Rajendra Singh Vs. State of U.P and Others. - Court Judgment

Excerpt:
1. this petition under section 482 of the code of criminal procedure (hereinafter referred to as the 'code') has been filed by rajendra singh, s/o sri ram surat singh, r/o village kanehata, p.s. kaisherganj, district bahraich for quashing the order dated 17.5.2010 passed by the learned chief judicial magistrate, bahraich and for directing him to pass fresh order on his application moved under section 156 (3) of the code. 2. the facts giving rise to the present petition may be briefly stated as under: 3. the petitioner moved an application under section 156 (3) of the code before the learned chief judicial magistrate, bahraich for directing the police of p.s. kaisherganj to register and investigate the case on the basis of his application. he had alleged in his application that the opposite party no. 1-babadeen and opposite party no. 2-dulare are son and father. the opposite party no. 2-dulare was recorded owner of revenue plot no. 256 area 0.134 hectare situated in village khanehta, pargana hisampur, tehsil kaisherganj, district bahraich. he had transferred the said plot in favour of the petitioner on 19.1.2009 through a registered sale-deed showing boundaries mentioned therein. the opposite party no. 2-dulare was also owner of revenue plot no. 265 area 0.134 hectare which he had already transferred to his son-babadeen through registered sale-deed dated 13.10.2008. the opposite party no. 2-dulare had executed the supplementary registered sale-deed in favour of his son-babadeen transferring plot no. 256 area 0.134 hectare with dishonest intention just to grab the plot of the applicant-petitioner which he had already transferred to him. the act of opposite parties amount to criminal act which constitute commission of cognizable offence, therefore, he prayed the learned chief judicial magistrate, bahraich to direct the s.o. of p.s. kaisherganj to register and investigate the case on his application. 4. the learned chief judicial magistrate, bahraich called a report from the concerned police station. he after going through the allegations made by the complainant in his application moved under section 156 (3) of the code, treated the same by a detailed and reasoned order dated 17.5.2010 as complaint with the observation that in view of the facts of the case, the applicant can prove the allegations made in the application by adducing evidence. the applicant-petitioner being aggrieved by the impugned order passed by the learned chief judicial magistrate, bahraich has filed the present petition. 5. the learned counsel for the petitioner argued that the opposite party no. 2-dulare under conspiracy executed a sale-deed transferring his revenue plot no. 265 area 0.134 hectare to his son-opposite party no. 1-babadeen on 13.10.2008. he thereafter transferred another revenue plot no. 256 area 0.134 hectare in favour of the petitioner. the opposite party no. 2 just to grab the revenue plot no. 256 area 0.134 hectare which was transferred by him to petitioner executed additional sale-deed on 13.4.2009 transferring plot no. 256 area 0.134 hectare in favour of his son-babadeen. he had done so with dishonest intention to cause wrongful loss to the petitioner. the allegations made by the petitioner in his application moved under section 156 (3) of the code constitute commission of cognizable offence. therefore, the learned chief judicial magistrate was bound to allow the application moved by the petitioner and direct the s.o. of police station kaisherganj to register and investigate the case. the learned chief judicial magistrate had no option to treat the application moved by the petitioner as complaint. learned counsel for the petitioner in support of his argument has placed reliance on cases roop ram v. state of u.p. reported in [2009 (3) jic 437 (all)] decided by this hon'ble court and suresh chand jain v. state of m.p. and another reported in [(2001) 2 supreme court cases 628] decided by the ho'ble apex court. 6. mr. rajendra kumar dwivedi, learned additional government advocate supported the impugned order passed by the learned chief judicial magistrate, bahraich and argued that where the allegations made in the application moved by the applicant under section 156 (3) of the code disclose commission of cognizable offence, the magistrate is not always bound to allow his application and direct the s.o. of p.s. concerned to register and investigate the case. the learned a.g.a. submits that the power under section 156 (3) of the code is discretionary power of the magistrate who keeping in view the nature of offence as well as facts and circumstances of the case may treat the application moved by the applicant under section 156 (3) of the code as complaint even if the allegations made in the application disclose commission of cognizable offence. 7. learned additional government advocate further argued that in this case, the matter substantially relates to a civil dispute and the learned chief judicial magistrate keeping in view of the entire facts of the case by a detailed and reasoned order has treated the application moved by the applicant as complaint which does not suffer from any illegality. 8. learned additional government advocate in support of his argument has placed reliance on cases sukhwasi s/o hulasi v. state of uttar pradesh reported in [2007 (59) acc 739] decided by a division bench of this court and joseph mathuri alias vishveshwarananda and another v. swami sachidanand harisakshi and another reported in [2001 (2) lucknow criminal reports 320] decided by the hon'ble apex court. 9. i have given active consideration to the submissions advanced by the learned counsel for the parties as well as i have gone through the impugned order. 10. the argument advanced by the learned counsel for the petitioner appears to be misconceived. 