Sajepal vs State of U.P. and Others

Vijay Kumar Verma, J.—List has been revised. None is present for the revisionist and Respondents No. 2 to 6.

Heard learned A.G.A. for the State of U.P. and perused the entire record.

By means of this revision, preferred u/s 397/401 of the Code of Criminal Procedure ("Cr. P.C." for short) order dated 2.4.2004 passed by Metropolitan Magistrate-VI, Kanpur Nagar has been challenged, whereby the application u/s 156(3), Cr. P.C. moved by the revisionist has been rejected.

From the record it transpires that the applicant-revisionist Sajepal moved an application u/s 156(3), Cr. P.C. on 19.3.2004 supported with his affidavit in the Court of Metropolitan Magistrate-VI, Kanpur Nagar for directing the S.O. of P. S. concerned to investigate the case after lodging the F.I.R. on the basis of the averments made in the affidavit. Sipahi Lal, Ram Asrey Tiwari, Rajay Pal, Sanjay and Raju (Respondents No. 2 to 6 herein) were arrayed as opposite parties in that application. The allegations made in the application (Annexure-7), in brief, are that by playing fraud on Sayaddin, father of the applicant-Sajepal (revisionist) by the opposite parties Sipahi Lal, Ram Asrey Tiwari and Rajay Pal a forged sale deed has been got executed from him of his plot No. 1011 (Khata No. 456), Area .930 hectare in the name of Ram Asrey Tiwari on 3.1.2004 and opposite parties want to take forcible possession over the said property on the basis of said sale deed. It is also alleged by the applicant that on his complaint, the police did not take any action and hence he has filed Suit No. 202 of 2004 in the Court of Civil Judge (Jr. Div.) Kanpur-Nagar for cancellation of the said sale deed. After calling for the report from P.S. police concerned, the learned Magistrate has declined to order registration of F.I.R. and investigation of the case vide impugned order dated 2.4.2004. Hence, this revision.

The court below has rejected the application moved by the applicant-revisionist u/s 156(3), Cr. P.C. mainly on the basis that it is a case of civil nature and all the fact are in the knowledge of the applicant and no police help is required for making any recovery etc. The learned Magistrate has placed reliance on the case of Gulab Chandra Upadhyay v. State of U.P. (44)2002 ACC 670 : 2002 (1) ACR 644. Having carefully gone through the averments made in the affidavit accompanying the application u/s 156(3), Cr. P.C., in my view, the learned Magistrate has not committed any illegality in passing the impugned order. Civil suit for cancellation of the sale deed alleged to have been executed by Sayaddin, father of the applicant, in favour of Ram Asrey Tewari, is already pending in the civil court. All the facts are in the knowledge of applicant. No police aid is required in this case to make any recovery etc. Therefore, having regard to the law laid down by this Court in the case of Gulab Chandra Upadhyay v. State of U.P. (supra), the impugned order does not suffer from any illegality warranting interference by this Court. Recently the Division Bench of this Court in the case of Sukhwasi v. State of U.P. (59)2007 ACC 739: 2008 (1) ACR 170, has held that in appropriate cases, application u/s 156(3), Cr. P.C. can be rejected and it is not obligatory for the Magistrate to direct investigation in each and every case. The Hon''ble Apex Court in the case of Aleque Padamsee and Ors. v. Union of India and Ors.(59) 2007 ACC 247: 2007 (3) ACR 3153 (SC), has held that the police officials ought to register the F.I.R., whenever facts brought to its notice show that cognizable offence has been made out, but in case the police officials fail to do so, then proper remedy available is to file a complaint before the Magistrate taking recourse to Section 190 read with Section 200, Cr. P.C. Therefore, on the basis of the law laid down by Hon''ble Apex Court in this ruling also, interference by this Court in the impugned order will not be justified, because the revisionist can avail the remedy of filing complaint against the Respondents No. 2 to 6 for the offences disclosed in the affidavit accompanying the application u/s 156(3), Cr. P.C.

For the reasons mentioned hereinabove, the revision is hereby dismissed.