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CHANDRIKA SINGH versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Chandrika Singh v. State Of U.P. & Others - CRIMINAL REVISION No. 1667 of 2006 [2007] RD-AH 6827 (16 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Revision No. 1667 of 2006

Chandrika Singh                         Vs.                  State of U.P.

          ..........

Hon'ble Shiv Charan J.

The instant revision has been directed against the order dated 22.2.2006 passed by Judicial Magistrate Azamgarh in Misc. Case no. 30 of 2006, Chandrika Versus Sritam Ram and another. By the impugned order learned Judicial Magistrate treating the application of the revisionist  moved u/s 156(3) Cr.P.C. as a complaint and proceed to record the statement of the complainant u/s 200 and the witnesses u/s 202 Cr.P.C.

2.From the perusal of the record it is apparent that an application was moved by the revisionist Chandrika Singh Principal Inter College Kaptanganj,District Azamgarh u/s 156(3) Cr.P.C. for register of the case and investigation against Sritam Ram and TirathRaj Singh. They were Head Clerk and suspended Manager of the institution respectively. High Court passed stay order on 15.12.2004 restraining the opp.party to discharge their duties. From the month of July 1999 classes of Inter (Science) were started under the unfinanced approval. The students fee was collected and this amount received from the fee of the students is being deposited in the Bank account of the teachers was being managed by the Head Clerk Sritam Ram. He was also responsible for the maintenance of the record. On 25.4.2005 for  conducting an enquiry, record was demanded from Head Clerk  Sritam Ram and also tried to interrogate him. Sritam Ram tried to avoid to furnish any information about this matter but on insistence he informed in writing that all the records are with Dr. Tirath Raj. Whereas there was stay order against Dr. Tirath Raj to discharge the duties as a Manager of the Institution and this fact was in the knowledge of Dr. Tirath Raj. Sritam Ram with collusion of Dr.Tirath Raj misplaced the record. Embezzlement of huge amount of the fee was committed by these accused persons. Dr. Tirath Raj Singh and Sritam Ram committed embezzlement of the amount of the institution from the accountin the District Cooperative Bank Kaptanganj. These accused persons committed gross misconduct in the discharge of their duties and also caused wrongful loss to the institution and to screen themselves from the offence, misplaced the record. Information of the fact was given at P.S. Kaptanganj but nothing was done by the police. An application was sent to the S.S.P. by registered post but under the pressure of the accused persons no action was being taken by the police. On receipt of this application the Judicial Magistrate Azamgarh passed the impugned order and on the strength of law cited in the order, ordered for registration of the case as complaint case and proceeded to record the statement u/s 200 Cr.P.C. of the revisionist-applicant.

3.  I have heard Sri Devendra Dhama learned counsel for the revisionist, learned A.G.A. for the State and perused the entire material on record.

4.   It has been vehemently argued by the counsel for the revisionist that

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when an application is moved u/s 156(3) Cr.P.C. disclosed a cognizable offence, the Magistrate is bound to pass an order to investigate the matter and no other option is to the Magistrate either to reject the application or to treat the application as a complaint case in respect to the fact that a cognizable offence is made out and the order to be passed u/s 156(3) Cr.P.C. is an order passed at pre-cognizance stage whereas the statement u/s 200 Cr.P.C. and u/s 202 Cr.P.C. relates to post cognizance stage and the learned Magistrate committed gross illegality as apparent on the face of the record in refusing to direct investigation in the matter at the pre-cognizance stage without assigning any reason. The Magistrate was not justified in recording the perverse finding to the effect that there is no need of investigation by the police and by doing so the Magistrate has curtailed the legitimate right for getting investigation in the matter by independent agency.

