- (1.) A. S. Tripathi, J. This revision is directed against an order dated 7-9-J993 passed by Vith Addl, Chief Judicial Magistrate, Allahabad in Criminal Case No. 1021 of 1993 directing that application under Section 156 (3), Cr. P. C. , he treated as complaint.
(2.) I have heard learned Counsel for the revisionist and learned A. G. A. appearing for the State. In this particular case it is alleged that a dacoity had taken place at the house of the applicant on 6-8- 1993. It is alleged that the applicant want to the police station concerned to lodge a report. The police of the Police Station Manda District Allahabad did not lodge the report and also did not register the case. The applicant sent a telegram to the Senior Superintendent of Police, Allahabad same day, which is Annexure No. 1 to the affidavit filed in support of the revision. The police did not investigate the case. Then an application under Section 156 (3), Cr. P. C. , was moved before the Vlth Addl. Chief Judicial Magistrate, Allahabad. On that application the impugned order dated 7-9-1993 was passed wherein the application under Section 156 (3), Cr. P. C. , was treated as complaint. The learned Magistrate directed that the statement of the complainant recorded under Section 200, Cr. P. C. Against this order the present revision has been filed.
(3.) AFTER hearing learned Counsel for the revisionist and the learned A. G. A. appearing for the State it appears that the learned Magistrate while treating the application under Section 156 (3), Cr. P. C. , as a complaint finally refused the prayer of investigation of the case by the police. This refusal of the said prayer is final order and it could not be argued that the revision was not maintainable in view of the fact that the impugned order was interlocutory. Reference was made to the case of "chhedi and others v. State of U. P. and another" reported in 1991 U. P. Criminal Rulings page 293. In that case Hon'ble Mr. Justice B. P. Singh held that the Magistrate while treating the application under Section 156 (3), Cr. P. C. as a complaint and directing the examination of the complainant under Section 200, Cr. P. C. was not acting legally. An application under Section 156 (3), Cr. P. C. is not a formal complaint as defined under Section 2 (d) of the Code of Criminal Procedure. In the case of Chhedi and others v. State of U. P. and another, (reported above), this Court had observed that: "section 156 (3) of the Code deals with the powers the Police Officer to investigate cognizable case. Under Section 156 (3) of the Code any Magistrate empowered under Section 190 may order for investigation in a cognizable offence by the Police Officer concerned. Chapter XV of the Code deals with the complaints to Magistrate and Section 200 specifically provides that a Magistrate taking cognizable of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Thus, it is quite clear that under Section 200 of the Code a Magistrate can take cognizance only if a complaint in this regard is made to him. Section 2 (d) of the Code defines complaint and provides "that 'complaint' means any allegations made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person whether known or unknown, has committed an offence, but does not include a police report. " In that case it was further held that: "where the applicant moves an application before the Magistrate whh the staple prayer that the Police Officer concerned may be directed to register a case under a particular section and prayer for further direction is made that the police officer concerned may also proceed is accordance with law cannot be termed as 'complaint' as denned under Section 2 (d) of the Code. T Magistrate has no power to proceed under Section 200 of the Code upon such an application. Of course, the Magistrate can proceed under Chapter XV of the Code if a proper complaint is filed before him in which allegations are made with a view to his taking action under the Code that some persons have committed an offence. " Further this Court in the aforesaid case observed: "in the present one, the learned Magistrate was not acting legally when he proceed to examine Badran Bibi and the witnesses under Section 200 of the Code in the absence of any formal rnmnlaint in this regard from her any one else. Thus, the summoning order8 pald by the learned Magistrate cannot be sustained. " In this particular case the learned Magistrate has treated the application under Section 156 (3) of the Code as complaint and proceeded to examine the complainant under Section 200, Cr. P. C. This order was passed is the absence of any formal complaint. In the case of Chhed and other v State of UP and another, referred above, this Court has clearly held that the course open to the learned Magistrate to treat the applicatton under Section 156 (3) of the Code as a formal complaint is not justified and could nof be ustained in law. The moment the learned Magistrate after recording the evidence summoned the accused the law laid down in the case referred above shall come into play and the entire proceeding will then be vitiated. 7 Therefore, now the only course open at this stage is either to direct for investigation of the case according to law after quashing the impuoned order or to direct the complainant to file a forma complaint before the Magistrate concerned who shall proceed according to law under Chapter XV of the Code of Criminal Procedure. In my view the first course appears to be proper in the circumstances of the case. 8 From the application moved under Section 156 (3) of the Code of Criminal Procedure the applicant had set out a fact i. e the grievance against e police of Manda Police Station for not registering the case and not lodging the first information report. The applicant had already sent a telegram in the nature naturf of firsiinformation report to the Senior Superintendent of Police, Allahabad and on that telegram also no action was taken. Then the applicant was compelled to apply under Section 156 (3), Cr P. C. and prayer ,or investigation has also been refused by the learned Magistrate. 9 Since further proceedings as adopted by the learned Magistrate will become futue in view of the case of Chhedi and other v. State of U. P. another rsd above the onlv course now open is to cmash the impugned order and directed for invesgation of the case by police of Maada Police Station according to law. 10. Therefore, the impugned order dated 7-9-1993 is hereby quashed. It is directed that the police of Police Station Manda shall register a case on the basis of telegram sent to the Senior Superintendent of Police, Allahabad and shall investigate the matter according to the law. 11. With these observations the revision is finally disposed of. Revision disposed. .;