Subhash Chand Sharma and Others vs State of U.P. and Another

Shri Kant Tripathi, J.—Heard Mr. A.K. Singh for the revisionists and the learned A.G.A. for the Respondent No. 1 and perused the record.

This is a revision against the order dated 20.9.2010 passed in application No. 711 of 2010, Mansingh Chauhan v. Subhash Chandra Sharma and Ors., whereby the learned Additional Chief Judicial Magistrate, Court No. 3, Ghaziabad allowed the application moved by the Respondent No. 2 u/s 156(3), Code of Criminal Procedure and directed the S.O. concerned to register and investigate the matter. A copy of the application moved u/s 156(3), Code of Criminal Procedure has been filed as Annexure 4 to the revision.

It is alleged in the application moved u/s 156(3), Code of Criminal Procedure that the power of attorney dated 5.5.1982 was not executed by the Respondent No. 2 Manjit Singh Tikka, which was fabricated by the Subhash Chandra Sharma and other revisionists. Accordingly, the power of attorney is a forged document. The learned Additional Chief Judicial Magistrate found that the allegations made in the application had disclosed commission of cognizable offences of serious nature, therefore, an investigation in the matter was required.

The learned Counsel for the revisionists submitted that the power of attorney dated 5.5.1982 was a genuine document, which was executed by the Respondent No. 2 himself. The allegations that the said power of attorney was false, are nothing except a concoction. It was next submitted that the learned Magistrate did not provide any opportunity of hearing to the revisionists before passing the impugned order dated 20.9.2010. It was further submitted that the provisions of Section 195, Code of Criminal Procedure was also attracted in this case, therefore, lodging of the F.I.R. was not proper.

In my opinion, at the stage of consideration of an application u/s 156(3), Code of Criminal Procedure , the Magistrate is not required to hold an inquiry and to ascertain as to whether the allegations made in the application are correct or not. The allegations had to be taken on their face value. Therefore it was required from the Magistrate to see whether or not the application had disclosed commission of any cognizable offence. If the application discloses commission of any cognizable offence, the Magistrate had power to direct the police to register and investigate the matter. In appropriate cases, the Magistrate may treat the application as complaint. It is not required from the Magistrate to provide an opportunity of hearing to the accused before passing the order for police investigation u/s 156(3), Code of Criminal Procedure No law could be cited in this regard. Some of the cases relied on by the learned Counsel for the revisionists are that the accused is entitled to be heard by the revisional court if the complainant files a revision and challenges the order rejecting the application u/s 156(3), Code of Criminal Procedure In other words, if an application for police investigation u/s 156(3), Code of Criminal Procedure is dismissed and the complainant files a revision in the higher court, the revisional court is required to provide an opportunity of hearing to the accused before allowing the revision. But the accused is not entitled to be heard before an order u/s 156(3), Code of Criminal Procedure is passed by the Magistrate. Therefore, the revisionists were not entitled to be heard by the Magistrate before passing the impugned order.

The learned Magistrate has merely directed the police to register and investigate the matter and did not take cognizance of the offences. The provisions of Section 195, Code of Criminal Procedure are attracted only at the stage of taking cognizance of an offence by the Magistrate and not at the stage of passing an order u/s 156(3), Code of Criminal Procedure Therefore the provisions of Section 195, Code of Criminal Procedure cannot be invoked at the stage of registration of an F.I.R. or passing of an order u/s 156(3), Code of Criminal Procedure.

When the learned Magistrate found that the application moved u/s 156(3), Code of Criminal Procedure had disclosed commission of cognizable offence, he was fully justified in passing the impugned order. The revision has no merit and is accordingly dismissed.