5.   Serious allegations were made by the revisionist in the application of forgery in the record of the institution by the Head Clerk and the Ex-Manager and also misappropriation and embezzlement of huge amount of the institution and  the investigating officer shall be required to collect the evidence against the accused persons to prove the charge against them. The revisionist will not be in a position to collect the evidence against the above guilt of the accused persons because the record is in the possession of the opp. party. It can only be possible by the investigating officer to collect  the evidence. For want of material evidence the guilt of the accused could not be proved and it will prejudice the case of the revisionist. Learned A.G.A. disputed the argument of the counsel for the revisionist and stated that the Magistrate on receipt of application u/s 156(3) Cr.P.C. has got a discretion to pass an order to register of the case for investigation and to treat the application as a complaint case. On perusal of the facts of the case the Magistrate was of the opinion that in the circumstances of the case it will be proper to treat the application as a complaint case and proceeded to conduct enquiry as provided in Chapter XV.

6. I have considered the submissions of the counsel for the revisionist, learned A.G.A. and perused the entire material on record and law on this point.

It has been provided by Section 156 Cr.P.C.

"156. Police officer's power to investigate cognizable case-

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.

7.It has specifically  been provided in sub-section(1) of Section 156 Cr.P.C. that any officer in charge of a police station investigate any cognizable

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case, the emphasis in the section is on word 'cognizable. In view of this provision of law the police officer is also bound to investigate any cognizable case when information received by him. But if the police declined to investigate any cognizable case then the aggrieved person has got a remedy to approach the Magistrate u/s 156(3) Cr.P.C. and the Magistrate under this provision has been empowered to pass an order for investigation in the case where a cognizable offence was committed.

8.   The cognizable offence has been defined in Section 2( c):-

" 2( c) "cognizable offence" means an offence for which , and "cognizable case" means a case in which a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;

In view of this definition of cognizable offence it is which has been provided as cognizable with  schedule of the Code of Criminal Procedure. In such matter the police officer has got an authority to arrest the culprit without warrant. But in Section 156(3) Cr.P.C. It has also been provided that any Magistrate  empowered u/s 190 Cr.P.C. may order for such a investigation. The perusal of Section 190 is also material in this connection. It has been provided in Section "190" cognizance of offence by Magistrate:

(1)  Subject to the provisions of this Chapter, any Magistrate of the first   class, and any Magistrate of the second class specially empowered in this behalf under sub-section(2), may take cognizance of any offence-

(a)  upon receiving a complaint of facts which constitute such       offence;

(b)   upon a police report of such facts;

(C)    Upon information received from any person other than a police      officer or upon his own knowledge, that such offence has been          committed."

 9.      In view of this provision the Magistrate is empowered to take cognizance of offence upon receiving a complaint of facts and upon police report of such fact or information by any other person. In view of the provision a Magistrate is empowered to take out right cognizance u/s 190(1)(a). If a Magistrate ordered for investigation of an offence u/s 156 (3)Cr.P.C. then the police is required to submit a report u/s 173 Cr.P.C. and in that circumstance the Magistrate shall take cognizance upon the police report. But if in the investigation of the Investigating Officer no offence is made out from the facts of the case then on submission of police report, the Magistrate is empowered to take cognizance after rejecting the final report on the protest petition of the complainant.

10.      The main point to be decided in the case is that whether the Magistrate is always duty bound to pass an order for investigation in a case on receipt of application u/s 156(3) Cr.P.C. If a cognizable offence is made out or whether the Magistrate also have got the discretion to apply his mind and to pass an order for rejection of the application or to treat the application as a complaint. The law itself is clear so for as investigation in a matter where a cognizable offence is made out is concerned and if the police failed to register the case  for

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investigation in the matter then the aggrieved person may approach the Magistrate under sub-sec.(3) of Section 156 Cr.P.C.

11.      Learned counsel for the revisionist placed reliance on a judgment of this Court reported in ACR 2007(1) Page 25 Kumari Farmida alias Sona Vs. State of U.P. It has been held in the judgment that "Code of Criminal Procedure,1973- Section 156(3)- Application under Section 156(3)- Application under Section 156(3) to Magistrate by revisionist- Allegation that one J committed rape on her- Application rejected by Magistrate on ground that it was belated-- Whether Justified?- Held, "no"-- Magistrate under Section 156(3) not required to hold  trial- He has to apply his mind only to determine as to whether cognizable offence disclosed or not- And no more than this- In case of allegations of rape- Delay is of no consequence- Magistrate did great injustice to victim resulting in miscarriage of justice- Impugned order set aside- Matter remitted."