11. in case of roop ram v. state of u.p. (supra) decided by single bench of this hon'ble court, the matter in issue was not the same as in this case. in that case the complainant had moved an application under section 156 (3) of the code before the special judge (d.a.a.), farrukhabad to direct the s.o. of p.s. concerned to register and investigate the case. the application was rejected by the learned magistrate with the observation that the applicant may file complaint. the matter before the court was that if the allegations made in the application moved by the applicant constitute commission of cognizable offence, in such situation whether he can reject the application and direct the complainant to file complaint. the hon'ble court on the basis of so many case laws as mentioned in the judgment held that in case the allegations made by the applicant in his application moved under section 156 (3) of the code disclose the commission of cognizable offence, the magistrate is expected to allow the application and direct the police to register and investigate the case. the hon'ble court has mainly emphasized the duty of the officer in charge of the police station to register an f.i.r. on the information of the complainant if the same discloses the commission of cognizable offence. in this case, the issue is not the same; rather the issue is different. 12. in this case, the issue is "whether the learned chief judicial magistrate could treat the application moved by the complainant under section 156 (3) of the code as complaint even if the allegations made in the application disclose commission of cognizable offence?" 13. this question has already been answered by the division bench of this court in the case of sukhwasi s/o hulasi v. state of uttar pradesh (supra). the court has specifically held that in a case where the allegations made by the complainant in the application moved under section 156 (3) of the code constitute commission of cognizable offence, even then the magistrate is not always bound to direct the s.o. of concerned p.s. to register and investigate the case in each and every case; rather in view of the facts and circumstances of the case, the magistrate can decline to direct the s.o. of p.s. concerned to register and investigate the case. the relevant observation with example given by the court finds place in para 11 of the judgment which is being extracted below: "......11. let us take an example to make things clear. if somebody wants to file a first information report, that the district judge of the concerned district came to his house at 1.20 o'clock in the day, and fired upon him, with the country made pistol and he ducked and escaped being hurt, and the district judge is, therefore, liable for an offence under section 307 indian penal code. the magistrate knows that the district judge was in his court room, at that time, and the concerned staff also knows that. is that magistrate still bound to order registration of a first information report because the application discloses a cognizable offence? it is obvious that the answer has to be in negative and it cannot, therefore, be said that the magistrate is bound to order registration of a first information report in all cases, where a cognizable offence is disclosed......." 14. the court on the basis of law laid by the hon'ble apex court in the case of suresh chand jain v. state of m.p. and another (supra) (relied upon by learned counsel for the petitioner) held that the magistrate may treat the application moved by the applicant under section 156 (3) of the code as complaint. the relevant observation made by the court finds place in para 13 of the judgment which is being extracted below: ".......13. it is clear from the judgment of the supreme court in the case suresh chandra jain v. state of madhya pradesh and another, that a magistrate has the authority to treat an application under section 156 (3) cr. p.c. as a complaint." 15. in case joseph mathuri alias vishveshwarananda and another v. swami sachidanand harisakshi and another (supra) decided by hon'ble apex court, the complainant moved an application before the judicial magistrate concerned for directing the s.o. of p.s. concerned to register and investigate the case. the learned judicial magistrate instead of allowing the application treated the same as complaint. the complainant being aggrieved by the order of the learned judicial magistrate preferred revision before the high court. the high court quashed the order passed by the learned judicial magistrate with the observation that the application moved by the complainant under section 156 (3) of the code could not be treated as complaint. in slp, the hon'ble apex court set aside the order passed by the high court and observed that the high court while passing the impugned order ignored the provision contained under section 190 of the code and under section 200 of the code. 16. in view of the above law laid down by the division bench of this court and and the hon'ble apex court in the above cited cases, it is well settled that judicial magistrate before whom an application under section 156 (3) of the code is moved by the complainant for directing the s.o. of p.s. concerned to register and investigate the case, may in view of the facts of the case, treat the same as complaint. 17. in this case, the learned chief judicial magistrate keeping in view of the allegations made by the complainant in his application now under section 156 (3) of the code by detailed and reasoned order declined to direct the s.o. of p.s. kaisherganj to register and investigate the case; rather treated the same as complaint. 18. the learned chief judicial magistrate was fully competent to treat the application moved by the petitioner under section 156 (3) of the code as complaint. the impugned order passed by the learned chief judicial magistrate, bahraich in my opinion does not suffer from any illegality which does not call for any interference. 19. the petition under section 482 of the code moved by the petitioner is devoid of any merit and is liable to be dismissed. 20. the petition is, therefore, dismissed.

