Gajraj Singh vs State

Sanjiv Khanna, J.—We do not think the present appeal is maintainable under Clause 10 of the Letters Patent Charter.

The appellant had filed a criminal complaint before a Metropolitan Magistrate with a prayer u/s 156(3) of the Code of Criminal Procedure, 1973, for registration of an FIR against the accused persons. Learned Metropolitan Magistrate by judgment dated 2nd July, 2008 declined and dismissed the said complaint.

This order of dismissal was made subject matter of challenge in the writ petition Crl. No. 940/08, in which the impugned order dated 31st July, 2008 was passed. The prayers made in the writ petition read as under:

It is, therefore, most respectfully prayed that this Hon''ble Court may be pleased to:

I. Call for the trial court records and II. Set aside the impugned order dated 02.07.2008 passed by Hon''ble Shri Parveen Singh the Learned M.M. dismissing the application of the Petitioner for directions u/s 156(3) Cr.P.C. to register an FIR against the accused persons for commission of offences u/s 420, 467, 468, 471, 506 r/w 120B of the IPC vide its order dated 02.07.2008 and or

III. Further pleased to order the registration of the FIR and investigate into the same as per law expeditiously in exercise of its inherent and supervisory powers and/or

IV. Direct the Learned Magistrate to issue appropriate directions u/s 156(3) for registration of FIR in accordance with law.

V. To pass any order or further orders which this Hon''ble court may deem fit in the facts and circumstances of the present case.

Prayers made and the facts stated above indicate that the writ petition was filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973. In the cause title or in the pleadings Article 226 of the Constitution of India may have been mentioned but reference was incidental. In substance, power and jurisdiction under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 had been invoked. The order passed is also under the said provisions and not under Article 226 of the Constitution of India. It is obvious that order/judgment of the Metropolitan Magistrate cannot be challenged in a writ petition under Article 226 of the Constitution of India.

Mr. K.K. Sood, Sr. Advocate appearing for the appellant submitted that a writ petition for registration of an FIR is not maintainable in view of the decision of the Supreme Court in Sakiri Vasu Vs. State of U.P. and Others, and other cases and, therefore, the present writ petition is maintainable. Admittedly in the present case, the appellant had filed the criminal complaint before a Metropolitan Magistrate u/s 156(3) of the Code of Criminal Procedure and had not invoked writ jurisdiction under Article 226 of the Constitution of India. The complaint has been dismissed. The appellant cannot now invoke writ jurisdiction.

In view of the above, it is clear that impugned order was passed while exercising jurisdiction under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973. Intra Court appeal, therefore, is not maintainable against the impugned order dated 31st July, 2008.

In these circumstances, we are not inclined to go into the merits of the impugned order. Appeal is dismissed as not maintainable.