Chandra Kumar vs State of U.P.

V.D. Chaturvedi, J.—Heard.

This Criminal Revision has been filed against the order dated 4.7.2005 whereby the learned Magistrate ordered for investigation only against 3 persons out of 18 persons against whom petition under section 156(3) Cr.P.C. was moved disclosing that they all have encircled the deceased Gobardhan and it was upon the exhortation by the accused Shanker that the accused Sahab and Shakeel had fired at Gobardhan and thereby committed his murder. Feeling aggrieved by the said order, the complainant Chandra Kumar (the brother of the deceased Gobardhan) has filed this revision.

I have heard Sri Deepak Dubey and the learned A.G.A. and have perused the relevant record.

The scheme laid down in the Criminal Procedure Code directs for the investigation of the case and not the investigation against the persons.

Subsection (1) of section 156(3) Cr.P.C. lays down that any Officer Incharge of the Police Station may without the order of Magistrate investigate any cognizable case.

Subsection (3) of section 156(3) Cr.P.C. lays down that the Magistrate empowered under section 190 Cr.P.C. may order such an investigation as mentioned above.

The Magistrate thus erred in directing investigation only against certain persons excluding the others whose names were mentioned in the FIR and whose participation in the petition under section 156(3) Cr.P.C. is disclosed in the light of section 149 IPC.

The petition under section 156(3) Cr.P.C. discloses the commission of an offence of murder of Gobardhan. The facts depicted in the petition itself supply the convincing material that the cognizable offence was committed. The order distinguishing the others at the stage of under section 156(3) Cr.P.C. was improper, especially when it discloses their participation for offence under section 302 read with section 149 IPC.

The order dated 4.7.2005 is, therefore, liable to be treated to have been passed for the ''investigation of the case" and not for the investigation only against three persons.

The learned Counsel for the revisionist states that investigation is not yet complete.

The only error committed by Magistrate is that he ordered for investigation only against 3 persons instead of ordering the "investigation of the case."

The revision is allowed to the effect that the impugned order passed by Magistrate would be treated to have been passed for the "investigation of the case" instead of investigation only at against three persons.

In case the investigation is over and the report under section 173 Cr.P.C. has been submitted in Court, the revisionist may move an application under section 319 Cr.P.C. in appropriate circumstances or may resort to any other course of law, available to him.

Revision Allowed,