JUDGMENT R.K. Rastogi, J.
1. This is a revision against the order dated 17.7.2006 passed by the Chief Metropolitan Magistrate, Kanpur Nagar in Case No. 959 of 2005, Ram Singh Vishwakarma v. Phool Chandra and Ors.
2. The facts relevant for disposal of this revision are that the revisionist had filed an application under Section 156(3) Cr.P.C. in the Court of the Chief Metropolitan Magistrate, Kanpur Nagar with the allegation that he has got a general merchandise shop at mohalla Mavaiya. The accused, who have been arrayed as opposite parties No. 2 to 8 in this revision, used to purchase goods on credit from his shop and they had taken goods worth Rs. 10,000/- to Rs. 15,000/- on credit. The accused did not make payment of the above amount. On 2.11.2005 the accused came to his shop at about 1 P.M. and asked his son Rakesh and wife to supply goods and when they refused to do so, they damaged the goods kept in the shop, looted Rs. 5,000/- from cash box, abused his wife and daughter-in-law and took Rakesh with them. Rakesh is untraceable since that date. The revisionist went to the police outpost Ahirwa but the police instead of taking any action against the accused persons, detained him and his other sons Shailesh & Vikas and asked him to come with Rs. 20,000/-, failing which they and their entire family members would be detained in the case of rape and f atrocities to scheduled castes members. Rakesh is untraceable, since 2.11.05. It was suspected that the accused after his abduction had killed him. He gave its information at the police station Chakeri on 5.11.2005, but no action was taken. Then he filed the application under Section 156(3) Cr.P.C. before the court. On this application the Magistrate called for a report from the police station and the police reported that Rakesh was involved in a case of rape against Kumari Jugnu, daughter of Ram Shanker and on the application of Km. Jugnu under Section 156(3) Cr.P.C., an order had been passed for registration of the case, and the police after investigation of the case has submitted a charge sheet against Rakesh under Section 376 I.P.C. and Section 3(1)(10) of the S.C./S.T. Act in respect of the incident of rape which had allegedly taken place on 2.11.2005. The learned Magistrate observed that the applicant wanted to get a cross case of that incident of rape registered, but there did not appear any cognizable offence and so he rejected the application. Aggrieved with that order, the complainant Ram Singh Vishwakarma has filed this revision.
3. I have heard Learned Counsel for the revisionist and the learned A.G.A. for the State.
4. The accused have been arrayed as opposite parties No. 2 to 8 but since they are not necessary parties to this revision, as no order yet been passed against them, the revision was heard without service upon them.
5. The Learned Counsel for the revisionist submitted that the learned Magistrate has rejected his application on two grounds. The first ground taken by him is that the applicant-revisionist wanted to give a cross version of the incident of rape in which charge sheet has been filed. He contended that it is not such a case in which a report had been lodged at the police station soon after the alleged incident on 2.11.05 but an application under Section 156(3) Cr.P.C. had been filed in the Court of the Chief Metropolitan Magistrate, Kanpur Nagar and on the basis of the order passed by the Chief Metropolitan Magistrate on 19.12.2005, the case was registered at the police station and then after investigation the police submitted the charge sheet. He further pointed out that the learned Chief Metropolitan Magistrate has himself mentioned in his order dated 19.12.2005 that on calling a report from the police station on the above application under Section 156(3) Cr.P.C. the police had originally denied the happening of any such incident, and thereafter investigation was undertaken on the basis of the order of the Magistrate on the application under Section 156(3), Cr.P.C. He further submitted that in this view of the matter, when the applicant had also approached the Chief Metropolitan Magistrate under Section 156(3) Cr.P.C. with cross version of the incident, his prayer should not have been rejected, but should have been considered on merits.
6. The second ground taken by the learned Magistrate for rejection of the application is that the allegations did not disclose commission of any cognizable offence. A perusal of the application of the applicant-revisionist under Section 156(3) Cr.P.C., however, reveals that there are allegations of commission of Marpit at the shop of the revisionist by the accused persons and of damaging the goods which were kept in that shop for sale and of looting of Rs. 5,000/- from the cash box and also of abducting Rakesh. These allegations prima facie constitute cognizable offences under Sections 452, 392 and 364 I.P.C. and so the observation of the learned Magistrate that the application did not disclose commission of any cognizable offence is also not correct. The learned Magistrate has not properly decided the application of the revisionist under Section 156(3) Cr.P.C.
7. Thus, the revision deserves to be allowed and the order dated 17.7.2006 passed the learned Chief Metropolitan Magistrate,Kanpur Nagar on the application of the revisionist under Section 156(3) Cr.P.C. deserves to be set aside and the matter deserves to be remanded to the Court below for passing fresh order on that application.
8. The revision is allowed. The order dated 17.7.2006 passed the learned Chief Metropolitan Magistrate, Kanpur Nagar on the application of the revisionist under Section 156(3) Cr.P.C. is set aside and the matter is remanded to the Court below for passing fresh order on that application in view of the observations made in the body of this judgment after affording opportunity of hearing to the revisionist.