Vijay Kumar Verma - (1.) "Whether the Magistrate, who has no jurisdiction to take cognizance of the offence, can pass the order for investigation under Section 156 (3) of the Code of Criminal Procedure (in short, the 'Cr. P.C.')?" is the main question that falls for consideration in this revision, which has been preferred against the judgment and order dated 21.12.2004 passed by Addl. Sessions Judge, Fast Track Court No. 2, Hamirpur in Criminal Revision No. 75 of 2004, Namo Narayan Tiwari v. State of U. P. and another.
(2.) BY the impugned judgment, the lower revisional court has set aside the order dated 7.6.2004 passed by the Addl. Chief Judicial Magistrate, Hamirpur, whereby the application moved by the revisionist under Section 156 (3) Cr. P.C., was allowed and S.O. P. S. Sumerpur was directed to investigate the case after registration of the F.I.R. Shorn of unnecessary details, the facts emerging from the record leading to the filing of this revision, in brief, are that the revisionist Rajjan Prasad had moved an application under Section 156 (3), Cr. P.C. in the Court of Addl. Chief Judicial Magistrate, Hamirpur impleading constable Namo Narayan Tiwari and Home Guard Daljit (opposite party Nos. 2 and 3 herein) as accused. It was prayed in that application that S.O. P. S. Sumerpur be directed to register the F.I.R. and investigate the case. That application was allowed by the Addl. Chief Judicial Magistrate, Hamirpur vide his order dated 7.6.2004, whereby S.O. P. S. Sumerpur was directed to register the F.I.R. and investigate the case. That order was challenged by the prospective accused Constable Namo Narayan Tiwari and Home Guard Daljit by means of Criminal Revision No. 75 of 2004. The learned lower revisional court vide impugned judgment dated 21.12.2004 allowed the revision and set aside the order dated 7.6.2004, passed by the Addl. Chief Judicial Magistrate, Hamirpur on the ground that the Magistrate had no jurisdiction to pass the order for investigation and registration of F.I.R. in present case, as the allegations contained in the application moved by the applicant Rajjan Prasad under Section 156 (3), Cr. P.C., prima facie discloses the commission of scheduled offence under U. P. Dacoity Affected Areas and hence the special court constituted under that Act could only pass the order on that application. Hence, this revision. I have heard arguments of Sri Vijay Bahadur Shivhare, learned counsel for the revisionist and learned A.G.A. for the State.
(3.) SINCE the prospective accused (Constable Namo Narayan Tiwari and Home Guard Daljit in the present case) have no right to challenge the order of registration of F.I.R. and its investigation, hence notices of this revision have not been issued to them. Reference in this regard may be made to the cases of Prof. Ram Naresh Chaudhary and another v. State of U. P. and another, 2008 (60) ACC 476 : 2008 (1) ACR 874 and Gulam Mustafa alias Jobbar v. State of U. P. and others, 2008 (61) ACC 922 : 2008 (2) ACR 2039. It was contended by the learned counsel for the revisionist that order under Section 156 (3), Cr. P.C. can be passed only by the Magistrate and special Judge under U. P. Dacoity Affected Area Act has no jurisdiction to pass the order on the application under Section 156 (3), Cr. P.C. and hence, the impugned judgment being illegal should be set aside, so that investigation of the case may be made after registration of the F.I.R. on the basis of the application moved by the revisionist under Section 156 (3), Cr. P.C.;