- (1.) HEARD learned counsel for the revisionist, counsel for the opposite party and perused the record.
(2.) THE present criminal revision has been filed against the order dated 31-1-2009 passed by Chief Judicial Magistrate, Aligarh in Criminal Case No. 11/11 of 2009, chandrapal v. Chokhe Singh and others.
(3.) COUNSEL for the revisionist submitted that when the first information report was not lodged by the Police then an application under section 156 (3) Cr. P. C. was filed. He further submitted that when the application was moved under section 156 (3) Cr. P. C. the learned Magistrate was required to direct officer In-Charge of Police Station for registration and investigation of the case. He further submitted that under section 156 (3)Cr. P. C. the provision is that any Magistrate empowered under section 190 may order such an investigation and the word may has to be read as shall hence the Magistrate was only required to direct for registration of the case. The Magistrate has committed error by considering the fact and evidence at this stage to the effect whether offence was made out or not. Whether offence was made out or not, it was required to be investigated and police would submit the report after collection of evidence. In support of his argument he has relied the judgement of the learned single Judge of this Court reported in 2007 (57) ACC 508 : (2007 (1) ALJ (NOC) 7), chandan v. State of U. P. and another. He has relied para 9 of the aforesaid judgement in which the judgement of the Apex Court of Madhu Bala v. Suresh Kumar and others reported in 1997 (35) ACC 371 SC : (AIR 1997 SC 3104)and Central Bureau of Investigation through S. P. Jaipur v. State of rajasthan and another reported in 2001 (42)ACC 451 SC : (AIR 2001 SC 668) were considered in para 9 of the aforesaid judgment. exerted hereinbelow:-In the case of Madhu Bala v. Suresh kumar and others, it has been held by the supreme Court in para 10 thereof :- "the provisions of the Code therefore do not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under section 156 (3) of the Code is to be made the proper direction to the police would be " to register a case at the police station treating the complaint as the first information report and investigate into the same. " It has been held by the Apex Court in the case of Central Bureau of Investigation through S. P. Jaipur v. State of Rajasthan and another, as follows:- " What is contained in sub-section (3) of section 156, is the power to order the investigation referred to in sub-section (1), because the words "order, such an investigation as above mentioned" in sub-section (3)are in mistakable clear as referring to the other sub-section. Thus the power is to order an "officer-in-charge of a police station" to conduct investigation. ;