Court No. - 68
Case :- APPLICATION U/S 482 No. - 16234 of 2019 Applicant :- Rajendra Singh Opposite Party :- State Of U.P.
Counsel for Applicant :- R.P.S. Chauhan Counsel for Opposite Party :- G.A.
Hon'ble Umesh Chandra Tripathi,J.
Heard learned counsel for the parties and perused the record.
This application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Code') has been filed on behalf of the applicant with a prayer to set aside the order dated 17.07.2018 passed by Chief Judicial Magistrate Budaun in Misc. Case No.351/2018, whereby the application of applicant under Section 156(3) of the Code was treated as complaint.
Learned counsel for the applicant contended that in this case investigation is necessary as applicant/ complainant could not file all the evidence against accused person.
As per provision of Section 202 (1) of the Code magistrate may summon all the evidences either suo moto or direct an investigation to be made by a police officer.
Learned counsel for the applicant relying on the judgement passed by Hon'ble Apex Court in Lalita Kumari Vs. Government of U.P. and another, reported in 2014 (2) SCC 1, contended that if cognizable offence is made out, the Magistrate is bound to pass order to register F.I.R. and investigate the same.
Learned A.G.A. contended that there is no illegality or infirmity in the impugned orders passed by the trial court.
After having considered the full Bench decision of the Court in the case of Ram Babu Gupta and others Vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi Vs. State of U.P., 2008 CriLJ 472, has answered the question in paragraph 23 of the report as under:-
"The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under Section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under section 156 (3) Cr.P.C. as a complaint."
After considering the judgement passed by Hon'ble Apex Court in Lalita Kumari (supra), this Court in Virendra Kumar Fauzi Vs. State of U.P. and others reported in 2018 (3) ACR 3451, held that the Magistrate may deny to direct the police to investigate the case under Section 156 (3) Cr.P.C.
Accordingly, I find no infirmity in the impugned order passed by the trial court.
It is directed that at the appropriate stage, concerned magistrate shall inquire the matter himself by summoning all the material evidence or direct an investigation to be made by a police officer.
With the aforesaid observations/directions, the instant petition stands disposed of.
Order Date :- 29.4.2019 Radhika