Smt. Phulla Devi vs State of U.P. and Another

S.C. Chaurasia, J.—This petition u/s 482 Cr.P.C. has been moved on behalf of the applicant-petitioner, Smt. Phulla Devi, with the prayer that the order dated 13.08.2007, passed by the learned Chief Judicial Magistrate, Faizabad, rejecting her application u/s 156(3) Cr.P.C. And the order dated 8.7.2008, passed by the learned Sessions Judge, Faizabad, directing that the application u/s 156(3) Cr.P.C. be treated as complaint may be quashed and the Station Officer, P.S. Raunahi, District Faizabad, be directed to register the F.I.R. on the basis of the said application.

I have heard the learned Counsel for the petitioner, Shri S.K. Mehrotra, learned A.G.A., Shri Rajendra Kumar Dwivedi and perused the record.

The learned Counsel for the petitioner has submitted that if the allegations made in the application u/s 156(3) Cr.P.C. disclose the commission of cognizable offence, the concerned judicial Magistrate is bound to direct the police to register the F.I.R. and investigate the case. His contention is that the application u/s 156(3) Cr.P.C. can not be ordered to be treated as a complaint case. He has further submitted that the learned Sessions Judge has committed illegality in directing the concerned Magistrate to treat the application u/s 156(3) Cr.P.C. as complaint and hence, the impugned order dated 8.7.2008, is liable to be quashed.

On the other hand, the learned A.G.A. has submitted that if the allegations made in the application u/s 156(3) Cr.P.C. disclose the commission of cognizable offence, the court of concerned Magistrate has discretion either to direct the police to register the F.I.R. and investigate the case or to treat the said application u/s 156(3) Cr.P.C. as complaint. His contention is that there is no illegality in the impugned order dated 8.7.2008, passed by the learned Sessions Judge, Faizabad and hence, no interference is warranted by this Court u/s 482 Cr.P.C. In support of his contention, he has placed reliance on the following rulings:

(i) 2001 (2) LCR 320 (SC) Joseph Mathuri alias Vishveshwarananda and Anr.

(ii) Sakiri Vasu Vs. State of U.P. and Others,

(iii) (XLIII) 2001 ACC 50 (Allahabad High Court-Full Bench) Ram Babu Gupta and Anr. v. State of U.P. and Ors.

(iv) (XLIX) 2007 ACC 739 (Allahabad High Court-D.B.) Sukhwasi v. State of U.P.

From the perusal of the record, it transpires that the application u/s 156(3) Cr.P.C. moved on behalf of the applicant-petitioner, Smt. Phulla Devi, was rejected vide order dated 13.8.2007, passed in Criminal Misc. Case No. 238 of 2006, Phulla Devi v. Badri Nath and Ors. by the learned Chief Judicial Magistrate, Faizabad. The applicant preferred Criminal Revision No. 225 of 2007 Phulla Devi v. State of U.P. against the said order dated 13.8.2007, in the Court of Sessions Judge, Faizabad, which was allowed partly vide judgement and order dated 8.7.2008, passed by the learned Sessions Judge, Faizabad and the learned court below was directed to treat the application u/s 156(3) Cr.P.C. as complaint and to follow the procedure prescribed for trial of the complaint case. The main grievance of the petitioner is that her application u/s 156(3) Cr.P.C. should not have been treated as complaint and the police ought to have been directed to register and investigate the case, on the basis of the allegations made in the application u/s 156(3) Cr.P.C., which disclose commission of cognizable offence.

The Hon''ble Apex Court and this Court has held in the rulings quoted above that the application u/s 156(3) Cr.P.C. can be treated as a complaint case and in all cases, the concerned Magistrate is not bound to direct the police to register and investigate the case, even if the allegations made in the application u/s 156(3) Cr.P.C. disclose the commission of cognizable offence. Thus, it is clear that the concerned Magisrate has jurisdiction to treat the application u/s 156(3) Cr.P.C. as complaint.

The bar of Section 195 Cr.P.C. is applicable at the time of taking cognizance by the competent court. There is no occasion for the court to take cognizance at the time of disposal of application u/s 156(3) Cr.P.C and hence, the bar of Section 195 Cr.P.C. is not attracted at that stage.

The powers u/s 156(3) Cr.P.C. can be exercised by the concerned Magistrate only and none-else. In my opinion, the learned Sessions Judge has no jurisdiction to exercise the powers u/s 156(3) Cr.P.C. The learned Sessions Judge, instead of directing the learned Chief Judicial Magistrate to dispose of the application u/s 156(3) Cr.P.C. afresh in the light of the observations made in his judgement; has himself disposed of the application u/s 156(3) Cr.P.C., which is not warranted under the law.

In view of the aforesaid discussion, the impugned orders dated 13.08.2007 and 8.7.2008, passed by the learned Chief Judicial Magistrate and the learned Sessions Judge, Faizabad are hereby quashed. The learned Chief Judicial Magistrate, Faizabad, is directed to dispose of the application u/s 156(3) Cr.P.C afresh, in accordance with law, expeditiously, keeping in view the observations made by this Court.

With these observations/directions, the petition u/s 482 Cr.P.C. is disposed of finally.