- (1.) S. S. Kulshrestha, J. Heard the learned counsel for the applicants and the learned A. G. A. and also perused the materials on record.
(2.) THIS petition under Article 226 of the Constitution has been brought for quashing the orders dated 30- 1-2002 passed by the learned Judicial Magistrate, Saharanpur whereby treating the application under Section 156 (3) of the Code of Criminal Procedure (the Code) as complaint case and after recording the statements of the witnesses under Section 200-202 taking cognizance of the offences under Sections 498-A, 323, 504 IPC and 3/4 Dowry Prohibition Act and issuing process against the persons arraigned as accused in that application. Further the order dated 17-6-2003 passed by the learned Magistrate whereby rejecting the application moved on behalf of the accused applicants for recalling of that order and the order dated 3-7-2003 passed by the learned Sessions Judge whereby affirming the aforesaid orders of the learned Magistrate are challenged in this petition. It has been contended by the petitioners that an application under Section 156 (3) of the Code was moved by the O. P. No. 2 on 7-7-2000 before the learned Magistrate who vide the order dated 17-7-2000 endorsed the said application to the concerned police station for registration and investigation of the case. Police after extensive investigation did not find any substance in the allegations made in that application and submitted final report. The learned Magistrate instead of taking protest petition on record simply on the mention of the learned counsel for the complainant treated that application under Section 156 (3) of the Code to be a complaint case. Emphasis has been laid that the application under Section 156 (3) of the Code, once dealt by the learned Magistrate while endorsing the same to the police station for registration and investigation of the case, cannot be treated as complaint case by the learned Magistrate. Suffice is to mention that the stage of moving of application under Section 156 (3) of the Code is a pre- cognizable stage where the learned Magistrate cannot take the cognizance of the offence. When the application was endorsed to the concerned police station it was not opened by the learned Magistrate to have treated that application as complaint case. In that regard reliance may be made on the cases of (i) Dinesh Chandra and others v. State of U. P. , 2001 (1) JIC 942 (All) and (ii) Mahboob Ali v. State of U. P. and others, 2001 (1) JIC 470 (All) : 2001 (Supp) ACC 277, wherein it was held that power under Section 156 (3) of the Code are quite different than to the powers under Section 200 of the Code. In the given circumstances once the investigation had already been taken by the police on the application under Section 156 (3) of the Code that application cannot again be converted as complaint case. In view of the aforesaid discussion the impugned orders are not legally sustainable hence quashed. The learned Magistrate is directed to take fresh decision on the final report submitted by the police after giving opportunity to the complainant for filing protest petition and then to proceed in accordance with law. .;