- (1.) VINOD Prasad, J. Heard learned Counsel for the revisionist and learned A. G. A.
(2.) THE impugned order dated 8-11-2006 passed by C. M. M. , Kanpur in Case No. 697 of 2006, Smt. Annapurna alias Meera v. State of U. P. and Ors. , which was registered as complaint case No. 3375 of 2006, under Section 156 (3) Cr. P. C. is wholly illegal. The aggrieved victim Annapurna alias Meera approach C. M. M. Kanpur Nagar under Chapter XII Cr. P. C. at a pre-cognizance stage levelling allegations of gang rape upon her by the two accused persons namely Prakash Singh and Gyan Singh Yadav, who are police personnels. In her application, she had mentioned that the aforesaid two persons entered into her house on 22nd September 2006 at 1. 00 p. m. , when the victim was all alone in her house and committed rape upon her. The application under Section 156 (3) Cr. P. C. with such facts definitely disclosed Commission of cognizable offence. The victim had not made any prayer other than the prayer for registration of her FIR and investigation of the crime by the Police before the C. M. M. Kanpur Nagar. She did not make any prayer before the C. M. M. Kanpur Nagar to register her application under Section 156 (3) Cr. P. C. as complaint case. The application under Section 156 (3) Cr. P. C. is pre cognizance stage application provided under Chapter XII. The apex Court in the case of Central Bureau of Investigation through S. P. Jaipur v. State of Rajasthan, 2001 (1) JIC 931 (SC) : 2001 (SCC) (Cr.) 524, has laid down the law that the power of the Magistrate under Section 156 (3) Cr. P. C. does not travel beyond the scope of directing the police to register and investigate the offence. In the present case the victim has levelled the allegation of gang rape upon her. The learned C. M. M. Kanpur Nagar by not directing the Police to exercise their power plenary of investigation and treating her application as a complaint, committed a manifest error of law, which is wholly illegal. He Magistrate does not have any power of investigation and hence he cannot decide whether a cognizable offence is investigable or not? Since he lacks power of investigation he also lacks all ancillary powers related with it. Filing of the complaint, leading of evidence and prosecuting the accused in a complaint case, all are the rights, which are given to the complainant and not to the Court. The procedure of complaint case as is provided under Cr. P. C. is such that in the absence of the complainant, the complaint filed by the complainant can even be dismissed in default. Since in the present case, the complainant never wanted to file a complaint because of the reasons that the two persons who raped her were police personnels and, therefore, nobody will come forward to support her allegations of gang rape because of the deterrence of the aforesaid police personnels, he had filed application under Section 156 (3) Cr. P. C. The C. M. M. Kanpur Nagar, therefore, committed a manifest error of law in passing the impugned order. The learned Counsel for the applicant relied upon a judgment by this Bench reported in 2006 (2) JIC 364 (All), Masuman [ed. Note.-The first party name be Ravindra Singh instead of Masuman] v. State of U. P. In the aforesaid judgment, I have taken view that if an application under Section 156 (3) Cr. P. C. discloses commission of a cognizance, then the Magistrate has no option but to direct the police to exercise their power of investigation as has been laid down by the apex Court in the case of State of Haryana v. Chaudhary Bhajan Lal, 1990 (2) JIC 997 (SC) : 1992 SCC (Cr.) 462 (426 sic), Janta Dal v. H. S. Chowdhari, 1993 SCC (Cr) 36. Since the impugned order has been passed in the teeth of the law laid down by the apex Court, I quash the impugned order and remand the matter back to C. M. M. Kanpur Nagar to taken up the application of the revisionist under Section 156 (3) Cr. P. C. afresh and decide it in accordance with law.
(3.) WITH the aforesaid direction, this revision stands allowed at the admission stage itself. Revision allowed. RAJESH .;