Judgment:

1. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by Rajendra Singh, S/o Sri Ram Surat Singh, R/o Village Kanehata, P.S. Kaisherganj, District Bahraich for quashing the Order dated 17.5.2010 passed by the learned Chief Judicial Magistrate, Bahraich and for directing him to pass fresh order on his application moved under Section 156 (3) of the Code.

2. The facts giving rise to the present petition may be briefly stated as under:

3. The petitioner moved an application under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, Bahraich for directing the police of P.S. Kaisherganj to register and investigate the case on the basis of his application. He had alleged in his application that the Opposite Party No. 1-Babadeen and Opposite Party No. 2-Dulare are son and father. The Opposite Party No. 2-Dulare was recorded owner of Revenue Plot No. 256 area 0.134 hectare situated in Village Khanehta, Pargana Hisampur, Tehsil Kaisherganj, District Bahraich. He had transferred the said plot in favour of the petitioner on 19.1.2009 through a registered sale-deed showing boundaries mentioned therein. The Opposite Party No. 2-Dulare was also owner of Revenue Plot No. 265 area 0.134 hectare which he had already transferred to his son-Babadeen through registered sale-deed dated 13.10.2008. The Opposite Party No. 2-Dulare had executed the supplementary registered sale-deed in favour of his son-Babadeen transferring Plot No. 256 area 0.134 hectare with dishonest intention just to grab the plot of the applicant-petitioner which he had already transferred to him. The act of opposite parties amount to criminal act which constitute commission of cognizable offence, therefore, he prayed the learned Chief Judicial Magistrate, Bahraich to direct the S.O. of P.S. Kaisherganj to register and investigate the case on his application.

4. The learned Chief Judicial Magistrate, Bahraich called a report from the concerned police station. He after going through the allegations made by the complainant in his application moved under Section 156 (3) of the Code, treated the same by a detailed and reasoned order dated 17.5.2010 as complaint with the observation that in view of the facts of the case, the applicant can prove the allegations made in the application by adducing evidence. The applicant-petitioner being aggrieved by the impugned order passed by the learned Chief Judicial Magistrate, Bahraich has filed the present petition.

