Hon'ble S.C. Agarwal, J. - (1.) HEARD Sri R.B. Sahai, learned counsel for the revisionist and learned A.G.A. for the State.
(2.) NO notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he/she feels so aggrieved. This revision under Sections 397/401 Cr.P.C. is directed against the order dated 1.7.2011 passed by C.J.M., Gorakhpur in Criminal Misc. Application No. 5175 of 2011 (Swayam Prabha v. Anand and others) whereby the application filed on behalf of the revisionist under Section 156 (3) Cr.P.C. for registering the case under Sections 394,504,506,356 IPC, P.S. Cantt., District Gorakhpur was directed to be treated as a complaint. Application under Section 156 (3) Cr.P.C. was moved by the revisionist-complainant Smt. Swayam Prabha against her father-in-law Babban Mishra and husband Anand Kumar alleging therein that she was married with Anand Kumar on 9.7.2000. Her in-laws started treating her with cruelty on account of demand of a four wheeler and Rs. 5 lacs in cash, in respect of which, a criminal case under Section 498-A, 323,504,506 IPC and 3/4 Dowry Prohibition Act is pending against her husband and members of his family. A divorce petition and application for maintenance allowance are also pending between the parties in Family Court, Gorakhpur. In the Family Court, 24.3.2011 was fixed for hearing and husband Anand Kumar had to pay a cost of Rs. 1000/- to the petitioner on order passed by the Court. Father-in-law of the complainant is a Sub Inspector in Police. On the same day at about 12:30 p.m., when the complainant came out of the Court room, her father-in-law, husband and 2-3 others surrounded her, abused and beat her causing injuries. She was also threatened with death. Her handbag containing Rs. 3000/- was snatched by Anand Kumar and the gold chain around her neck was also snatched by her father-in-law.
(3.) AFTER about 2 months i.e. on 20.6.2011, application under Section 156 (3) Cr.P.C. was filed, whereupon the Magistrate, relying upon a decision of the Apex Court in Mohd. Yusuf v. Smt. Afaq Jahan, (2006) JIC 705 and Alyque Padamsee v. Union of India and another, (2007) 6 ACC 171, treated the application under Section 156 (3) Cr.P.C. as a complaint. Hence, this revision. Learned counsel for the revisionist submitted that where in the application, prima facie cognizable offence is disclosed, the Magistrate is bound to pass an order in terms of Section 156 (3) Cr.P.C. directing registration of the F.I.R. and investigation and Magistrate cannot treat the application as complaint. Moreover, the looted money and gold chain are also to be recovered. Reliance has been placed on Single Judge decision of this Court in Criminal Misc. Writ Petition No. 7137 of 2011, Gopal Krishna v. State of U.P.;