- (1.) SHIV Charan, J. Heard learned Counsel for the applicant, learned AGA for the State and perused the entire facts of the case.
(2.) THE present application has been moved under section 482 Cr. P. C. for quashing the order dated 1. 9. 2007 passed by Judicial Magistrate Court No. 2 Bansi District Siddharth Nagar in Misc. Case No. 53 of 2007 Jumman v. Hafijullah under section 156 (3) Cr. P. C. for register of the case and investigation and learned Magistrate being satisfied with the averments of the application passed order for register of the case and investigation in the matter. It has been argued by learned Counsel for the applicant that the learned Magistrate has not recorded any finding or has not observed in the order that from the facts of the case prima facie a cognizable offence is made out. Hence, the Magistrate should not be justified in passing the order of register of the case and investigation. It is further argued that the instant application under section 156 (3) Cr. P. C. was not moved by the victim but by Jumman father of the victim. When the victim herself is alive hence the father is not entitled and competent to move the application under section 156 (3) Cr. P. C. and the order is not justified due to this reason also and principle of inheritance shall also not be applicable when the victim is alive and living in the same village. It is further argued that this is a counter blast of the case of the applicant as alleged in para 23 of the affidavit. That the injuries are simple and minor in nature and duration also does not tally with the prosecution story. Learned A. G. A. opposed the argument of learned Counsel for the applicant.
(3.) I have considered all the facts and circumstances of the case. It may be a fact that learned Magistrate has not mentioned in his order that a cognizable offence is made out against the applicants. But learned Magistrate passed the order after perusing the entire facts of the application and it has been alleged by the Magistrate in the order that after perusing the contents of application, it appears that the accused persons thrashed the victim for non-fulfilment of demand of dowry and she was subjected to cruelty mentally and physically and with this observation the application under section 156 (3) Cr. P. C. was allowed. And in my opinion there is sufficient compliance of that section. I have perused all the contents of the application moved under section 156 (3)Cr. P. C. And I am convinced from the contents of the application that prima facie a cognizable offence is made out. In an' application under section 156 (3) Cr. P. C. it is requirment of law that if cognizable offence is made out from the application then the Magistrate may pass the order for register of the case and investigation and learned Magistrate after being satisfied from the allegation of the application passed the order for register of case and investigation. It has been further argued by applicant's Counsel that this application under section 156 (3) Cr. P. C. moved by the father of the victim and not by the victim herself and she is living in the same village and also visited the hospital for medical examination. Under these circumstances this application was not maintainable as moved by the father. In this connection section 198-A is material. It has been provided in this section; " No Court shall take cognisance of an offence punishable under section 498-A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption. ";