Sudhir Agarwal - (1.) LEARNED counsel for the revisionist at the out set submitted that he may be permitted to delete the opposite parties No. 2 and 3 from the array of parties and to make necessary corrections in the memo of revision. The request is allowed. The necessary corrections be made during the course of the day.
(2.) HEARD Sri Jai Shanker Audichya, learned counsel for the revisionist and Sri Mehrotra, learned A.G.A. for the State and as agreed by the said learned counsel, this revision is being decided finally. The revision has been preferred aggrieved by the order dated 13th February, 2009, passed by the Special Judge (D.A.A.), Farrukhabad in Misc. Case No. 04/12/08, Roop Ram v. Sonu and another, rejecting the application of the revisionist preferred under Section 156 (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') seeking a direction to the police to make investigation in respect to his complaint constituting commission of a cognizable offence after registering a first information report (hereinafter referred to as the "F.I.R."). It is contended by the learned counsel for the revisionist that the court below has rejected the application observing that a Magistrate is not bound to accept an application under Section 156 (3) of the Code and it is his discretion. Further, it is also said by the court below that the dispute prima facie appears to be of a civil dispute, the Police reached the spot, took appropriate action under Sections 107 and 116 of the Code apprehending breach of peace, the allegations of the revisionist have not been believed by the Police and it is open to the revisionist to file a complaint case. Learned counsel for the revisionist submitted that the court below has erred in law in failing to consider as to whether the allegations or the information of the revisionist amounts to occurrence of cognizable offence or not and if that be so, the court below ought to have directed for investigation in the matter instead of entering into the correctness of the complaint. It was beyond its jurisdiction at this stage to look into the truth of the allegations. It is also contended that discretion exercised under Section 156 (3) of the Code is not arbitrary, but has to be exercised in a lawful manner and in accordance with law. In support of his submissions reliance has been placed upon Har Prasad v. State of U. P., 2007 (1) JIC 204 (All) : 2007 (1) ACR 1163 and Ram Pal Singh v. State of U. P., 2007 (1) JIC 205 (All) : 2007 (1) ACR 1170.
(3.) SRI Mehrotra, learned A.G.A. having gone through the order of the court below could not justify the aforesaid order as also could not dispute the proposition advanced on behalf of the revisionist. I have heard the matter at length and perused the record as well as the authorities cited at the Bar.;