Court No. - 48
Case :- APPLICATION U/S 482 No. - 2228 of 2019 Applicant :- Leelavati Opposite Party :- State Of U.P. And 8 Ors Counsel for Applicant :- Suresh Pratap Singh Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
This application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 31.1.2018 passed by the Additional Chief Judicial Magistrate Ist, Basti in Misc. Case No. 155/11 of 2017 (Leelavati Vs. Hariram and others)and further prayer has been made to collect the evidence by including the enquiry of Additional Superintendent of Police, Basti dated 14.9.2017 and other materials available with police and submit fresh police report under Section 173 Cr.P.C. before the concerned Magistrate.
Heard learned counsel for the applicant as well as learned A.G.A.
Submission of learned counsel for the applicant is that the application under Section 156 (3) Cr.P.C. was illegally treated as complaint. Applicant is a lady. She could not adduce evidence in the complaint and being lady it would be difficult for her to attend court again and again. It is next contended that order passed by the concerned Magistrate treating the application under Section 156 (3) Cr.P.C. is arbitrary. There was a report of the police department made by Additional Superintendent of Police, Basti on 14.9.2017 that has also not been taken into consideration. Thus it was argued that application be allowed setting aside the order dated 31.1.2018 directing the concerned Magistrate to pass order for further investigation and to include the enquiry made by the Additional Superintendent of Police. In support of his submissions, learned counsel for the applicant placed reliance on the law laid down by the Hon'ble Apex Court in the case of Rama Rani (L.R. of late Shyam Lata) Vs. Arun Kumar Sharma and another) reported in 2017 LawSuit (SC) 1251 and Narendra Kumar Amin Vs. C.B.I. and others reported in 2015 LawSuit (SC) 38.
On the other hand, learned AGA has submitted that the impugned order does not suffer from any illegality or infirmity warranting interference of this Court.
In this matter, as is evident from the record, the application under Section 156 (3) Cr.P.C. was treated as complaint vide order dated 31.1.2018 observing that the applicant/complainant herself has raised objection in the protest petition that Investigating Officer did not investigate the matter in right perspective and did not record the statement of the witnesses. Thus the concerned Magistrate treated the protest petition as complaint and proceeded to enquire the matter under Chapter XV Cr.P.C. If the entire facts and circumstances are taken into consideration then it cannot be said that order passed by the concerned Magistrate is illegal. Concerned Magistrate while passing the impugned order has decided to collect evidence on the complaint for which he was competent to do so. If the ratio laid down in the cases of Rama Mani (Supra) and Narendra Kumar Amin (Supra) are taken into consideration in the context of present matter, no benefit is derived to the applicant.
Having regard to the facts and circumstances of the case, after perusing the entire record and having considered the submissions made by the learned counsel for the parties, I am of the view that no case is made out to interfere with the impugned order. The impugned order does not suffer from any infirmity or illegality. As per the settled legal position, the Court / Magistrate is not always bound to pass order for registering the case and investigation on the application under Section 156(3) CrPC disclosing a cognizable offence. It may exercise its discretion judiciously and if it is of the view that in the facts and circumstances of the case, it will be appropriate to treat the application as a complaint case then the Magistrate may proceed with according to the procedure provided under Chapter XV of CrPC. Further, it is open to the applicant to raise the question before the court concerned at the appropriate stage. Hence, the prayer made in the present application is refused.
The application is dismissed.
Order Date :- 22.1.2019 Sachdeva