Shiv Shanker vs Judicial Magistrate-II and Others

Jayashree Tiwari, J.—The present criminal revision has been filed by the revisionist against the order dated 2.11.2001, passed by the Judicial Magistrate, Court No. 18, Jaunpur whereby he has held that in pursuance of the order given by the revisional court dated 14.8.2001 that offence u/s 325, I.P.C. is not made out and on that basis, he has held that only offence under Sections 323 and 504, I.P.C. appear to have been made out from the prima facie statement made in the application u/s 156(3), Code of Criminal Procedure and on that basis, application u/s 156(3), Code of Criminal Procedure has been rejected by the Magistrate.

In the scheme of Code of Criminal Procedure u/s 156(3), it is provided that the under Clause (3) any Magistrate empowered u/s 190 may order such an investigation as above-mentioned. This sub-clause is to be read in connection with Section 156, Code of Criminal Procedure itself which lays down that police officials have power to investigate a cognizable case. The crux of the provision as enunciated in Sub-clause (3) of Section 156, Code of Criminal Procedure and as has been constantly held by the superior courts is that if from the contentions and averments made in the application u/s 156(3), Code of Criminal Procedure the commission of a cognizable case is made out, in that case the concerned Magistrate having jurisdiction over the concerned police station may direct the police to register and investigate the case.

The revisional court vide its order dated 18.10.2001 has allowed the revision and set aside the order passed by the learned Magistrate and has directed the Magistrate to consider all the points discussed in body of the revision judgment and then to pass a judicial order in consonance with law. The learned revisional court has discussed about the nature of injuries, instruments used and other matters. The learned lower court instead of following mandate of the revisional court which was to consider all the points mentioned in the body of the revision judgment has held that revisional court has directed that offence u/s 325 is not made out and straightway rejected the contention u/s 325, I.P.C. but order of revisional court does not say so, the order of revisional court is apparently clear. It has directed the learned Magistrate to reconsider the points as have been discussed in the body of the judgment and to make his own discussions and reconsideration of the application by application of his judicial mind and then to pass an appropriate order in consonance with law. Hence, the order dated 2.11.2001 suffers from non-application of judicial mind as directed by the revisional court''s order dated 18.10.2001.

In the circumstances, the revision is liable to be allowed, the order passed by the Judicial Magistrate dated 2.11.2001 is hereby set aside. The learned Magistrate is directed to hear and peruse contentions and averments made in the application u/s 156, Code of Criminal Procedure and then to apply his judicial mind while considering the points as pointed out by the revisional court in the body of the judgment and then to pass a well reasoned and speaking order in consonance with law.

The revision is allowed, order passed by the learned lower court is set aside, case is remanded back to the learned lower court for reconsideration and passing of well reasoned and speaking order in consonance with the direction given by the revisional court in its order dated 18.10.2001 within a period of two months from the date, a certified copy of this order is filed before him.

Parties to bear their own costs.