OM PRAKASH-VII ,J. - (1.) This petition under Article 227 of the Constitution of India has been filed by the petitioner with the prayer to quash the order dated 12.06.2019 passed by Sessions Judge, Jaunpur in criminal revision no.252 of 2018 (Sumitra Vs. State of U.P. and 7 Others) as well as order dated 28.9.2018 passed by Judicial Magistrate-I, Jaunpur in Case No.188 of 2018 (Sumitra Vs. Jeet Lal and others). Further prayer has been made to direct the concerned Police to register the case against the accused and to investigate the matter.
(2.) Heard Sri Manish Kumar Tripathi, learned counsel for the petitioner and learned A.G.A. for the State. Submission of learned counsel for the petitioner was that application under section 156 (3) Cr.P.C. moved by the petitioner was illegally and arbitrarily treated as complaint by the Magistrate concerned vide order dated 28.9.2018. A criminal revision was filed which was also dismissed on insufficient grounds. It was further argued that it was incumbent upon the Magistrate concerned to direct the concerned police to lodge the F.I.R. on the basis of application moved under section 156 (3) Cr.P.C. on behalf of the applicant. Referring to the above facts, it was submitted that the Magistrate concerned as well as the lower revisional court have committed illegality in passing the impugned orders. In support of his contention, reliance was also placed by the learned counsel for the petitioner on the following case laws : 1. Upkar Singh Versus Ved Prakash and others, 2004 (3) CCSC 1272 (Supreme Court) 2. Jai Singh Versus State of U.P., [2001 (43) ACC 731] On the other hand, learned A.G.A. argued that since the Magistrate concerned vide impugned order passed on the application under section 156 (3) Cr.P.C. has proceeded to enquire the matter entering into Chapter XV of Cr.P.C., thus procedure adopted by the Magistrate concerned cannot be said to be illegal. There is no illegality, infirmity or perversity in the impugned orders. I have considered the rival contentions raised by learned counsel for the parties and have gone through the record. Before dealing with the submissions made by the parties at Bar, this Court finds it necessary to quote relevant paragraphs of Upkar Singh (supra) case. 23. Be that as it may, if the law laid down by this Court in T.T. Antony's case is to be accepted as holding a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question consequently he will be deprived of his legitimated right to bring the real accused to books. This cannot be the purport of the Code. 24. We have already noticed that in the T.T. Antony's case this Court did not consider the legal right of an aggrieved person to file counter claim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible. 25. In the instant case, it is seen in regard to the incident which took place on 20th May, 1995, the appellant and the 1st respondent herein have lodged separate complaints giving different versions but while the complaint of respondent was registered by the concerned police, the complaint of the appellant was not so registered, hence on his prayer the learned Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the High Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a statement to be recorded by the police in the course of the investigation and its evidentiary value.
(3.) In Jai Singh (supra) case, while dealing with the bail application, this Court directed the Police Authorities to issue circular to the effect that if any application regarding cross-version is brought forth by accused side, the same be registered and investigated. If the law laid down in the above-cited cases relied upon by the learned counsel for the petitioner is compared with the facts and evidence of the present matter, in Upkar Singh (supra) case, the Court has held that order directing for registration of the case and to investigate in cross-versions was legal one. ;