- (1.) SHIV Shanker, J. This Criminal Revision has been preferred against the Impugned order dated 2-6-2006 passed in Criminal Misc. Application No. 56 of 2006, Salim v. Bahar and Ors. , by Additional Chief Judicial Magistrate I, Gautambudh Nagar whereby the application moved under Section 156 (3) Cr. P. C. was allowed by directing the police to register and investigate the case.
(2.) BRIEF facts, arising out of this revision, are that complainant Salim moved an application under Section 156 (3) before the concerned Magistrate stating that Nikah between Smt. Nafisa Khatoon and accused Bahar Alam was performed about four years ago according to Muslims Rites and customs. Rs. three lakhs were spent by her father in Nikah. However, Bahar Alam (husband), Habib (father-in-law), Jamila (mother-in-law), Naushad (Jeth), Mehroon (Jethani), Shah Alam (Dewar), Nasir (Nandoi) were not satisfied. She was subjected to cruelty by them by demanding more dowry of Rs. 50,000/- which was not fulfilled. On 4-5-2005 she was left at Haldoni crossing after beating by saying that Rs. 50,000/- has been given by her father. Dowry of Rs. 50,000/- was disclosed by her to her brother at her parentage house. Therefore, First Information Report was lodged against them. Thereafter, panchayat was held for the purpose of compromise and pacify the matter between both the parties and they assured that she would be taken by them after one week. However, they did not turn up. She was residing at her parent's house with two children. On 16-5-2006 at about 10. 00 a. m. all the above accused persons reached at house of the complainant and they entered in the house and she was beaten by them after abusing her. They said that she will not be taken by them unless the demand of Rs. 50,000/- is not fulfilled. The complainant had requested to them and showing his inability not to give more dowry of Rs. 50,000/- upon which, she was beaten by them with kicks and fists and also by danda. Her husband assaulted and inflicted the knife injury on her person. On raising alarm, several persons reached on the spot and saved her. Thereafter, they fled away from there. She medically examined by doctor regarding her injury and went to the police station Bisrakh where her report was not lodged in the police station. Thereafter, complainant sent a registered letter regarding alleged occurrence to S. P. Gautam Budh Nagar on 24-5- 2006 but no action was taken upon it. Thereafter, complainant moved an application under Section 156 (3) Cr. P. C. upon which the concerned Magistrate passed the order to register and investigate the case. As per direction of the concerned Magistrate case against the above accused persons was registered and investigation was entrusted to the Investigating Officer. Feeling aggrieved by it, accused persons filed the present revision in this Court. I have heard learned Counsel appearing for the revisionists and learned A. G. A. and perused the record.
(3.) IT is contended on behalf of the revisionists that there will be no effect in lodging the F. I. R. as per direction of the Magistrate if such order is quashed in the revision there will be prospective effect meaning thereby the F. I. R. and investigation will be effected in absence of quashing the order. IT is further contended that the order of registering and investigating the case will be passed by concerned Magistrate when the facts mentioned in the application under Section 156 (3) Cr. P. C. discloses the prima facie cognizable offence against the accused persons. IT is further contended that if the order under Section 156 (3) Cr. P. C. has been obtained by fraud or concealing the real facts, in such circumstances, such order may be quashed. IT is further contended that if the F. I. R. has been registered as per direction of the order of Magistrate it is pre-cognizance stage and arrest can be stayed till the filing the report under Section 173 Cr. P. C. IT is further contended that first F. I. R. was in existence as admitted by respondent that F. I. R. was lodged earlier. Thereafter, second time application under Section 156 (3) Cr. P. C. was moved and in F. I. R. final report was submitted by I. O. which is pending. Later on, Talak had taken place between husband and wife on 15-6-2006. Later on present story was made on 16-6-2006 by moving application under Section 156 (3) Cr. P. C. Report was not called by concerned Magistrate and passed the impugned order. In such circumstances, the impugned order is liable to be quashed and revision deserves to be allowed. On the other hand, learned A. G. A. has submitted that regarding one incident two F. I. Rs. are permissible and arrest can be stayed only in case of miscarriage of justice. It is mainly submitted that in the present case F. I. R. has been lodge as per direction of the concerned Magistrate. Therefore, the order is exhausted. In such circumstance, the impugned order and F. I. R. and investigation cannot be quashed. Investigation will be ended after filling report under Section 173, Cr. P. C.;