(3) Cr.P.C. on 28.9.2021 is a counter-blast to the F.I.R. bearing No. 0346 of 2021 u/s 420, 467, 468, 471, 504, 506 IPC, P.S. Kotwali Rudauli, District Ayodhya lodged from the side of the petitioners on 30.7.2021 but when on such application the Magistrate passed an order on 11.11.2021 (Annexure no. 5) referring the decision of Division Bench of this Court in re: Sukhwasi vs. State of U.P., 2007 (59) ACC 739 to treat such application as complaint fixing the date for the statement of the complainant u/s 200 Cr.P.C., the opposite party no. 2 who is applicant of that application should have not challenged that order before the revisional court saying that on those allegations which have been leveled against the petitioners the only recourse was to issue direction to lodge F.I.R. inasmuch as this is a trite law that after recording the statement u/s 200 and 202 Cr.P.C. it is incumbent upon the learned Magistrate to make inquiry or direct investigation u/s 202(1) and if in any case the learned court concerned finds that the allegation may not be adjudicated on the basis of proceedings of complaint case, the magistrate may very well direct to lodge F.I.R. In the present case the revisional court cited the decision of this Court at Allahabad in re: Mangalsen vs. State of U.P. passed in Criminal Misc. Application No. 7651 of 2009 and the Apex Court in re: Lalita Kumari vs. State of Uttar Pradesh and others : 2014 (2) SCC 1 to set aside the order dated 11.11.2021 passed by the Magistrate court directing the magistrate to issue direction for lodging the F.I.R. Pursuant thereto the Magistrate has passed order dated 20.2.2024 referring the decision of Mangalsen (supra) to lodge F.I.R. pursuant to the aforesaid application filed u/s 156(3) Cr.P.C.
4. Sri D.K. Singh has stated that the impugned order dated 20.2.2024 (supra) is in-fact the compliance order making compliance of the order of the revisional court dated 7.2.2024 inasmuch as at the first instance and at the very instance the learned Magistrate has passed order dated 11.11.2021 (supra). Sri Singh has further submitted that the judgment so cited by the revisional court are not applicable in the present case inasmuch as the direction of Court in re: Mangalsen (supra) passed by this Court has been diluted by this Court in Sukhwasi (supra). In the judgment of Sukhwasi (supra) the reference has been indicated in para 1 and its answer has been indicated in para 23 which read as under :
The main legal point established in the judgment is that orders made under Section 156 (3) Cr.P.C. directing the police to register and investigate a case are not open to revision at the instance of ....
Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers under Section 156(3) Cr. P.C. In this connection, it may be immediately added that where in an ....
A Magistrate has the discretion to either register a case under Section 156(3) or treat it as a complaint; there is no obligation to register every application as an F.I.R.
An order under Section 156(3) Cr.P.C. directing police to register an FIR is not revisable and is considered an interlocutory order, thus barred under Section 397(2).
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