Heard learned counsel for the applicant and the learned A.G.A for the State, An application was moved by the applicant under Section 156 (3) Cr.P.C. before the Chief Judicial Magistrate, Chandauli, alleging that while the applicant was going to his home from the school where he is employed on 09.07.2009 he was assaulted and beaten by five persons , who also took away Rs. 2200/- which the applicant had kept in his pocket and his watch were also snatched from him. Three of the four accused persons who had attacked the applicant, were known to him while the fourth accused was unknown to him. It was alleged that police had refused to register the F.I.R. It was prayed that direction be issued by the magistrate to register the F.I.R. and investigate the case. The court below by the impugned order dated 22.08.2009 directed that the application under Section 156 (3) be registered in the court as a criminal complaint and fixed on 11.09.2004 for recording statement of the complainant under Section 200 Cr.P.C.
Instead of giving evidence as required by the court below the applicant preferred the instant application under Section 482 Cr.P.C. before this Court against the impugned order, submitting that the court below was not right in directing the procedure of a complaint case to be adopted and that he should have directed the police to register and investigate the case. The question as to where the magistrate is approached by a complaint with an application praying for a direction to the police under Section 156 (3) to register and investigate an alleged cognizable offence, when should he grant the relief of registration of a case and its investigation by the police under Section 156 (3) Cr.P.C. and when should he treat this application as a complaint and follow the procedure of Chapter XV of the Cr.P.C. was considered by this Court in a case reported in 2002 (44) ACC 670 Gulab Chabnd Upadhyaya Vs. State of U.P. and others, wherein this Court has held as under:
" 20. Reverting back to the present case, Section 155 Cr.P.C. deals with non-cognizable offences and Section 156 deals with cognizable offences. In a recent decision of the Supreme Court in Suresh Jain Vs. State of M.P., it has been laid down that a Magistrate considering an application under Section 156 (3) Cr.P.C. may without taking cognizance direct the police to register and investigate the case, or he may take cognizance and proceed under Chapter XV Cr.P.C. However this discretion of the Magistrate obviously cannot be unguided or arbitrary. No decision was cited before me to throw any light upon the considerations which should weight with the Magistrate to guide his discretion."
21. In these circumstances, the question arises that when a Magistrate is approached by a complainant with an application praying for a direction to the police under Section 156 (3) to register and investigate an alleged cognizable offence, when should he-- (A) grant the relief of registration of a case and its investigation by the police under Section 156 (3) Cr.P.C., (B) treat the application as a complaint and follow the procedure of Chapter XV of Cr.P.C.
22. The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some"investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom State has conferred the powers essential for investigation, for example.
(1) where the full details of the accused are known to the complainant and the same can be determined only as a result of investigation, or (2) where recovery of abducted person of stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident, or (b) recovery of case property is to be made and kept sealed; or
(c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.
But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complainant case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary case to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202 (1) Cr.P.C. order investigation, even though of a limited nature (see para 7) of JT 2001 (2) SC 81)"
After having considered the submissions made on behalf of the parties and perused the record, I see no reason to take take a different view. In the case in hand the incident took place while the complainant was going home from school. Although the names and addresses of three of the four accused are known to the complainant, the complaint contains specific allegations that the applicant was assaulted and beaten and his cash and watch was taken away by the accused from him hence recovery of the looted property was needed and for that purpose investigation was required by the police for launching a successful prosecution. Therefore the court below erred in holding that the application was at the most liable to be treated as a criminal complaint although the allegations made in the application disclosed cognizable offences under Sections 392 and 323 I.P.C. For the aforesaid reasons, the order 22.08.2009 passed by the court below cannot be sustained and is liable to be set aside.
The application is allowed. Order dated 22.08.2009 passed by the court below is quashed.
The matter is remitted back to the court concerned with a direction to reconsider and decide the application under 156 (3) afresh strictly in accordance with law and in the light of the observation made herein above expeditiously if possible within a period of one month from the date of production of a certified copy of this order before him. Order Date :- 11.1.2010 YK