The main legal point established in the judgment is the discretionary power of the Magistrate to treat an application under Section 156(3) Cr.P.C. as a complaint case, as per the provisions of Section 190 of the Code of Criminal Procedure.

JUDGMENT :

1. Heard Sri Gyanendra Mishra, learned counsel for the petitioner and Sri Santosh Kumar Mishra, learned A.G.A. for the State.

2. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India to quash the impugned order dated 16.7.2019 passed by learned Chief Judicial Magistrate, Court No. 6, Sultanpur on the application moved by the petitioner u/s 156(3) Cr.P.C. as well as revisional court order dated 13.8.2019 passed by District & Session Judge, Sultanpur whereby application u/s 156(3) Cr.P.C. moved by petitioner was treated as complaint case by trial court and revision filed by the petitioner was also dismissed.

3. Learned counsel for the petitioner submitted that impugned order is against law and fact and has been passed without applying judicial mind. Learned Magistrate has treated the application u/s 156(3) Cr.P.C. moved by the petitioner as complaint case without looking into the facts and circumstances of the case and revision was also dismissed.

4. Learned A.G.A. opposed the prayer and submitted that learned Magistrate has power to treat the application moved u/s 156(3) Cr.P.C. as complaint case.

5. In a nutshell, facts of the case are that application u/s 156(3) Cr.P.C. was moved by petitioner/complainant against opposite parties no. 2 to 5 alleging that they cheated him. On that application, impugned order was passed and that was treated as complaint case, date was fixed on 18.8.2019 for recording statement under Section 200 Cr.P.C. Hence this petition.

6. The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India, it provides power to the High Court to issue writ in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari and under Article 227 of Constitution of India, power of Superintendence over all courts by the High Court without prejudice to the generality of the foregoing provisions the High Court may make and issue general rule and prescribe forms or regulating the practice and proceedings of such courts.

7. At this juncture, it would be proper to quote the Section 190 Cr.P.C. which is as under:

‘190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.’

8. According to Section 190 Cr.P.C. learned Magistrate has power to take cognizance on the conditions given in Section 190 (1)a, b & c of Code of Criminal Procedure. Hence he has full power to take cognizance on an application moved by complainant under Section 156(3) Cr.P.C. as complaint case.

9. In the case of Sukhwasi Son Of Hulasi vs State Of Uttar Pradesh 2008 CriLJ 472, Division Bench of this Court has held that Magistrate has discretionary power to treat application u/s 156(3) Cr.P.C. as complaint case. In this case, there was simple question involved whether Magistrate has power to treat the application moved u/s 156(3) Cr.P.C. as complaint case or not.

10. Considering the law laid down in Criminal Misc. Application No. 6152 of 2006, Smt. Masuman Vs. State of U.P. and 19 others, Ram Babu Gupta [2001 (43)ACC, 201], Chandrika Singh Vs. State of UP and other [2007 (58) ACC,777], Criminal Misc. Application No. 7484 of 2004, Mohan Shukla and others Vs. State of U.P. and in Criminal Misc. Application NO. 671 of 2007, Ram Sabad Vs. Sessions Judge, Bahraich and others, held by division bench of Allahabad High Court that the Magis