Hon'ble Shyam Shankar Tiwari,J.
Learned counsel for the petitioner is permitted to make correction in the body of the writ petition.
Learned A.G.A. has accepted notice on behalf of respondent nos. 1 and 2. Sri. Sanjai Kumar Dwivedi, Advocate has already entered appearance on behalf of respondent no.3 Issue notice to respondent no. 3.
Each one of the respondent is accorded eight weeks time to file counter affidavit. Rejoinder affidavit may be filed within next two weeks. List on 25.8.2010 before appropriate bench.
In the present case, earlier order was passed by the Judicial Magistrate, Mathura in Case No. 523/XII of 2009 mentioning therein that application under Section 156(3) Cr. P.C. be treated as complaint. Against the said order, revision has been filed and same has been dismissed. Thereafter, it has been informed that Gopal, respondent no.3 through Sri Sanjai Kumar Dwivedi, Advocate preferred Criminal Misc. Application under Section 482 Cr. P.C. being Criminal Misc. Application No. 11224 of 2010, and this court on the presentation of aforementioned case, proceeded to pass order on 23.4.2010, which is being extracted below:-
" The petitioner has filed this petition under section 482 Cr.P.C. to impugn the order dated 14.10.2009 passed by the Judicial Magistrate, 8th, Mathura as well as the order dated 20.3.2010 passed by the Additional Sessions Judge, Court no. 3, Mathura, in criminal revision no. 412 of 2009. It appears that the petitioner moved an application under section 156(3) Cr.P.C. and the learned Magistrate instead of directing the police to investigate the matter treated it as a complaint vide its order dated 14.10.2009. The petitioner preferred the aforesaid criminal revision which was dismissed on the ground that the Magistrate had jurisdiction to treat the application as complaint.
The power of the Magistrate to treat an application moved under section 156(3) Cr.P.C. as complaint has been upheld by a Division Bench of this Court in Sukhvashi Vs. State of U.P., 2008 Cr. L.J. 472. Therefore the learned Magistrate had jurisdiction to treat the application as complaint. The submission of the learned counsel for the petitioner was that the learned Magistrate was not justified in treating the application as complaint because so many evidence is required to be collected, which is not possible without the police investigation.
As the learned Magistrate has taken cognizance of the offence and proceeded with the matter as a complaint case, it is still open to the Magistrate if considered necessary to direct for the police investigation under section 202 Cr.P.C.
With the above observations the petition is finally disposed of." Thereafter, it appears that Gopal, respondent no.3 through the same counsel Sri Sanjai Kumar Dwviedi, Advocate concealing factum of passing order in Criminal Misc. Application No. 11224 of 2010, another Criminal Misc. Application No. 18397 of 2010 has been filed before another bench on 21.5.2010 and this court on the presentation of aforesaid case, passed order which is being extracted below:-
" Heard learned counsel for the applicant and learned A.G.A. It is contended by learned counsel for the applicant that the order dated 14.10.2009 passed by learned Judicial Magistrate, Mathura in Case No. 523/XII of 2009 whereby the application under Section 156(3) Cr. P.C. has been treated as a complaint case.
From the perusal of the record including the application under Section 156(3) Cr. P.C. and the impugned order it appears that the allegations made in the application under Section 156(3) Cr. P.C. are disclosing the cognizable offence which requires investigation also, in such circumstances the impugned order passed by the learned magistrate concerned treating the application under Section 156(3) Cr. P.C. as complaint is illegal and is hereby set aside. However, it is directed that the learned Magistrate concerned shall pass a fresh order on the application filed by the applicant under Section 156(3) Cr. P.C. in accordance with provisions of law.
With this direction, this application is finally disposed of"
Thereafter, based on the order passed by this court on 21.5.2010, concerned court has proceeded to pass order for lodging of the first information report. This is glaring case wherein prima facie criminal forum has been misused with impunity by the counsel as well as complainant, in such a situation issue notice to Gopal respondent no.3 as well as Sri Sanjai Kumar Dwivedi, Advocate, as to why proceeding under the contempt of Court Act, for committing criminal contempt be not initiated against them and recommendation be not made to Bar Council of U.P. to take action against Sri. Sanjai Kumar Dwivedi, Advocate for professional misconduct. Admittedly, in the present case, criminal forum has been misused and in the garb of the order dated 21.5.2010, petitioners are under apprehension of arrest.
Consequently, till the next date of listing or till submission of the report under Section 173 (2) Cr. P.C. whichever is earlier, petitioner shall not be arrested in Case Crime No. 522 of 2010 under Sections,323,307,504,506,452 I.P.C. , Police Station Vrindavan, District Mathura, subject to condition that petitioners shall extend all possible co-operation with the on going investigation.
Order Date :- 21.6.2010 T.S.