Shakuntala Devi vs State of U. P. and others

Naheed Ara Moonis, J.—Heard the learned counsel for the revisionist, learned A.G.A. and perused the record.The instant revision has been filed by the revisionist who is the complainant whose application u/s 156 (3), Cr. P.C. dated 8.11.2011 moved before the Additional Chief Judicial Magistrate,Court No. 12. Azamgarh has been rejected by order dated 24.11.2011.

The allegation made in the application u/s 156 (3), Cr. P.C. in nutshell is that the complainant is a widow and her grandson has taken her on the pretext of mutating her name in place of her husband to the Registrar office, Sadar, Azamgarh on 3.3.2006 where he got executed a sale deed of more than one acre land in the name of Brij Nand Yadav of which the marginal witnesses were Hari Kesh and Ajit Pal Singh. She was also taken to Bank of India, Civil Lines, Azamgarh on the pretext of getting pension where he became a joint account holder and had taken a loan of four lacs rupees and only when the recovery certificate was issued in the name of the complainant she came to know about the fraud and cheating when the complainant tried to lodge a first information report at the police station no action was taken hence moved the application u/s 156 (3). Cr. P.C. on 8.11.2011 before the court below.

It is submitted by the learned counsel for the revisionist that the court below instead of directing the police to investigate the case treated the same as a complaint case and proceeded to record the statement of the complainant u/s 200. Cr. P.C. The allegations made in the application requires investigation by the police in order to bring to book the accused persons. The court below has relied upon the decision in the case of Sukhwasi v. State of U. P., 2007 (58) ACC 754 (HC) : 2008 (1) ACR 170 which is not applicable in the present circumstances of the case hence the court below has committed error. There was no such prayer in the application moved u/s 156 (3), Cr. P.C. to treat the same as complaint.

Learned A.G.A. has contended that there is no illegality in the order passed by the court below. The learned Magistrate has treated the application u/s 156 (3), Cr. P.C. as complaint and may inquire into the matter after recording the statement under Sections 200 and 202. Cr. P.C. In view of the decision of the Hon''ble Apex Court in the case of Sakiri Basu v. State of U. P., 2008 (60) ACC 689 : 2008 (I) ACR 4 (SC). The Hon''ble Apex Court has deprecated the practice of rushing to the High Court to file petitions when alternative remedy is available in case an application u/s 156 (3), Cr. P.C. is rejected.

Having considered the submission of the learned counsel at the bar this Court is not in agreement with the argument of the learned A.G.A.

Under the circumstances of the case on the application moved u/s 156 (3), Cr. P.C. the Magistrate is empowered to call for a report from the concerned police station. Section 156 (3), Cr. P.C. states "any Magistrate empowered u/s 190 may order such an investigation as above mentioned" if an aggrieved person files an application u/s 156 (3). Cr. P.C. before the Magistrate concerned the Magistrate can direct the first information report to be registered and also can direct a proper investigation to be made in case where according to the aggrieved person the police has not registered the first information report. The Magistrate ought to have considered the case in its proper perspective taking into account the allegations made therein.In these circumstances the learned Magistrate is directed to pass a fresh order on the application moved u/s 156 (3). Cr. P.C. directing investigation. The impugned order cannot be sustained and is hereby quashed.

With the above directions the revision is disposed of.