- (1.) VINOD Prasad, J. Heard learned Counsel for the revisionist and the learned A. G. A.
(2.) SRI S. N. H. Zaidi, Sessions Judge, Gautam Budh Nagar without caring to look into the law has passed the impugned order of staying the arrest of the accused, illegally and without any jurisdiction. I am constrain to observe this because while passing the impugned order dated 8-11-2006 in Criminal Revision No. 122 of 2006, Ram Avtar and nine Ors. v. Smt. Sharda and Anr. , he not only entertained the revision against an interlocutory pre-cognizance order of an administrative nature under Chapter XII Cr. P. C. passed under Section 156 (3) Cr. P. C. ignoring bar under Section 397 (2) Cr. P. C. but also directed the police not to arrest the opposite parties who were charged with commission of a cognizable offences of murdering Abid minor son of the applicant Sharda by sacrificing him and thening burning his body by electrocution. The facts of the case in a thumbnail description are that an application at a pre-cognizance stage, under Chapter XII Cr. P. C. under Section 156 (3) Cr. P. C. was filed by Smt. Sharda before Additional Chief Judicial Magistrate Gautam Budh Nagar, which was registered as Miscellaneous Case No. 72 of 2006. The Magistrate finding a cognizable offences being disclosed through the said application ordered for registration of F. I. R. and investigation of the offences by his order dated 3-10-2006 passed under Section 156 (3) Cr. P. C. which has been appended as Annexure No. 3 to the affidavit filed in support of this revision. A perusal of the said order dated 3-10-2006 indicate that A. C. J. M. concerned was of the view that cognizable offences were disclosed through the said application filed by the respondent No. 2. It was a case of human sacrifice and the allegations which were levelled in the application under Section 156 (3) Cr. P. C. were that the accused malefactors had sacrificed Abid son of the respondent No. 2 Smt. Sharda and had burnt him by electrocuting him. In paragraphs 8 and 9 of the application she clearly stated the aforesaid facts. The transcription of the aforesaid two paragraphs are as follows: " (8) That all these persons have sacrificed Abid son of the applicant because of religious rights and have electrocuted him. (9) That for the purposes of performing religious rights these persons (accused) have murdered the son of the applicant by sacrificing him. The corpus is still buried in the mortuary of village Khairpur. " With such allegations the A. C. J. M. , Gautam Budh Nagar directed the police to exercise their plenary power of investigation after registering the F. I. R. under Section 154 (1) Cr. P. C. and investigate the offences. (Needless to say that the police had earlier eschewed its responsibility of registering the F. I. R. of the respondent No. 2/revisionist Smt. Sharda when it was under the mandate of law and was required to register and investigate the same specially in view of law laid down by the Apex Court in State of Haryana v. Chowdhary Bhajan Lal, 1990 (2) JIC 997 (SC) :1992 SCC (Cr. 462); Janta Dal v. H. S. Chowdhary, 1993 SCC (Cr) 36 ).
(3.) THE prospective accused in the said application challenged the said order passed by the Magistrate under Section 156 (3) Cr. P. C. which has been decided by Sessions Judge Gautam Budh Nagar by passing the impugned order. First of all the revision at the behest of the prospective accused before the Sessions Judge, Gautam Budh Nagar was not maintainable as it was an interlocutory order passed under Chapter XII at a pre- cognizance stage and secondly the said order was an order of an administrative nature passed under Chapter XII of Cr. P. C. relating to the power of police to conduct an investigation. The Apex Court has explained many times the scope of power of Magistrate under Section 156 (3) Cr. P. C. This aspect of the matter has been dealt with exhaustively by the Apex Court in the cases of State of Haryana and Ors. v. Bhajan Lal and Ors. , 1990 (2) JIC 997 (SC) : 1992 SCC (Cr.) 426; Devarpalli Lakshaminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. , 1976 ACC 230; Superintendent of Police, C. B. I. and Ors. v. Tapan Kumar Singh, 2003 (2) JIC 126 (SC) (Para 20 ).;