HIGH COURT OF JUDICATURE AT ALLAHABAD ? A.F.R. Court No. - 50 Case :- CRIMINAL MISC. WRIT PETITION No. - 12948 of 2011 Petitioner :- Surendra Kumar Respondent :- State Of U.P. Petitioner Counsel :- B.N. Singh Respondent Counsel :- Govt. Advocate Hon'ble S.C. Agarwal,J.
Heard learned counsel for the petitioner and learned AGA for the State.
This writ petition has been filed with a prayer to quash the order dated 4.12.2010 passed by the Judicial Magistrate, Bhognipur, District- Ramabai Nagar. Vide order dated 14.12.2010, the application under Section 156 (3) Cr.P.C. filed by the petitioner was treated as complaint.
It was alleged in the application under Section 156 (3) Cr.P.C. that the petitioner had Saving Account No. 11012163234 in Pukhraya branch of S.B.I. Fictitious withdrawal of Rs. 40,000/- on 7.8.2010 and Rs. 55,000/- on 11.8.2010 were made by unknown persons from the said account. Learned Magistrate relying upon the Division Bench decision of this Court in Sukhwasi Vs. State of U.P., 2008 Cr.L.J. 472 treated the application as complaint.
The grievance of the petitioner is that by treating the application u/s 156(3) Cr.P.C., the matter has been given a complete burial to the case. Unknown persons have withdrawn the money from the account of the petitioner, may be, in connivance of the bank officials and the matter requires thorough investigation by the police. The petitioner is not able to proceed in the complaint case for want of proper investigation.
Learned AGA also concedes that it is a fit case for investigation and complaint case is not the proper remedy.
In the facts of the case, it has to be find out as to who has been withdrawn the amount from the account of the petitioner and whether there was any connivance on the part of the bank officials. This can only be done through police investigation and treating the application under Section 156(3) Cr.P.C. as complaint was not the proper course to be adopted by the Magistrate.
The reference of Sukhwasi's case was also unwarranted in the facts of this case. The Division Bench held that it was not mandatory on the part of the Magistrate to order investigation in each and every case and the Magistrate had the jurisdiction and discretion to treat the application under Section 156 (3) Cr.P.C. as complaint in proper cases. It does not mean that in each and every case under Section 156 (3) Cr.P.C. the application should be treated as complaint. The Magistrate should have applied his mind to the facts of the case. Had he done so, he would have come to the conclusion that in this case the investigation by police was a must.
In these circumstances, the impugned order cannot be sustained and is liable to be quashed.
The writ petition is allowed and the impugned order dated 14.12.2010 is quashed. The Magistrate is directed to pass proper order in terms of provisions of Section 156 (3) Cr.P.C. directing investigation.
Order Date :- 12.7.2011 KU