Court No. - 68
Case :- MATTERS UNDER ARTICLE 227 No. - 3164 of 2019 Petitioner :- Nagesh Pati Respondent :- State Of U.P. And 6 Ors.
Counsel for Petitioner :- Rabindra Bahadur Singh Counsel for Respondent :- G.A.
Hon'ble Chandra Dhari Singh,J.
The instant writ petition under Article 227 of the Constitution of India has been filed for quashing of the order dated 11.02.2019 in Criminal Misc. Case No. 1191 of 2018 (Complaint No. 170 of 2019), under section 156(3) of the Code of Criminal Procedure, P.S. Gyanpur, District Bhadohi.
Learned counsel for the petitioner submitted that the court below-Additional Chief Judicial Magistrate, Bhadohi at Gyanpur illegal and wrongly treated the application under section 156(3) of the Code of Criminal Procedure filed by the petitioner as complaint case. He further submitted that opposite parties no. 2 to 8 have committed cognizable offence, therefore, investigation by the police is required in the matter for proper adjudication of the allegations made in the complaint. It is also submitted that while passing the order dated 11.02.2019 the court below has committed manifest error of law in treating the application of the petitioner as complaint case, hence the order impugned deserves to be set aside and quashed.
Learned Additional Government Advocate appearing on behalf of State-respondent vehemently opposed the contentions raised on behalf of the petitioner and submitted that the impugned order has been passed after considering the each and every aspect of the matter and there is no illegality apparent on the face of record in the impugned order dated 11.02.2019 in treating the application of the petitioner moved under section 156(3) of the Code as complaint case, which may warrant interference by this Court.
I have heard the arguments advanced on behalf of the parties and perused the record available.
It is settled proposition of law that the power of the Magistrate to give directions under section 156(3) Cr.P.C. is discretionary and the same has to be exercised only when there is requirement of investigation/custodial interrogation by the police. If the evidence is within the reach of complainant, usually the directions under section 156(3) Cr.P.C. are not given. The word used in the section 156(3) Cr.P.C. is "may", whereas the word used in section 154 Cr.P.C. is "shall". The wording of these sections clearly indicates that the police is bound to register an FIR, when an information regarding cognizable offence is given to the police, whereas the Magistrate is not bound to give directions under section 156(3) Cr.P.C., even though the complaint discloses the commission of a cognizable offences as the Magistrate has to see whether the investigation by the police is required or not in the given case.
In the present case, the learned Magistrate vide order dated 11.02.2019 held that the complainant has every knowledge of the facts of his case and nothing remained to be interrogated during investigation, therefore, keeping in view the law laid down by this Court in the case of Sukhwasi Vs. State of U.P. and others, 2008 Cr.L.J. 472, the court concerned treated the application under section 156(3) of the Code moved by the petitioner as complaint case. Nothing wrong has been committed by the court below in passing the impugned order, hence the order impugned is totally justified in law and does not call for any interference by this Court.
Accordingly, the writ petition being devoid of merit is
dismissed.
Order Date :- 26.4.2019 Prajapati [Chandra Dhari Singh, J.]