12.     In view of this judgment, on receipt of application u/s 156(3) Cr.P.C. a Magistrate is required  only to apply his mind  to determine that cognizable offence disclosed or not and if cognizable offence is disclosed from the facts then the Magistrate is bound to pass the order for register and investigation of the case. Although in that matter the Magistrate rejected the application on the ground that the application is belated and I agree with this observations of the court that in a serious offence of rape an application u/s 156(3) Cr.P.C. cannot be rejected on the ground of belated. But it is also material to be seen whether the Magistrate on receipt of such an application is bound to apply his mind to determine whether any cognizable offence is made out and bound to pass an order of register and investigation.

13.    In the present case two questions are involved to be decided firstly whether on receipt of application u/s 156(3) Cr.P.C. the Magistrate is always bound to pass an order to register a case and investigate if the cognizable offence is disclosed and secondly whether the Magistrate when recording any finding to the effect that whether cognizable offence is made out or not may order for treating the application as a complaint case and follow the procedure under the provision of Chapter XV. On this count , the provision of Section 156(1) is clear that if cognizable offence is made out then the police officer shall investigate in the matter and if police officer declined then the victim may approach the Magistrate u/s 156(3) Cr.P.C. and the Magistrate is empowered to order for registering the case and investigation. Learned counsel for the revisionist cited SCC(2006)(1) Page 627 Mohd.Yousuf V. Afaq Jahan(Smt) and another. The Hon'ble Apex Court held that an application was filed by the appellant before the C.J.M. Alleging that the accused with the help of Bank Manager had forged the signature in the documents showing him as a guarantor. The C.J.M. has directed the police to register the F.I.R. And to investigate the case. After investigation charge sheet was filed by the police, the respondent no.1 filed an application u/s 482 Cr.P.C. for quashing the F.I.R., the charge-sheet and the order of learned Magistrate by which he had taken cognizance and the order

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directing the police to investigate the case under section 156(3) Cr.P.C. By the impugned order the High Court quashed the charge sheet on the ground that the Magistrate had no power to order registration of the case.

Allowing the appeal, the Supreme Court Held:

"Any Judicial Magistrate before taking cognizance of the offence, can order investigation under section 156(3) Cr.P.C. But if he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station. Even if a Magistrate does not say in so many words while directing investigation under section 156(3) Cr.P.C. That an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take  further steps contemplated in Chapter XII Cr.P.C. Only thereafter."

14.   This judgment of Hon'ble Apex Court is of no help to the revisionist. In that judgment the controversy was whether in pursuance of the order of Magistrate u/s 156(3) Cr.P.C., the police is bound to register the case and investigation in the matter and in pursuance of the order the police lodged the F.I.R. and conducted investigation and on submission of charge sheet the Magistrate take the cognizance of the offence. The controversy in this case is that whether on receipt of an application u/s 156(3) Cr.P.C. the Magistrate is duty bound or not to register the case if a cognizable offence is disclosed.

Rather the Hon'ble Apex Court held in the same judgment as follows:

" But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV Cr.P.C. A reading of Section 202(1) Cr.P.C. makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him."

15.   In view of this observations of Hon'ble Apex Court  on receipt of an application u/s 156(3) Cr.P.C. the Magistrate may pass an order out right for taking cognizance in the offence and then proceed in view of the procedure laid down in Chapter XV Cr.P.C. But if the Magistrate is not intending to take cognizance of the offence then he may pass an order for register and investigation of the offence by the police. On receipt of an application u/s 156(3) Cr.P.C. both the options are open to the Magistrate and if the Magistrate in its discretion adopted any of the course  then it cannot be said that the Magistrate has illegally applied his discretion.

