SONI DEVI Vs. STATE OF U P

JUDGEMENT

(1.) VINOD Prasad, J. Heard learned Counsel for the applicant and the learned A. G. A.

(2.) THE application of the victim Smt. Soni Devi who is the widow of Ram Raj employed in I. T. I. did disclosed commission of cognizable offence as the widow was cheated to a tune of Rs. 2,45,701. THE Magistrate committed a manifest error of law in not directing the police to register the FIR, investigate the offence and recover the aforesaid amount, under Section 156 (3) Cr. P. C. Instead of directing the police for the same, the Magistrate arbitrarily registered the said application as complaint which the complainant and aggrieved person never wanted. She never wanted to file a complaint and the trial Court concerned was not empowered to automatically transform a pre-cognizance application under Section 156 (3) Cr. P. C. under Chapter XII to a cognizable stage under Chapter XIV Cr. P. C. Soni Devi who is the victim never filed a complaint and she was interested in getting Rs. 2,45,701/- recovered and handed over to her. THE trial Magistrate committed a manifest error of law in passing the order on 6-6- 2006 registering her application under Section 156 (3) Cr. P. C. as a complaint case. THE Magistrate acted arbitrarily and started litigation on his own whimsically. Filing of a complaint is the right vested in the complainant and not in the Magistrate so much so that in the absence of complainant his complaint can be even dismissed for non-prosecution.

(3.) IN view of what I have stated above, both the impugned orders dated 6-6-2006 passed by A. C. J. M. , Court No. 5, Allahabad in Criminal Misc. Application No. 160/xii/06, Smt. Soni Devi v. Ashok, as well as the order dated 24-11-2006 passed by Special Judge (E. C. Act)/additional Sessions Judge, Allahabad in Criminal Revision No. 460 of 2006, Smt. Soni Devi v. State of U. P. and Ors. , cannot be sustained and are quashed. The matter is remanded back to the A. C. J. M. , Court No. 5 to re- decide the application of the applicant under Section 156 (3) Cr. P. C.