RAJ MANI CHAUHAN, J. - (1.) HEARD . This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by Rajendra Singh, S/o Sri Ram Surat Singh, R/o Village Kanehata, P.S. Kaisherganj, District Bahraich for quashing the Order dated 17.5.2010 passed by the learned Chief Judicial Magistrate, Bahraich and for directing him to pass fresh order on his application moved under Section 156 (3) of the Code. The facts giving rise to the present petition may be briefly stated as under:
(2.) THE petitioner moved an application under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, Bahraich for directing the police of P.S. Kaisherganj to register and investigate the case on the basis of his application. He had alleged in his application that the Opposite Party No. 1-Babadeen and Opposite Party No. 2-Dulare are son and father. The Opposite Party No. 2-Dulare was recorded owner of Revenue Plot No. 256 area 0.134 hectare situated in Village Khanehta, Pargana Hisampur, Tehsil Kaisherganj, District Bahraich. He had transferred the said plot in favour of the petitioner on 19.1.2009 through a registered sale-deed showing boundaries mentioned therein. The Opposite Party No. 2-Dulare was also owner of Revenue Plot No. 265 area 0.134 hectare which he had already transferred to his son-Babadeen through registered sale-deed dated 13.10.2008. The Opposite Party No. 2-Dulare had executed the supplementary registered sale-deed in favour of his son-Babadeen transferring Plot No. 256 area 0.134 hectare with dishonest intention just to grab the plot of the applicant-petitioner which he had already transferred to him. The act of opposite parties amount to criminal act which constitute commission of cognizable offence, therefore, he prayed the learned Chief Judicial Magistrate, Bahraich to direct the S.O. of P.S. Kaisherganj to register and investigate the case on his application. The learned Chief Judicial Magistrate, Bahraich called a report from the concerned police station. He after going through the allegations made by the complainant in his application moved under Section 156 (3) of the Code, treated the same by a detailed and reasoned order dated 17.5.2010 as complaint with the observation that in view of the facts of the case, the applicant can prove the allegations made in the application by adducing evidence. The applicant-petitioner being aggrieved by the impugned order passed by the learned Chief Judicial Magistrate, Bahraich has filed the present petition. The learned counsel for the petitioner argued that the Opposite Party No. 2-Dulare under conspiracy executed a sale-deed transferring his Revenue Plot No. 265 area 0.134 hectare to his son-opposite party no. 1-Babadeen on 13.10.2008. He thereafter transferred another Revenue Plot No. 256 area 0.134 hectare in favour of the petitioner. The Opposite Party No. 2 just to grab the Revenue Plot No. 256 area 0.134 hectare which was transferred by him to petitioner executed additional sale-deed on 13.4.2009 transferring Plot No. 256 area 0.134 hectare in favour of his son-Babadeen. He had done so with dishonest intention to cause wrongful loss to the petitioner. The allegations made by the petitioner in his application moved under Section 156 (3) of the Code constitute commission of cognizable offence. Therefore, the learned Chief Judicial Magistrate was bound to allow the application moved by the petitioner and direct the S.O. of police station Kaisherganj to register and investigate the case. The learned Chief Judicial Magistrate had no option to treat the application moved by the petitioner as complaint. Learned counsel for the petitioner in support of his argument has placed reliance on cases Roop Ram Vs. State of U.P. reported in [2009 (3) JIC 437 (All)] decided by this Hon'ble Court and Suresh Chand Jain Vs. State of M.P. and Another reported in [(2001) 2 Supreme Court Cases 628] decided by the Ho'ble Apex Court.
(3.) MR . Rajendra Kumar Dwivedi, learned Additional Government Advocate supported the impugned order passed by the learned Chief Judicial Magistrate, Bahraich and argued that where the allegations made in the application moved by the applicant under Section 156 (3) of the Code disclose commission of cognizable offence, the Magistrate is not always bound to allow his application and direct the S.O. of P.S. concerned to register and investigate the case. The learned A.G.A. submits that the power under Section 156 (3) of the Code is discretionary power of the Magistrate who keeping in view the nature of offence as well as facts and circumstances of the case may treat the application moved by the applicant under Section 156 (3) of the Code as complaint even if the allegations made in the application disclose commission of cognizable offence.;