16.    In the present case, the Magistrate instead of passing an order u/s 156(3) Cr.PC ordered for taking cognizance and to proceed with the case as

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provided in Chapter XV Cr.PC and in view of this verdict of the Apex Court it  cannot be said that the Magistrate has illegally exercised his discretion. In this judgment the Hon'ble Apex Court also held that nomenclature is not material of a petition if an application has been moved u/s 156(3) Cr.PC. then it must not be treated only the application and cannot be treated as complaint. In this context Hon'ble Apex Court held that:

"15. faint plea was made by learned counsel for respondent 1 that the petition filed by the appellant was not a complaint in the strict sense of the term. The plea is clearly untenable. The nomenclature of a petition is inconsequential Section 2(d) of the Code defines"complaint" as follows:

 2(d) 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include a police report.

Explanation- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant."

16. There is no particular format of a complaint. A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprits be suitably dealt with, as in the instant case, is a complaint."

17.  In view of the above verdict of Hon'ble Apex Court if an application has moved u/s 156(3) Cr.P.C. Then the Magistrate has got two options, firstly to pass an order to register the case and investigation by the police and in pursuance of such an order the police is bound to register the case and then investigate the matter and as a result of the investigation the police shall submit a report u/s 173 Cr.P.C. Secondly the Magistrate has got a right to take cognizance and proceed ahead as provided under Chapter XV of Cr. PC. It is also not necessary in view of Hon'ble Apex Court that an application moved u/s 156(3) Cr. P.C. cannot be treated as complaint case or vise-versa. The Hon'ble Apex Court's opinion that no particular format of a complaint has been provided. A petition addressed to the Magistrate containing an allegation that an offence has been committed and ending with a prayer that the culprits be suitably dealt with, as in the instant case, is a complaint and the Magistrate is within his power to proceed as provided in Chapter XV of Cr. P.C.

1.Learned counsel for the revisionist further placed reliance on judgment Today 2001(2) SC page 81 Suresh Chand Jain V. State of Madhya Pradesh & another. I have perused the judgment of Hon'ble Apex Court and it has been emphasized by the Apex Court that what is the difference in passing an order of investigation u/s 156(3) Cr.P.C. and u/s 202(1) Cr.P.C. If a Magistrate while proceedings  in view of the provision of Chapter XV Cr.P.C. Under Sub-section(1) of Section 202 ordered for an inquiry then it is entirely different with investigation order u/s 156(3) Cr.P.C. If an order is passed by the Magistrate u/s 156(3) Cr.P.C. the police is duty bound to lodge the FIR and then investigate the matter whereas in pursuance of the

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order passed under Sub-sec.(1) of Section 202 Cr.P.C. Police is

not required to lodge the FIR and investigate and submit the report u/s 173 Cr.P.C. It has been provided "................may if he thinks fit postpone the issue of process against the accused either inquire himself or direct the investigation to be made by police Officer or by such other person thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding........." The Magistrate  has been empowered under the provision to direct the police to investigate the matter and in view of verdict of Hon'ble Apex Court the investigation under this provision is entirely different with the investigation ordered u/s 156(3)Cr.p.C. It has been held in the judgment by Hon'ble Apex Court that

"in Chapter XII of the Code  investigation would start with making the entry in a book to be kept by the officer in charge of a police station of the substance of the information relating to the commission of a cognizable offence. The investigation contemplated in that Chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence."

  " But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. The investigation referred to therein is of a limited nature. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him."

19.  Hence in this judgment the Hon'ble Apex Court has not laid down that if an application is moved u/s 156(3) Cr.P.C. then Magistrate is bound to pass an order to register of the case and investigation if cognizable offence is made out. The Hon'ble Apex Court held that only the investigation conducted in pursuance of the order passed on an application  moved u/s 156(3) Cr.P.C. Is different from under sub-sec.(1) of Section 202 Cr.P.C. This judgment of Hon'ble Apex Court is of no help to the revisionist.

