Court No. - 34

Case :- MATTERS UNDER ARTICLE 227 No. - 4724 of 2022

Petitioner :- Israr Khan

Respondent :- State of U.P. and Another

Counsel for Petitioner :- Lokendra Pratap Singh,Ashutosh

Pratap Singh

Counsel for Respondent :- G.A.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the petitioner.

By this writ petition under Article 227 of the Constitution of

India, the petitioner has prayed to set aside the order dated

09.08.2021 passed by the Chief Judicial Magistrate, Etah in

Misc. Application No. 390 of 2021 (Israr Khan Vs. Rajnesh)

and order dated 04.05.2022 passed by the Sessions Judge, Etah

in Criminal REvision No. 55 of 2022 (Israr Khan Vs. State of

U.P. and another).

It is argued by the learned counsel for the petitioner that the

Village Panchayat Development Officer borrowed dongle from

him regarding payment of various dues but he has fraudulently

misappropriated an amount of Rs. 2,73,000/- from the account

of Village Development Officer. It is further submitted that the

applicant cannot collect the whole evidence himself. It will be

proper if the order of registration of FIR and investigation be

made.

Admittedly, the application under Section 156 (3) Cr.P.C. of the

applicant was ordered to be registered as complaint vide order

dated 09.08.2021 and the revision against the same has been

dismissed vide order dated 04.05.2022 by the Sessions Judge,

Etah.

In the judgement Sukhwasi Vs. State of U.P., 2007 SCC

OnLine (All) 1088 the Division Bench of this Court and in the

judgements Anju Chauhan Vs. State of U.P. and another

(2013) 6 SCC 384 and Mohd. Yousuf Vs. Afaq Jahan and

another, 2006(1) SCC (Crl.) 460, the Hon'ble Apex Court held

that the application under Section 156 (3) Cr.P.C. can be treated

as complaint.

In Mona Pawar Vs. Allahabad High Court through Registrar,

2011 (2) ALJ 1691, it was held by the Apex Court that when

the complaint is filed before the Magistrate that the FIR has not

been registered by the police for cognizable offence the

Magistrate has its discretion either to direct the police to

investigate under Section 156 (3) Cr.P.c. or to proceed to

examine the complainant under Section 200 Cr.P.C. This

discretion so exercised by the court cannot be interfered with

only because the other view is possible.

In the case at hand also, the application under Section 156 (3)

Cr.P.C. was moved by the applicant with the allegation that by

obtaining his dongle the Village Panchayat Development

Officer siphoned an amount of Rs. 2,73,000/- from the account

of Village Development Officer. As the applicant knows the

name of the accused and this is up to him to prove that he had

given his dongle to the Village Panchayat Development Officer

and the amount was withdrawn and misappropriated by the

Village Panchayat Development Officer. Thus, the accused is

known to the applicant and again if there is any documentary

evidence in this regard that must also be in the knowledge of

the applicant so if the officer concerned exercised his discretion

in registering the application under Section 156 (3) Cr.P.C. as a

complaint, his discretion cannot be interfered with only on the

ground that other view is also possible.

In the case in hand, there is nothing to be investigated by the

police. In my opinion, the orders impugned do not suffer from

any illegality hence, this petition is liable to be dismissed.

The writ petition is, therefore, dismissed.

Order Date :- 27.6.2022

gp

Digitally signed by GANESH

PRAKASH

Date: 2022.07.01 11:24:38 IST

Reason:

Location: High Court of Judicature at

Allahabad