HONBLE SUDHIR KUMAR SAXENA, J. - (1.) HEARD Sri Salik Ram Tiwari, learned counsel for the petitioner and Sri , learned AGA.
(2.) IT appears that from the record that an application under Section 156(3) Cr.P.C. was moved on 28.08.2010 which was ultimately treated as complaint vide order dated 14.09.2011. Learned Magistrate observed that although prima facie cognizable offence is made but no investigation by other agencies is necessary. This very reason led this application to be treated as complaint. Statement of victim Meera Devi was recorded under Section 200 Cr.P.C. in which she stated that three persons raped her. Statements under Section 202 were also recorded, which supported the complaint. Copy of the injury report was also filed according to which five injuries were received by Meera. Learned Magistrate after considering the statements under Sections 200 & 202 Cr.P.C. observed that investigation by police appears to be necessary, as such he directed for investigation purported to be in exercise of power under Section 202 Cr.P.C. This very order has been challenged in this Court.
(3.) LEARNED counsel for the petitioner submits that earlier Magistrate had found that no investigation is necessary and treated the application as complaint. Now after recording the statements under Sections 200 and 202 Cr.P.C. he has taken the view that the investigation by police is necessary. Further submission is that under Section 202(1) proviso this power was not available with the Magistrate. Section 202(1) Cr.P.C. prohibits any direction for investigation if the offence complained of is triable exclusively by the Court of Session. Relevant section is quoted below: "Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceedings: Provided that no such direction for investigation shall be made-- (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions" ;