GURBACHAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) SHIV Shanker, J. This petition has been filed on behalf of the petitioners under Section 482 of the Code of Criminal Procedure praying to allow this petition and set aside the impugned order dated 1. 12. 2007 passed by the Chief Judicial Magistrate, Sultanpur.

(2.) HEARD learned Counsel for the petitioners and learned A. G. A. as well as perused the materials available on records.

(3.) THERE is no dispute that the first information report has not been registered in compliance of order passed under Section 156 (3) Cr. P. C. regarding the information of cognizable offence. It is well settled view that the provision of Section 154 (1), Cr. P. C. is mandatory as has also been held in Mohd. Yusuf v. Afaq Jahan, 2006 (1) SCC 627 6. If information regarding the cognizable offence is not registered by the concerned police, the application should have been made regarding the alleged incident to the Superintendent of Police or higher authorities of the police accord ing to the provision of Section 154 (3), Cr. P. C. and even then the case is hot registered, in. such circumstances remedy is also available under Section 156 (3), Cr. P. C. wherein the Magistrate concerned may pass orders upon the said appli cation for registering and investigating the case regarding the Cognizable offence. The same view has been reiterated in Sakiri Vasu v. State of U. P. , 2008 (1) ADJ 149 (SC) by Hon'ble Markandey Katju, J. In the present case, it has been alleged in the said application that deceased was subjected to cruelty due to non-fulfill ment of dowry of Rs. 50,0007- and she died at the house of the petitioners. The post-mortem was conducted and viscera was preserved therefore, there is no dispute that she died within seven years of her marriage. Unless until the viscera report is received in negative, the presumption would be that it is a case of un natural death within seven years of the marriage. The information was also given regarding her death by her 'devar1 but the same was not registered. Then a com plaint was also made to the concerned Superintendent of Police. THEREafter, the application 156 (3) Cr. P. C. was moved by the opposite party. THEREfore, the con cerned Magistrate has not committed any illegality in passing the impugned or der and the same has been passed according to law. 7. It is worthwhile to mention here that the application moved under Section 156 (3), Cr. P. C. has been allowed and the order for registering and investigating the case has been passed against the petitioners. In such circumstances, the prospective accused, who are petitioners, do not have any right to say that the Magistrate does not have any power to direct the police to lodge the F. I. R. for cognizable offence as has been held in the case of Ram Kishore Purohit v. State of U. P. and others, 2007 (2) JIC 194 (AH) and in the case of Rakesh Kumar and others v. State of U. P. and others, 2007 (2) JIC 191 (All ). The same view has also been taken by me in my judgment dated Sept. 10, 2007 passed in Criminal Revision No. 2549 of 2007, Smt. Gulistan and others v. State of U. P, and others, reported in 2007 (9) ADJ 307. 8. It is also worthwhile to mention here that if the F. I. R. is registered in com pliance of the order passed under Section 156 (3), Cr. P. C. against the petitioners, the proper remedy available to them to invoke the jurisdiction of Article 226 of the Constitution of India for quashing the F. I. R. as well as for staying the arrest. 9. So far as the decision of Shashikant v. C. B. I. and others (supra) is con cerned, in this case a anonymous criminal complaint was made to C. B. I, by the appellant Shashikant, therefore, it was held that the preliminary inquiry was per missible in this case. THEREfore, the contention of the learned Counsel for the petitioners has no force that the police report should have been considered in the said application moved under Section 156 (3), Cr. P. C. , therefore, this decision of. Apex Court does not help the petitioners in the present case. 10. So far as the decision of Full Bench case of Ram Babu Gupta and an other v. State of U. P. and others (supra) is concerned it has been held that the application under Section 156 (3), Cr. P. C. can be treated as complaint, it has not been observed in this decision that the application moved under Section 156 (3), Cr. P. C. could not be allowed for registering and investigating the case. It depends upon case to case and the same view has also been taken in the decision of Sukhwasi v. State of U. P. (supra), therefore, in the present case the investigation is necessary as it relates to the case of dowry death. 11. So far as the decision in the case of Ajai Malviya (supra) is concerned, it has been discussed, considered and distinguished in the decision of this Court in the case of Rakesh Puri and others v. State of U. P. and another, 2006 (56) ACC 910. The case of Ajay Malviya (supra) has also been discussed in the decision of Prof. Ram Naresh Chaudhary v. State of U. P. and others, 2008 (1) ADJ169. So far as the interim stay order passed in the case of Shyam Chandra alias Srichand (supra), is concerned, wherein the arrest has been stayed until reliable and co gent evidence regarding the case has been collected by the Investigating Officer, it is not binding in the case on merit. Presently, the case has not been registered in compliance of the order of the concerned magistrate. THEREfore, no order can be passed by this Court in favour of the petitioners. 12. In view of the discussions made above, I do not find any force in any of the contentions raised by the learned Counsel for the petitioners, and, as such, the impugned order has been passed by the concerned Magistrate according to law, which requires no interference by this Court in exercise of the powers vested in it under Section 482 of the Code of Criminal Procedure. 13. Consequently, this petition is hereby dismissed. .