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Mahendra Patel v/s State of U.P.

    Criminal Misc. Writ Petition No. 2230 of 2014

    Decided On, 17 February 2014

    At, High Court of Judicature at Allahabad


    For the Appellant: Amit Kumar Rai, Advocate. For the Respondent: -------.

Judgment Text

Karuna Nand Bajpayee, J.

1. The present writ petition has been filed seeking the quashing of impugned order dated 22.10.2013 passed by the Sessions Judge, Varanasi in revision No. 343 of 2013 whereby it has refused to interfere in the order dated 5.10.2013 passed by A.C.J.M., 4th Varanasi. Heard learned Counsel for petitioner and learned A.G.A. Record, including the impugned orders has been perused.

2. T

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he contention of Counsel for the petitioner is that the facts and circumstances of the case are such that an investigation into the case was incumbent and the offences committed by the respondents could have been unearthed and the proper evidence against them could have been collected only through a proper police investigation. Submission is that the order passed by Additional Chief Judicial Magistrate whereby he has refused to order the registration of the First Information Report is bad in the eyes of law as the discretion has not been properly exercised. It has also been submitted that the Court of revision has also passed an illegal order inasmuch as it held the revision to be non-maintainable.

3. Learned A.G.A. in rebuttal has submitted that revisional Court has relied upon the Full Bench decision of this Court given in Father Thomos v. State of U.P. am others 2011 (72) ACC 564 (FB) and there is no illegality committed by the revisional Court because it has taken into account all the relevant case laws applicable in the matter and none of the impugned orders call for any interference of this Court. Reliance has also been placed by learned A.G.A. on the Apex Court decision given in the case of Smt. Mona Panwar Vs. The Hon'ble High Court of Judicature at Allahabad and Others,

4. The contention on behalf of the State is that the aforesaid pronouncement has lent its judicial countenance to the validity of the judicial discretion exercised by the magisterial Court when the same instead of ordering the registration of F.I.R. thought it fit to take cognizance itself and proceed in the matter as a complaint case even though the offences alleged were very serious in nature u/s 376 I.P.C. etc.

5. This Court has had the occasion to peruse both the impugned orders and also the relevant record. Full Bench decision given in Ram Babu Gupta and Another Vs. State of U.P. and Others, and Division Bench decision in Sukkwas v. State of U.P. 2007 (59) ACC 739 and other relevant case laws have all been looked into by the Courts below:

The facts and law both have been correctly analyzed and discussed in the twin impugned orders. It is primarily for the Lower Court concerned to have looked into the feasibility and also the suitability about the course to be adopted by itself. The facts and circumstances of the case alone can determine whether a case may be more appropriately registered as police case and investigated by the police or justice can also be equally well done by adopting the different course of taking the cognizance itself. Learned Magistrate has applied its judicial mind and thought it proper to take cognizance himself and proceed in the matter as a complaint case. There is no such thing pointed out by the Counsel that this Court may come to the conclusion that the discretion exercised and the mode adopted by the Lower Court is going to defeat the ends of justice. The discretion of the Lower Court cannot be lightly interfered with by the High Court and the same must be paid due regard. Ordinarily this Court is loath to replace the judicial order passed by the Lower Court in such matters and substitute it by its own discretion. Of course, if it can be shown that the course adopted by the Lower Court is going to result in miscarriage of justice or that the course adopted by the Lower Court was in breach of some provisions of law, this Court shall not feel shy to set aside the order and correct the error but not till then either as a matter of course or of routine.

6. Even the Lower Revisional Court has rightly held the revision to be not maintainable as the same was in the teeth of Full Bench decision given by this Court in Father Thomos v. State of U.P. and others. 2011 (72) ACC 564 (FB) I do not see any good ground to entertain the writ petition and the same being sans merit stands dismissed.

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