C.A. Rahim, J. - (1.) This revision has been preferred against the order of the learned Chief Metropolitan Magistrate, Kanpur passed on 27.5.1993.
(2.) The text of the order is that after perusing the record and the report of the police-station Chakeri, Kanpur he stent the application to the Station Officer, Police Station Chakeri, Kanpur with a direction to open a daryaft hall at the Police Station and if he finds that there is some offence, a first in-formation report undet .he appropriate sections be . lodged and the matter be investigated in accordance with the provisions of Cr. P.C. This order was passed under the provisions of Section 156 (3) Cr. P.C. Learned counsel appearing for the revisionist has submitted that the report submitted by the Police-Station dated 26.5.1993, which the learned Magistrate ought to have considered disclosed no cognizable offence and hence the order passed by the learned Magistrate was out of jurisdiction.
(3.) Learned counsel for the respondent has submitted that while considering the application under Section 156 (3), Cr.P.C. learned Magistrate is not authorised to look into the merits of the case and during investigation has referred a decision reported in 1993 (30) ACC, page 81 wherein it has been held that the learned Magistrate has to apply his mind for satisfaction on the facts alleged whether cognizable offence has been disclosed and required to be investigated by the police. It has been correctly stated that at that stage the learned Magistrate was not considering prima fade case nor be was taking cognizance of the offence but referred the matter to the police for investigation to as,certain the truthfulness or otherwise of the allegation made in the petition. In the above noted decision Hon'ble High Court has laid down that "only thing the Magistrate was to see whether a cognizable offence has been made out." I do not agree with the learned counsel for the respondents that while doing so the learned Magistrate was not authorised to took into the facts of the case. The short compass when the learned Magistrate was to dwell to ascertain whether any cognizable case was made out and for that purpose a report was called for it should have been considered along with the petition complaint. I find that in the instant case the learned Magistrate failed to observe the salient principles of law. The order passed by the learned Magistrate was also defective when he empowered the police to see whether any offence, not to speak of cognizable offence, was made out. That duty was cast upon him under Section 156(3) Cr. P.C. which he delegated to the S.O. of the police-Station, was not legal. There is much force behind the argument of the learned counsel for the revisionists. Accordingly, the revision is allowed and impugned order dated 27.5.1993 is set aside. The learned C.M.M. will consider the report of the police dated 26.5.1993 and pass appropriate to orders according to law. Revision Allowed.;