Smt. Chandrawati vs State of U.P. and Others

Shri Kant Tripathi, J.—Heard the learned Counsel for the revisionist and the learned A.G.A. for the State and perused record. None responded for the opposite party No. 2 despite notice.

The revisionist Smt. Chandrawati has preferred this revision against the order dated 18.6.2008 rendered by the Sessions Judge, Barabanki in Criminal Revision No. 158 of 2008 whereby the learned Sessions Judge quashed the order dated 14.8.2007, passed by Additional Chief Judicial Magistrate, Court No. 12, Barabanki, consequently the revisionist''s application u/s 156(3), Code of Criminal Procedure stood rejected.

It may be mentioned that the revisionist moved an application u/s 156(3), Code of Criminal Procedure before the Magistrate concerned with the allegations that the accused persons named in the application put the revisionist''s chappar on fire and hurled abuses and insulted to the revisionist merely because she belongs to a Scheduled Caste. The learned Magistrate, before whom the application was moved, considered the matter and passed the order dated 14.8.2007 directing the police concerned to register and investigate the case. The learned Magistrate recorded a categorical finding that the facts stated in the application, disclosed commission of cognizable offences. The learned Sessions Judge reversed the order of the Magistrate on the ground that no compliance of Section 154, Code of Criminal Procedure was made by the revisionist. But, however, the learned Sessions Judge was also of the view that the exercise of judicial discretion by the Magistrate u/s 156(3) arises only when the application discloses commission of any cognizable offence.

The learned Sessions Judge further held that the learned Magistrate had not applied his mind at all and had not disclosed any reason while passing the order dated 14.8.2007. If it was so, the learned Sessions Judge should have directed the Magistrate concerned to reconsider the matter and pass appropriate order.

The learned Counsel for the revisionist submitted that the learned Sessions Judge, after relying upon C.B.I. v. State of Rajasthan 2001 (2) ACR 1875, held that the Magistrate had no power to direct the superior officer to investigate. I am failing to understand as to why this observation was made by the learned Sessions Judge when the learned Magistrate had not directed any superior officer to investigate the case and merely required the concerned Station Officer to register and investigate the case.

I am fully in agreement with the views of the learned Sessions Judge that the Magistrate, while passing an order u/s 156(3), Code of Criminal Procedure must apply his mind to the facts disclosed in the application and pass appropriate order in accordance with law. A Full Bench of this Court in Ram Babu Gupta v. State of U.P. 2001 ACC 50 : 2001 (2) ACR 1350 has held that the application of mind is necessary for the Magistrate while exercising jurisdiction u/s 156(3), Code of Criminal Procedure. It is also equally well-settled that if the Magistrate records the finding that the application discloses commission of cognizable offence after application of mind to facts disclosed in the application moved u/s 156(3), Code of Criminal Procedure the revisional Court should not ordinarily interfere with the finding of fact of the Magistrate unless it is shown that the finding is perverse or has been recorded by overlooking certain material and relevant facts.

It is also well-settled that the power of the Magistrate u/s 156(3) is an independent power which is not controlled or regulated by the provisions of Section 154, Code of Criminal Procedure. It is not necessary for a person to invoke the provisions of Section 154, Code of Criminal Procedure before moving an application u/s 156(3), Code of Criminal Procedure before the Magistrate. When an application disclosing commission of a cognizable offence is made u/s 156(3), Code of Criminal Procedure before a Magistrate, the Magistrate has to consider the application and pass appropriate order thereon. But it is not legally required to direct the person moving the application to go first of all to the police for lodging an F.I.R. u/s 154, Code of Criminal Procedure and then come to the Magistrate. The person concerned has a choice either to lodge an F.I.R. or to file a complaint before the Magistrate in regard to the commission of any cognizable offence. If any such complaint, u/s 156(3), Code of Criminal Procedure is moved before a Magistrate, the Magistrate has power to treat the application as a complaint or to direct the police to register and investigate the case, as per the situation of the case.

In the instant case, the learned Magistrate had examined the complaint filed before him and arrived at the conclusion that the complaint/application moved by the revisionist disclosed commission of cognizable offences. The learned Sessions Judge has no where held that the finding so recorded by the learned Magistrate was perverse or beyond jurisdiction or was against the facts stated in the complaint. If the Sessions Judge noticed some mistake like non-application of mind by the Magistrate, in that event he should have directed the Magistrate to reconsider the application and pass appropriate order instead of setting aside the order of the Magistrate and closing the chapter.

For the reasons discussed above, the revision is allowed. The impugned order dated 18.6.2008 is set aside and the learned Sessions Judge is directed to decide the Criminal Revision No. 158 of 2008, afresh in the light of the observations made hereinbefore and pass appropriate order in accordance with law after providing a reasonable opportunity of hearing to the parties.