DOST MOHAMMAD Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Sri Dinesh Kumar Singh, learned counsel for the petitioners, Ms. Nusrat Jahan, learned AGA for the State and Sri R.B.S. Rathaur, Advocate who has filed 'Vakalatnama' on behalf of opposite party no. 2, same is taken on record.

(2.) By means of this petition the petitioners have prayed following relief :

(3.) The precise contention of learned counsel for the petitioners is that though the complaint / application filed by the opposite party no. 2 u/s 156(3) Cr.P.C. on 28/9/2021 is a counter-blast to the F.I.R. bearing No. 0346 of 2021 u/s 420, 467, 468, 471, 504, 506 IPC, P.S. Kotwali Rudauli, District Ayodhya lodged from the side of the petitioners on 30/7/2021 but when on such application the Magistrate passed an order on 11/11/2021 (Annexure no. 5) referring the decision of Division Bench of this Court in re: Sukhwasi vs. State of U.P. : 2007(59) ACC 739 to treat such application as complaint fixing the date for the statement of the complainant u/s 200 Cr.P.C., the opposite party no. 2 who is applicant of that application should have not challenged that order before the revisional court saying that on those allegations which have been leveled against the petitioners the only recourse was to issue direction to lodge F.I.R. inasmuch as this is a trite law that after recording the statement u/s 200 and 202 Cr.P.C. it is incumbent upon the learned Magistrate to make inquiry or direct investigation u/s 202(1) and if in any case the learned court concerned finds that the allegation may not be adjudicated on the basis of proceedings of complaint case, the magistrate may very well direct to lodge F.I.R. In the present case the revisional court cited the decision of this Court at Allahabad in re: Mangalsen vs. State of U.P. passed in Criminal Misc. Application No. 7651 of 2009 and the Apex Court in re: Lalita Kumari vs. State of Uttar Pradesh and others : 2014 (2) SCC 1 to set aside the order dtd. 11/11/2021 passed by the Magistrate court directing the magistrate to issue direction for lodging the F.I.R. Pursuant thereto the Magistrate has passed order dtd. 20/2/2024 referring the decision of Mangalsen (supra) to lodge F.I.R. pursuant to the aforesaid application filed u/s 156(3) Cr.P.C.