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2007 Supreme(All) 2519
[2007(10) ADJ 347]
ALLAHABAD HIGH COURT
BEFORE : M.K. MITTAL, J.
Smt. KIRAN DEVI ......Applicant
Versus
STATE OF U.P. AND OTHERS ..........Opposite Parties
(Criminal Misc. Application No. 23597 of 2007, decided on 3rd October, 2007)
Counsel :
Mithilesh Kumar Gupta for the Applicant; A.G.A. for the Opposite Parties.
Headnote:(A) Criminal Procedure Code, 1973—Sections 156(3) and 200—FIR—Investigation—Application for—Magistrate directed that application be treated as complaint—Fixed date for recording of statement of complainant under Section 200 of CrPC—Revision against—Dismissed—Witness of complainant is not material—Legal right of complainant is material and how to enforce the same—Magistrate cannot be directed to direct police to register case—He has to consider if any investigation is required by police—Use of word “May” in Section 190 of CrPC—Connotes that if cognizable offence is made out from allegations a Magistrate is not bound to direct for registration of case—No illegality in impugned order. [Paras 11, 12, 15 and 16]
(B) Criminal Procedure Code, 1973—Section 2(d), Explanation—Complaint—Meaning of—Allegation made orally or in writing to a Magistrate—With a view to his taking action under this Code—But does not include a police report. [Para 7]
Hon’ble M.K. Mittal, J.—This application has been filed for quashing the orders dated 20.8.2007 and 28.5.2007 passed by Sessions Judge Ghazipur, in Criminal Revision No. 385/07, Smt. Kiran v. State of U.P. and Judicial Magistrate, Saidpur, district Ghazipur in Criminal Misc. Case No. 134/IX/07 respectively.
2. Heard Sri Mithilesh Kumar Gupta learned Counsel for the applicant, learned AGA and perused the material on record.
3. The brief facts of the case are that the applicant filed an application under Section 156(3), Cr.P.C. against 7 accused persons. The learned Magistrate by order dated 28th May, 2007 directed that the application be treated as complaint and accordingly fixed 3.7.2007 for the statement of the complainant under Section 200, Cr.P.C. Against that order the applicant filed a criminal revision in the Court of the Sessions Judge which has been dismissed by order dated 20.8.2007. Feeling aggrieved the present application has been filed.
4. The contention of the learned Counsel for the applicant is that the learned Magistrate has erred in directing that the application under Section 156(3) Cr. P.C. be treated as a complaint case. According to him the accused persons had caused injuries to the applicant and in the circumstances the learned Magistrate should have directed for registration and investigation as prima facie case was made out from the allegations made in the application under Section 156(3), Cr.P.C. He has further contended that learned Sessions Judge has erred in rejecting the revision. In support of his contention he also referred the case of Om Singh v. State of U.P., 2007 (57) ACC 521.
5. Learned Counsel for the State has contended that the learned Magistrate was perfectly justified in directing that the application under Section 156 (3), Cr.P.C. be treated as complaint and there is nothing illegal in the impugned orders and the application is liable to be dismissed. He also contended that the case cited by the applicant does not help her.
6. If any application is filed under Section 156 (3), Cr.P.C. and a cognizable offence is made out from the allegations made therein the Magistrate empowered under Section 190, Cr. P.C. can direct for investigation of the case as is done under Section 156(1), Cr.P.C. But in case he finds that there is nothing particular which requires investigation by the police, he can certainly direct that application be treated as complaint and can proceed under Chapter 15 of the Criminal Procedure Code.
7. Section 2(d) of the Criminal Procedure Code defines complaint as under :
"Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence but does not include a police report.
Explanation.—A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;
8. Therefore, if any allegations are made in writing to the Magistrate with a view to his taking action under this Code it can be treated as a complaint. The application under Section 156 (3), Cr.P.C. is filed before a Magistrate with allegations and he can certainly treat it as a complaint.
9. In the case of Rambabu Gupta and another v. State of Uttar Pradesh and others, 2001 (43) ACC 50, a Full Bench of this Court has held that an application filed under Section 156 (3), Cr.P.C. for all practical purposes would be a complaint.
10. In the case of Yogendra Singh v. State of U.P. and another, 2005 Cri LJ 2762, it has been held that an application filed under Section 156 (3) Cr. P.C. can be treated as complaint under Section 200, Cr.P.C. and no separate complaint is required to be filed.
11. Again in the case of Joseph Mathuri @ Vishveshwaranand and another v. Swami Sachidanand Harisakshi and another, 2001 (3) Crimes 384 (S
