PHOOL SINGH Vs. STATE OF U P

JUDGEMENT

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

(2.) THE application under Section 156 (3) Cr. P. C. filed by the present revisionist before A. C. J. M. , Hapur, Ghaziabad did disclose the commission of cognizable offence and therefore, the Magistrate was under legal duty to direct the police to register the F. I. R. and investigate the same as investigation of a crime and prevention of the same is the primary and foremost duty of the police. THE Magistrate was powerless to convert the application under Section 156 (3) Cr. P. C. into a complaint under Section 2 (d) Cr. P. C. Application under Section 156 (3) Cr. P. C. is a pre-cognizance stage under Chapter XII of Cr. P. C. whereas filing if a complaint is cognizable stage under Chapter XIV of the Cr. P. C. THE filing of a complaint, leading of evidence and bringing of witnesses in the Court all are the rights, which are given to the complainant. In the absence of complainant even the complaint filed by the complainant can be dismissed. Further the Magistrate does not have any power of investigation, and consequently he also lacks all ancillary power to decide whether the investigation in a cognizable offence is required or not. Power to investigate the cognizable offence is vested with the police. It is for the police to decide whether a cognizable offence should be investigated or not under Section 157 (1) Cr. P. C. THE Magistrate cannot usurp the power of the police under Sections 156 (1) and 157 (1) Cr. P. C. and shut out a legitimately required investigation by usurping the power under Chapter XIV Cr. P. C. when the same was neither desired nor prayed for by the aggrieved person, the complainant. THE right of filing a complaint since vested in the complaint the Magistrate cannot transform the prayer of registration of F. I. R. and investigation of offences. It was the choice of the victim to file the complaint or an application under Section 156 (3) Cr. P. C.

(3.) HENCE, this revision at the stage of admission itself, is allowed. The impugned order dated 13-9-2006 passed by A. C. J. M. Hapur, Ghaziabad on the application filed by the revisionist Phool Singh under Section 156 (3) is set aside. The matter is remanded back to the A. C. J. M. Hapur, Ghaziabad to decide the application under Section 156 (3) Cr. P. C. field by the revisionist Phool Singh afresh and pass an order in accordance with law. Revision allowed. .