Court No. - 48
Case :- APPLICATION U/S 482 No. - 39373 of 2018
Applicant :- Abu Bakar Adil Siddiqui Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Sharique Ahmed Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
This application u/s 482 Cr.P.C. has been moved challenging the impugned order dated 17.9.2018 passed by the C.M.M., Kanpur Nagar, in Misc. Case No. 6811 of 2018, Abu Bakar Adil Siddiqui vs. Pankaj Srivastava and others, by which the application under Section 156(3) Cr.P.C. was treated as a complaint by the court.
Heard applicant's counsel and learned A.G.A. for the State. Record has been perused.
Applicant's counsel submits that the learned Magistrate has not rightly used his powers under Section 156(3) Cr.P.C. and has illegally treated the application to be a complaint, even though cognizable offences were disclosed against the accused persons which required police investigation.
Learned A.G.A. on the other hand has submitted that the order passed by the learned Magistrate is in consonance with the law laid down by the Full Bench of this Court in the case of Ram Babu Gupta Vs. State of U.P. and others 2001(43) ACC 50 and also by the Division Bench of this Court in Sukhwasi Vs. State of Uttar Pradesh, reported in 2007 (59) ACC 739. Reliance has also been placed on the Apex Court's decision given in the case of Aleeque Padamsee Vs. Union of India and another, (2007) 6 ACC 171 and also in the case of Mona Panwar Vs. High Court of Judicature at Allahabad through its Registrar & others, (2011) 3 SCC 496.
The perusal of the aforesaid case laws would reveal that it is very much within the powers of the Magistrate to decide whether he ought to direct the registration of the F.I.R. in the matter or should take the cognizance of the case himself and proceed in the matter as a complaint case. The appropriateness of the course to be adopted by the Magistrate is his own judicial discretion which he must exercise with circumspection keeping in view the facts and circumstances of the case. If the Magistrate chooses to treat the application moved under Section 156(3) Cr.P.C. as a complaint and decides to proceed as such there is no illegality in adopting such a course. Of course if this Court finds that the discretion exercised by the Magistrate is likely to result in the miscarriage of justice, it shall not feel shy to intervene and set the course right, but ordinarily in the absence of impelling circumstances, this Court is loath to meddle with the lower court's discretion and pays due regard to the same. It is also not irrelevant to mention that even while proceeding as a complaint case the Magistrate has ample powers to order an investigation under the provisions of Criminal Procedure Code. If needed the complainant can once again request the court concerned to direct investigation and the Magistrate himself if he deems it proper can adopt the same course and direct investigation u/s 202 Cr.P.C. The Apex Court's decision given in Aleeque Padamsee Vs. Union of India and another, (2007) 6 ACC 171 also indicates the same course in situations where the complainant feels aggrieved by the non registration of the F.I.R. in his case. Hence, there is no illegality in the said order.
After having considered the submissions made at the bar and after going through the case law, I am of the view that the impugned order does not suffer from any illegality or infirmity nor is there any abuse of the courts' process. Hence, no interference is called for by this Court in the present application.
The present application lacks merit. It is, accordingly, dismissed.
Order Date :- 31.10.2018 Naresh