R.D.KHARE,J. - (1.) THE present applica ­tion has been filed for quashing the order dated 25.7.2008 passed by 1st Additional Chief Judicial Magistrate, Gautam Budh Nagar in Misc. application No. 7 of 2008 under section 156(3), Cr.P.C. whereby, after calling for police report, the Magistrate di ­rected that the application of the applicant be treated as complaint case and complaint case may be registered.
(2.) IT is contended by the learned Counsel for the applicant that when no first information report was lodged by the po ­lice with regard to commission of cogniza ­ble offence, the applicant filed an applica ­tion before the Senior Superintendent of Police, Gautam Budh Nagar but when no action was taken by him, he filed applica ­tion under section 156(3), Cr.P.C. before the Court, who, after calling the police report, treated the same as complaint case. It is further contended that order impugned has given long rope to the police to refuse to register of first information report of cogni ­zable offence and further the Magistrate was approached by the applicant with a sole prayer to direct the police to register the case and investigate the same, as it dis ­closed the commission of a cognizable of ­fence, therefore the Magistrate has no power to pass the order impugned. It is also contended that the Magistrate does not have any power of investigation and con ­sequently he also lacks all ancillary powers to decide whether the investigation in a cognizable offence is required or not and power to investigate the cognizable offence is vested with the police. Learned Counsel has relied upon a judgement of Hon'ble Apex Court in the case of Lalita Kumari v. Government of Uttar Pradesh and others(2008) 3 SCC (Cri) 17. Wherein Hon'ble Apex Court had issued general direction in the cases where first information report was not lodged or where the first information report was lodged on Court's direction but the apathy of police to investigate the matter, as such, the Hon'ble Apex Court had issued stringent directions pinning responsibility on police authorities to act promptly or else to face contempt/disciplinary proceedings including suspension. Learned Counsel has further relied upon a judgement in the case of Mobin v. State of U.P. and others 2006 (55) ACC 757 in which this Hon'ble Court has held that when the injury report and X -ray report make out a cognizable offence, then matter may be remanded back to the Court below to decide the application filed under sec ­tion 156(3), Cr.P.C. afresh. Learned Coun ­sel has further placed reliance upon a judgement of this Court in the case of Culab Chand Upadhyaya v. State of U.P. and others 2002 (44) ACC 670, in which this Court has held as follows: "The scheme of Cr.P.C. and the prevail ­ing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complain ­ant, and which can only be done by the police upon whom State has conferred the powers essential for investigation, for example." (1) where the full details of the ac ­cused are known to the complain ­ant and the same can be deter ­mined only as a result of investi ­gation, or (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the ac ­cused evidence is required to be collected and preserved. To illus ­trate by example cases may be visualised where for production before Court at the trial: (a) sam ­ple of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investiga ­tion. But where the complainant is in pos ­session of the complete details of all the accused as well as the wit ­nesses who have to be examined and neither recovery is needed nor any such material evidence is re ­quired to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding un ­necessary case to the diary of the police would impair their effi ­ciency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under section 202 (1) Cr.P.C. order investigation, even though of a limited nature." Learned A.G.A. has submitted that the order impugned, in the present application, has been passed after consider ­ing entire facts and evidence on record which suffers from no illegality or infirmity in law and calls for no interference by this Court under section 482, Cr.P.C. He has further submitted that a perusal of the in ­jury report, Annexure -3 to the application, does not disclose commission of cognizable offence and all injuries are shown to be caused by hand and blunt object. Learned A.G.A. has relied upon a judgement of Hon'ble Apex Court in the case of Safari Vasu v. State of Uttar Pradesh and others 2008 (62) AIC 236 (SC) = 2008 (60) ACC 689, in which Hon'ble Supreme Court has held that caution should be exercised by the High Court in the matter which relates to non -registration of first information report or improper investigation. It was held that High Court should discourage writ petitions or petitions under section 482, Cr.P.C. where alternative remedies under section 154(3) read with section 36 or section 156(3) or section 200 Cr.P.C. have not been exhausted. Learned A.G.A. has also referred a Division Bench decision of this Court in the case of Sukhwasi v. State of Uttar Pradesh 2007 (59) ACC 739 wherein this Court has held that the Magistrate is not bound to order regis ­tration of a first information report in all cases where a cognizable offence has been disclosed and the Magistrate has authority to treat it as complaint.
(3.) HEARD learned Counsel for the applicant and learned A.G.A. for the State respondent.;