5. The learned counsel for the petitioner argued that the Opposite Party No. 2-Dulare under conspiracy executed a sale-deed transferring his Revenue Plot No. 265 area 0.134 hectare to his son-opposite party no. 1-Babadeen on 13.10.2008. He thereafter transferred another Revenue Plot No. 256 area 0.134 hectare in favour of the petitioner. The Opposite Party No. 2 just to grab the Revenue Plot No. 256 area 0.134 hectare which was transferred by him to petitioner executed additional sale-deed on 13.4.2009 transferring Plot No. 256 area 0.134 hectare in favour of his son-Babadeen. He had done so with dishonest intention to cause wrongful loss to the petitioner. The allegations made by the petitioner in his application moved under Section 156 (3) of the Code constitute commission of cognizable offence. Therefore, the learned Chief Judicial Magistrate was bound to allow the application moved by the petitioner and direct the S.O. of police station Kaisherganj to register and investigate the case. The learned Chief Judicial Magistrate had no option to treat the application moved by the petitioner as complaint. Learned counsel for the petitioner in support of his argument has placed reliance on cases Roop Ram v. State of U.P. reported in [2009 (3) JIC 437 (All)] decided by this Hon'ble Court and Suresh Chand Jain v. State of M.P. and Another reported in [(2001) 2 Supreme Court Cases 628] decided by the Ho'ble Apex Court.

6. Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate supported the impugned order passed by the learned Chief Judicial Magistrate, Bahraich and argued that where the allegations made in the application moved by the applicant under Section 156 (3) of the Code disclose commission of cognizable offence, the Magistrate is not always bound to allow his application and direct the S.O. of P.S. concerned to register and investigate the case. The learned A.G.A. submits that the power under Section 156 (3) of the Code is discretionary power of the Magistrate who keeping in view the nature of offence as well as facts and circumstances of the case may treat the application moved by the applicant under Section 156 (3) of the Code as complaint even if the allegations made in the application disclose commission of cognizable offence.

7. Learned Additional Government Advocate further argued that in this case, the matter substantially relates to a civil dispute and the learned Chief Judicial Magistrate keeping in view of the entire facts of the case by a detailed and reasoned order has treated the application moved by the applicant as complaint which does not suffer from any illegality.

8. Learned Additional Government Advocate in support of his argument has placed reliance on cases Sukhwasi S/o Hulasi v. State of Uttar Pradesh reported in [2007 (59) ACC 739] decided by a Division Bench of this Court and Joseph Mathuri alias Vishveshwarananda and Another v. Swami Sachidanand Harisakshi and Another reported in [2001 (2) Lucknow Criminal Reports 320] decided by the Hon'ble Apex Court.

9. I have given active consideration to the submissions advanced by the learned counsel for the parties as well as I have gone through the impugned order.

10. The argument advanced by the learned counsel for the petitioner appears to be misconceived.

11. In case of Roop Ram v. State of U.P. (supra) decided by Single Bench of this Hon'ble Court, the matter in issue was not the same as in this case. In that case the complainant had moved an application under Section 156 (3) of the Code before the Special Judge (D.A.A.), Farrukhabad to direct the S.O. of P.S. concerned to register and investigate the case. The application was rejected by the learned Magistrate with the observation that the applicant may file complaint. The matter before the Court was that if the allegations made in the application moved by the applicant constitute commission of cognizable offence, in such situation whether he can reject the application and direct the complainant to file complaint. The Hon'ble Court on the basis of so many case laws as mentioned in the judgment held that in case the allegations made by the applicant in his application moved under Section 156 (3) of the Code disclose the commission of cognizable offence, the Magistrate is expected to allow the application and direct the police to register and investigate the case. The Hon'ble Court has mainly emphasized the duty of the officer in charge of the police station to register an F.I.R. on the information of the complainant if the same discloses the commission of cognizable offence. In this case, the issue is not the same; rather the issue is different.

