JUDGMENT
M.K. Mittal, J.
1. This application has been filed for quashing the orders dated 20.8.2007 and 28.5.2007 passed by Sessions Judge Gazipur, in Criminal Revision No. 385/07, Smt. Kiran v. State of U.P. and Judicial Magistrate, Saidpur, District Ghazipur in Criminal Misc. Case No. 134/IX/07 respectively.
2. Heard Sri Mithilesh Kumar Gupta learned Counsel for the applicant, learned AGA and perused the material on record.
3. The brief facts of the case are that the applicant filed an application under Section 156(3) Cr.P.C. against 7 accused persons. The learned Magistrate by order dated 28th May 2007 directed that the application be treated as complaint and accordingly fixed 3rd July 2007 for the statement of the complainant under Section 200 Cr.P.C. Against that order the applicant filed a criminal revision in the Court of the Sessions Judge which has been dismissed by order dated 20.8.2007. Feeling aggrieved the present application has been filed.
4. The contention of the learned Counsel for the applicant is that the learned Magistrate has erred in directing that the application under Section 156(3) Cr.P.C. be treated as a complaint case. According to him the accused persons had caused injuries to the applicant and in the circumstances the learned Magistrate should have directed for registration and investigation as prima facie case was made out from the allegations made in the application under Section 156(3) Cr.P.C. He has further contended that learned Sessions Judge has erred in rejecting the revision. In support of his contention he also referred the case of Om Singh v. State of U.P. 2007(57) ACC 521.
5. Learned Counsel for the State has contended that the learned Magistrate was perfectly justified in directing that the application under Section 156(3) Cr.P.C. be treated as complaint and there is nothing illegal in the impugned orders and the application is liable to be dismissed. He also contended that the case cited by the applicant does not help her.
If any application is filed under Section 156(3) Cr.P.C. and a cognizable offence is made out from the allegations made therein the Magistrate empowered under Section 190 Cr.P.C. can direct for investigation of the case as is done under Section 156(1) Cr.P.C. But in case he finds that there is nothing particular which requires investigation by the police, he can certainly direct that application be treated as complaint and can proceed under chapter 15 of the Criminal Procedure Code.
Section 2(d) of the Criminal Procedure Code defines complaint as under-
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;
Therefore, if any allegations are made in writing to the Magistrate with a view to his taking action under this Code it can be treated as a complaint. The application under Section 156(3) Cr.P.C. is filed before a Magistrate with allegations and he can certainly treat it as a complaint.
6. In the case of Rambabu Gupta and Anr v. State of Uttar Pradesh and Ors. 2001(43) ACC 50, a full bench of this Court has held that an application filed under Section 156(3) Cr.P.C. for all practical purposes would be a complaint.
7. In the case of Yogendra Singh v. State of U.P. and Anr. 2005 Criminal Law General 2762 it has been held that an 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.
8. Again in the case of Joseph Mathuri @ Vishveshwaranand and Anr. v. Swami Sachidanand Harisakshi and Anr. 2001(3) Crime 384 (SC) an order passed by this Court was challenged and the Hon’ble Apex Court held that the High Court was wrong to hold that the application moved by the complainant under Section 156(3) Cr.P.C. before the Magistrate for directing the police to register the case against the appellants, could not be treated as complaint.
Therefore, in case the complainant files an application under Section 156(3) Cr.P.C. the same can be treated as complaint under Section 200 Cr.P.C.
9. In view of the above legal position the Judgment relied on by the applicant does not help her. In this case it has been held by the Hon’ble Court that the complainant in the present case never wanted to file a complaint. The Court cannot convert suo motu application under Section 156(3) Cr.P.C. into one of complaint and take cognizance under chapter 15. But in view of the above legal position as enunciated by the Hon’ble Apex Court as well as this Court, with due respect, the above observation cannot be accepted and it does not lay down correct law. In a law Court the wish or desire of the complainant that is whether the complainant ever wanted to file a complaint or not is not material. What is material is the legal right of the complainant and how to enforce the same. If a person is aggrieved and sets into motion the machinery for prosecuting the wrong doers, he can file a report at the police station or can present an application (complaint before the Court). If his report is not written at the police station he has again an option to file a complaint in the Court. Simply on the ground that application under Section 156(3) Cr.P.C. discloses cognizable offence the Magistrate is not required to direct for registration of the case. Normally an application under Section 156(3) Cr.P.C. is presented with the legal assistance and in the circumstances the allegations disclosing a cognizable offence are bound to be there. Therefore, merely on this ground the Magistrate cannot be directed to direct the police to register the case. The Magistrate has also to consider if any investigation is required by the police as is done under Section 156(1) Cr.P.C. The words used in Section 156(3) Cr.P.C. are as under:
Any Magistrate empowered under Section 190 Cr.P.C. may order such an investigation as above mentioned.
The word used is may and not shall. The Magistrate is expected to exercise his judicial discretion as in all the cases police investigation may not be required even where the allegations made disclose a cognizable offence as there may be nothing to be investigated by the police, reference Gulab Chandra Upadhyay v. State of U.P. 2002(44) ACC 670 Allahabad HC. However if cognizable offence is disclosed, the case cannot be thrown out at the initial stage.
Under the Criminal Procedure Code two procedures have been provided-that of State case and the Complaint case. But the net result is same that is conviction or acquittal including discharge.
Therefore the contention of the learned Counsel for the applicant that if cognizable offence is made out from the allegations a Magistrate is bound to direct for registration of the case is not correct and cannot be accepted.
10. The right of the complainant to get the case registered for investigation can be considered from another angle also. According to the complainant as alleged in the application under Section 156(3) Cr.P.C. she had gone to the police station to lodge the report but it was not written. She also gave an application to Superintendent of Police by registered post but no action was taken and then she filed this application. In such a situation the right course for the complainant to adopt was to file a complaint under Section 200 Cr.P.C.
11. While considering the right of a person aggrieved by the police inaction in lodging the report, even in cognizable case, the full bench of the Hon’ble Apex Court in the case of Aleque Padamsee and Ors. v. Union of India and Ors. (2007) 3 SCC (Cri) 1, has reiterated the legal position as was earlier stated in the cases of All India Institute of Medical Sciences Employees Union (Regd.) v. Union of India , Gangadhar Janardan Mhatre v. State of Maharastra , Minu Kumari v. State of Bihar and Hari Singh v. State of U.P. .
The Apex Court has held as under-
6. 4. When the information is laid down with the police but no action in that behalf is taken, the complainant [can under Section 190 read with Section 200 of the Code lay] the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to taken cognizance of the offence and [could] issue process to the accused.
12. In the case of Ramesh Kumari v. State NCT of Delhi and Ors. (2006) 1 SCC (Criminal) 678, the division bench of the Hon’ble Apex Court held that it was the duty of the police to register a case under Section 154 Cr.P.C. and the genuineness or credibility of the allegations could not be considered at this stage. But in the case of Aleque Padamsee(supra), this ruling has been distinguished and explained and it has been held that the correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to their notice show that cognizable offence has been made out. In case the police officials fail to do so the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code.
13. Therefore, the Magistrate cannot be held to be bound to direct for registration of case on every application filed under Section 156(3) Cr.P.C. otherwise this provision would result in harassment to innocent persons and become a tool for shrewd litigants.
14. Thus I come to the conclusion that there is nothing illegal in the impugned order and the application under Section 482 Cr.P.C. is devoid of merits and is liable to be dismissed and is hereby dismissed.