Smt. Nirmala vs State of U.P. and Others

Vinod Prasad, J.—Heard learned Counsel for the revisionist and the learned A.G.A.

The application u/s 156(3), Cr. P.C. did disclose the commission of cognizable offence as the allegations levelled were regarding the torture u/s 498A, I.P.C. for which the accused had caused injuries to the wife. The Magistrate had no power to register the said application as a complaint because filing of complaint is the domain of the aggrieved person. The victim in the case Smt. Nirmala never wanted to file a complaint. Her prayer was that the police be directed to follow the law as is laid down by the Apex Court in the case of State of Haryana and Ors. v. Bhajan Lal and others, 1992 SCC 426. The aggrieved person never wanted to file a complaint as she was not in a position to prosecute the accused by bringing the witness in a Court and bear all the expenses and arduous procedures of trial of complaint case. Filing of a complaint and prosecution of the said complaint case was her right. In her absence even her complaint could have been dismissed. As the aggrieved wife never wanted to file a complaint; therefore, she approached the Magistrate under Chapter XII, Cr. P.C. at a pre-cognizance stage. The Magistrate by refusing the said prayer gave a long rope to the police which practice is seriously deprecated. The Magistrate also committed a manifest error of law in not directing the police to follow the mandate of law. Magistrate, once cognizable offence was disclosed u/s 156(3), Cr. P.C. application, was expected to direct the police to follow the law, which the Magistrate has not done in the present case.

Consequently, the order dated 27.11.2006 is hereby set aside. The matter is remanded back to the Magistrate concerned to re-decide the matter in accordance with law as is spelt out by the Apex Court as well as by this Court in Criminal Miscellaneous Application No. 6152 of 2006, Massoman v. State of U.P. and others Criminal Miscellaneous Application No. 6152 of 2006. In view of what I have stated above, this revision is allowed at the admission stage itself.