Court No. - 49
Case :- APPLICATION U/S 482 No. - 26921 of 2018 Applicant :- Sarju Prasad Nishad Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Suresh Pratap Singh Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Counter affidavit filed today is taken on record.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application has been filed against the order dated 17.7.2018 passed by Chief Judicial Magistrate, Basti in Application No. 534/12/2018 (Sarju Prasad Nishad Vs. Ghanshyam Gupta and others), by which the learned Magistrate has directed the police to conduct a preliminary inquiry as to whether any offence had been committed.
Admitted facts appear to be that the body of the deceased was found hanging from a tree in the evening on 23.5.2018. Though, the postmortem examination had been conducted, however no case was registered, ostensibly in light of an application claimed to have been written by the present applicant to the police authority wherein no allegation was made against any person. However, subsequently it is a matter on record that an application under Section 156(3) Cr.P.C. was filed wherein amongst other it has been stated that the applicant had written to the SSP, Basti on 25.5.2018 making allegation of the deceased having been murdered.
Learned counsel for the applicant submits that in view of the decision of the Constitution Bench of the Supreme Court in the case of Lalita Kumari Vs. Govt. of U.P. & Ors reported in 2014 (2) SCC 1. In such place, the FIR ought to have been registered and there was no room or scope for a preliminary inquiry to be conducted.
Learned A.G.A. on the other submits that the applicant having himself written to the police immediately after the discovery of the dead body, wherein no apprehension of fool play had been made, a preliminary inquiry is necessary to ascertain basic facts before a case may be registered.
Having heard learned counsel for the parties, it appears that in such circumstance, though it may be a matter of inquiry as to who, if at all any other person is a culprit responsible for the death of the deceased, however, in so far as it is not disputed that it is a case of unnatural death and the applicant does appear to have made an application under Section 156(3) Cr.P.C. containing specific allegation, there did not exist any scope for a preliminary inquiry. In such fact an FIR ought to have been registered and other matter would remain to be examined during investigation.
Consequently, the order dated 17.7.2018 passed by Chief Judicial Magistrate, Basti, is hereby set aside. The mater is remitted to the learned Magistrate to pass a fresh order strictly, in accordance with law, within a period of two weeks from the date of the production of a certified copy of this order.
The present application is disposed of. Order Date :- 23.8.2018 Mini