Smt. Pushpa Devi vs State of U.P.

Rajesh Chandra, J.—This application u/s 482, Code of Criminal Procedure has been moved with a prayer that the order dated 8.4.2009, passed by Chief Judicial Magistrate, Ghazipur in Criminal Misc. Case No. 618/11 of 2008 and order passed by Vth Additional Sessions Judge, Ghazipur in Criminal Revision No. 55 of 2009 may be quashed.

Brief facts of the case are that Smt. Pushpa Devi, applicant had moved an application u/s 156(3), Code of Criminal Procedure for directing the police of P.S. Kotwali to register a case against Raj Kumar Shukla and others and investigate the same. This application was registered as Criminal Misc, Case No. 618/11 of 2008. Various dates were given by the Court for hearing of the application and ultimately on 8.4.2009 when the applicant Pushpa Devi was absent, the Chief Judicial Magistrate, Ghazipur rejected the application on the ground that "It has no force". The applicant then filed criminal revision against the aforesaid order of the Magistrate. That revision was ultimately decided by Vth Additional Sessions Judge, Ghazipur and was dismissed on 29.6.2009 on the ground that since the application u/s 156(3), Code of Criminal Procedure was dismissed by the lower Court in the absence of the applicant as well as for not pressing the same, the order of the Magistrate is interlocutory order and does not require any interference by the revisional Court. It is against these two orders, by Chief Judicial Magistrate, Ghazipur and by 5th Additional Sessions Judge, Ghazipur that the present application u/s 482, Code of Criminal Procedure has been moved.

I have heard learned Counsel for the applicant as well as State Counsel.

A perusal of the impugned order dated 8.4.2009, passed by Chief Judicial Magistrate, Ghazipur makes it clear that the application u/s 156(3), Code of Criminal Procedure was dismissed as "it had no force", meaning thereby the application was decided on merits. It is not a case where the application was dismissed by the Court due to absence of the complainant. Once the Court had decided to dismiss the application as it was not having force then it was incumbent upon the Magistrate to discuss the allegations made in the application and then come to the conclusion by giving reasons that it has no force. The impugned order indicates that the Magistrate dismissed the same without any application of mind. There is no discussion in the order as to what were the contents of the application u/s 156(3), Code of Criminal Procedure and what persuaded the Magistrate to come to the conclusion that the application has no force. The Magistrate was duty bound to give the reasons for rejecting the application as having no force. Hon''ble Supreme Court in Jagtamba Devi Vs. Hem Ram and Others, has held that the order should be a reasoned one as reasons introduce clarity in an order. In the words of Apex Court the observations are as follows:

"6. ...Even in respect of administrative orders, Lord Denning, M.R. in Breen v. Amalgamated Engg. Union observed: (All ER p. 1154h). ''The giving of reasons is one of the fundamentals of good administration'' In Alexander Machinery (Dudley) Ltd. v. Crabtree, it was observed: ''Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at''. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ''inscrutable face of the sphinx'', it can, by its, silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The ''inscrutable face of a sphinx'' is ordinarily incongruous with a judicial or quasi-judicial performance.'' (Quoting from State of Punjab Vs. Bhag Singh,

Since the Magistrate has disposed of the application u/s 156(3), Code of Criminal Procedure with a non-speaking order, the order of the Magistrate is liable to be set aside.

Similarly the Additional Sessions Judge also fell in error by observing that the Magistrate had dismissed of the application due to absence of the applicant and as such the order of the Additional Sessions Judge is also liable to be set aside.

The application is finally disposed, and the order, of the Chief Judicial Magistrate dated 29.6.20O9, passed in Criminal Misc. Case No. 618/11 of 2008 and the order of the Vth Additional Sessions Judge, Ghazipur in Criminal Revision No. 55 of 2009 on 29.6.2009 are set aside. The Chief Judicial Magistrate is directed to restore the application u/s 156(3), Code of Criminal Procedure and pass a fresh order after giving an opportunity of hearing to the applicant Smt. Pushpa Devi.