- (1.) VINOD Prasad, J. This is such a case wherein Special Judge, D. A. A. , Etah has went beyond common sense in refusing the prayer of the appli cant to get the FIR registered under Section 156 (3), Cr. P. C.
(2.) THE brief facts are that Ishwar Dayal along with his wife and brother had gone to his relative's house on 22. 4. 2008 at 5 p. m. His elder daughter Km. Kanchan, younger daughter Km. Malti and other minor children were left behind. On 23. 4. 2008 at 7 a. m. Dara Singh and Muneesh Kumar entered into the house of the applicant Ishwar Dayal armed with country made pistol and abducted Km. Kanchan. On resistance being shown by another younger daughter Km. Malti, she was threatened. THE mouth of Km. Malti was gaged with cloth. THE aforesaid opposite parties No. 2 and 3 also looted the gold ornaments and rupees 50,000/- cash from the house of applicant. When the applicant returned back on 23. 4. 2008 then he was informed about the said incident by the younger daughter Malti. THE applicant approached the father of the one of the accused Dara Singh who in formed him that his daughter will be returned within 2 days and the gold orna ments and cash will also be given. THE applicant was informed by Vinod Kumar that his elder daughter Kanchan was seen along with Dara Singh and Muneesh at Jaswant Nagar Chauraha. Since the daughter of the applicant was abducted and also that the robbery was committed in his house that the applicant tried to lodge the FIR but his FIR was not taken down. Consequently the applicant approached the Special Judge (D. A. A.), Etah, under Section 156 (3), Cr. P. C. seeking his direction for registration of his FIR and investigation as the recovery of his elder daughter with gold ornaments and the cash amount looted was to be made im mediately. THE said application has been rejected by Special Judge, (D. A. A.) Etah, by his order dated 3. 5. 2008 which has been impugned in this Criminal Misc. Application. Heard learned Counsel for the applicant and the learned A. G. A. The power under Section 156 (3), Cr. P. C. being a pre-cognizance stage requires common sense whether the FIR is directed to be registered or not. The said discretionary power does not authorize the Magistrate to exercise it arbi trarily. The power under Section 156 (3), Cr. P. C. has to be exercised in accor dance with law in consonance with the intention for which it has been incorpo rated in the statute book. The Magistrate has got no right to refuse the prayer to direct the police to register the FIR of a cognizable offence, if facts disclosed before him make out a cognizable offence and it was brought to his notice that the police has not followed the mandate of law as has been held by the Apex Court in various of its Judgments. It is the duty of the Magistrate to see that the police follows the mandate of law. The Division Bench Judgments of this Court in Sukhbasi Lal v. State of U. P. , has not gone into that aspect of the matter as to why the prayer for directing the registration of FIR of a cognizable offence should be refused. Moreover the Judgment of the Apex Court is that the FIR of all cogni zable offences must be registered. This is a case where daughter of the applicant has been abducted and robbery was committed in his house. While exercising discretionary power Special Judge, (D. A. A.), Etah, was required to act in accor dance with law and not to commit miscarriage of justice by not directing the police to recover the minor elder daughter of the applicant along with the orna ments and looted property. By refusing the prayer of the applicant to get the FIR registered, Special Judge, D. A. A. , Etah has committed a manifest error of law and blatant miscarriage of justice.
(3.) THIS application is allowed. The impugned order dated 13. 5. 2008 is set aside. The Special Judge, (D. A. A.), Etah, is directed to exercise his discretionary jurisdiction in accordance with law. He is not supposed to exercise discre tionary power in a totally arbitrary manner. Section 156 (3), Cr. P. C. has been in corporated to get the offence of cognizable nature registered and investigated. While interpreting a statutory provision the intention of the legislature has to be kept in mind pro bono publico. Interpretation of a statute cannot be done in such a manner which brings injustice to the victim at the hands of law contrary to the legislative intent. Arbitrariness indicates non application of mind and makes im pugned order vulnerable and not tenable in law. The Special Judge, D. A. A. , Etah, directed to re-decide the application moved by the applicant under Section 156 (3), Cr. P. C. This application is allowed accordingly. .;