Court No. - 77

Case :- CRIMINAL REVISION No. - 490 of 2021

Revisionist :- Raj Bahadur Rai

Opposite Party :- State Of Up And 2 Others

Counsel for Revisionist :- Yogesh Singh

Counsel for Opposite Party :- G.A.

Hon'ble Pankaj Bhatia,J.

Heard learned counsel for the revisionist and

learned AGA for the State.

The present revision has been filed challenging the

order dated 11.1.2021 passed by the Additional

Chief Judicial Magistrate, Court No. 1, Varanasi in

Criminal Misc. Case No. 942 of 2020 (Raj Bahadur

Rai vs. Ashutosh Pratap Singh & others) whereby

the application filed by the revisionist under

section 156(3) Cr.P.C. has been rejected.

The counsel for the revisionist argues that in the

application under section 156(3) Cr.P.C. a clear

cognizable case was made out and it was

incumbent upon the Magistrate to either have

directed for lodging the FIR or to have taken

recourse under section 190 Cr.P.C. He has placed

reliance on the judgement of the Supreme Court in

the case of Lalita Kumari vs. Government of U.P.

and others, 2014 (2) SCC 1 as well as the

judgement of this Court dated 26.11.2019 passed

in Criminal Revision No. 4424 of 2019 (Babooram

vs. State of U.P. and 2 others.).

On perusal of the application filed under section

156(3) Cr.P.C., which is on record, a clear

cognizable case is made out inasmuch as the

revisionist has alleged i.e. truck and machine were

taken by the use of force which clearly makes out

a congizable case. He further places on record the

fact that the finding recorded to the effect that the

truck in possession of the revisionist is perverse

and in any case there is no finding with regard to

machine, to which the allegations were levelled

that the same has been taken by the private

respondents.

Considering the judgement cited as well as on

perusal of the application filed, I have no

hesitation in holding that a clear cognizable case

was made out. At this stage, notices to the

prospective accused are not being issued as there

no right to be heard at pre-cognizance stage as

has been held by this Court in the case of

Babooram (supra).

The Special Judge/Additional Chief Judicial

Magistrate, Court No. 1, Varanasi is directed to

take a fresh decision on the application under

section 156(3) Cr.PC and pass fresh orders taken

into account the judgement referred above within

a period of one month from the date of production

of a certified copy of this order. The order dated

11.1.2021 is set aside.

Accordingly, the revision is allowed in terms of the

said order.

Order Date :- 22.3.2021

Puspendra