SNEH LATA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This revision is filed against the order passed by the learned Judicial Magistrate, Gyanpur on 12/6/1995 in case crime No. 123190 Santa Lal v. Prem Chandra and others police station Bhadohi district Bhadohi. According to the revisionist over some disputed property litigations were pending in the civil court between the revisionist and the accused persons and it is alleged that the accused persons made illegal entry in the disputed house assaulted revisionist No. 1 and also damaged and took away the articles belonging to revisionist No.1 for which a complaint was made at the police station out of which criminal case No. 15/90 u/ss. 147/148/307/326/323/379 started and the police made enquiry into it, filed charge sheet and the case is pending.

(2.) As a counter blast the opposite party No. 2 on false allegation filed a complaint petition before learned court below and prayed for sending the same to the concerned police station under the provisions of section 156 (3) Cr. P.C. to start investigation by the police on that complaint petition. But the learned court instead of sending the same to the concerned police station called for a report from the police and the police submitted report that those allegations were false and fictitious and those were made as a counter blast of a criminal case pending before the said court. Sant Lal opposite party No.2 and others when felt that his petition for sending the complaint to the police under the provisions of section 156(3) Cr. P.C. was likely to be dismissed he got that the complaint petition dismissed as not pressed. Thereafter he filed a regular complaint Petition before the said court on same self ground relating to the same self properties and the learned court below after examining the complainant arid their witnesses issued summon to the accused persons who have come before this Court for quashing the same branding that as illegal and not maintainable on the ground that as earlier an application was made over the alleged incident under section 156 (3) Cr. P.C. and the learned court got a report from the police which revealed that allegations were false and fabricated and opposite party No. 2 got the petition dismissed as not pressed and thereafter on the same ground the complaint petition was not maintainable. Now, question arises as to whether application under section 156(3) Cr. P.C. is filed and if learned court call for a report from the police whether that will tent amount to application of Id. Magistrates mind and deemed to have taken cognizance of the same or whether that application under section 156(3) Cr. P.C. should be treated as a complaint petition as such the second complaint petition on the same Self alleged facts would be non-maintainable. It has been submitted that as per definition of the complaint as defined in section 2(d) of the Cr. P.C. as under: Complaint means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Co4e, that some person whether known or unknown, has committed an offence, but does not include the police report.

(3.) So the application made under Section 156(3) Cr. P.C. Legally information was given to the Magistrate for taking his action under this Code and should be deemed as a complaint and in this particular case as the Learned Magistrate call for report of the police that showed that Learned Magistrate applied his mind to the information as made out in that application and he actually acted in pursuant to that so it should be deemed that it was complaint within the meaning of section 2(d) of the Cr. P.C. It has been further submitted that after getting the report from the police, when the Magistrate was likely to take further action, the complainant of that case i.e. opposite party No.2 got that petition dismissed as not pressed as the police report was a below to his interest and in this connection he referred a decision of the Supreme Court as reported in Rani v. V.S.R. Sharma and others. I have gone through the judgment and that judgment prostulates different proposition and that judgment does not help the contention of the revisionist of this case. Since the police did not submit report after investigation upon that complaint petition as it was not at all sent to the police concerned for investigation u/s 156(3) Cr. P.C. as such the report filed by the police should be deemed a report in obedients of the administrative order of the learned Magistrate and not a report of investigation on an application u/s 156 (3) Cr. P.C. for registering a case. In this connection learned Advocate referred the following decisions reported in AIR 1935 Allahabad page 4692; A.I.R. 1949 Calcutta page A.I.R. 1929 Patna page 4734 (Full Bench). The petition under section 156 (3) Cr. P.C. filed by the party in my view was not a complaint petition though it is true that it contends statement of fact which strictly interpreted may reveal as a statement of that petitioner alleging commission of offence. But were for the fact that document in writing, contends allegations that does not necessarily constitute a document as a complaint. The learned Magistrate neither examined any complainant or his witnesses u/s 200 Cr. P.C. nor he did send that complaint to the police u/s 156 (3) Cr. P.C. for registering a case. The learned Magistrate, upon that complaint petition (depicted as) filed before him examined the complaint and issued process. The learned Magistrate took cognizance and passed that order under the provision of section 202 Cr. P.C. So, it is held that the learned Magistrate took cognizance and issued process. It cannot be quashed upholding the said complaint as not maintainable in law. But it is observed that after taking the evidence of all the witnesses if it appears to the learned magistrate that the allegation made in the complaint or statement of the witnesses recorded in support of the same taken as a whole no case has been made out against the accused or the accused persons then certainly Id. Magistrate should proceed to dismiss the complaint case instead of framing charge. This complaint does not suffer from fundamental legal defects so as to pass a bar for taking action u/s 202 Cr. P.C. In this regard relied upon a decision of Honble Supreme Court as reported in AIR 1976 Supreme Court page 19475. Since I have already held that first application under section 156 (3) Cr. P.C. which was not pressed and got rejected was not a complaint within the meaning of section 2(d) Cr. P.C. and the learned Magistrate did not act upon it in his capacity as a Magistrate in exercises of his power under Cr. P.C. as such the second complaint (as have been described herein) cannot be held as a second complaint on some alleged facts. Under the circumstances the revision fails and stands rejected with a direction to the learned court below to grant bail to the revisionist and others who have been made accused in that case being number 123/90 (Sant Lal v. Prem Chanim and others) under such conditions as may be learned fit and proper to the learned Magistrate concerned. With this observation and direction this revision stands rejected. Revision dismissed.