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2015 DIGILAW 782 (ALL)

Abhay Kumar Dubey v. State of U. P.

2015-04-10

PRAMOD KUMAR SRIVASTAVA

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JUDGMENT Pramod Kumar Srivastava,J. This revision has been filed against the order dated 12.01.2006 passed by Chief Judicial Magistrate, Etawah in Criminal Misc. Case No. 133/2005, Abhay Kumar Dubey Vs. Netram & others by which application under section 156(3) Cr.P.C. was registered as complaint case. 2. Present revisionist had moved an application dated 09-12-2005 in Court below u/s 156 (3) Cr.P.C. After hearing the counsel for applicant/revisionist the Court below had passed its impugned order 12-01-2006 by which application u/s 156 (3) Cr.P.C of applicant was registered as complaint case. Aggrieved by this order present revision had been preferred. 3. None appeared on behalf of revisionist. Heard learned AGA and perused memo of revision. 4. Code of Criminal Procedure had given different type of powers to deal with such matters relating to commission of cognizable offences when brought before it. Code and various case laws had set guidelines for Courts to deals with such matters. In ruling 2001 (2) C.Cr.J. 644 (All); Ram Babu Gupta vs. State of U.P. & others full bench of this Court held that: "On receiving of such complaint, different courses are open to the Magistrate he may with the aid of power conferred by Section 156 (3) direct the police to register a case and investigate in the matter as provided in Chapter XII or he may treat the same as complaint and proceed in the manner as provided in Chapter XV of the Code. While resorting to the first mode in as much as directing the police for investigation he should not pass order in a routine manner. He should apply his judicial mind and on glimpse of the complaint, if he is prima facie of the view that the allegations made therein constituted commission of a cognizable offence requiring thorough investigation, he may direct the police to perform their statutory duties as envisaged in law. " - - - - - - - - "Where the Magistrate receives a complaint or an application which otherwise fulfills the requirement of a complaint envisaged by section 2 (d) of Cr.P.C. and the facts alleged therein disclose commission of an offence, he is not always bound to take cognizance. This is clear from the use of the words "may take cognizance" which in the context in which they occur in section 190 of the Code cannot be equated with 'must take cognizance '. This is clear from the use of the words "may take cognizance" which in the context in which they occur in section 190 of the Code cannot be equated with 'must take cognizance '. The word 'may' gives discretion to the Magistrate in the matter. Two courses are open to him. He may either take cognizance under section 190 or may forward the complaint to police under section 156 (3) Cr. P.C. for investigation." 5. In ruling 2005 (51) ACC 901, Dharmendra @ Pappu vs. State of U.P. & others this Court held that: "From the perusal of the allegations made in the application under section 156(3) Cr.P.C. it appears that on the basis of the allegations made therein a prima facie cognizable offence is made out against the accused and the allegations are of such nature which require investigation by the police. In such circumstances the Magistrate was under obligation to direct the S.O. of police station concerned to register the case and investigate them." 6. Section 156(3) CrPC reads "Any Magistrate empowered under section 190 may order such an investigation as above-mentioned." It is noteworthy that there is word "may" and not "shall" in this provision. From the perusal of the allegations made in the application under section 156(3) Cr.P.C. it appears that on the basis of the allegations made therein a prima facie cognizable offence is made out against the accused and the allegations are of such nature which requires investigation by the police, in such circumstances the Magistrate may direct the S.O. of police station concerned to register the case and investigate them. 7. The jurisdiction of a Magistrate to dispose of application u/s 156 (3) Cr.P.C. cannot be exercised arbitrarily, but there are certain specific norms for it. For ordering the investigation on application u/s 156(3) Cr.P.C. there must be prima facie commission of cognizable offence and must be the allegations are of such nature which require investigation by the police. Even if there appears commission of cognizable offence in application containing complaint, Magistrate is not always obliged to order the police for investigation, if there is actually nothing to be investigated. In such case applicant can take recourse of procedure of complaint case. Order for investigation is to be made only when allegations are of such nature that actually requires investigation. 8. In such case applicant can take recourse of procedure of complaint case. Order for investigation is to be made only when allegations are of such nature that actually requires investigation. 8. In ruling 2007 (59) ACC 739; Sukhwasi vs. State of U.P. division bench of this Court had held as under: "Applications under section 156(3) Cr.P.C. are coming in torrents. Provisions under section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice which warrants a direction to the Police to register a case. Such application should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of section 156(3) Cr.P.C. The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has discretion to treat an application section 156(3) Cr.P.C. as a complaint." 9. In present matter all evidence required to be proved in the case is within knowledge of revisionist. Learned Court below had rightly mentioned in impugned order that matter relating to application u/s 156(3) Cr.P.C. may be a matter relating to exclusive dispute of civil nature. Therefore no impropriety or irregularity appears to have been committed by the Court below by not ordering the investigation by the police and directing the case to be registered as complaint case. Therefore impugned order should not be interfered with in revision. Revision, accordingly, is dismissed.