In this context another judgment of this Court are also relevant to be mentioned and learned Magistrate also placed reliance on the judgment of this Court. The judgment pronounced by this Court in Gulab Chand Upadhyaya Vs. State of U.P. and other reported in 2002 Cr.L.J.2907 is most relevant. In this judgment the Hon'ble single Judge has laid down guide lines in which the Magistrate should pass an order for register of the case and investigation on receipt of an application u/s 156(3) Cr.P.C. disclosing a cognizable offence and by no stretch of reasoning it cannot be said that the guide lines are contrary to any provision of law or these guide lines is a check on the judicial discretion of theMagistrate

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expected to be exercised while passing an order on the application u/s 156(3) Cr.P.C. and in the present case also the accused persons are known and nothing is to be recovered from their possession. Further if in the interest of justice any assistance is required then Magistrate can be approached for conducting investigation as has been enunciated in Sub-sec.(1) of Section 202 Cr.P.C. In an inquiry under this provision the documents can also be recovered from the possession of the accused persons. Merely on the basis of the apprehension of the counsel for the revisionist that if the case is treated to be  as a complaint then the material evidence against the accused cannot be produced by the revisionist. This evidence is in the possession of the accused persons and only the police during investigation can recover their document. As I have stated above and Hon'ble Apex Court has also held that the Magistrate is fully competent to pass an order for investigation under sub-sec.(1) of Section 202 Cr.P.C and the application moved u/s156(3) Cr.P.C. Can very well be treated as a complaint case.

21.In another judgment of this Court reported in U.P.Cr.R at page 50 Mohan Shukla Vs. State of U.P. It was held that Criminal Procedure Code 1973-Section 156(3)--Application under--after treating it under Section 156(3) as a complaint--Magistrate proceeded to record statements of complainant and witnesses under Sections 200 and 202 Cr.P.C.--There is no illegality.

22.  In view of this judgment also if the Magistrate has exercised his discretion in treating the application u/s 156(3)Cr.P.C. as a complaint and had proceeded to follow the procedure as provided in Chapter XV there is no illegality. This judgment also cannot be said illegal or perverse. In the present case also the Magistrate treating the application u/s 156(3) Cr.P.C. as a complaint case followed the procedure as provided under Chapter XV Cr.P.C. The order cannot be said illegal and I am of the opinion that in such circumstances also the Magistrate was not bound to pass an order to register the case and investigation.

23.In Vinay Pandey Vs. State of U.P. Reported in U.P. Cr.R page 670 the same law has been followed and it has also been held that in an application u/s 156(3) Cr.P.C. it is not mandatory for the Magistrate to allow every application.

Learned Counsel for the revisionist also cited AIR 1980 S.C. page 883 H.S. Bains Vs. The State. It has been held by Hon'ble the Apex Court that " Criminal P.C.(2 of 1974),Ss.156(3),173(1),190(1)(b),200,203 and 204--Complaint case--Magistrate directing investigation u/s 156(3)--Police Report stating that no case was made out-- Still Magistrate can take cognizance and issue process." This judgment also does not lay down that in application u/s 156(3) Cr.P.C. the Magistrate is bound to pass an order for  register the case and investigation. In this case the police after investigation submitted a report to the effect that no case is made out.  Hon'ble Apex Court held that in such circumstances also the Magistrate can take cognizance and issue process as provided under Chapter XV Cr.P.C. It will also be material to decide that whether an application u/s 156 (3) Cr.P.C. can be treated as a complaint for the purpose of a procedure as provided under Chapter XV or the revisionist is at liberty to allege that if an application u/s 156(3) is

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moved then the Magistrate must pass an order for registration of the case and investigation when a cognizable offence is made out and specially when no prayer has been made in the application  u/s 156(3) Cr.P.C. to treat the application as a complaint and it has not been filed in the format of the complaint then  the application u/s 156(3) Cr.P.C. cannot be treated as complaint. I disagree with this position. As has been stated above that an application u/s 156(3) Cr.P.C. can be treated as a complaint as has been held by Hon'ble Apex Court in Mohd. Yousuf V. Afaq Jahan and another. But in this context another Full Bench decision of this Court is also relevant. The Full Bench of this Court in Ram Babu Gupta and another V. State of U.P. and others reported in U.P.Cr.R. at page 600 has laid down "Criminal Procedure Code, 1973- Sections 156(3), 156(2), 156(1),190 and 202-- Powers of Court- The Magistrate may direct the police to register a case and investigate- Or he may treat the same as a complaint and proceed in matter contemplated in Chapter XV of Code- He should apply his judicial mind- Law discussed- Magistrate if takes cognizance, he proceeds to follow the procedure provided in Chapter XV of Code-  Magistrate may either take cognizance under Section 190 or may forward the complaint to police under Section 156(3) for investigation."

