JUDGMENT K.N. Ojha, J.
1. This writ petition has been filed for quashing order dated 18.10.2003 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Ballia by which the Criminal Revision No. 116 of 2003 Vinay Pandey v. State of U.P. and Ors. has been dismissed which was preferred against order dated 2.5.2003 passed by learned Chief Judicial Magistrate, Ballia. On 2.5.2003 the learned Chief judicial Magistrate, Ballia passed order that order for investigation under Section 156(3) Cr.P.C. on the application of the petitioner Vinay Pandey against opposite parties Nos. 2, 3 and 4 cannot be made. However, the case was being registered as complaint case and a date was fixed for recording evidence under Section 200 Cr.P.C.
2. Heard Sri Shradhanand Rai and Sri B. N. Singh, learned counsel for the petitioner and learned A.G.A. and have gone through the record.
3. Annexure-1 is copy of application moved by the petitioner Vinay Pandey under section 156(3) Cr.P.C. before Chief Judicial Magistrate, Ballia on 1.5.2003. Annexure-2 is copy of application which was moved by the petitioner to Superintendent of Police, Ballia on 30.4.2003. These papers show that according to the petitioner, he was going on 24.4.2003 at 9.00 A.M. from his village Harpur, police station Kotwali district Ballia to market. When he reached in front of the house of Prabhu Nath Tiwari, opposite parties Nos. 2, 3 and 4 who are resident of his locality came on the way. Opposite party No. 2 Krishnanand Mishra was armed with licenced revolver, Opposite party No. 3 Arjun Pandey was armed with bet and opposite party No. 4 Awadhesh Pandey was armed with hockey. On exhortation of Krishnanand Mishra, Arjun Pandey and Awadhesh Pandey started to cause injury to him and snatched H.M.T. Wrist watch which fell down on the earth, but was later on taken away by them. It was also written in the application moved under Section 156(3) Cr.P.C. that on his alarm Bharat Pathak, Shripal and Dina Nath Lal reached there. While going away the opposite parties Nos. 2, 3 and 4 extended threatening. When he went to lodge F.I.R. to police station Kotwali assurance was given for registering the case, but F.I.R. was not written. He waited for four days and thereafter again he went to police station Kotwali on which the Head Moharrir told that first he had to got his injury medically examined, thereafter F.I.R. would be lodged. Then he got his injury medically examined but his F.I.R. was not registered. Hence the application was moved under section 156(3) Cr.P.C.
4. The learned Chief Judicial Magistrate, Ballia held that whole evidence is within the control of the complainant and there was no need to make order for investigation of the case and a date was fixed for proceeding with the case as complaint case and for recording the statement of complainant under Section 200 Cr.P.C. When revision was preferred against this order, the learned Additional Sessions Judge, Fast Track Court No. 2, Ballia held that fact of the case was appreciated by the learned Chief Judicial Magistrate, Ballia. The injuries are simple, therefore, if order was not made for directing the police to investigate the case, no illegality has been committed. Aggrieved therefrom, instant writ has been preferred.
5. 2003(2) JIC 9 (All) Ram Anuj Dubey v. State of U.P. has been cited in which it has been held by this Court that when application under Section 156(3) Cr.P.C. is moved, either it is to be rejected or allowed, but order cannot be passed for registering the case as complaint case. The same view was expressed by this Court in 2003 (1) JIC 1033 (All) Shyam Lal Jaiswal v. State of U.P. In 2002 (1) JIC 853 Gulab Chand Upadhyaya v. State of U.P. and Ors., it has been held by this court that It is the option of the Magistrate to direct registration of the case under Section 156(3) Cr.P.C., but such option should be exercised when full detains of the accused is not known to the complainant or recovery of abducted person or stolen property is required or evidence is required to be collected and preserved. It was held that in absence of above requirements, the Magistrate should order to adopt the procedure of a complaint case under Chapter XV of Cr.P.C. 2001(1) JIC (SC) 740 Suresh Chand Jain v. State of M.P. was followed while laying down the law. In 2001 (43) A.C.C. 50 Ram Babu Gupta v. State of M.P., it was held by Full Bench of this court that judicial magistrate may order for registration and investigation of the case or for treating the application as complaint. Thus, the position of law is clear that application under Section 156(3) Cr.P.C. may be treated as complaint.
