IMPORTANT POINT
If an application under Section 156(3) Cr.P.C. has been rejected or it has been converted into a complaint, aggrieved party can prefer revision under Section 397 Cr.P.C.

JUDGMENT

Umesh Chandra Sharma, J.—Heard Sri Sunil Kumar, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned AGA for the State and Sri Bhanu Prakash Singh, learned counsel for opposite party no.2.

2. This application has been moved under Section 482 CrPC to set aside the order dated 25.07.2022 passed by ACJM-I, Gautam Budh Nagar in Criminal Misc. Application No.462 of 2021 (old No.343 of 2021, Smt. Ruchi Mittal Vs. Amit Mittal and others), under Section 156(3) CrPC treating the application under Section 156(3) CrPC to be a complaint case. It is also prayed that after setting aside the impugned order, a fresh order directing the police to register the case and start investigation and to submit investigation report. Alternatively, a prayer is also made to direct the ACJM-I, Gautam Budh Nagar to hear and decide the aforementioned application under Section 156(3) CrPC within a stipulated period of time.

3. At the very outset before entering into merit it would be proper to mention that Sri Bhanu Prakash Singh, learned counsel appeared on behalf of opposite party no.2 without any notice about which it is argued by the learned counsel for the applicant that he has no locus to appear and argue in the matter. He also pointed out the ordersheet in which earlier on 17.10.2022 it is observed by a co-ordinate Bench of this Court that it is not a revision and Sri Vijay Prakash Mishra, learned counsel (who appeared on behalf of opposite party no.2) has no locus. However, after closer of the argument the learned counsel for the applicant had not opposed the presence, appearance and argument of Sri Bhanu Prakash Singh, learned counsel who appeared on behalf of opposite party no.2.

4. Learned AGA and the learned counsel appearing for opposite party no.2 argued that an application under Section 482 CrPC is not maintainable. Instead of filing a criminal revision the applicant has filed an application under Section 482 CrPC i.e. the present application which is not maintainable.

5. In the connected affidavit the applicant has given the description of the whole episode and about the cases pending between the parties. Admittedly, the applicant is the legally wedded wife of opposite party no.2, Amit Mittal. Opposite party nos.3 and 4 are the father-in-law and mother-in-law of the applicant. Opposite party no.5 is brother of applicant’s husband and opposite party no.6 is the wife of opposite party no.5.

6. On the basis of argument of the parties it transpires that instead of this complaint a divorce petition by opposite party no.2 in Bulandshahr and two criminal cases, one under Section 406 IPC and another under Section 420 IPC are also pending. A case under the Guardians and Wards Act and a case under Section 125 CrPC are also pending between the parties and the proceeding of cases under Sections 406 and 420 IPC were stayed by this Court. It is also argued by the learned counsel for the applicant that without any right an application under Section 340 CrPC has been moved by the respondent and till now no payment of interim maintenance has been made by the opposite parties. According to him since opposite parties are advocate in civil courts at Bulandshahar and Gautam Budh Nagar, therefore, the applicant in unable to prosecute the complaint and since commission of a cognizable offence has been alleged, hence instead of treating the application as complaint, the concerned Magistrate should have allowed the application and should have passed an order to register and investigate the case. Learned counsel for the applicant also argued that first of all the application under Section 156(3) CrPC was moved in the Court of ACJM-II but the PO found it difficult to decide the application as the opposite party no.1 is the practicing lawyer in Gautam Budh Nagar, therefore, on the request of ACJM-II the case was transferred to the Court of ACJM-I but the PO of Court of ACJM-I also found it difficult and wrote a letter to CJM, Gautam Budh