26. In view of this judgment of Full Bench, the Magistrate is fully competent to pass an order to register a case and investigate on an application u/s 156(3) Cr.P.C. or the application u/s 156(3) Cr.P.C. may be treated as complaint and in the circumstance the Magistrate shall follow the procedure as provided in Chapter XV Cr.P.C. This judgment of Full Bench has not been set asided. Hence in view of the Apex Court and Full Bench of this Court the Magistrate is fully competent to treat an application u/s 156 Cr.P.C. as a complaint and in the present case the Magistrate passed an order in the circumstances of the case that it may be registered as complaint case and proceed to record the statement u/s 200 and 202 Cr.P.C. There appears no illegality and impropriety in the order of the Magistrate.

This controversy must come to an end that an application u/s 156(3) Cr.P.C. can only be treated as an application for passing an order for registration of the case and investigation and cannot be treated as complaint case. The Magistrate is not bound in each and every case to pass an order to register a case and investigate if cognizable offence is made out. The Magistrate is fully competent to use his judicial discretion in the matter. This is wrong notion that if an application has been moved u/s 156(3) Cr.P.C. that the only order can be passed for registration in the matter. The Magistrate has got discretion u/s 190 Cr.P.C. to take the cognizance directly or to pass an order that the police to investigate and then take cognizance on submissions of a report u/s 173 Cr.P.C. The Magistrate is also expected to act under some guide lines and it should not be left at the arbitrary discretion of the Magistrate to pass an order or not to pass an order to register the case and investigation u/s 156(3) Cr.P.C. In Gulab Chand Upadhyaya Vs. State of U.P. Hon'ble Single Judge of this Court laid down the guide lines for the

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guidance of Magistrate while deciding the application moved u/s 156(3) Cr.P.C. and there guide lines cannot be said against any provision of law or check on the judicial discretion of the Magistrate. Even Hon'ble Apex Court also held that the Magistrate has got a discretion to pass an order  to register the case and investigation u/s 156(3) Cr.P.C. Or to treat an application as a complaint case.

29. In the law laid down by Hon'ble the Apex Court and various judgments of this Court clearly laid down that the Magistrate is not always bound to pass an order to register a case and investigation  when application u/s 156(3) Cr.P.C. is moved. It will not be proper to deal with this hypothetical position that if the Magistrate is of opinion that false and frivolous allegation has been made in the application than he may reject the application or it is for the investigating officer to decide the truthfulness of the story and if found false then launch prosecution against the applicant. But it is discretion of the Magistrate to be used judiciously while disposing of the application.

30. For the reasons mentioned above, I am of the opinion that the Magistrate is not always bound to pass an order for register of the case and investigation after receipt of the application u/s 156(3) Cr.P.C. disclosing a cognizable offence. The Magistrate may use his discretion judiciously and if he is of the opinion that in the circumstance of the case it will be proper to treat the application as a complaint case then he may proceed  according to the procedure  provided under Chapter XV of Cr.P.C. I am also of the opinion that it is not always mandatory in each and every case for the Magistrate to pass an order to register and investigate on receipt of the application u/s 156(3) Cr.P.C. In the present case the Magistrate is perfectly within the judicial power to treat the application u/s 156(3) Cr.P.C. as a complaint case. There is no illegality or impropriety in the order. The revision is devoid of merit and is liable to be dismissed.

31.The revision is dismissed accordingly.

Dt.16.4.2007

Hsc/


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