Court No.55
Criminal Misc. Application No. 1709 of 2010
Jagdish Singh Vs. State of U.P. and others
Hon. A.K. Roopanwal, J.
This petition under Section 482, Cr.P.C. has been filed for quashing the orders
dated 3.6.05 and 3.11.09 passed by the ACJM/JM Deoband.
It appears from the facts of the case that an application under Section 156(3),
Cr.P.C. was moved by the applicant. That application was disposed of vide order dated
3.6.05 by the concerned Magistrate and it was ordered that the application be registered
as a complaint case. Against that order the applicant approached the High Court. The High
Court vide order dated 20.7.05 set aside the order dated 3.6.05. In the subsequent
development, the order dated 20.7.05 was recalled by the High Court vide its order dated
12.8.08. This means the status of the case as it stood on the date when the order dated
3.6.05 had been passed was restored. The Magistrate, therefore, in compliance of the
order dated 3.6.05 proceeded to record the statement of the complainant under Section
200, Cr.P.C. vide order dated 3.11.09.
Here, this fact is also worth mentioning that before the order of the High court could
be passed on 12.8.08 the FIR was lodged as the order dated 3.6.05 had been set aside,
matter was investigated upon by the police and final report was submitted against which
protest petition was filed by the applicant which awaits its decision till now.
Heard Mr. B.N. Singh, learned counsel for the applicant, Mr. Samit Gopal for O.P.
No.2, learned AGA and perused the record.
It has been argued by Mr. Singh that the court of the Magistrate had no power at all
to treat an application under Section 156(3), Cr.P.C. as a complaint and therefore, the
Magistrate was not competent to pass the order dated 3.11.09 and to proceed to record
the statement under Section 200, Cr.P.C.
I do feel that this argument is not tenable. It has been held by the Apex Court in
2001 (Suppl.) ACC 957, Joseph Mathuri and another Vs. Swami Sachidanand
Harisakshi and another that the application under Section 156(3), Cr.P.C. can well be
treated to be a complaint and that being so the order dated 3.6.05 cannot be set aside.
When the order dated 3.6.05 was set aside vide order dated 20.7.05 and again the order
dated 20.7.05 was recalled vide order dated 12.8.08, then the necessary corollary would
be that the order dated 3.6.05 was a good order and the Magistrate was competent
enough to act upon this order as he did vide order dated 3.11.09. Therefore, I am of the
view that the orders impugned in this petition are proper and there is no need to set them
aside.
Accordingly, this petition is finally disposed of with this observation that in case the
Magistrate considers the propriety of investigation by the police at the stage of 202,
Cr.P.C., it may take suitable action under the law.
Dated: 25.1.10/T. Sinha.