Rakesh vs State of U.P. and Others

Rajesh Chandra, J.—This application u/s 482, Code of Criminal Procedure has been filed for setting aside the order dated 4.11.2009, passed by Judicial Magistrate Second, Kanpur Dehat in Criminal Case No. 947/2009, Rakesh v. Mauji Lal and Anr. by which the learned Magistrate instead of sending the application moved u/s 156(3), Code of Criminal Procedure to the police station concerned for registering the case, ordered for the registration of the case as a complaint case.

In brief the facts of the case are that the applicant Rakesh moved an application u/s 156(3), Code of Criminal Procedure before the Magistrate making a prayer that the S.H.O. of P.S. Ghatam Pur, Kanpur Dehat may be directed to register and investigate the case. The learned Magistrate however treated the application as a complaint and fixed the case for recording the statement of the complainant u/s 200, Code of Criminal Procedure vide order dated 4.11.2009.

I have heard learned Counsel for the Petitioner as well as learned A.G.A. appearing for the State.

Learned Counsel for the Petitioner argued that the Magistrate has committed illegality by registering his application u/s 156(3), Code of Criminal Procedure as a complaint case. The Magistrate ought to have sent the application to the police station concerned for the registration of the first information report and investigation in the case.

Learned A.G.A. on the other hand argued that the Magistrate has not committed any illegality or irregularity in passing the impugned order as it is well-settled that when an application is moved u/s 156(3), Code of Criminal Procedure the Magistrate may treat it as a complaint case and may proceed under Chapter XV of the Code of Criminal Procedure.

I have considered over the respective arguments. In this connection a Full Bench decision of this High Court in Ram Babu Gupta v. State of U.P., XLIII (2001) ACC 50: 2001 (2) ACR 1350 (FB), may be referred in which the Hon''ble High Court held as under:

Coming to the second question noted above, it is to be at once stated that a provision empowering a Court to act in a particular manner and a provision creating a right for an aggrieved person to approach a Court or authority, must be understood distinctively and should not be mixed up. While Sections 154, 155, Sub-sections (1) and (2) of 156, Code of Criminal Procedure confer right on an aggrieved person to reach the police, 156 (3) empowers a Magistrate to act in a particular manner in a given situation. Therefore, it is not possible to hold that where a bare application is moved before Court only praying for exercise of powers u/s 156(3), Code of Criminal Procedure it will remain an application only and would not be in the nature of a complaint. It has been noted above that the Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers u/s 156(3), Code of Criminal Procedure In this connection, it may be immediately added that where in an application, a complaint states facts which constitute cognizable offence but makes a defective prayer, such an application will not cease to be a complaint nor can the Magistrate refuse to treat it as a complaint even though there be no prayer seeking trial of the known or unknown accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all practical purposes even such an application would be a complaint.

Moreover, this Court in the case of Yogendra Singh v. State of U.P. and Anr. LI (2005) ACC 890 : 2005 (1) ACR 1272, has held that application filed u/s 156(3), Code of Criminal Procedure can be treated as complaint u/s 200, Code of Criminal Procedure and no separate complaint is required to be filed.

In the case of Joseph Mathuri alias Vishveswaranand and Anr. v. Swami Sachchidanand Harishakshi and Anr. 2001 ACC 957 (SC), the application was moved by the complainant u/s 156(3), Code of Criminal Procedure before the Magistrate for directing the police to register the case against the Appellant. In that matter Hon''ble Apex Court has held that there was nothing wrong if the application was directed to be treated as complaint.

In the light of the above noted judgments, I am of the view that the learned Magistrate has not committed any illegality in passing the impugned order and there is no reason to interfere with the order passed by the Magistrate.

The application is accordingly dismissed.