The main legal point established in the judgment is that the Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint and must apply his mind to the allegations before taking cognizance.

JUDGMENT :

RENU AGARWAL, J.

1. Instant criminal revision under Sections 397/401 Cr.P.C. has been preferred against the impugned judgment and order dated 27.08.2012 passed in Criminal Revision No. 136 of 2012 (Sanjay Sinha and Others vs. State and Another) passed by the District & Sessions Judge, Lucknow by which the learned District and Sessions Judge, Lucknow has partly allowed the revision and set-aside the order of CJM by which the opposite party No. 2 to 4 were summoned under Section 506 I.P.C.

2. When the case was called up today for hearing, none appeared on behalf of the revisionist. It transpires from the order sheet dated 05.05.2023 that none was present on behalf of the revisionist on that day also.

3. Heard Mr. Arun Sinha, learned counsel for opposite parties and perused the entire material brought on record.

4. Perusal of the revision reveals that some civil dispute was pending between the revisionist and the private respondents who were empanelled with Employees State Insurance Corporation, New Delhi (hereinafter referred to as “ESIC”). The revisionist acceding to the request of the accused mutually agreed to provide his consultancy service on the payment of 20 per cent of the amount which was to be paid by accused from time to time and further to continue to pay the aforesaid 20 per cent from amount received from ESIC. Opposite party No. 2 to 4 failed to comply with the agreement and the payments due against the consultancy services of revisionist has not been paid, therefore, an application under Section 156(3) Cr.P.C. was moved by the revisionist for registration of F.I.R. against the opposite party Nos. 2 to 4. Trial Court called for report from police station concerned and finding that no case is registered in police station and considering the facts disclosed in the application moved in the application under Section 156(3) Cr.P.C. registered the application as complaint case on 12.12.2011 and after recording of statement of revisionist under Section 200 and statement of witnesses under Section 202 Cr.P.C. summoned the accused-opposite party Nos. 2 to 4 under Section 506 I.P.C. vide order dated 06.02.2012. Learned C.J.M. specifically mentioned in the his order that the dispute between the parties is civil/contractual in nature that can be decided by the Civil Court on the basis of evidence produced before it, hence, the opposite parties No. 2 to 4 were summoned only under Section 506 I.P.C.

5. Aggrieved with the order of the learned C.J.M. opposite parties No. 2 to 4 (proposed accused) filed a revision before the Court of Sessions and Sessions Court set-aside the summoning order dated 06.02.2012. It is pertinent to mention here that summoning order dated 06.02.2012 was not challenged by the revisionist-Madhukar Jetely.

6. The present revision is filed on 03.09.2012 directly to this Court without availing the opportunity of filing revision before the Sessions Court. It is also mentioned in the revision itself that the Sessions Judge has acted illegally and with material irregularity in exercise of his jurisdiction in overlooking that while exercising powers under Section 397 Cr.P.C. the powers exercisable by the Hon’ble High Court under Section 482 Cr.P.C. in rarest of rare cases could not be exercised. It is also revealed in the second supplementary affidavit that learned CJM was not empowered to convert the application moved by him under Section 156(3) into complaint. The aforesaid order of learned CJM ex facie suffers error as the learned CJM without taking cognizance of the matter wrongfully ordered the registration of case as complaint which is not permissible and beyond his jurisdiction, accordingly, all subsequent proceedings arising therefrom are without jurisdiction and are liable to be set-aside. Therefore, the subsequent proceedings are also liable to be vitiated and deserved to be quashed.

7. In the counter affidavit, opposite party No. 2 to 4 simply controverted the factual matrix given by revisionist and