Ravi Kumar vs State of U.P. and Others

K.N. Ojha, J.—Instant revision has been preferred against order dated 13.9.2001 by which the learned Special Chief Judicial Magistrate, Varanasi, has rejected application of the revisionist Ravi Kumar moved u/s 156(3), Cr. P.C. police station Jansa, district Varanasi.

Heard Sri D. K. Singh, learned Counsel for the revisionist and Sri R. R. K. Misra, learned A.G.A. and have gone through the record.

The case of the revisionist is that an application was moved by the revisionist before Special Chief Judicial Magistrate, Varanasi, against Laljeet, Baljeet, Sabhajeet, Ramjeet, all sons of Pyare Lal, Pyare Lal S/o Chaodhary, Baskal S/o Jai Ram, Deenanath S/o Bhuedhar, Smt. Prem Devi W/o Sabhajeet, Smt. Nirmala W/o Laljeet, all residents of village Nahwanipur, police station Jansa, district Varanasi, u/s 156(3), Cr. P.C. containing the fact that due to enmity these persons after forming an unlawful assembly entered into the house of the revisionist on 18.4.2001 at about 9.00 a.m. used insulting languages against ladies of his family and made assault on them, looted away their clothes, ornaments and costly articles. When no action was taken by the police on the application of the revisionist, the application was moved before the Special Judicial Magistrate, Varanasi, and the impugned order was passed.

In the impugned order dated 13.9.2001 the Special Judicial Magistrate has observed that there is no evidence on the basis of which it may be held that this is a fit case for registering the case for investigation.

Section 156(3) of Cr. P.C. contemplates that any Magistrate empowered u/s 190 may order such an investigation as mentioned above.

In instant case it is said that as many as ten persons, who are opposite parties entered into the house of the revisionist on 18.4.2001 at 9 a.m., used insulting languages, made assault and looted away clothes, ornaments and costly articles. Except one opposite party Om Prakash all opposite parties are residents of village Nahwanipur, Police Station Jansa, district Varanasi, where the revisionist Ravi Kumar lives. There is no injury report of any female member of the family of Ravi Kumar in support of his contention that as many as 10 persons entered into his house, used insulting languages, made assault and looted away clothes, ornaments and costly articles. It is natural that if such dacoity is made in the broad day light by forcibly entering into the house, some resistance is bound to be made and some injuries are bound to be caused.

Besides it, if some persons go and forcibly enter into another''s house, they have to take care of the fact that resistance may be made and in such circumstances, normally offender would not prefer to be accompanied with ladies members of his family in committing offence. In instant case, Prema Devi and Nirmala Devi are said to have been accompanied with the accused in committing robbery inside the house of the revisionist. It is not denied that there is litigation between the parties, who are residents of the same village and possibility may be both for false implication and real implication. After considering these circumstances, if the learned Judicial Magistrate declined to pass order of investigation, there does not appear any illegality in the impugned order. In these circumstances, it would not be proper to interfere with the impugned order.

The learned Counsel for the revisionist has cited Madhu Bala Vs. Suresh Kumar and others, in which it has been held by Hon''ble the Apex Court that when a complaint is filed to the Magistrate disclosing cognizable offence, direction may be made by the Magistrate u/s 156(3), Cr. P.C. asking the police to register a case and to investigate the same. In view of this ruling, it is to be ascertained whether any cognizable offence is disclosed or not or whether it is a fit case for making direction to investigate the case or not.

In Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , it has been held by Hon''ble the Apex Court that inherent improbabilities appearing on the face of the complaint are also to be considered when an order is passed for proceeding against an accused.

As has been observed above, in view of the facts and circumstances of the case, in my opinion, no illegality or material irregularity was committed by the learned Magistrate if he declined to direct the police concerned to register and investigate the case.

The observation is being made in this order on prima facie consideration of the facts and circumstances of the case.

With this observation the revision is dismissed.