Smt. Soni Devi vs State of U.P. and Others

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

The application of the victim Smt. Soni Devi who is the widow of Ram Raj employed in I.T.I, did disclosed commission of cognizable offence as the widow was cheated to a tune of Rs. 2,45,701/-. The Magistrate committed a manifest error of law in not directing the police to register the FIR, investigate the offence and recover the aforesaid amount, u/s 156(3) Cr.P.C.. Instead of directing the police for the same, the Magistrate arbitrarily registered the said application as complaint which the complainant and aggrieved person- never wanted. She never wanted to file a complaint and the trial court concerned was not empowered to automatically transform a pre cognizance application u/s 156(3) Cr.P.C. under chapter XII to a cognizable stage under chapter XIV Cr.P.C.. Soni Devi who is the victim never filed a complaint and she was interested in getting Rs. 2,45,701/- recovered and handed over to her. The trial Magistrate committed a manifest error of law in passing the order on 6.6.06 registering her application u/s 156(3) Cr.P.C. as a complaint case. The Magistrate acted arbitrarily and started litigation on his oven whimsically. Filing of a complaint is the right vested in the complainant and not in the Magistrate so much so that in the absence of complainant his complaint can be even dismissed for non prosecution.

In this view of the matter, the order dated 6.6.06 passed by A.C.J.M.- IV, Allahabad in misc. application of the applicant being Criminal Misc. Application No. 160/XII/06 Soni Devi v. Ashok Kumar and six others was wholly illegal. The Special judge (E.G. Act)/Additional Sessions Judge, Allahabad also passed an illegal order on 24.11.06 by rejecting the revision filed by the applicant Smt. Soni Devi challenging the aforesaid order passed by the Magistrate.

After hearing counsel for the applicant, the order passed by both the courts below cannot be sustained as the power of the Magistrate u/s 156(3) Cr.P.C. does not travel beyond the scope of directing the police to register the FIR and investigate the same. Such law has been laid down by the Apex Court in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others, The scope of power of Magistrate, as has been spelt out by the Apex Court, in the said judgment, lays that if the application u/s 156(3) Cr.P.C. discloses commission of cognizable offences then the Magistrate must direct the police to exercise its power of registration of FIR and investigate the offence u/s 156(3) Cr.P.C.. The Magistrate by passing the order dated 6.6.06 has done greatest in-justice to the widow who was cheated by the bank as well as by the fraudulent.

In view of what I have stated above, both the impugned orders dated 6.6.06 passed by A.C.J.M., Court No. 5, Allahabad in Criminal Misc. Application No. 160/XII/06 Smt. Soni Devi v. Ashok as well as the order dated 24.11.06 passed by Special Judge (E.G. Act)/Additional Sessions Judge, Allahabad in Criminal Revision No. 460 of 2006 Smt. Soni Devil v. State of U.P. and Ors. cannot be sustained and are quashed. The matter is remanded back to the A.C.J.M., Court No. 5 to re-decide the application of the applicant u/s 156(3) Cr.P.C..

This application is allowed at the admission stage itself.