This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner with the following main prayer:
"[a] Your Lordships may be pleased to allow this Special Criminal Application by issuing appropriate writ, order or direction quashing and setting aside the order dtd.17/9/2011 passed by the Ld. J.M.F.C Kalyanpur below Exh.6 in M. Case No.1/2011 and be also further pleased to direct the said Ld J.M.F.C. Kalyanpur to send the complaint of the petitioner below Exh.1 for further Police Investigation u/s.156(3) of Cr.P.C."
2. Having heard learned advocates for the parties, on perusal of record of the case and as held by the Apex Court in the case of Mona Panwar v. High Court of Judicature of Allahabad through its Registrar & Ors. [2011(3) SCC 496], there is no straight-jacket formula for the learned Magistrate to exercise discretionary power under Section 202 or 156(3) of the Code of Criminal Procedure, 1973. In para 22 and 23 of the above decision, the Apex Court held as under:
"22. The judicial discretion exercised by the appellant was in consonance with the scheme postulated by the Code. There is no material on the record to indicate that the judicial discretion exercised by the appellant was either arbitrary or perverse. There was no occasion for the learned Single Judge of High Court to substitute the judicial discretion exercised by the appellant merely because another view is possible. The appellant was the responsible judicial officer on the spot and after assessing the material placed before him he had exercised the judicial discretion. In such circumstances this Court is of the opinion that the High Court had no occasion to interfere with the discretion exercised judiciously in terms of the provisions of Code.
23. Normally, an order under Section 200 of the Code for examination of the complainant and his witnesses would not be passed because it consumes the valuable time of the Magistrate being vested in inquiring into the matter which primarily is the duty of the police to investigate. However, the practice which has developed over the years is that examination of the complainant and his witnesses under Section 200 of the Code would be directed by the Magistrate only when a case is found to be serious one and not as a matter of routine course. If on a reading of a complaint the Magistrate finds that the allegations therein disclose a cognizable offence and forwarding of the complaint to the police for investigation under Section 156(3) of the Code will not be conducive to justice, he will be justified in adopting the course suggested in Section 200 of the Code".
3. In the facts of the case and in view of police report dated 12.06.2011, learned Magistrate upon careful perusal of the police report and considering the facts of the case, refused to order investigation under Section 156(3) of the Code, which order does not require any interference by this Court in exercise of powers under Articles 226 & 227 of the Constitution of India.
In absence of any merit, this petition stands dismissed.
Notice is discharged.
[Anant S. Dave, J.] *pvv Top