Rajendra Prasad vs Addl. C.J.M.,Lucknow

I. S. Mathur, J.—The petitioner is aggrieved by the order dated 1021995 passed by the VIII Additional Chief Judicial Magistrate, Lucknow.

I have heard learned counsel for the petitioner and learned Additional Government Advocate and with their consent, this petition is being finally disposed of.

It appears that the petitioner made an application before the learned Magistrate under Section 156(3), Cr. P. C. alleging that the opposite parties have committed offences under Sections 454/380/448/270/427/504/506/109/120B, I.P.C. It was further alleged that he had filed a complaint against the accused on 1611995 regarding assault etc. and the accused were summoned by the Court for 541995. On coming to know about this case, the accused got annoyed and they broke open the lock of the house of the complainant and took away the articles mentioned in the application. When the complainant tried to enquire from the accused they abused him and threatened that he will be killed. It was also alleged that on 2011995, the accused against broke open the door and took away certain mote things and that the applicant tried to lodge a complainant at the Police Station but his report was not registered. Accordingly, he moved the Court for directions under Section 156(3), Cr.P.C. Along with this application, affidavit of certain witnesses were also filed.

Learned counsel for the applicant is right in his submission that, in considering the matter under Section 156(3), Cr.P.C., the Magistrate is only required to see whether or not the, proposed First Information Report discloses a cognizable offence and it is not required at that stage to assess the evidence and draw presumptions. The order indicates that the learned Magistrate rejected the prayer of the applicant on the ground that the incident of theft did not take place before the persons who have filed the affidavits. This appears to be rather strange reasoning for rejecting the application under Section 156(3), Cr.P.C. It is common knowledge that thefts are not committed in the presence of the owner of other persons. To draw presumption and decide the matter against the petitioner only on the ground that there are no eyewitnesses to the theft is to prejudge the matter without any warrant or plausible reason. It appears prima facie from the complaint, which the petitioner tried to lodge in the Police Station, that it disclosed a cognizable offence. Accordingly, the Magistrate should have directed the police concerned to register the report and proceed in accordance with law. Therefore, the order passed by the learned Magistrate cannot be sustained,

The petition is accordingly allowed. The order dated 1021995 passed by the VIII Additional Chief Judicial Magistrate, Lucknow in Criminal Misc, Case No. 2/95 is quashed. The Magistrate is directed to pass fresh orders in accordance with law.