6. Section 156 of Code of Criminal Procedure contemplates as below:-
"(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned "
7. Thus, from the perusal of Section 156(3) Cr.P.C. it is clear that it is not mandatory for the Magistrate to allow every application which has been moved under Section 156(3) Cr.P.C. if a cognizable case is made out and the Magistrate thinks it proper that the circumstance of the case are such that the discretion should be exercised in favour of the applicant and direction can be made for investigation of the case, the order should be passed. It is the judicial discretion of the Magistrate to make order for investigation under Section 156(3) Cr.P.C. Mere moving application and mention of cognizable offence is not sufficient to pass order for investigation. If the application of the petitioner would have been rejected, it was open to the petitioner either to part with the proceeding or to file complaint under Section 200 Cr.P.C. for which a specific procedure is provided under the Code of Criminal Procedure. Even if, the learned Magistrate and the Additional Sessions Judge would not have directed to register the application as complaint under Section 200 Cr.P.C. and the application under Section 156(3) Cr.P.C. moved by the petitioner would have been rejected still the complaint could be filed. Considering this circumstance, the learned Magistrate simply facilitiated the complainant to proceed with the case as complaint case and impliedly the prayer for directing the police to investigate the case under Section 156(3) Cr.P.C. was rejected.
8. The question arises as to whether, it was a fit case in which the discretion for directing to make investigation of the crime was to be exercised. A perusal of the record shows that injuries are said to have been caused on 20.4.2003 at 9.00 A.M. He went twice to the police station and Head Moharrir refused to register the crime because there was no injury report. Thereafter, petitioner Vinay Pandey aged about 25 years got himself medically examined on 24.4.2003 at 10.15 A.M. in District Hospital Ballia and following injuries were found on his body.
1. Contusion on right thumb.
2. Contusion on left finger.
3. Contusion on right palm.
4. Contusion on left arm.
9. In the opinion of the Doctor, the injuries were four days old. Injuries were simple and were caused by blunt object. The circumstance shows that if the Head Moharrir would not have insisted for medical examination of the injuries and if the petitioner had not to lodge F.I.R. he himself did not care for medical examination. This is the reason that medical examination of injuries were done four days after the occurrence, that too because the Head Moharrir of the police station made it clear that F.I.R. could not be lodged unless there was injury report. It is the case of the petitioner that after making preparation to cause injuries, the respondents Nos. 2, 3 and 4 came on the way and caused injuries. According to complainant petitioner, Krishna Nand was armed with licenced revolver, Arjun Pandey was armed with bet and Awadhesh Pandey was armed with hockey, but no injury was caused on head, shoulder, back or abdomen. Simple injuries are said to have been caused on finger, palm or arm. It is not said that any abrasion did take place while the wrist watch was being snatched away. When preparation of causing injury by three persons was made with such weapons including deadly weapon like revolver, no forearm injury was caused. Only simple injuries are said to have been caused on arm, palm or finger and not on any other part of the body and medical examination of the injuries were got done four days after the occurrence. The happening is of such a nature which does not require that an order should have been made for investigation of the case. A Magistrate is not bound to direct for investigation in every offence which is cognizable one. The Magistrate has to apply his mind and if in his opinion the circumstance of the case require that investigation should be made, such order should be passed. In this case, if the Magistrate was of the view that this was not a case in which direction should be made for investigation under Section 156(3) Cr.P.C.n-o injustice has been caused. While passing orders, both the courts below were of the view that remedy to the victim was not closed and it was still open to him to proceed with the case as complaint case.
10. The remedy of writ is an extraordinary remedy and it is to be exercised for the enforcement of any fundamental right or legal right when the circumstance of a case justify for it. If a person is said to be with firearm, there is no firearm injury and the complainant insisted that the order for investigation be made under Section 156(3) Cr.P.C. so that such person may be arrested by the police and he may be sent to jail, it would not be a proper step required by the circumstance of the case. If mere allegations are taken to be sufficient, there would be flood of the registration of the cases in compliance of the order passed under Section 156(3) of the Code of Criminal Procedure. The application of the power under this section is to be made when circumstance really justify for it. When doors of justice are not closed and it is open to the complainant petitioner to proceed with the complaint, he is not being denied justice. Hence, he is not entitled to extraordinary remedy of writ.
11. Therefore, the writ petition is dismissed at the admission stage.