Neutral Citation No. - 2023:AHC:183693

Court No. - 84

Case :- CRIMINAL APPEAL No. - 3158 of 2023

Appellant :- Pradeep Kumar

Respondent :- State of U.P. and Another

Counsel for Appellant :- Jitendra Singh

Counsel for Respondent :- G.A.,Sanjai Kumar Pandey

Hon'ble Mrs. Sadhna Rani (Thakur),J.

Learned counsel for the appellant has filed rejoinder affidavit today. Let it be kept

on record.

Heard learned counsel for the appellant, learned counsel for the opposite party no. 2

and perused the record.

This appeal has been filed against the order dated 10.03.2023 passed by the

Additional District Judge/Special Judge, SC/ST Act, Siddharth Nagar in Criminal

Misc. Case No. 356 of 2022 (Pradeep Kumar Vs. Sandeep Kumar Vishwakarma)

under Section 156(3) Cr.P.C. Police Station Kotwali Bansi, District Siddharth

Nagar, whereby the application of the appellant under Section 156 (3) Cr.P.C. was

registered as complaint.

It is argued by the learned counsel for the appellant that the complaint will take a

long time in its disposal. It was better that on his application order of lodging of an

FIR would have been passed.

Learned counsel for the opposite party no. 2 opposed the prayer and submitted that

as per facts of the application under Section 156(3) Cr.P.c. nothing is to be inquired

into by the police. Hence, the order passed by the trial court suffers no infirmity.

From the perusal of the record, it is found that as per version of the application

under Section 156(3) Cr.P.C. Rs. 11,56,600/- of the complainant are said to be

syphoned by the opposite party no. 2 and when the appellant demanded the same

from the opposite party no. 2 the appellant is said to have been thrashed at the

hands of the opposite party no. 2 by kicks and hockey. There is also the allegation

that the opposite party no. 2 hurled caste based words against the appellant.

On the basis of the facts mentioned in the application under Section 156(3) Cr.P.C.

the trial court arrived at a conclusion that the appellant had full knowledge of the

facts and evidence regarding the case, so on the basis of judgement in Sukhwasi

Vs. State of Uttar Pradesh, 2008(1) page 170, the trial court ordered to register

this application under Section 156(3) Cr.P.C. as complaint.

Learned counsel for the appellant drew the attention of the court towards

judgement in Lalita Kumari Vs. Government of U.P. & others, 2013 0

Supreme(SC)1032, wherein it has been held that where the information discloses

the cognizable offence the officer incharge of the police station is bound to register

the FIR. Hence, prayer is made to set aside the impugned order and to issue a

direction to the trial court to direct the SHO concerned to register an FIR in the

matter.

As per judgement in Lalita Kumari (supra) it is for a police officer present at the

police station to register an FIR if the information received either in writing or in

oral, discloses cognizable offence but here the application has been moved before

the Presiding Officer in the court. In the judgement Sukhwasi (supra), M/s Skipper

Beverages Pvt. Ltd. Vs. State, 2001(59)DRJ129 and Mona Pawar Vs. Allahabad

High Court through Registrar, 2011(2)ALJ1691, it has been held by this court that

if the FIR has not been registered by the police officer regarding cognizable offence

and the application is moved before the court, the Magistrate has discretion either

to direct the police to investigate under Section 156(3) Cr.P.C. or to examine the

complainant under Section 200 Cr.P.C. and this discretionary power of the court

cannot be interfered with only because the other view is possible.

Thus, the trial court had full discretion either to allow or reject this application or to

order for lodging an FIR or the complaint on this application. The trial court by

passing the impugned order has merely exercised its discretion provided under the

law. As per the application under Section 156(3) Cr.P.C., admittedly, all the facts

were within the