Om Prakash Sharma vs State of U.P. and Another

S.C. Agarwal, J.—Heard Sri Ashok Chaturvedi, learned counsel for the petitioner and learned AGA for the State. At this stage, prospective accused have no right of hearing.

This writ petition has been filed with a prayer to quash the order dated 4.10.2012 passed by C.J.M., Aligarh in Criminal Misc. Application No. 5342 of 2012, Om Prakash Sharma v. Manjeet Singh & others pertaining to P.S. Iglas, District-Aligarh, whereby the application u/s 156(3) Cr.P.C. filed by the petitioner was treated as complaint.

As per the office report, there is latches of 43 days in filing the writ petition. Keeping in view the public interest and as prayed by learned counsel for the petitioner, the laches are condoned.

Learned counsel for the petitioner submitted that the application u/s 156 (3) Cr.P.C. was moved by the petitioner in public interest as the accused persons have cheated a large number of students by giving them admission in their institution Mangalayatan Vishvidalaya, Iglas in B.Ed. (Innovative) Course without obtaining any recognition from NCTE, Jaipur. It was contended that NCTE, Jaipur has already issued show-cause notice to Mangalayatan Vishvidalaya as to how they had started B.Ed. Course without obtaining recognition from them. It was contended that a large number of students were cheated whose details have to be collected. The evidence regarding payment of fees of the students has to be collected by police. The records of the institution have to be seized, inspected and only through a thorough investigation, it can be found as to who are the persons actually responsible for fraud and cheating with the students. The contention is that in such a large scale fraud, the complainant cannot be burdened with the onus of collecting evidence and producing the same in Court and treating the application as a complaint was not the proper remedy.

The grievance of the petitioner is that by treating the application u/s 156(3) Cr.P.C. as complaint, the matter has been given a complete burial by the Magistrate.

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 found as to who are the persons responsible for the fraud, if any, committed by the educational institution, who are the persons cheated, what is the extent of fraud and undue gain to the accused persons. This can only be done through police investigation and treating the applicant as a complaint was not the proper course to be adopted by the Magistrate. The reference of Sukhwasi''s case and Ram Babu Gupta''s case was also unwarranted. It is true 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 u/s 156 (3) Cr.P.C. as complaint in proper cases. It does not mean that in each and every case u/s 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 view of the aforesaid, the impugned order cannot be sustained and is liable to be quashed. The writ petition is allowed. Impugned order dated 4.10.2012 is quashed. The Magistrate is directed to reconsider the matter and to pass a proper order in terms of provision of Section 156(3) Cr.P.C. directing investigation by police.