 CrPC has been rejected or converted into a complaint, the aggrieved party can prefer revision under Section 397 CrPC){kind=link}
The Allahabad High Court has dismissed an application observing that if an application under Section 156(3) CrPC has been rejected or it has been converted into a complaint, the aggrieved party can prefer revision under Section 397 CrPC.
A Single Bench of Justice Umesh Chandra Sharma passed this order while hearing an application under section 482 filed by Ruchi Mittal @ Smt Ruchi Garg.
The application has been moved under Section 482 CrPC to set aside the order dated 25.07.2022 passed by ACJM-I, Gautam Budh Nagar in Criminal Misc Application under Section 156(3) CrPC treating the application under Section 156(3) CrPC to be a complaint case.
It is also prayed that after setting aside the impugned order, a fresh order directing the police to register the case and start investigation and to submit the investigation report.
Alternatively, a prayer is also made to direct the ACJM-I, Gautam Budh Nagar to hear and decide the aforementioned application under Section 156(3) CrPC within a stipulated period of time.
The Court noted that,
Bhanu Prakash Singh, counsel appeared on behalf of opposite party no 2 without any notice about which it is argued by the counsel for the applicant that he has no locus to appear and argue in the matter.
He also pointed out the order sheet in which earlier on 17.10.2022 it is observed by a coordinate Bench of the Court that it is not a revision and Vijay Prakash Mishra, counsel has no locus.
AGA and the counsel appearing for opposite party no 2 argued that an application under Section 482 CrPC is not maintainable. Instead of filing a criminal revision, the applicant has filed an application under Section 482 CrPC i.e the application which is not maintainable.
In the connected affidavit, the applicant has given the description of the whole episode and about the cases pending between the parties. Admittedly, the applicant is the legally wedded wife of opposite party no 2, Amit Mittal. Opposite party nos 3 and 4 are the father-in-law and mother-in-law of the applicant. Opposite party no 5 is the brother of applicant’s husband and opposite party no 6 is the wife of opposite party no 5.
On the basis of argument of the parties it transpires that instead of this complaint a divorce petition by opposite party no 2 in Bulandshahr and two criminal cases, one under Section 406 IPC and another under Section 420 IPC are also pending. A case under the Guardians and Wards Act and a case under Section 125 CrPC are also pending between the parties and the proceeding of cases under Sections 406 and 420 IPC were stayed by the Court.
It is also argued by the counsel for the applicant that without any right, an application under Section 340 CrPC has been moved by the respondent and till now no payment of interim maintenance has been made by the opposite parties.
According to him since opposite parties are advocate in civil courts at Bulandshahar and Gautam Budh Nagar, therefore, the applicant is unable to prosecute the complaint and since commission of a cognizable offence has been alleged, hence instead of treating the application as complaint, the concerned Magistrate should have allowed the application and should have passed an order to register and investigate the case.
Counsel for the applicant also argued that first of all the application under Section 156(3) CrPC was moved in the Court of ACJM-II but the PO found it difficult to decide the application as the opposite party no 1 is a practicing lawyer in Gautam Budh Nagar, therefore, on the request of ACJM-II the case was transferred to the Court of ACJM-I but the PO of Court of ACJM-I also found it difficult and wrote a letter to CJM, Gautam Budh Nagar showing his unwillingness to hear and decide the proceeding of application under Section 156(3) CrPC.
The Chief Judicial Magistrate, Gautam Budh Nagar declined to transfer the same. Being helpless, the ACJM-I converted the application under Section 156(3) CrPC into a complaint which would not meet the ends of justice and in the attending circumstances the applicant being a lady would not be able to prosecute the complaint.
The Counsel for the applicant pointing out Section 397(2) CrPC argued that the impugned order is an interlocutory order about which no revision lies.
Contrary to that AGA relied on the citation in Atul Pandey @ Param Pragyan Pandey Vs State of UP and another, 2021 LawSuit (All) 603 decided by a co-ordinate Bench of the Court and argued that the circumstances expressed by the applicant would not change the form.
The Court held that an order regarding rejection of such application or conversion of application under Section 156(3) CrPC into a complaint is not an interlocutory order and it can only be challenged by the aggrieved party by filing revision.
“The facts of the case and the said case are similar in nature. In Atul Pandey (supra) an application under Section 156(3) CrPC was moved by Ali Hasan, which was allowed and it was treated as a complaint. Being aggrieved an application under Section 482 CrPC had been moved about which a question regarding its maintainability was raised. The Single Judge referring to the aforementioned judicial precedents held that in such circumstances an application under Section 482 CrPC is not maintainable.
On the basis of aforementioned discussion, the Court is also in conformity with the principles laid down by the Single Judge and is of the opinion that a proceeding under Section 482 CrPC against the impugned order is not maintainable and the applicant should have preferred a revision before the revisional court”, the Court observed.
Accordingly, the application is dismissed as not maintainable. The applicant is at liberty to institute a revision in the concerned revisional court, the Court ordered.