SANJAI GUPTA Vs. GULAB MISRA

JUDGEMENT

(1.) Heard learned Counsel for the revisionist and the learned A.G.A.

(2.) The application under section 156(3), Cr.P.C. indicated that the offence of dacoity of worth Rs. 3 lacs. The said offence was a cognizable offence and the prayer, which was made by the revisionist, was for direction the police to register the cognizable offence under section 156(3), Cr.P.C. The Magistrate by refusing the said prayer on 10.10.2006 by passing the impugned order has committed a manifest error of law as Magistrate under section 156(3), Cr.P.C. cannot on his own convert an application to one under complaint. The prayer made in the application was for registration and investigation of the case. The aggrieved person never wanted the Magistrate to take cognizance in respect of offence to start the lis. To start lis is the domain of the aggrieved person. The Magistrate cannot start litigation by suo motu conversion of an application under section 156(3), Cr.P.C. to one under section 2(d), Cr.P.C. and take cognizance to the offence under Chapter XV. The aggrieved person may have thousands of reasons for not filing a complaint. Once he has not opted to file a complaint it was wholly illegal on the part of the Magistrate to convert the application under section 156(3), Cr. P. C. under Chapter XII to one under Chapter XV of the Criminal Procedure Code. Filing of a complaint and prosecution of a case as the complaint case is the responsibility and domain of the complainant on the aggrieved person. The Magistrate cannot compel the person to file a complaint. The law laid down by the Apex Court is that if cognizable offence is disclosed in an application under section 156(3), Cr. P. C. the Magistrate is under legal duty to direct the police to exercise their plenary power of investigation.

(3.) In this view of the matter, the impugned order dated 10.10.2006 passed by A.C.J.M. Court No. 2, District Allahabad, under section 156(3), Cr. P. C. is hereby set aside. The matter is remanded back to the A.C.J.M. Court No. 2, Allahabad and he is directed to take up the application filed by the revisionist afresh under section 156(3), Cr.P.C. and pass a reasoned order in accordance with law. With the aforesaid direction this revision is allowed. Revision allowed.