Siya Ram Agrahari vs State of U.P. and Another

Shiv Shanker, J.—This petition u/s 482 of the Code of Criminal Procedure has been filed on behalf of the petitioner praying to set aside the impugned orders dated 16-1-2008 passed by the III Addl. Sessions Judge, Room No. 3, Sultanpur and 14-8-2006 passed by Addl. Chief Judicial Magistrate, Sultanpur, whereby the application moved u/s 156(3), Cr.P.C. on behalf of the opposite party No. 2 Smt. Aarati Ojha was allowed by the concerned Magistrate and concerned police was directed to register and investigate the case against the petitioner.

Heard learned Counsel for the petitioner and learned A.G.A. as well as perused the materials available on records.

Learned Counsel for the petitioner has contended that the petitioner is owner in possession of Agrahari Complex situate at H.A.L. Gate No. 2, P.S. Munshiganj, district Sultanpur which has been constructed on the land so purchased by the petitioner from one Ramjas in the year 1999. The opposite party No. 2, who was given one room in the premises of the petitioner for some time, tried to grab the property and that on 19-6-2008, the petitioner asked the opposite party No. 2 and her family members for vacating the premises then they assaulted the petitioner and caused injury on the body of the petitioner. Thereafter the petitioner lodged a F.I.R. on 19-6-2007 for the offence under Sections 147, 148, 149, 323, 504 and 508, IPC at Police Station Munshiganj, district Sultanpur. After lodging of the F.I.R., the husband of the opposite party No. 2 filed Civil Suit No. 622 of 2008 on 1-7-2007. In the aforesaid civil suit, a commission was sent on the spot and the commission report shows that on the premises, there is possession of the petitioner. Thereafter, the opposite party No. 2 filed an application u/s 156(3), Cr.P.C. alleging offences against the petitioner and two others, namely, Rakesh and Ramesh on 6th July, 2007 i.e. subsequent to the filing of the civil suit and the allegations, which are contained in the application u/s 156(3), Cr.P.C. are totally absent in the plaint and, therefore, the allegations u/s 156(3), Cr.P.C. levelled by opposite party No. 2 are proved to be false prima facie and it seems that she has filed application u/s 156(3), Cr.P.C., as a counter blast to the first information report lodged by the petitioner.

It is further contended that on the said application, the local police of the concerned police station filed its report which does not support the allegations made in the said application moved u/s 156(3), Cr.P.C. However, the concerned Magistrate has allowed the application without application of mind and not according to law. Learned Counsel for the petitioner has further contended that the impugned order for registering and investigating the case passed by the court below is a judicial order and not an administrative order in nature. The same has been held in the decision of this Court in Sukhwasi v. State of U.P. in Criminal Misc. Application No. 9297 of 2007 decided on 18-5-2007 : 2007 (4) All LJ 672 by Hon''ble R.K. Rastogi, J. In such circumstances Hon''ble Mr. Justice Vinod Prasad could not deem such order as administrative in nature. It is also contended that there is a Division Bench decision of the Court i.e. Ajai Malviya v. State of U.P. (XLI)2000 ACC 435 : 2000 All LJ 2730 wherein such order deemed as Judicial order and the criminal revision is also maintainable and the decision of Hon''ble Mr. Justice Vinod Prasad could not overrule the Division Bench case, It is further contended that in Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. (1996) 8 SCC 749 : 1997 All LJ 2408 it was held that petition may be taken either under Article 226 of the Constitution of India or u/s 482, Cr.P.C. Therefore, the petition is also maintainable according to the decision of the Apex Court. It is a case of civil dispute. The said application was moved far the purpose of counter blast as an F.I.R, has already been registered against the opposite party No. 2 including others. Therefore, the order will be deemed as judicial order and it can be challenged in the petition u/s 482, Cr.P.C. and the same has not been passed by the court below according to law.

Section 303 of the Code of Criminal Procedure is not applicable in the present case as argued by the learned Counsel appearing on behalf of the petitioner. In the present case, an application u/s 156(3), Cr.P.C. was moved on behalf of opposite party No. 2 Smt. Aarati Ojha against petitioner which was allowed by the concerned Magistrate and the order to register and investigate the case was passed. The said order was challenged by way of filing a revision which too was dismissed. Both the orders have been challenged by way of filing this petition u/s 482, Cr.P.C. by the petitioner, who is the prospective accused. The impugned order u/s 156(3), Cr.P.C. is a pre-cognizance order as has been held in Suresh Chand Jain Vs. State of Madhya Pradesh and Another, The prospective accused in the application u/s 156(3), Cr.P.C. does not have any power to challenge an order of registering the first information report and investigation of the case. The above view of the Apex Court has been followed in a decision of this Court rendered by Hon. Vinod Prasad, J. in the case of Smt. Rekha Verma and Ors. v. State of U.P. and Ors. reported in (LVII)2007 ACC 241 : 2007 (1) ALJ 123. The same view has also been taken in a decision of this Court In the case of Chandan v. State of U.P. and Ors. reported in (LVII)2007 ACC 508 : 2007 (1) ALJ 7, In this decision, the Division Bench''s case of Ajai Malviya v. State of U.P. (XLI)2000 ACC 435 : 2000 All LJ 2730 has been considered and distinguished by his Lordship by enumerating several reasons. The law precedent shows that if the earlier decision has been considered and distinguished, in such circumstances, the latest decision will prevail, Therefore, no benefit can be given to the petitioner regarding the decision of Ajai Malviya''s case. It has also been observed in the decision of Vishwanath and Ors. v. State of U.P. and Anr. reported in 2007 (1) JIC 134 (All) that a prospective accused has got no right to challenge order of registration and investigation as he has got no right to be heard at that stage. In para 22 of the decision in the case of Chandan v. State of U.P. (supra) as under:

...No doubt, as has been held by me hereinbefore, that the order u/s 156(3) Cr.P.C. is a judicial order but it is administrative in nature because of it''s placement under chapter XII, Cr.P.C. relating to power of the police to investigate a matter.

Therefore, it had already been observed in this decision that the order passed u/s 156(3), Cr.P.C. is the judicial order but it is administrative in nature. In such circumstances, the impugned orders passed u/s 156(3), Cr.P.C. cannot be interfered with in a petition filed u/s 482, Cr.P.C. on behalf of the prospective accused.

So far as the decision in the case of Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, is concerned, it is well settled principle that a petition under Article 226 of the Constitution of India can be treated after registering the FIR. In the present case, the FIR has not yet been registered as submitted by learned Counsel for the petitioner. After registering the case, it will be open to the petitioner to seek remedy under Article 226 of the Constitution of India. Therefore, no interference can be made with the impugned order passed by both the courts below.

In view of the discussion made above, this petition is liable to be dismissed.

Consequently, it is hereby dismissed.