ANIL KUMAR SETH Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD learned Counsel for the applicant and learned A.G.A.

(2.) THE present 482 petition has been filed for quashing the order dated 23.08.2010 passed by Chief Judicial Magistrate, Chandauli, whereby the application of the applicant filed under under Section 156(3) Cr.P.C. has been treated as a complaint case. It is contended by learned Counsel for the applicant that when no first information report lodged by the police with regard to commission of cognizable offence, the applicant filed an application under Section 156(3) Cr.P.C. before the Court concerned below, who treated the same as a Complaint Case. It is next contended that the order impugned has given long rope to the police to refuse to register of first information report of cognizable offence and further the petitioner approached the Magistrate with sole prayer to direct the police to register the case and investigate the same, as it disclosed the commission of cognizable offence, therefore the Magistrate has no power to pass the order impugned and till date no statement under Section 200 and 202 Cr.P.C. has been recorded. It is also contended that Magistrate does not have any power of investigation and consequently he also lacks all ancillary powers to decide whether the investigation in a cognizable offence is required or not and power to investigate the cognizable offence is vested with the police. Learned Counsel has relied upon a Judgment of Hon'ble Apex Court in the case of Lalita Kumari v. Government of Uttar Pradesh and Ors. reported in, (2008) 3SCC (Cri) 17 wherein Hon'ble Apex Court had issued general direction in the cases where first information was not lodged or where the first information report was lodged on Court's direction, the apathy of police is to investigate the matter, as such, the Hon'ble Apex Court had issued stringent directions pinning responsibility on police authorities to act promptly or else to face contempt/disciplinary proceedings including suspension. Learned Counsel has further relied upon a Judgment in the case of Mobin v. State of U.P. and Ors. reported in, 55 (2006) ACC 757 in which this Hon'ble Court has held that when the injury report and X -Ray report make out a cognizable offence, then matter may be remanded back to the Court below to decide the application filed under Section 156(3) Cr.P.C. afresh. Learned Counsel has further placed reliance upon a Judgment of this Court in the case of Gulab Chand Upadhyaya v. State of U.P. and Ors. reported in, 44 (2002) ACC 670, in which this Court has held as follows:

(3.) LEARNED A.G.A. has submitted that the order impugned, in the present application, has been passed after considering entire facts and evidence on record which suffers from no illegality or infirmity in law and calls no interference by this Court. He has further submitted that cognizable offence is made out. Learned A.G.A. has relied upon a Judgment of Hon'ble Apex Court in the case of Sakiri Vasu v. State of U.P. and Ors. reported in : (2008) 2 SCC 409 in which Hon'ble Supreme Court has held that caution should be exercised by the High Court in the matter which relates to non -registration of first information report or improper investigation. It was held that High Court should discourage writ petitions or petitions under Section 482 Cr.P.C., where alternative remedies under Section 154(3) read with Section 36 or Section 156(3) or Section 200 Cr.P.C. have not been exhausted. Learned A.G.A. has also referred a Division Bench decision of this Court in the case of Sukhwasi v. State of U.P. reported in, 59 (2007) ACC 739 wherein this Court has held that the Magistrate is not bound to order registration of a first information report in all cases where a cognizable offence has been disclosed and the Magistrate has authority to treat it as complaint.