- (1.) The present application has been filed for quashing the order dated 19.8.2010 passed by Additional Chief Judicial Magistrate II, Bijnor in misc. case No. 1349 of 2010 under Section 156(3), Cr.P.C. whereby, after calling for police report, the Magistrate directed that the application of the applicant be treated as complaint case.
(2.) It is contended by the learned Counsel for the applicant that till date statement under Section 202, Cr.P.C. has not been recorded.
(3.) It is contended by the learned Counsel for the applicant that when no first information report was lodged by the police with regard to commission of cognizable offence, the applicant filed application 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 cognizable 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 disclosed the commission of a cognizable offence, 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 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 Judgment 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 report 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 Judgment in the case of Mobin v. State of U.P. and Ors.,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 Section 156 (3), Cr.P.C. afresh. Learned Counsel has further placed reliance upon a Judgment 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: The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom State has conferred the powers essential for investigation, for example. (1) where the full details of the accused are known to the complainant and the same can be determined only as a result of investigation, or (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation. But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary case to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202 (1) Cr.P.C. order investigation, even though of a limited nature.;