Heard Mr. D.S. Mishra for the applicant and learned A.G.A. for the State and perused the record.
This is an application under section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Code') for quashing the order dated 23.12.2010 passed by Judicial Magistrate, Court No.1, Varanasi whereby the learned Magistrate treated the applicant's application moved under section 156(3) of the Code as complaint.
Mr. D.S. Mishra submitted that the Magistrate had no power to treat the application moved under section 156(3) of the Code as complaint. Mr. Mishra further submitted that the present case requires investigation in view of the fact that certain documents are to be taken into possession from the bank and also the opinion of the hand writing expert for proving the hand writing on various papers is necessary. These things cannot be properly done in a complaint case.
The power of the Magistrate to treat the application moved under section 156(3) of the Code as complaint is now well settled. In the case of Ram Babu Gupta Vs. State of U.P. 2001 ACC 50, the full bench of this court has very specifically held that the application moved under section 156 (3) of the Code would not be only application but would be in the nature of complaint, therefore, the Magistrate has power to treat the application as complaint. This proposition of law has been reiterated by a Division Bench of this Court in Sukhbasi Vs. State of U.P. and others 2008 CRLJ 447. The Division Bench has held that the Magistrate has authority to treat the application moved under section 156(3) of the Code as complaint. Therefore, the impugned order treating the application as complaint seems to be perfectly correct and requires no interference.
It may not be out of context to mention that even in a complaint case the Magistrate has power under section 202 of the Code to direct for the police investigation, however, such power cannot be exercised in respect of an offence triable exclusively by the Court of Sessions. The investigation to be carried out by the police in pursuance of the order passed by the Magistrate under section 202 of the Code has a wide scope and cannot be limited to the extent of recording the statements of witnesses. In such matters, the police has power even to hold search and seizure of documents and has also power to obtain opinion of the hand writing experts. In this view of the matter, the applicant cannot express any legitimate grievance against the impugned order on the ground that the Magistrate treated his application as complaint.
In view of the aforesaid, I do not consider it proper to interfere with the matter. It will, however, be open to the Magistrate, exercising jurisdiction in the present matter, to direct for police investigation in terms of section 202 of the Code.
With the aforesaid observations, the petition under section 482 of the Code is finally disposed of.
Order Date :- 4.2.2011 Sunil Kr Tiwari