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2011 DIGILAW 466 (ALL)

SHANTI DEVI v. STATE OF U. P.

2011-02-25

SHRI NARAYAN SHUKLA

body2011
JUDGMENT Hon’ble Shri Narayan Shukla, J.—Heard Mr.Murli Manohar Srivastava, learned counsel for the petitioner as well as Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State. 2. The petitioner has challenged the order dated 18th of May, 2010, passed by the Additional Chief Judicial Magistrate-V, Court No. 29, Lucknow on Misc. Application No. 58 of 2010, moved under Section 156(3) of the Code of Criminal Procedure, on the ground that the learned Magistrate has wrongly converted the application into complaint as the provisions of Section 156(3) of the Code of Criminal Procedure as well as provisions of Chapter 15 of the Code of Criminal Procedure have no co-relationship to each other, they are different and distinct provisions absolutely providing a different procedure. In support of his submission he placed reliance upon several decisions of this Court as well as the Hon’ble Supreme Court, which are referred to hereunder : (1) Dharmeshbhai Vasudevbhai and others v. State of Gujrat and others, 2009 Cri LJ 2969. (2) Chandrika Singh v. State of U.P. and others, 2007 (3) JIC 746 (All). (3) Superintendent of Police, C.B.I. and others v. Tapan Kumar Singh, 2003(2) JIC 126 (SC). (4) Smt. Santosh Kumari v. State of U.P., 2007 (2) JIC 351 (All). 3. On the other hand Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate, appearing on behalf of the State, in support of his argument, has cited the following decisions : (1) Rajendra Singh v. State of U.P. and others, 2010 (71) ACC 446. (2) Sukhwasi son of Hulasi v. State of Uttar Pradesh, 2007 (59) ACC 739 (DB) (All). (3) Joseph Mathuri alias Vishveshwarananda and another v. Swami Sachidanand Harisakshi and another, 2001 (Suppl.) ACC 957 (SC). (4) Smt. Mona Panwar v. The Hon’ble High Court of Judicature at Allahabad and others, Criminal Appeal No. 298 of 2011, decided on February 02, 2011. 4. The controversy raised in the matter has already been settled by the Hon’ble Supreme Court recently in the case of Rameshbhai Pandurao Hedau v. State of Gujarat, 2010 (4) SCC 185 , in which the Hon’ble Supreme Court has expressed the opinion as under : “25.The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3) Cr.P.C. and under Section 202 Cr.P.C. The only difference is the stage at which the said powers may be invoked. As indicated hereinbefore, the power under Section 156(3) Cr.P.C. to direct an investigation by the police authorities is at the pre-cognizance stage while the power to direct a similar investigation under Section 202 is at the post-cognizance stage. 26. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202 Cr.P.C. and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of sub-section (2) of Section 202 the learned Magistrate deems it fit, he may either dismiss the complaint under Section 203 or proceed in terms of Section 193 and commit the case to the Court of Session. 5. In the light of the aforesaid observations, I am of the view that the learned Magistrate has not committed any error in taking cognizance in the matter and proceeding for enquiry. Therefore, the petition is dismissed. —————