VIJAY KUMAR VERMA,J. - (1.) "Whether permission under section 155 (2) of the Code of Criminal Procedure (in short 'the Cr.P.C.') to investigate the case can be granted by the magistrate on the basis of the application of complainant or other aggrieved person", is the main legal question that falls for consideration in this proceeding under section 482 Cr.P.C. by means of which prayer to quash the order dated 04.12.20097 passed by Judicial Magistrate/ Additional Civil Judge (Jr. Div.) Tilhar, Shahjahanpur, in Crl. Case No. 154 of 2007, arising out of NCR No. 114 of 2006, under sections 323, 504 IPC, P.S. Madanapur, District Shahjahanpur as well as order dated 03.06.2009 passed by Additional Session Judge/ Spl. Judge (E.C. Act), Shahjahanpur, in Crl. Revision No. 29 of 2009 (Ram Narayan & others vs. State of U.P. & another), have been made.
(2.) HEARD Sri P.K. Dubey, learned counsel for the applicant and A.G.A. for the State From the record, it transpires that NCR No. 114 of 2006, under sections, 323, 504 IPC was registered on the basis of the report made by Deena Nath, s/o Dharam (O.P. No. 2 herein) at P.S. Madanapur, District Shahjahanpur. The complainant Deena Nath moved an application before the Judicial Magistrate/ Additional Civil Judge (Jr. Div.) Tilhar, District Shahjahanpur, under section 155 (2) Cr.P.C. for granting permission to investigate the case. The learned magistrate, vide impugned order dated
(3.) 12.2007 allowed that application and direction was issued to S.O. P.S. Madanapur to investigate the case after converting the same in proper sections. Order dated 04.12.2007 was challenged by the applicant-accused in the court of Sessions Judge Shahjahanpur by means of Crl. Revision No. 29 of 2008, which was decided by Additional Sessions Judge/ Spl. Judge (E.C. Act), vide impugned order dated 03.06.2009, whereby the revision has been dismissed. Both these orders have been challenged by the accused persons by means of this proceeding under section 482 Cr.P.C. 4. The main submission made by learned counsel for the applicants is that the magistrate concerned is not empowered to grant permission to investigate a non-cognizable case on the basis of the application moved by third person or complainant and such permission can be granted only on the report of police officer of the police station concerned and since the learned magistrate in present case has granted permission to investigate a noncognizable case registered at NCR No. 114 of 2006 on the basis of the application moved by the complainant, hence the impugned order dated 04.12.2007 being illegal and without jurisdiction was liable to be set aside, but the learned lower revisional court did not consider the matter in proper perspective and Revision has been dismissed without sufficient reasons. The contention of the learned counsel for the applicants is that on registration of a non-cognizable case, permission to investigate can only be sought by S.O. of P.S. concerned or by some other police officer authorised by him and the magistrate is not empowered to entertain the application under section 155 (2) Cr.P.C. moved by the complainant or any other person.;