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Sanjai Gupta vs Gulab Misra and Others

Allahabad High Court · Decided on 17 November 2006 · Citation: (2006) 11 AHC CK 0113

HON’BLE JUDGES
Vinod Prasad, J
ACTS & SECTIONS REFERRED
Criminal Procedure Code, 1973 (CrPC) — Section 156, 2
RESULT
Allowed
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Judgment

4 paragraphs · 366 words

Vinod Prasad, J.—Heard learned Counsel for the revisionist and the learned A.G.A.

2.

The application u/s 156(3) Cr.P.C. indicated that the offence of dacotiy of worth Rs. 3 lac. The said offence was a cognizable offence and the prayer, which was made by the revisionist, was for direction to the police to register the cognizable offence u/s 156(3) Cr.P.C. The Magistrate by refusing the said prayer on 10.10.2006 by passing the impugned order has committed a manifest error of law as Magistrate u/s 156(3) Cr.P.C. cannot on his own convert an application to one under complaint. The prayer made in the application was for registration and investigation of the case. The aggrieved person never wanted the Magistrate to take cognizance in respect of offence to start the lis. To start lis is the domain of the aggrieved person. The Magistrate cannot start litigation by suo moto conversion of an application u/s 156(3) Cr.P.C. to one u/s 2(d) Cr.P.C. and take cognizance to the offence under Chapter XV. The aggrieved person may have thousands of reasons for not filing a complaint. Once he has not opted to file a complaint it was wholly illegal on the part of the Magistrate to convert the application u/s 156(3) Cr.P.C. under Chapter XII to one under Chapter XV of the Criminal procedure Code. Filing of a complaint and prosecution of a case as the complaint case is the responsibility and domain of the complainant or the aggrieved person. The Magistrate cannot compel the person to file a complaint. The law laid down by the Apex Court is that if cognizable offence is disclosed in an application u/s 156(3) Cr.P.C. the Magistrate is under legal duty to direct the police to exercise their plenary power of investigation.

3.

In this view of the matter, the impugned order dated 10.10.2006 passed by A.CJ.M. Court No. 2, District Allahabad, u/s 156(3) Cr.P.C. is herby set aside. The matter is remanded back to the A.C.J.M. Court No. 2, Allahabad and he is directed to take up the application filed by the revisionist afresh u/s 156(3) Cr.P.C. and pass a reasoned order in accordance with law.

4.

With the aforesaid direction this revision is allowed.