Hon’ble K.N. Sinha, J.—Heard learned Counsel for the petitioner and the learned A.G.A. Perused the orders dated 22.3.2006 passed by the Magistrate and the Revisional order dated 29.4.2006.

2. From the orders, it transpires that an application under Section 156 (3), Cr.P.C. was moved by the petitioner, which was dismissed by order dated 22.3.2006. The revision against the said order was also dismissed on 29.4.2006. The dismissal was mainly made on the ground that case of forged will was pending in the Court of Civil Judge (Junior Division) Mirzapur. If that Court found the will to be forged, it can take action. The similar view was taken by the Revisional Court.

3. In cases in which the litigant seeks remedy from the Court of Magistrate under Section 156 (3), Cr.P.C, a general view is taken that civil case is pending and no action should be taken where as this view is absolutely incorrect and is not applicable in all the cases. In Lalmuni Devi v. State of Bihar and others, 2001 (1) JIC 717 (SC) and in M. Krishnan v. Vijay Singh and another, 2001 (II) U.P. Cri. R 571, Hon’ble the Supreme Court has held that such cases could not be thrown away out rightly. It has been held in the case of M. Krishnan (supra) that if there are serious allegations against the respondent and prima facie case is made out, the Magistrate should take action though civil case is pending. Hon’ble the Apex Court has further held that accepting that such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature.

4. In Lalmuni Devi (supra), the matter involved was a gift deed. It was dismissed by the Magistrate under Section 203, Cr.P.C. but the Sessions Judge allowed the revision and remanded back the case, with the result that Magistrate issued process against the respondent to face the trial. The respondent filed petition under Section 482, Cr.P.C. for quashing of the complaint and it was quashed on the ground that a civil wrong was done. Hon’ble the Supreme Court has held otherwise and directed the trial Court to proceed with the trial. Thus, approach of the Magistrate and the Revisional Court in the above case is wholly incorrect.

5. Consequently, the writ petition is allowed. The order dated 22.3.2006 passed by the Magistrate and the Revisional order dated 29.4.2006 are set aside and the Magistrate concerned is directed to re-examine the allegations set forth in the application under Section 156 (3) Cr.P.C. in the light of the observations made above and pass a fresh order.

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