12. In this case, the issue is "whether the learned Chief Judicial Magistrate could treat the application moved by the complainant under Section 156 (3) of the Code as complaint even if the allegations made in the application disclose commission of cognizable offence?"

13. This question has already been answered by the Division Bench of this Court in the case of Sukhwasi S/o Hulasi v. State of Uttar Pradesh (supra). The Court has specifically held that in a case where the allegations made by the complainant in the application moved under Section 156 (3) of the Code constitute commission of cognizable offence, even then the Magistrate is not always bound to direct the S.O. of concerned P.S. to register and investigate the case in each and every case; rather in view of the facts and circumstances of the case, the Magistrate can decline to direct the S.O. of P.S. concerned to register and investigate the case. The relevant observation with example given by the Court finds place in Para 11 of the judgment which is being extracted below:

"......11. Let us take an example to make things clear. If somebody wants to file a First Information Report, that the District Judge of the concerned District came to his house at 1.20 O'clock in the day, and fired upon him, with the country made pistol and he ducked and escaped being hurt, and the District Judge is, therefore, liable for an offence under Section 307 Indian Penal Code. The Magistrate knows that the District Judge was in his Court room, at that time, and the concerned Staff also knows that. Is that Magistrate still bound to order registration of a First Information Report because the application discloses a cognizable offence? It is obvious that the answer has to be in negative and it cannot, therefore, be said that the Magistrate is bound to order registration of a First Information Report in all cases, where a cognizable offence is disclosed......."

14. The Court on the basis of law laid by the Hon'ble Apex Court in the case of Suresh Chand Jain v. State of M.P. And Another (supra) (relied upon by learned counsel for the petitioner) held that the Magistrate may treat the application moved by the applicant under Section 156 (3) of the Code as complaint. The relevant observation made by the Court finds place in Para 13 of the judgment which is being extracted below:

".......13. It is clear from the judgment of the Supreme Court in the case Suresh Chandra Jain V. State of Madhya Pradesh and another, that a Magistrate has the authority to treat an application under Section 156 (3) Cr. P.C. as a complaint."

15. In case Joseph Mathuri alias Vishveshwarananda and Another v. Swami Sachidanand Harisakshi and Another (supra) decided by Hon'ble Apex Court, the complainant moved an application before the Judicial Magistrate concerned for directing the S.O. of P.S. concerned to register and investigate the case. The learned Judicial Magistrate instead of allowing the application treated the same as complaint. The complainant being aggrieved by the order of the learned Judicial Magistrate preferred revision before the High Court. The High Court quashed the order passed by the learned Judicial Magistrate with the observation that the application moved by the complainant under Section 156 (3) of the Code could not be treated as complaint. In SLP, the Hon'ble Apex Court set aside the order passed by the High Court and observed that the High Court while passing the impugned order ignored the provision contained under Section 190 of the Code and under Section 200 of the Code.

16. In view of the above law laid down by the Division Bench of this Court and and the Hon'ble Apex Court in the above cited cases, it is well settled that Judicial Magistrate before whom an application under Section 156 (3) of the Code is moved by the complainant for directing the S.O. of P.S. concerned to register and investigate the case, may in view of the facts of the case, treat the same as complaint.

17. In this case, the learned Chief Judicial Magistrate keeping in view of the allegations made by the complainant in his application now under Section 156 (3) of the Code by detailed and reasoned order declined to direct the S.O. of P.S. Kaisherganj to register and investigate the case; rather treated the same as complaint.

18. The learned Chief Judicial Magistrate was fully competent to treat the application moved by the petitioner under Section 156 (3) of the Code as complaint. The impugned order passed by the learned Chief Judicial Magistrate, Bahraich in my opinion does not suffer from any illegality which does not call for any interference.

19. The petition under Section 482 of the Code moved by the petitioner is devoid of any merit and is liable to be dismissed.

20. The petition is, therefore, dismissed.