- (1.) HEARD the learned counsel for the revisionist, learned A.G.A. and perused the record.
(2.) THE instant revision has been filed by the revisionist who is the complainant whose application under Section 156 (3) Cr.P.C. dated 8.11.2011 moved before the Additional Chief Judicial Magistrate, Court No.12, Azamgarh has been rejected by order dated 24.11.2011. The allegations made in the application under Section 156 (3) Cr.P.C. in nutshell is that the complainant is a widow and her grand son taken her on the pretext of mutating here name in place of her husband to the Registrar office, Sadar, Azamgarh on 3.3.2006 where he got executed a sale deed of more than one acre land in the name of Brij Nand Yadav of which the marginal witnesses were Hari Kesh and Ajit Pal Singh. She was also taken to Bank of India, Civil Lines, Azamgarh on the pretext of getting pension where he became a joint account holder and had taken a loan of four lacs rupees and only when the recovery certificate was issued in the name of the complainant she came to know about the fraud and cheating when the complainant tried to lodge a first information report at the police station no action was taken hence moved the application under Section 156 (3) Cr.P.C. on 8.11.2011 before the court below. It is submitted by the learned counsel for the revisionist that the court below instead of directing the police to investigate the case treated the same it as a complaint case and proceeded to record the statement of the complainant under Section 200 Cr.P.C. The allegations made in the application requires investigation by the police in order to bring to book the accused persons. The court below has relied upon the decision in the case of Sukhwasi? Vs. State of U.P. 2007 (58) ACC 754 (HC), which is not applicable in the present circumstances of the case hence the court below has committed error. There was no such prayer in the application moved under Section 156 (3) Cr.P.C. to treat the same as complaint. Learned A.G.A. has contended that there is no illegality in the order passed by the court below.
(3.) THE learned Magistrate has treated the application under Section 156 (3) Cr.P.C. as complaint and may inquire into the matter after recording the statement under Sections 200 and 202 Cr.P.C. In view of the decision of the Hon'ble Apex Court in the case of Sakiri Basu Vs. State of Bihar, 2008 (60) ACC 689 THE Hon'ble Apex Court has deprecated the practice of rushing to the High Court to file petitions when alternative remedy is available in case an application under Section 156 (3) Cr.P.C. is rejected. Having considered the submission of the learned counsel at the bar this court is not in agreement with the argument of the learned A.G.A. Under the circumstances of the case on the application moved under Section 156 (3) Cr.P.C. the Magistrate? is empowered to call for a report from the concern police station.? Section 156 (3) Cr.P.C. states "any Magistrate empowered under Section 190 may order such an investigation as above mentioned"? if an aggrieved person files an application under Section 156 (3) Cr.P.C. before the Magistrate concern the Magistrate can direct the first information report to be registered and also can direct a proper investigation to be made in case where according to the aggrieved person the police has not registered the first information report. The Magistrate ought to have considered the case in its proper perspective taking into account the allegations made therein.??;