An Application under section 156(3) of Cr.PC is generally an offshoot of refusal by the police to register FIR upon receiving information by the informant regarding the commission of a cognizable offence. The power of the police to register FIR is provided under section 154 Cr.PC and upon refusal by the officer incharge of the police station to register FIR, the aggrieved can also forward the same information in person or through registered post to the Superintendent of Police who can investigate the matter himself or direct the subordinate officers to investigate. If the above mentioned process bears no fruit or police do not take any action the aggrieved can file an application under section 156(3) Cr.PC which empowers the Court to direct the incharge police officer to register the FIR and investigate the matter or treat the application as a complaint and proceed under Section 200 and 202 of Cr.PC. The nature of the powers of investigation under section 156(3) Cr.PC and under Section 200 Cr.PC are obviously different.
The case in hand is reiteration of the fact that the once an application under section 156(3) Cr.PC is filed, the magistrate is within its powers either to direct the police officer to register FIR and investigate the matter or to treat the application as a complaint and proceed under section 200 and 202 of Cr.PC.
A recent judgment of the Allahabad High Court has dealt with the issue authoritatively and has discussed the law in detail.
The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 15.07.2020 passed by learned Chief Judicial Magistrate, whereby application under Section 156 (3) Cr.P.C. filed by applicant for registration of F.I.R. and to investigate the matter against the opposite party nos. 2 to 20 has been treated as complaint case.
It has been submitted by learned counsel for the applicant that an application under Section 156 (3) Cr.P.C. filed by the applicant against opposite party nos. 2 to 20 before learned Chief Judicial Magistrate, has been treated as complaint case in an arbitrary manner, inspite of the fact, that application under Section 156 (3) Cr.P.C. discloses commission of cognizable offence. It has been submitted that impugned order is against law and facts and that prima facie cognizable offence was made out against the applicants thus, the Court below must have passed an order for investigation by the police. In the alleged incident, opposite party nos. 2 to 20 have misbehaved with daughter of the applicant and have also abused and beaten her. In support of his submissions, learned counsel for the applicant has relied upon an order dated 13.12.2011 passed by this Court in the matter of Murari Lal Vs. State of U.P. and others passed in Application u/s No. 40579 of 2011. Learned counsel has next submitted that in view of above facts and circumstances, it was incumbent on the part of learned Court below to pass order for registration of F.I.R. and investigation by police but the same was not done, hence the impugned order suffers from material illegality and error of jurisdiction and therefore, the same is liable to be set aside by this Court.
Learned A.G.A. has opposed the application and argued that application of applicant has been treated as complaint case and in view of allegations made in application filed by applicant, there is no illegality or error of jurisdiction in the impugned order requiring any interference by this Court in exercise of powers conferred under 482 Cr.P.C. jurisdiction.
I have considered rival submissions and perused the record.
Law regarding jurisdiction under Section 156(3) Cr.P.C. is well settled. Power under Section 156(3) Cr.P.C. has to be exercised by Magistrate judicially on proper grounds and not in a mechanical manner. If application does not indicate that any evidence is required to be collected and preserved and applicant is familiar with names of accused persons and witnesses then in such a case, no investigation by police may required. Whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156 (3) Cr.P.C. containing allegation of commission of a cognizance offence is no more a ‘res-integra’, as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. In the case of Smt. Masuman vs. State of U.P. & others 2007 (1) ALJ 221 and some other cases, the single judges of the Court have taken a view that if the application under section 156 (3) Cr.P.C. discloses the commission of a prima-facie cognizable offence, then it is obligatory for the magistrate to direct investigation after registration of the FIR on the basis of that application. Disagreeing with this view, the following question was referred to the larger Bench for decision in the case of Sukhwasi vs. State of U.P. (supra) “Whether the Magistrate is bound to pass an order on each and every application under section 156(3)Cr.P.C. containing allegations of commission of a cognizable offence for registration of the FIR and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as ‘complaint’ or to reject it in suitable cases”
After having considered the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi vs. State of U.P. has answered the question as under:-
“The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under section 156(3) Cr.P.C. as a complaint.”
Thus, it is apparent that Magistrate is not bound to pass order of investigation by police, even if such application discloses cognizable offence. The Magistrate is required to apply its mind to find out whether the first information sought to be lodged by applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appears to be without any substance, then in such case the Magistrate can refuse to direct registration of the FIR and its investigation by the police, even if the application contains the allegations of commission of a cognizable offence. In such case, the Magistrate is fully competent to reject the application. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint, as held by the Division Bench in the case of Sukhwasi vs. State of U.P. (supra).
Thus, though, in appropriate cases, learned Magistrate can make a direction for police to investigate the matter but this jurisdiction has to be exercised cautiously and such order cannot be passed in a routine manner.
In case Mrs. Priyanka Srivastava and another vs. State of U.P. and others, 2015 AIR(SC)1758, the Hon’ble Apex Court held as under:
”At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigants takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.”
In the instant case in view of the facts and circumstances of the present case and also considering nature of allegations made in the application under Section 156(3) Cr.P.C., rejection of the prayer of investigation by police and instead of it, treating the application as complaint cannot be said against the provisions of law or suffering from any perversity or error of jurisdiction.
Considering entire facts, it cannot be said that impugned order suffers from any such illegality, perversity or any of error jurisdiction, so as to warrant any interference by this Court in exercise of jurisdiction under Section 482 Cr.P.C.
The present application lacks merit and accordingly, it is dismissed.
Murari Lal vs State Of U.P. And 19 Others on 8 September, 2020