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Mukesh Singh v. State Of U.P. And Another - APPLICATION U/s 482 No. 15136 of 2005  RD-AH 4269 (17 October 2005)
CRIMINAL MISC. APPLICATION NO. 15136 OF 2005
State of U.P. and others.....................Opposite parties.
Hon. Mrs. Poonam Srivastava, J.
Heard Sri Manish Tiwary learned counsel for the applicant and learned A.G.A. for the State.
The order dated 12.9.2005 passed by the Chief Metropolitan Magistrate, Kanpur Nagar on application no.683 of 2005 under Section 156(3) Cr.P.C., Mukesh Singh Vs. Ashutosh Kumar Gupta has been challenged in this application.
The grievance of the applicant is that writ petition no. 6242 of 2005 was filed in this Court against the accused. The opposite party nos. 2, 3, 4 as well as the State of U.P. were arrayed as one of the respondents through the Secretary; Home Department. Notices were issued and the respondents were restrained from interfering with the living or carrying on business of petitioner Mukesh Singh in any manner and also arrest of the petitioner till further orders. This order was passed by a Division Bench of this Court on 22.6.2005. Despite the order being communicated to the accused persons, the applicant was kidnapped and set him free only after extracting ransom of Rs.4,35,000/- (Rs. Four lac and thirty five thousand). An application was moved on 25.6.2005 before the District Magistrate, Kanpur Nagar. A copy of the same has been annexed as annexure no.3 to the affidavit filed in support of this application. Finally, an application under Section 156(3) Cr.P.C. was filed in the court of Chief Metropolitan Magistrate, Kanpur Nagar, the police report was called for, which was submitted on 27.8.2005. By means of the impugned order, it was directed that a complaint may be registered and the next date fixed was 19.9.2005 for recording the statement under Section 200 Cr.P.C.
The grievance of the applicant is that since the allegation made in the application under Section 156(3) Cr.P.C. clearly discloses cognizable offence, investigation was absolutely essential by the police. Besides, the accused being hardened criminals, the applicant could not be expected to collect all the material to produce evidence in the complaint case. The order dated 12.9.2005 is annexed as annexure no.5 to the affidavit filed in support of this application. Submission is that perusal of the order shows that the Magistrate has noticed that the amount of Rs.4,35,000/- (Rs. Four lac and thirty five thousand) was demanded in lieu of release of the applicant and also that after he was kidnapped, he was forcibly taken to Kannauj in a Jeep. Despite noticing the specific allegation regarding commission of cognizable offence, the case was directed to proceed as a complaint case. Subsequently, an application was filed on the same day, which is annexed as annexure no.6 to the affidavit filed in support of this application. The request is that various decisions cited by the counsel for the applicant have not been considered and, therefore, the Magistrate reviewed his order and passed another order on 19.9.2005 detailing the various citations given on behalf of the applicant. Submission is three folds; number one that the Magistrate could not review his earlier order dated 12.9.2005 and pass an amended order on 19.9.2005 incorporating various citations. The Magistrate has no jurisdiction to do so. Number two, while passing an order dated 12.9.2005, the Magistrate directed to proceed as a complaint case on the basis of a decision in the case of Gulab Chand Upadhyay Vs. State of U.P. J.I.C. 2002 (1) page 853. The principle laid down in the said case is very clear, that in the event, investigation has to be carried out and no recovery has to be made and the material produced in possession of the complainant is complete and sufficient to prove the case, then the Magistrate can proceed as a complaint case. In the present circumstances, the applicant was kidnapped and he was released only after huge amount of ransom was paid, therefore, it is clear that the investigation was necessary by the police on the basis of the statement recorded by the victim and recovery of the amount of ransom was to be made. As such in view of the decision in the case of Gulab Chand Upadhyay (supra) proceeding cannot commence as a complaint case. The third submission is that writ petition no. 6242 of 2005 is still pending. This fact was also brought to the notice of the Magistrate, which he completely overlooked.
Looking to the facts and circumstances of the case, the orders dated 12.9.2005 and 19.9.2005 are set aside and the Magistrate is directed to re-examine the entire material and pass afresh order on the application under Section 156(3) Cr.P.C. The Magistrate shall also ascertain whether any investigation is to be done or any recovery is to be made and thereafter decide the application in the light of observation made in the case of Gulab Chand Upadhyay (supra).
With the aforesaid directions, the application is finally disposed of.
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