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SMT. MUNNAR DEVI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Smt. Munnar Devi v. State Of U.P. And Others - CRIMINAL MISC. WRIT PETITION No. 15009 of 2006 [2006] RD-AH 21241 (15 December 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 45

CRIMINAL MISC. WRIT  PETITION NO. 15009 OF 2006

Smt. Munnar Devi......................................Petitioner.

                                         Versus

State of U.P and others ..............................Respondents.

Hon. Mrs. Poonam Srivastav, J.

Heard learned counsel for the petitioner and learned A.G.A. for the State.

An application under Section 156(3) Cr.P.C. was preferred in the court of Additional Chief Judicial Magistrate I, Varanasi on 1.9.2006. The learned Additional Chief Judicial Magistrate I, Varanasi declined to direct the police to register and investigate the matter vide order dated 8.9.2006. The learned Magistrate fixed 11.10.2006 directing the petitioner/applicant to record statement under Section 200 Cr.P.C. treating the application under Section 156(3) Cr.P.C. as a complaint.  This order was challenged in criminal revision no. 407 of 2006. The revisional court dismissed the revision on 30.10.2006. Reliance has been placed on the decisions of this Court Babu Ram Gupta Vs. State 2001 (43) ACC Full Bench  page 50, Vijai Pandey Vs. State of U.P. 2005 ALJ, Gulab Chand Upadhyay Vs. State of U.P. and others 2002 JIC page 85. The Apex Court has ruled in the case of Joseph Mathuri and another Vs. Swami Sachidanand Hari Sakshi and another, 2001(Suppl.) A.C.C.957, when no recovery is to be made in respect of the stolen articles and the accused are known and where no evidence is required to be collected by an investigation, the court can very well treat the application under Section 156(3) Cr.P.C. as a complaint. Both the orders are impugned in the instant writ petition.

Learned counsel for the petitioner states that a number of articles were stolen from her house and, therefore, recovery has to be made and the courts below committed an error in not directing the police to register and investigate the matter. Reliance has been placed in the case of Ramesh Kumari Vs. State (NCT of Delhi) and others (2006) 2 SCC page 677, wherein the Apex Court while disposing of the appeal directed the C.B.I. to register and investigate the case in question since cognizable offence has been committed.

In the instant case, after hearing counsels for the respective parties and assertion made on behalf of the petitioner, that injuries were caused and injury report has been brought on record.  It is evident that cognizable offence has been committed.  Admittedly, certain articles were stolen from her house.  The Magistrate was bound to directed the police to register and investigate the matter.  Finding of the courts below that recovery is not dominant factor in the instant case while rejecting the application of the present petitioner, is liable to be set aside. In view of the decision of this Court Bahadur Singh Vs. State of U.P. and others 2005 (2) JIC page 680, it is ruled that where an application under Section 156(3) Cr.P.C. makes out a case of commission of a cognizable offence, the Magistrate is not justified in treating the application under Section 156(3) Cr.P.C. as a complaint case. In the instant case, since it has specifically been stated that injuries were caused and injury report has been brought on record. Besides, articles were stolen, which can only be ascertained after the investigation is conducted.  

For the reasons discussed above, I dispose of the instant writ petition setting the aside the impugned orders dated 8.9.2006 and 30.10.2006.  The matter is remanded to the Additional Chief Judicial Magistrate I, Varanasi to give afresh decision on merit after taking into consideration various decisions of the Apex Court as well as this Court.

Dt. 15.12.2006

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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