- (1.) SHIV Charan, J. Heard learned Counsel for the revisionist, learned A. G. A. for the State and Sri Anil Kumar Mishra learned Counsel for the opp. Party No. 2 and perused the order dated 27-9-2007 passed in F. R. case No. 107 of 2006 and have also perused the other facts of the case.
(2.) THE facts of the case are very strange. Opp. Party No. 2 Smt. Kaushal has filed a criminal complaint No. 1995/2005 in the Court of IIIrd A. C. J. M. Gautam Budh Nagar and learned Magistrate took the cognizance of the offence under Section 494, IPC. A petition under Section 482 Cr. P. C. was instituted before this Court and this Court vide order dated 10-11-2006 stayed the further proceedings of complaint case No. 756/2006 (old No. 1995/2005 ). In the meantime on 30-4-2006 a FIR was lodged by opp. party No. 2 for the offence under Sections 323, 494 and 120-B, IPC. THE matter was investigated by the police and Final Report Annexure-4 was submitted by the Investigating Officer. A protest petition was filed by opp. party No. 2 against the final report and in this protest petition learned Magistrate ordered for re-investigation of the offence. Learned Counsel for the revisionist argued that when a complaint was filed and the Court took the cognizance under Section 494, IPC and on the same facts' FIR was barred according to law. He also argued that in accordance with the provision of law as provided under Section 198, Cr. P. C. the matter under Section 494, IPC cannot be investigated. It has been provided in this provision that no Court shall take cognizance of the offence punishable under chapter XX of IPC except upon a complaint made by the same person aggrieved by the offence. Hence for the offence under Section 494, IPC only a criminal complaint is main tainable and opp. party No. 2 has rightly filed a complaint in the Court of IIIrd ACJM. That the proceedings were stayed in the petition under Section 482, Cr. P. C. Moreover in the protest petition no prayer for further re-investigation has been made rather the prayer was for summoning the accused persons for the offence but the learned Magistrate passed the order for re-investigation of the case. Learned Counsel for the revisionist further argued that initially investigation was wrongly conducted for the offence under Section 494, IPC and therefore, the order of re-investigation shall be treated automatically illegal. Learned A. G. A. for the State and learned Counsel for the complainant opposed the argument of learned Counsel for the revisionist and argued that be side Section 494,1 PC there were allegations of the offence under Sections 323 and 120-B, IPC and complainant was fully justified in filing a FIR of the offence and the Magistrate was fully competent for passing the order of re-investigation.
(3.) I have considered the facts and circumstances of the case and submis sions of the Counsel for the parties. I am of the opinion that according to the settled and established position of law under Section 494, IPC only a criminal complaint is maintainable. No offence under Section 494, IPC can be investi gated by the police. The Court can take cognizance only on the complaint of aggrieved person. I fully agree with the argument of revisionist's Counsel that the FIR under Sections 494, 323 and 120, IPC was wrongly registered. I also agree with this argument of revisionist's Counsel that it may be treated that beside Section 494, IPC there was allegation of the offence under Section 323 and 120, IPC and without the order of Magistrate as the competent police officer cannot complete the investigation of the offence. I also agree with the argument of the revisionist's Counsel that when on the same facts earlier a criminal complaint was filed under Section 494, IPC and Court took the cognizance then subse quently on the same allegation neither complaint can be filed nor FIR can be lodged. I am of the opinion that the matter initially cannot be investigated and hence the order of re-investigation is automatically illegal. For the reasons mentioned above, I am of the opinion that the order of the learned Magistrate is illegal and the offence under Section 494, IPC cannot be re-investigated. There is no reason to affirm the order of learned Magistrate and the revision deserves to be allowed at this stage. Revision is allowed and the order passed by IIIrd A. C. J. M. dated 27-9-2007 is set aside. .;