SRILEKHA BASU Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The impugned judgment and order dated 19.06.2018 passed by the learned Additional District and Sessions Judge, 2nd Fast Track Court, Alipore in Criminal Motion No. 170 of 2018 dismissing the criminal revision thereby affirming the order dated 26.03.2018 rejecting application under Section 156(3) of the Code of Criminal Procedure is a subject of challenge in this revisional application under Section 401/482 of the Code of Criminal Procedure.

(2.) Learned advocate for the petitioner submitted that the learned court below ought to have allowed the application under Section 156(3) Cr.P.C. directing police to register the same as FIR for undertaking investigation keeping in view that provisions of Section 154(1) Cr.P.C. was not only mandatory in nature, but also independent in its application. Reliance was accordingly placed by petitioner on a decision reported in AIR 2014 (1) SC 187 delivered in the case of Lalita Kumari vs. Government of U.P. & Ors. while making submission candidly that the registration of FIR was mandatory under Section 154 of the Code of Criminal Procedure. Adverting to the copy of the petition under Section 156(3) Cr. P.C., learned advocate for the petitioner further submitted that the averment contained therein conspicuously revealed information as to the commission of cognizable offence, for which no preliminary enquiry was permissible, and the court below failed to understand the real purport of the provisions, enunciated in Section 154 Cr.P.C., and illegally rejected the prayer for investigation under Section 156(3) Cr.P.C. holding that the dispute involved between the parties was civil in nature. Reliance was further placed by the petitioner on an unreported decision, rendered by the Apex Court in SLP (Criminal) No. 5791 of 2005 in the case Syed Askari Hadi Ali Augustine Imam & Anr. vs. State (Delhi Admn.) & Anr. wherein it was held that ordinarily a criminal proceeding will have a primacy over the civil proceeding. Precedence to a criminal proceeding ought to have been given by the learned court below, keeping in mind that the disposal of a civil proceeding ordinarily would take a long time, and in the interest of justice a criminal proceeding could be disposed of expeditiously as possible. Non appears on behalf of the opposite party Nos. 1 to 6, except opposite party No.7, what is evident form the affidavit-of-service furnished by the petitioner.

(3.) Learned advocate for the private opposite party No.7 submitted that learned court below committed no illegality in rejecting the petition under Section 156(3) Cr.P.C, upon due exercise of his discretion, vested to learned Magistrate, what could be ordinarily fond from the words used in Section 156(3) Cr.P.C. wherein 'May' had been used by the legislator in revealing legislative intent, compared to 'shall'. Learned advocate for the private opposite party No.7 further submitted that without previous adherence to Section 154(1) and 154(3), the provisions of Section 156(3) Cr.P.C. could not be permitted to be resorted to. It was thus proposed by learned advocate for O.P. No.7 that in the petition under Section 156(3) Cr.P.C. an averment demonstrating clearly and most conspicuously about previous adherence to Section 154(1) and 154(3) Cr.P.C. must be there, while initiating a prayer under Section 156(3) Cr.P.C, without which the prayer under Section 156(3) Cr.P.C. would be against the spirit of the law. It was further submitted by the learned advocate for the O.P. No.7 that when the petitioner felt aggrieved with the order rejecting the prayer under Section 156(3) Cr.P.C., and challenged the same in revisional application, which was ultimately dismissed, the same could not be allowed to be enforced in application of the authority, available under Section 482 Cr.P.C.