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Hazi Abdul Hamid v. State Of U.P. And Others - CRIMINAL MISC. WRIT PETITION No. 14951 of 2006  RD-AH 21292 (18 December 2006)
Court No. 45
CRIMINAL MISC. WRIT PETITION NO. 14951 OF 2006
Hazi Abdul Hamid Vs. State of U.P. and others.
Hon. Mrs. Poonam Srivastav, J.
Heard Sri Awadhesh Kumar Singh, learned counsel for the petitioner and learned A.G.A. for the State.
The petitioner is aggrieved by order dated 7.9.2006 passed by the Additional Chief Judicial Magistrate, Varanasi and also order dated 9.11.2006 passed by the District and Sessions Judge, Varanasi.
An application under Section 156(3) Cr.P.C. was moved by the petitioner detailing the incident that had taken place on 24.8.2006, whereby he was beaten at the hands of the accused. Six Banarasi Saries were taken away from his house. The injuries received by the petitioner were got examined by the doctor at the Government Hospital. Since the police had refused to register the first information report, the said application was moved. The learned Magistrate declined to issue direction to the concerned police station to register the first information report, on the contrary passed an order directing the application to be treated as a complaint and fixed the date for recording statement of the complainant under Section 200 Cr.P.C. This order was passed on the basis of principles laid down in the case of Ram Babu Gupta Vs. State of U.P., 2001 A.L.J., Vinay Pandey Vs. State of U.P., 2005 A.L.J. and Gulab Chandra Upadhyay Vs. State of U.P. and others, 2002 (1) J.I.C. The revisional court confirmed this order.
Learned counsel for the petitioner submits that since the accused had taken away certain articles, therefore, it is not a case where the petitioner could have made the recovery of the articles taken away unauthorisedly belonging to the petitioner and this could have been done in the course of investigation by the police. The injuries also substantiated the contention of the petitioner. The submission is that since the cognizable offence was made out, the learned Magistrate was bound to pass an appropriate order to register and investigate the matter. Reliance has been placed on certain decisions of this Court, Sukhbir Singh Vs. State of U.P., 2006(55) A.C.C., 889, Ram Kumar Gautam Vs. State of U.P. 2006(55) A.C.C., 763 and Bahadur Singh Vs. State of U.P. and others, 2005(2) ACR, 1241.
After hearing the counsel for the respective parties and on perusal of the two orders, I agree that where the full details of the accused are known and recovery has to be made, the court can proceed on a complaint case but since in the instant case certain recovery has to be done, therefore, the petitioner will not in a position to recover the stolen articles in respect of the allegations levelled in the application under Section 156(3) Cr.P.C.
In the circumstances, this writ petition is finally disposed of and the matter is sent back to the learned Chief Judicial Magistrate, Varanasi to decide the matter afresh after taking into consideration the other aspect of the matter raised in the writ petition.
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