Court No. - 42 Case :- APPLICATION U/S 482 No. - 32927 of 2009 Petitioner :- Anil Respondent :- State Of U.P. Petitioner Counsel :- P.S.Pundir Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Chandra,J.
This application under Section 482 Cr.P.C.has been filed with the prayer that
the order dated 26.6.09 passed by the CJM, Muzaffar Nagar in case
no.3432/09, under Section 156(3) Cr.P.C. as well as the order dated 22.10.09
passed by the Additional Sessions Judge, Court No.7 may be quashed.
As an interim measure it has been prayed that the effect and operation of the
impugned orders dated 26.6.09 and 22.10.09 may be stayed during the
pendency of the present application.
In brief the facts of the case are that the complainant Anil Kumar moved an
application before the CJM making a prayer that the SHO, PS Civil Lines,
Muzaffar Nagar may be directed to register and investigate the case. The
Magistrate instead of sending the application for registration and its
investigation, treated the application as a complaint vide order dated 26.6.09
and fixed the case for recording the statement of the complainant under
Sectiion 200 Cr.P.C. The complainant filed criminal revision no.262 of 09
against the Magistrate’s order dated 26.6.09 which culminated in its rejection
vide order dated 22.10.09.
I have heard learned counsel for the applicant as well as the learned AGA and
perused the papers as have been filed with the present application.
Learned A.G.A. argued that the courts concerned have not committed any
illegality or irregularity in passing the impugned orders as it is well settled
that when an application is moved under Section 156(3) Cr.PC. the Magistrate
may send it to the police station for its registration and investigation of the
case or the Magistrate may treat it as a complaint case and may proceed under
Chapter XV of the Code of Criminal Procedure.
I have considered over the respective arguments. In this connection a Full
Bench decision of this High Court in Ram Babu Gupta Vs. State of U.P.
2001(43) ACC 50 may be referred in which the Hon’ble High Court held as
under:
“Coming to the second question noted above, it is to be at once stated that a
provision empowering a Court to act in a particular manner and a provision
creating a right for an aggrieved person to approach a Court or authority, must
be understood distinctively and should not be mixed up. While sections 154,
155, Sub-sections (1) and (2) of 156 Cr.P.C. confer right on an aggrieved
person to reach the police, 156(3) empowers a Magistrate to act in a particular
manner in a given situation.Therefore, it is not possible to hold that where a
bare application is moved before Court only praying for exercise of powers
under Section 156(3) Cr.P.C. it will remain an application only and would not
be in the nature of a complaint. It has been noted above that the Magistrate
has to always apply his mind on the allegations in the complaint where he
may use his powers under Section 156(3) Cr.P.C. In this connection, it may be
immediately added that where in an application, a complaint states facts
which constitute cognizable offence but makes a defective prayer, such an
application will not cease to be a complaint nor can the Magistrate refuse to
treat it as a complaint even though there be no prayer seeking trial of the
known or unknown accused. The Magistrate has to deal with such facts as
constitute cognizable offence and for all practical purposes even such an
application would be a complaint.”
Moreover, this court in the case of Yogendra Singh VS. State of UP and
another, 2005(51) ACC 890 (Alld), has held that application filed under
Section 156(3) Cr.P.C. can be treated as complaint under Section 200 Cr.P.C.
and no separate complaint is required to be filed.
In the case of Joseph Mathuri @ Vishveswaranand and another Vs. Swami
Sachchidanand Harishakshi and another, 2001 (Suppl) ACC 957(SC), the
application was moved by the complainant under section 156 (3) Cr.P.C.
before the Magistrate for directing the police to register the case against the
appellant. In that matter Hon’ble Apex Court has held that there was nothing
wrong if the application was directed to be treated as complaint.
In the light of the above noted judgments, I am of the view that the learned
Magistrate and the Addl.Sessions Judge have not committed any illegality in
passing the impugned orders and there is no reason to interfere with the orders
passed by them.
The application is accordingly dismissed.
18/1/2010 sm