PREM SHANKER TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) MRS. Poonam Srivastava, J. Heard learned Counsel for the petitioner and learned A. G. A. for the State.

(2.) THE instant writ petition has been filed challenging the orders dated 23-1-2006 passed by the Judicial Magistrate, Ballia in Misc. Case No. 4 of 2006, Prem Shanker Tiwari v. Ashok Kumar Tiwari and 8-2-2007 passed by the Special/additional Sessions Judge, Court No. 7, Ballia.

(3.) THE Apex Court, while interpreting law in the case of T. T. Antony deciding the case of Upkar Singh, placed reliance on another decision Kari Choudhary v. Mst. Sita Devi and Ors. , 2002 (1) JIC 248 (SC) : 2001 (Suppl.) ACC 689 (SC ). THE view expressed by Hon'ble Supreme Court is absolutely clear that the provision of the Code does not take away jurisdiction of the Magistrate under Section 156 (3), Cr. P. C. even after submission of a report by the Investigating Officer to direct for registering a counter case in respect of the same occurrence. If the case of T. T. Antony was to be accepted as holding second complaint or counter case regarding the same incident to be prohibited then such a conclusion would lead to serious consequences. THE Apex Court neither considered nor expressed its view regarding legal right of the aggrieved person to file a counter case in given fact of the circumstances, where First Information Report, first in time was lodged against some persons as a result of conspiracy to shield the actual offender. When application under Section 156 (3), Cr. P. C. is moved before the Magistrate setting up a counter case, it is bounden duty of the Magistrate to examine the allegation and come to a conclusion instead of adopting a hyper- technical view that the jurisdiction to examine different version is completely lacking and hit by Sections 161 and 162 of the Code. Facts of the case of T. T. Antony was somewhat absolutely different and, therefore, it cannot be treated laying down a complete bar for institution of a rival version bringing to books the actual accused, who appears to be involved in the crime. Paragraph No. 19 of decision of Upkar Singh (supra) is quoted below: "19. This clearly shows that if concerned police refused to register a counter complaint, it is open to the Magistrate at any stage to direct the police to register the complaint brought to his notice and investigate the same. "