Heard learned counsel for the petitioners, learned A.G.A. for the State and perused the material available on record.
No notice is issued to private respondent in view of the order proposed to be passed today, however, liberty is reserved for private respondent to apply for variation or modification of this order if she feels so aggrieved.
This writ petition has been filed with a prayer to quash the order dated 1.9.2010 passed by Addl. Sessions Judge, Court No.13, Agra in criminal revision no.207 of 2010.
Application under section 156 (3) Cr.P.C. filed by respondent no.2 was rejected by the Magistrate. The complainant filed criminal revision no.207 of 2010 against the order passed by the Magistrate, which was allowed by learned Addl. Sessions Judge, Court No.13, Agra vide judgment and order dated 1.9.2010 and the Magistrate was directed to decide the application afresh in the light of the directions given in the judgment.
Learned counsel for the petitioners submitted that respondent no.2 is a police constable and she has filed this case as a counter blast to the case earlier filed by Ravindra Shukla - brother of petitioner no.3 against respondent no.2.
Learned A.G.A. supported the impugned order.
It is alleged in the application under section 156 (3) Cr.P.C. that on 29.4.2010 at about 5:00 p.m., petitioner no.3 assaulted and beat the son of the complainant. A complaint was made with the family of Rakesh Shukla - petitioner no.3. At about 7:30 p.m. on the same day, petitioners accompanied by 5 to 10 other goondas, armed with hockey, danda and illicit weapons, entered the residential house of the complainant, hurled abuses, outraged the modesty of the complainant and again beat Tapan, the son of the complainant. Sunil Parashar fired at Tapan, but Tapan managed to escape. The accused persons damaged the windows of the house of the complainant and also abused her by using words relating to her caste and threatened her and her sons with death.
The application under section 156 (3) Cr.P.C. was rejected by the Magistrate on the ground that crime no.254 of 2010 under sections 452, 324, 323, 504, 506 IPC is registered against the complainant's side and this fact has been concealed by the complainant and she has not come forward with clean hands.
The revision was allowed by learned Sessions Judge on the ground that for passing an order under section 156 (3) Cr.P.C., sending the report to Superintendent of Police by registered post is not a precondition and non-disclosure of the alleged cross case in the application cannot be a ground for rejecting the application. Consequently, the order passed by the Magistrate was set-aside and the Magistrate was directed to decide the application afresh.
I entirely agree with the order passed by the learned Additional Sessions Judge. Disclosure of alleged cross case is not essential in the application under section 156 (3) Cr.P.C., which is to be decided on the basis of allegations made in the application. If prima facie cognizable offence is disclosed, the learned Magistrate has a discretion either to order registration of the F.I.R. or may treat the application as a complaint. The learned Magistrate was not justified in his conclusion that the complainant had not come with clean hands and it was necessary that earlier application should have been sent to the Superintendent of Police through registered post. I do not find any illegality in the order passed by the learned Additional Sessions Judge.
The writ petition is devoid of merit and is accordingly dismissed.
However, it shall be open to the petitioners to file a writ petition praying for quashing of the F.I.R. after the same has been registered at the police station.
Order Date :- 20.10.2010 ss