SATVIR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THE present applica ­tion has been filed for quashing the order dated 25.7.2008 passed by 1st Additional Chief Judicial Magistrate, Gautam Budh Nagar in Misc. application No. 7 of 2008 under section 156(3), Cr.P.C. whereby, after calling for police report, the Magistrate di ­rected that the application of the applicant be treated as complaint case and complaint case may be registered.

(2.) IT is contended by the learned Counsel for the applicant that when no first information report was lodged by the po ­lice with regard to commission of cogniza ­ble offence, the applicant filed an applica ­tion before the Senior Superintendent of Police, Gautam Budh Nagar but when no action was taken by him, he filed applica ­tion under section 156(3), Cr.P.C. before the Court, who, after calling the police report, treated the same as complaint case. It is further contended that order impugned has given long rope to the police to refuse to register of first information report of cogni ­zable offence and further the Magistrate was approached by the applicant with a sole prayer to direct the police to register the case and investigate the same, as it dis ­closed the commission of a cognizable of ­fence, therefore the Magistrate has no power to pass the order impugned. It is also contended that the Magistrate does not have any power of investigation and con ­sequently he also lacks all ancillary powers to decide whether the investigation in a cognizable offence is required or not and power to investigate the cognizable offence is vested with the police. Learned Counsel has relied upon a judgement of Hon'ble Apex Court in the case of Lalita Kumari v. Government of Uttar Pradesh and others(2008) 3 SCC (Cri) 17. Wherein Hon'ble Apex Court had issued general direction in the cases where first information report was not lodged or where the first information report was lodged on Court's direction but the apathy of police to investigate the matter, as such, the Hon'ble Apex Court had issued stringent directions pinning responsibility on police authorities to act promptly or else to face contempt/disciplinary proceedings including suspension. Learned Counsel has further relied upon a judgement in the case of Mobin v. State of U.P. and others 2006 (55) ACC 757 in which this Hon'ble Court has held that when the injury report and X -ray report make out a cognizable offence, then matter may be remanded back to the Court below to decide the application filed under sec ­tion 156(3), Cr.P.C. afresh. Learned Coun ­sel has further placed reliance upon a judgement of this Court in the case of Culab Chand Upadhyaya v. State of U.P. and others 2002 (44) ACC 670, in which this Court has held as follows:

(3.) HEARD learned Counsel for the applicant and learned A.G.A. for the State respondent.