Heard Mr. GK Mohanty, learned counsel for the petitioner and the learned counsel for the opposite party No.2 as well as the learned counsel for the State.
In this application under Section 482, Cr.P.C. the petitioner-complainant has challenged the order dated 07.07.07 passed by the learned Additional Sessions Judge, Bhubaneswar in Crl. Revision No. 1/43 of 2007.
The facts as disclosed reveals that the petitioner filed a complaint petition being I.C.C. Case No. 2564 of 2007 against the opposite party No.2 as accused alleging commission of offences under Sections 420/426/500/503/467 /468/471/ 506/120-B, I.P.C. on 01.06.07. The learned S.D.J.M. by order dated 01.06.07 directed the I.I.C., Khandagiri PS. to register a case being I.C.C. Case No. 2564 of 2007 on the complainant petition and to investigate into the allegations contained therein by exercising power under Section 156 (3), Cr.P.C. Being aggrieved by the said order, the accused-opposite party No.2 preferred the aforementioned Crl. Revision No.1/43 of 2007 which was heard by the learned Additional Sessions Judge, Bhubaneswar.
Grounds stated in the Criminal Revision were that the learned S.D.J.M. without due application of judicial mind gave a direction to the police to investigate the case in a mechanical manner. According to the accused, the complaint petition did not disclosed commission of any cognizable offence and has been field only with the intention to harass the accused with ulterior motive. In the impugned order, the learned Additional Sessions Judge after hearing the counsel for the respective parties, relying upon the decision in the cases of 2002 (2) Criminal Court Cases 302 (Allahabad) (Gulab Chand Upadhyaya v. State of U.P. & Ors.), 2006 (4) Criminal Court Cases, 557 (Allahabad) (Ram Kishun & Ors. v. State of U.P.) and 2005 (4) Criminal Court Cases 128 (Kerala) (Superintendent of Police, C.B.I. v. State of Kerala) observed that though a Magistrate having jurisdiction over the matter is statutorily empowered to direct an investigation by the police on a complaint petition under Section 156(3), Cr.P.C. nevertheless, such power is not to be exercised mechanically and at the instance of the complainant. Before a direction for police investigation is given, there shall be proper application of judicial mind and the circumstances indicated in the complaint must necessitate investigation by the police by deviating from the normal procedure with regard to the complaint case. The revision Court thereafter concluding that the learned Magistrate has not applied his judicial mind while directing registration of an F.I.R. ultimately allowed the revision in part setting aside the impugned order passed by the learned Magistrate directing investigation on the complaint petition and remitted the matter back to him to pass a speaking order in accordance with the ratio of the decisions relied upon by it, before existing power under Section 156(3), Cr.PC. The complainant-petitioner being aggrieved has filed the present application.
Mr. G.K. Mohanty, learned counsel for the petitioner relies upon the decisions in the cases of Madhu Bala v. Suresh Kumar & Ors., AIR 1997 Supreme Court 3104, Abdul Jahangir & Ors. v. State of Orissa & Ors., (2008) 18 OCR 207, Purna Chandra Sahoo v. Santi @ Sukanti & Anr., (2005) 30 OCR 268 and Mohd. Yousuf v. Smt. Afaq Jahan & Anr. (2006) 33 OCR (SC) 345, in support of his contention that while exercising power under ?Section 156(3), Cr.P.C. the Magistrate is not required to find out as to whether a case ‘is made out in the complaint petition or not against the accused and such orders are passed before cognizance of offences is taken by the Magistrate. He further relies upon the decision in the case of Kanaksinh Hathisinh Jadeja & Ors. v. Balbhadrasinh Narendrasinh Jhala & Anr., 1988 Crl.L.J. 578 (Gujurat) and submits that the Magistrate is not required to record any reason before sending a case for police investigation under Section 156(3), Cr.P.C. and the accused has no locus standi to challenge the direction of the Magistrate whereby he directs the police to investigate into the allegations made in the complaint petition under Section 156(3), Cr.P.C. Nothing was revealed from the order passed by the learned S.D.J.M., which was under revision that the learned S.D.J.M. did not apply his judicial mind to the case.
When a complaint petition si filed before a Magistrate by the complainant, at that stage the accused is not present before the Magistrate. To exercise power under Section 156(3), Cr.P.C., the Magistrate is to look into the allegations made in the complaint and if he is of the view that the nature of allegations made should be investigated by the police as some of the materials on which the complainant relies are to be unearthed during investigation by the police and cannot be produced by the complainant, the Magistrate is authorized to direct the police to investigate into the matter.
On a bare perusal of the complaint petition, it is seen that the nature of allegations made required investigation by the police, which cannot be prima facie substantiated even by an inquiry under Section 202, Cr.P.C. The finding of the revisional court that the Magistrate did not apply his judicial mind is not based on any materials since the order passed by the learned S.D.J.M. was solely on the basis of allegations made in the complaint petition and he was required to peruse the nature of allegations and nothing more.
In view of the ratio of the decisions cited by Mr. Mohanty, this Court is of the view that in the facts of the present case, the learned Additional Sessions Judge should not set aside the order passed by the learned S.D.J.M. under Section 156(3) Cr.PC. directing registration of the complaint petition as an F.I.R. and ta
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king up investigation thereon by the concerned police. As a matter of fact, after passing of the order by the learned S.D.J.M., the complaint petition has been registered as an F.I.R. being Khandagiri PS. Case No. 161 of 2007. Considering the above aspects of the matter, the impugned order is found to be unsustainable and is accordingly set aside and the police is directed to take up investigation of Khandagiri P.S. Case No. 161/2007 as directed by the learned S.D.J.M., Bhubaneswar. The CRLMC is accordingly allowed. Urgent certified copy of this order be granted on proper application. CRLMC allowed.