The Magistrate is not always duty bound to pass an order for investigation in a case on receipt of application u/s. 156 (3) Cr. P. C. if a cognizable offence is made out. The Magistrate may use his discretion judiciously and if he is of the opinion that to the circumstance of the case it will be appropriate to treat the application as a complaint case then he may proceed according to the procedure provided under Chapter XV of Cr. P. C.

( 1 ) THE instant revision has been directed against the Order dated 22-2-2006 passed by Judicial Magistrate Azamgarh in misc. Case No. 30 of 2006, Chandrika Versus Sritam Ram. By the impugned order learned Judicial Magistrate treating the application of the revisionist moved u/s. 156 (3)Cr. P. C. as a complaint and proceed to record the statement of the complainant u/s. 200 and the witnesses u/s. 202 Cr. P. C.

( 2 ) FROM the perusal of the record it is apparent that an application was moved by the revisionist Chandrika Singh, Principal inter College Kaptanganj, District Azamgarh u/s. 156 (3) Cr. P. C. for register of the case and investigation against Sritam Ram and tirath Raj Singh. They were Head Clerk and suspended Manager of the institution respectively. High Court passed stay order on 15-12-2004 restraining the opp. party to discharge their duties. From the month of the july 1999 classes of Inter (Science) were started under the unfinanced approval. The students fee was collected and this amount received from the fee of the students is being deposited in the Bank account of the teachers was being mananged by the Head clerk Sritam Ram. He was also responsible for the maintenance of the record. On 25-4-2005 for conducting an enquiry, record was demanded from Head Clerk Sritam Ram and also tried to interrogate him. Sritam Ram tried to avoid to furnish any information about this matter but on insistence he informed in writing that all the records are with Dr. Tirath Raj. Whereas there was stay order against Dr. Tirath Raj to discharge the duties as a Manager of the Institution and this fact was in the knowledge of Dr. Tirath raj. Sritam Ram with collusion of Dr. Tirath raj misplaced the record. Embezzlement of huge amount of the fee was committed by these accused persons. Dr. Tirath Raj Singh and Sritam Ram committed embezzlement of the amount of the institution from the account in the District Cooperative Bank kaptanganj. These accused persons committed gross misconduct in the discharge oftheir duties and also caused wrongful loss to the institution and tascreen themselves from the offence, misplaced the record. Information of the fact was given at P. S. Kaptanganj but nothing; was done by the police. An application was sent to the S. S. P. by registered post but under the pressure of the accused persons no action was being taken by the police. On receipt of this application the Judicial Magistrate, Azamgarh passed the impugned order and on the strength of law cited in the order, ordered for registration of the case as complaint case and proceeded to record the statement u/ s, 200 Cr. P. C. of the revisionist applicant.

( 3 ) I have heard Sri Devendra Dhama learned counsel for the revisionist, learned a. G. A. for the State and perused the entire material on record.

( 4 ) IT has been vehemently argued by the counsel for the revisionist that when an application is moved u/s. 156 (3) Cr. P. C. disclosed a cognizable offence, the Magistrate is bound to pass an order to investigate the matter and no other option is to the Magistrate either to reject the application or to treat the application as a complaint case in respect to the fact that a cognizable offence is made out and the order to be passed u/s. 156 (3) Cr. P. C. is an order passed at precognizance stage whereas the statement u/s. 200 Cr. P. C. and u/s. 202 Cr. P. C. relates to post cognizance stage and the learned Magistrate committed gross illegality as apparent on the face of the record in refusing to direct investigation in the matter at the pre-cognizance stage without assigning any reason. The Magistrate was not justified in recording the perverse finding to the effect that there is no need of investigation by the police and by doing so the Magistrate has curtailed the legitimate right for getting investigation in the matter by independent agency.

( 5 ) SERIOUS allegations were made by the revisionist in the application of forgery in the record of the institution

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