Court No. - 55
Case :- APPLICATION U/S 482 No. - 42687 of 2018 Applicant :- Gaurishanker Opposite Party :- State Of Up And 2 Ors Counsel for Applicant :- Pawan Kumar Counsel for Opposite Party :- G.A.
Hon'ble Chandra Dhari Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 24.09.2018 passed by Additional Sessions Judge, (Fast Track Court no.1) Maharajganj in Criminal Misc. Application No.350 of 2018 (Gaurishanker vs. Daya Shanker and others) whereby Magistrate has rejected the application under Section 156 (3) Cr.P.C. moved by the applicant.
Learned counsel for the applicant submitted that the offence committed by the opposite parties no.2 to 3 is cognizable which requires registration of F.I.R. and investigation as such the order passed by the court below is without application of judicial mind. He further submitted that impugned order passed by the court below is perverse and illegal and as such is not sustainable in the eyes of law. Court below misread the entire facts of the case and without applying judicious mind passed the impugned order by giving finding that according to the application no such incident had taken place and the application moved under Section 156 (3) Cr.P.C. was based on false assertions.
Learned A.G.A. vehemently opposed the submissions advanced by learned counsel for the applicant and submitted that court below after considering allegations made in the complaint has rightly found that in the light of judgment of this Court in the case of Sukhbasi vs. State of U.P. 2008 (1) ACR 170 application is liable to be treated as complaint case. It is held by Hon'ble Supreme Court that there is not necessary to treat every case as police case.
It is well settled law that the Magistrate is not always bound to pass an order for registering of the case and investigation after receipt of the application under Section 156 (3) Cr.P.C. disclosing a cognizable offence. The Magistrate may use his discretion judiciously and if he is of the opinion that in the circumstances of the case, it will be proper to treat the application as a complaint case, then he may proceed according to the procedure provided under Chapter XV of Cr.P.C.
After hearing the learned counsel for the applicant, learned A.G.A. and after perusing the order impugned as well averments made in the present application, this Court is of the opinion, that counsel for the applicant could not point out any legal infirmity in the order impugned or any ground, which may warrant any interference by this Court.
Application is devoid of merit and is dismissed, accordingly.
Order Date :- 29.11.2018 Asha (Chandra Dhari Singh,J.)