MAHENDER SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned Counsel for the revisionist and learned A.G.A.

(2.) The present criminal revision has been filed for quashing the order dated 08.07.2009 passed by learned Judicial Magistrate, IInd, District Kanpur Dehat in Misc. Case No. 13/9/2009 whereby the application of the revisionist under Section 156(3) Cr.P.C. has been treated as a complaint case.

(3.) It is contended by learned Counsel for the revisionist that when no first information report lodged by the police with regard to commission of cognizable offence, the revisionist filed an application under Section 156(3) Cr.P.C. before the Court concerned below, who treated the same as a Complaint Case. It is next contended that the order impugned has given long rope to the police to refuse to register of first information report of cognizable offence and further the revisionist approached the Magistrate with sole prayer to direct the police to register the case and investigate the same, as it disclosed the commission of cognizable offence, therefore the Magistrate has no power to pass the order impugned and till date no statement under Section 202 Cr.P.C. has been recorded. It is also contended that Magistrate does not have any power of investigation and consequently 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 Ors., 2008 3 SCC(Cri) 17 wherein Hon'ble Apex Court had issued general direction in the cases where first information was not lodged or where the first information report was lodged on Court's direction, the apathy of police is 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 Ors.,2006 55 ACC 757in 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 Section 156(3) Cr.P.C. afresh. Learned Counsel has further placed reliance upon a Judgement of this Court in the case of Gulab Chand Upadhyaya v. State of U.P. and Ors.,2002 44 ACC 670, in which this Court has held as follows: