- (1.) Heard learned Counsel for the petitioners and the learned AGA and have been taken through the record. By means of the present writ petition, the petitioners have invoked extra-ordinary jurisdiction of this Court with a prayer to issue writ order or direction in the nature of certiorari quashing the impugned order dated 9.1.2015 passed by the learned Additional Chief Judicial Magistrate Court No. 1, Muzaffar Nagar on the application moved by the respondent No. 3 under section 156(3) Cr.P.C. which was allowed directing the Station House Officer concerned to register and investigate the case against the petitioners. It is submitted by the learned Counsel for the petitioners that the learned Magistrate has not applied his judicious mind in passing the order dated 9.1.2015 whereby the application under section 156(3) Cr.P.C. moved by the opposite party No. 3 was allowed in a very pedantic and insouciant manner directing the Station House Officer concerned to register the first information report against the petitioners and investigate the same. The order dated 9.1.2015 passed by the learned Magistrate being per se illegal does not deserve to sustain and may be quashed in the interest of justice.
(2.) The emergence of the facts in a short conspectus is that the instant writ petition has been filed by the proposed accused petitioners impugning the order dated 9.1.2015 passed on the application moved under section 156(3) Cr.P.C. which is a pre-cognizance order. The learned Magistrate has not made up his mind against anybody. The learned Magistrate has only sifted the accusations made in the application under section 156(3) Cr.P.C. so as to cull out as to whether cognizable offence is being disclosed and after hearing the learned Counsel for the opposite party No. 2,he was satisfied that cognizable offence is made out against the petitioners thus he directed the Station House Officer, Police Station concerned to follow the mandate of law. Since no proceeding has taken against the petitioners, they cannot raise any grievance that the order passed by the learned Magistrate is violative of their fundamental rights enshrined in the Constitution of India.
(3.) Learned Counsel for the petitioners has raked up a number of disputed question of facts stressing that the proceedings initiated against the petitioners pursuant to the impugned order dated 9.1.2015 is non-est and may be set aside. In support of his contention, learned Counsel for the petitioner has placed reliance upon the verdict of the Hon'ble Apex Court in re Priyanka Srivastava & another v. State of U.P. and others (Criminal Appeal No. 781 of 2012), decided on 19th March, 2015 submitting that a police officer can foreclose an FIR before an investigation under section 156(3) Cr.P.C. if it appears to him that there is no sufficient ground to investigate the offence. The learned Magistrate has not verified the verity and probity of the accusations made in the application under section 156(3) Cr.P.C. and has proceeded on erroneous consideration other than law by directing the Station House Officer concerned to lodge the first information report. The learned Magistrate has dissociated from the guidelines laid down by the Hon'ble Apex Court and has straightway proceeded with the matter so as to demonstrate undue favour to the opposite party No. 3 and undue harassment to the petitioners hence the prosecution of the petitioners pursuant to the impugned order dated 9.1.2015 being against the spirit of law deserves to be vitiated and the impugned order itself may be rendered nugatory.;