- (1.) K. N. Sinha, J. Heard learned Counsel for the applicant and the learned AGA I have perused the impugned order.
(2.) THE applicant moved an application before the Magistrate under Section 156 (3) Cr. P. C. on the ground that he is a mansion by profession and use to live in the house situated at village Galan alongwith his grandmother. His grand mother died 16-17 years back. On 30-10-2004 he locked his house and went to Hapur in connection with his job and on his return on 4-11-2004 he found that Lahari, Pappu Kamal Singh and Smt. Asha had occupied the said house and removed the household goods. THE factum regarding removal of houses hold goods was told to him by village people hence prayed for registration of the case at the police station. THE said prayer was rejected by order dated 25-11-2005 and the application was directed to be treated as complaint and the Court fixed a date for recording of statement under Section 200 Cr. P. C. Being aggrieved by the said order the present application has been filed. A perusal of the affidavit accompanying the application shows that the ground taken by the applicant is that the stolen property was required to be recovered which could be done by the investigation only hence directing to file a complaint is not a legal order. The Magistrate passed this order relying upon Gulab Chandra Upadhyay v. State of U. P. , 2002 (1) JIC 853 (SC) : 2002 (44) ACC page 670 and Vijay Pandey v. State of U. P. , ACC 2005, Vol 52, 568. I have carefully perused the said authority and found that certain guiding principles have been laid down in Gulab Chandra case (supra) regarding application under Section 156 (3) Cr. P. C. The full Bench of this Court in Ram Babu Gupta v. State of U. P. , 2001 (1) JIC 678 (All) : 2001 (43) ACC page 50, has held that the Magistrate may order for registration and investigation of the case or for treating the application as complaint.
(3.) THE contention of learned Counsel for the applicant is that recovery could be made that is why investigation is necessary. THE occurrence is said to have taken place on 2-11-2004 and the application under Section 156 Cr. P. C. was moved on 17th October 2005 i. e. after about a year. Hence the question of recovery losses its importance. THE order of Magistrate for directing the application to be registered as complaint does not suffer from any illegality in view of 2001 (Suppl) ACC 957, Joseph Madhuri and Anr. v. Sachchinand Hari Sakshi and Anr. , wherein the Apex Court has held that such order can be passed. Thus the position of law is clear that the application under Section 156 (3) Cr. P. C. may be treated as complaint.;