Surya Nath Yadav vs State of U.P. and Others

K.N. Sinha, J.—By means of present application u/s 482, Cr. P.C., the applicant has prayed for quashing of the order dated 23.7.2003 passed by II Ird Additional Chief Judicial Magistrate, Jaunpur, by which the application u/s 156(3), Cr. P.C., was ordered to be treated as complaint.

The brief facts giving rise to this application are that the applicant moved an application u/s 156(3), Cr. P.C. before the Judicial Magistrate-I, Jaunpur on 1.7.2003, which is Annexure-4 to the application. The Judicial Magistrate-I, Jaunpur called for the report from Police station, Gaura Badshahpur, Jaunpur and in the meantime, the case was transferred to the Court of II Ird Additional Chief Judicial Magistrate, Jaunpur. The II Ird Additional Chief Judicial Magistrate, Jaunpur instead of proceeding with the application u/s 156(3), Cr. P.C. directed the applicant to produce the witnesses treating the said application to be a complaint. The said order dated 23.7.2003 is Annexure-5 to the petition.

It has been submitted that the Magistrate has no jurisdiction to treat the application u/s 156(3), Cr. P.C. to be a complaint. If the application u/s 156(3), Cr. P.C. discloses cognizable offence, the Magistrate should have ordered investigation or could have rejected the same instead of directing the applicant to produce the witness.

I have heard learned Counsel for the applicant and the learned A.G.A.

The application u/s 156(3), I.P.C. is Annexure-4 to the petition and the impugned order is Annexure-5 to the petition. The Magistrate has passed the following order on the application:

Nothing requires to investigate because witnesses may be produced by applicants. Hence register as complaint case.

The record shows that the applicant first approached the Police Superintendent, Jaunpur, by moving an application for taking action against the culprits. No action was taken, hence application u/s 156(3), Cr. P.C. was filed. The said application was put up before the Magistrate who ordered for a report from the police-if any offence was registered at the police station or not. As per the allegations in the application, the mother of the applicant has also received injuries and the injury report was also there.

Thus, the letter to Senior Superintendent of Police and the injury report was before the Magistrate which obviously discloses the cognizable offence and in that circumstance, Magistrate has no option but to order for the investigation. The impugned order as quoted above shows that the Magistrate has not taken care to apply his mind and passed the above order in a casual manner. On a number of occasions, this Court has held that the powers of the Magistrate u/s 156(3), Cr. P.C. are quite different to the power u/s 200, Cr. P.C.

In Mahboob Ali v. State of U.P. and Ors. 2001 ACC 277 , it has been held that the scope of application u/s 156(3), Cr. P.C. and that of complaint are different. The facts of the case referred in the case of Mahboob Ali (supra), are similar to those of the present case. In that too, the applicant had moved an application u/s 156(3), Cr. P.C., which was ordered to be registered as a complaint.

The order of the Magistrate was set aside and he was ordered to pass proper order.

In the case of Dinesh Chandra and Ors. v. State of U.P. (41) 2000 ACC 831 , It was held that the powers u/s 156(3), Cr. P.C. are quite different to the power u/s 200, Cr. P.C. Relevant extract of the judgment is quoted below:

It is, therefore, abundantly clear from the above analysis that the application given u/s 156(3) has only a limited purpose, i.e., to see the interference of the Court of concerned Judicial Magistrate for an order to the police to register and investigate the cognizable case, facts of which are disclosed in such an application. Such an application is never meant for cognizance u/s 190, Cr. P.C., or for drawing of proceedings under Chapters XV and XVI. The moment application discloses such an intention both the courses shall be open for the Magistrate either to proceed u/s 190(1)(a), Cr. P.C. or to order investigation u/s 156(3), Cr. P.C. In this situation the Magistrate has freedom to choose meaning thereby he has to apply himself before deciding to adhere to any one of the two courses otherwise if only prayer is to order investigation, the Magistrate has very little left for himself. He will only examine from the facts contained in that application whether it discloses a cognizable case or not. If it fulfils this requirements he is to issue such an order, beyond this there is no scope for any application of mind for any other purpose....

Therefore, the similarity between an application u/s 156(3) and a complaint is that both comprised the allegation constituting a cognizable offence. A complaint means disclosure of a cognizable offence or offences with a request to Magistrate for taking cognizance and proceeding further to take that cognizance to its logical end, i.e., discharge, conviction or acquittal. An application u/s 156(3), Cr. P.C. just desires an order for police to investigate and nothing more. It falls short of a complaint here.

The case of Madhu Bala v. Suresh Kumar and Ors. (35) 1997 ACC 371 (SC), the word ''complaint'' has been used. This authority was fully discussed in the case of Dinesh Chandra and Ors. (supra) and it was held as follows:

The Apex Court has definitely not used the term complaint to thwart or defeat the purpose behind the enactment of Section 156(3) itself. The term was never used with any intention that the reference order appears to channelise. Thus, in my view it should be an application and not a complaint.

Thus, the pronouncement of this Court in the case of Dinesh Chandra and Ors. (supra), clarified the position of complaint u/s 200, Cr. P.C. and application u/s 156(3), Cr. P.C., I therefore, find that the learned C.J.M. exceeded the jurisdiction in registering the application u/s 156(3), Cr. P.C. as a complaint. The petition is, therefore, allowed. The impugned order dated 27.2.2003 so far as it relates to registration of application u/s 156(3), Cr. P.C. as a complaint case is quashed. The C.J.M., Jaunpur is directed to proceed and pass appropriate order on the application u/s 156(3), Cr. P.C. at an early date.