- (1.) VINOD Prasad, J. Heard learned Counsel for the revisionist and the learned A. G. A.
(2.) THE application under Section 156 (3) Cr. P. C. filed by the present revisionist before A. C. J. M. , Hapur, Ghaziabad did disclose the commission of cognizable offence and therefore, the Magistrate was under legal duty to direct the police to register the F. I. R. and investigate the same as investigation of a crime and prevention of the same is the primary and foremost duty of the police. THE Magistrate was powerless to convert the application under Section 156 (3) Cr. P. C. into a complaint under Section 2 (d) Cr. P. C. Application under Section 156 (3) Cr. P. C. is a pre-cognizance stage under Chapter XII of Cr. P. C. whereas filing if a complaint is cognizable stage under Chapter XIV of the Cr. P. C. THE filing of a complaint, leading of evidence and bringing of witnesses in the Court all are the rights, which are given to the complainant. In the absence of complainant even the complaint filed by the complainant can be dismissed. Further the Magistrate does not have any power of investigation, and consequently he also lacks all ancillary power to decide whether the investigation in a cognizable offence is required or not. Power to investigate the cognizable offence is vested with the police. It is for the police to decide whether a cognizable offence should be investigated or not under Section 157 (1) Cr. P. C. THE Magistrate cannot usurp the power of the police under Sections 156 (1) and 157 (1) Cr. P. C. and shut out a legitimately required investigation by usurping the power under Chapter XIV Cr. P. C. when the same was neither desired nor prayed for by the aggrieved person, the complainant. THE right of filing a complaint since vested in the complaint the Magistrate cannot transform the prayer of registration of F. I. R. and investigation of offences. It was the choice of the victim to file the complaint or an application under Section 156 (3) Cr. P. C. The victim complainant never wanted to file a complaint which may be for so many reasons. Some of the reasons may be that the accused may be so powerful that the complainant or the victim deterred from filing a complaint. The other reason may be that he is so poor as not being to able to bring the witnesses to the Court on his own expenses, third reason may be that the accused are so powerful that the witnesses may not be inclined to support the case of the complainant. Another reason may be that the complainant may not be in the knowledge of many things, which could be deciphered or brought forth during investigation. Another reason may be that the victim intended to get the prosecution launched by the State and not to launch the prosecution himself. I may remind that prosecution launched on the basis of the complaint requires that the complainant should prosecute the accused and in his absence even his complaint can be dismissed under Section 249/256 Cr. P. C. These are the reasons, which may desist the complainant not to file a complaint. In this view of the matter, the impugned order passed by the A. C. J. M. , Hapur, Ghaziabad is a wholly illegal order as the same is against the law laid down by the Apex Court in State of Haryana and Ors. v. Bhajan Lal and Ors. , 1990 (2) JIC 997 (SC) : 1992 SCC (Cr.) 426, by not directing the police to register the F. I. R. of the cognizable offence. The Magistrate has given a long rope to the police to act on its whimsicality to register the F. I. R. of the cognizable offence or to refuse to register such a F. I. R. , which cannot be countenanced.
(3.) HENCE, this revision at the stage of admission itself, is allowed. The impugned order dated 13-9-2006 passed by A. C. J. M. Hapur, Ghaziabad on the application filed by the revisionist Phool Singh under Section 156 (3) is set aside. The matter is remanded back to the A. C. J. M. Hapur, Ghaziabad to decide the application under Section 156 (3) Cr. P. C. field by the revisionist Phool Singh afresh and pass an order in accordance with law. Revision allowed. .;