Hon'ble S.C. Agarwal, J. - (1.) THIS writ petition has been filed with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 7.7.2011 passed by Chief Judicial Magistrate, Chandauli in criminal case No. 157 of 2011 (Manju Devi v. Santosh and others) whereby the application under Section 156 (3) Cr.P.C. moved by the petitioner has been rejected. (Annexure No. 5).
(2.) IN brief, the facts of the case are that the petitioner moved an application under Section 156 (3) Cr.P.C. before the Chief Judicial Magistrate, Chandauli alleging therein that on 6.5.2011 at about 7:30 p.m., when Rinku @ Dharmendra Tiwari, son of the petitioner, was returning home from his fields, the accused Santosh, Tribhuwan and other persons named in the application, surrounded Rinku @ Dharmendra Tiwari and threatened him with death. Rinku @ Dharmendra Tiwari ran towards his house and hid himself in the room. Santosh armed with country made pistol and Tribhuwan armed with licensed gun opened fire causing injuries to various persons. Accused Triveni caused head injury by lathi. IN exercise of right of private defence, Rinku @ Dharmendra took out his licensed rifle. Accused Ritesh snatched the rifle from Rinku @ Dharmendra and fired at him, but Rinku @ Dharmendra escaped unhurt and in the meantime, police force came there and took the family members of the petitioner and Rinku @ Dharmendra to the police station. Rinku @ Dharmendra was arrested. The police did not register F.I.R. at the instance of Rinku @ Dharmendra despite information to S.P., I.G., D. G. P. and Principal Home Secretary. There fore, an application under Section 156 (3) Cr.P.C. was filed on 13.5.2011. INjury report as well as x-ray report of Rinku @ Dharmendra were also filed in support of the application. Learned C.J.M., Chandauli rejected the application under Section 156 (3) Cr. PC. on the ground that in respect of the 1 murders of Arvind, Kshmakant and Santosh, F.I.R. has been lodged against Rinku @ Dharmendra, Dhananjay Tiwari, Jitendra Tiwari and Komal Tiwari. The incident is alleged to have taken place on 6.5.2011 at 7:30 p.m. and injuries of Rinku @ Dharmendra were mentioned in the G.D. No. 38 on the same day at 20:15 hours whereas the medical certificate reveals that Rinku @ Dharmendra was medically examined on 8.5.2011 at 2:30 p.m. Four injuries were found, which could be 3 days old and, therefore, the facts mentioned in the application and medical evidence were contradictory. Consequently, the application was rejected. Heard Sri V. P. Srivastava, senior advocate assisted by Sri Dhirendra Kumar Srivastava, learned counsel for the petitioner and learned A.G.A. for the State. Since the F.I.R. has not yet been lodged, there is no requirement of issuing any notice to the prospective accused. Learned counsel for the petitioner submits that the F.I.R. prima facie discloses commission of cognizable offence. The F.I.R. against the son of the petitioner was lodged under Section 302 IPC in respect of murder of 3 persons whereas in the same incident, Rinku @ Dharmendra received injuries and fracture of right ulna was seen and the police were bound to register F.I.R. in a cognizable case and the Magistrate should not have rejected the application under Section 156 (3) Cr.P.C. simply on the ground that in the medical certificate dated 8.5.2011, duration of injuries was found about 3 days whereas the incident had taken place on 6.5.2011. The contention is that after 1 day, it is very difficult to say whether the injury is about 2 days or 3 days old.
(3.) THE next contention of learned counsel for the petitioner is that F.I.R. has been lodged in respect of the same incident against the son of the petitioner and the son of the petitioner also received injuries in the same incident, cross F.I.R. should also be registered by the police and the Magistrate was not justified in rejecting the application under Section 156 (3) Cr.P.C. Reliance has been placed on a decision of the Apex Court in Upkar Singh v. Ved Prakash and others, (2004) 13 SCC 292, wherein the Apex Court has held that a second F.I.R. in the nature of a counter case can be registered at the police station.;