Mahboob Ali vs State of U.P.and Others

U.S. Tripathi, J.—The petitioner by moving this application under Section 482 Cr. P.C. has prayed for quashing the order dated 15112000 passed by IInd A.C.J.M., Rampur, ordering the registration of application under Section 156 (3) Cr. P.C. as complaint and for direction to the A.C.J.M. concerned for passing appropriate order on his application under Section 156 (3) Cr. P.C.

It appears that the applicant moved an application under Section 156 (3) Cr. P.C. before IInd A.C.J.M., Rampur, against the opposite parties No. 3 and 4 for registering criminal case against them under appropriate section and investigation of the same regarding an occurrence, which took place on 6112000 at about 10 p.m. on the ground that he went to Police Station to lodge report, but his report was not written as the Police Officers were involved. He also moved application to Superintendent of Police and other authorities, but no action was taken.

The learned Magistrate ordered, by the impugned order dated 15112000, that the application under Section 156 (3) Cr. P.C. be registered as complaint and fixed 16112000 for statement of the complainant under Section 200 Cr. P.C.

The applicant had challenged the above order in this application on the ground that Magistrate had no jurisdiction to register the application under Section 156 (3) Cr. P.C. as complainant.

Heard the learned counsel for the applicant, learned A.G.A. and perused the record.

The scope and procedure of application under Section 156 (3) Cr. P.C. and the complaint are totally different. The provisions of 156 (3) Cr. P.C. are contained in Chapter XII of Code of Criminal Procedure which deals with the information to the police officers and their powers to investigate. Subsection (1) of Section

156 Cr. P.C. empowers Officer Incharge of a police station to investigate any cognizable case without the order of the Magistrate. Section 156 (3) empowers a Magistrate to order investigation of a cognizance offence. Therefore, the provisions of Section 156 are concerned with the investigation of a case and since there can be no investigation without registering of a case, it may be said that the above provisions of Section 156 (3) relate to the registration and investigation of a case. In case, any order is passed under Section 156 (3) Cr. P.C., the police will follow the procedure contained under Section. 156 (1) Cr. P.C. and after investigation submit a report under Section 173 Cr. P.C. The procedure for taking cognizance on the report submitted under Section 173 Cr. P.C. shall be separate Le., cognizance on a police report under Section 190 (b) Cr. P.C. Separate procedure for trial of such cases is also provided in the Cr. P.C. While on filing a complaint the Magistrate had to adopt a procedure provided under Chapter XIV of Cr. P.C. If the Magistrate takes cognizance on a complaint, it would be under Section 190 (a) Cr. P.C. and separate procedure is also provided for trial of a complaint case. Thus, the legislature had intentionally made two separate procedures to be followed and therefore, the Magistrate cannot convert one procedure into other. It has also been held in several cases of this Court that Magistrate has no power to register an application under Section 156 (3) Cr. P.C. as a complaint. Moreover, the definition of complaint given in Section 2 (d) says that ''complaint'' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has omitted an offence, but does not include a police report. Thus, the scope of application under Section 156 (3) Cr. P.C. and that of a complaint are also different.

Thus, the learned Magistrate had exceeded his jurisdiction in registering the application under Section 156 (3) Cr. P.C. as complaint, which is nothing, but abuse of process of law. The petition is, accordingly, allowed. The impugned order dated 15112000 is set aside and the Magistrate is directed to pass appropriate order on the application under Section 156 (3) Cr. P.C. at an early date. Petition allowed.