# Court in Sakiri Vasu v. State of U.P. & - **Citation:** (2011) 3 ILRA 1098 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2011-09-03 - **Bench:** S.C. Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-sakiri-vasu-v-state-of-u-p-42046 - **Pages:** 2 ## Headnote Code of Criminal Procedure-190 (1) (b)- cognizance taken-on affidavit filed by complainants-composite consideration of case diary as well as affidavits filed by complainant-held-not proper-could have consider the statements of complainants and witnesses under Section 200 and 202-summoning order-illegal-quashed Held: Para 9 The Magistrate has not adopted any of the courses mentioned above but has adopted the novel method by combining the material available in the case diary as well as affidavits submitted by the complainant, which was not permissible. Therefore, the impugned orders cannot be sustained. Learned Incharge Sessions Judge has also not considered this aspect of the case. Therefore, both the impugned orders are liable to be quashed. Case law discussed: 2001 (43) ACC 1096 ## Text 1098 INDIAN LAW REPORTS ALLAHABAD SERIES [2011 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 03.09.2011 BEFORE THE HON'BLE S.C. AGARWAL,J. Criminal Misc. Writ Petition No. - 15145 of 2011 Raj Kumar ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri R.K. Shahi Counsel for the Respondents: A.G.A. Code of Criminal Procedure-156(3)- Power of Magistrate-complainant filed affidavit before C.J.M. Requesting for direction to Investigation Officer To record the statement of complainant and her witnesses-rejection thereofnot proper-after issuing direction for registration and investigation-its but is not came to an end-duty bound to ensure fair investigationconsequential directions issued. Held: Para 6 In view of the aforesaid decision of the Apex Court, it is obvious that it is a duty of the Magistrate to ensure that investigation is done impartially and in a fair manner. When the complainant alleged that the statements of the complainant and the witnesses have not been recorded by the Investigating Officer, the Magistrate could have forwarded the affidavits filed on behalf of the revisionist to the Investigating Officer. The Magistrate cannot wash his hands of the case after passing an order under Section 156 (3) Cr.P.C. Case law discussed: 2008 (60) ACC 689 (Delivered by Hon'ble S.C. Agarwal,J. ) 1. Heard learned counsel for the petitioner and learned AGA for the State. 2. This writ petition has been filed with a prayer to issue a writ, order or direction in the nature of certiorari to quash the order dated 1.6.2011 passed by the Chief Judicial Magistrate, Court No. 17, Deoria in Case No. 214 of 2011, Raj Kumar Vs. Samodh & others, under Section 304B, 201 IPC, P.S. Rudrapur, District- Deoria and also to issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to act in accordance with law as settled by the Apex Court in the case of Sakiri Vasu Vs. State of U.P. & others, 2008 (60) ACC 689. 3. The petitioner is the complainant in Crime No. 314 of 2011, under Sections 498A, 304B, 201 IPC and D.P. Act, P.S. Rudrapur, District- Deoria. 4. The grievance of the petitioner is that the case is not being investigated by the police in a fair manner and still the statements of the complainant and the witnesses have not been recorded by the Investigating Officer. The affidavits of the complainant and the witnesses were filed before the C.J.M., Deoria with a prayer to forward the same to the Investigating Officer but the prayer has been rejected vide order dated 1.6.2011 passed by the C.J.M. Deoria on the ground that the complainant himself may produce his affidavit before the competent authority. 3 All Rakesh and others V State of U.P. and another 1099 5. Learned counsel for the petitioner has relied on the decision of the Apex Court in Sakiri Vasu Vs. State of U.P. & others, 2008 (60) ACC 689, wherein in para no. 24, the following has been observed :- "In view of the abovementioned legal position, we are of the view that although section 156(3) Cr.P.C. is very briefly worded, there is an implied power in the Magistrate under Section 156 (3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer-in-charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in section 156 (3) Cr.P.C., we are of the opinion that they are implied in the above provision". 6. In view of the aforesaid decision of the Apex Court, it is obvious that it is a duty of the Magistrate to ensure that investigation is done impartially and in a fair manner. When the complainant alleged that the statements of the complainant and the witnesses have not been recorded by the Investigating Officer, the Magistrate could have forwarded the affidavits filed on behalf of the revisionist to the Investigating Officer. The Magistrate cannot wash his hands of the case after passing an order under Section 156 (3) Cr.P.C. 7. In these circumstances, the order dated 1.6.2011 passed by the C.J.M., Deoria is quashed. Learned Magistrate is directed to forward the affidavits filed by the petitioner to the Investigating Officer and to ensure fair investigation. The petitioner may also approach the Higher Police Authorities for redressal of his grievance. 8. With these directions, the writ petition is disposed of. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 08.09.2011 BEFORE THE HON'BLE S.C. AGARWAL,J. Criminal Misc. Writ Petition No. - 17483 of 2011 Rakesh and others ...Petitioners Versus State of U.P. and another ...Respondents Counsel for the Petitioner: Sri G.S. Karatiya Counsel for the Respondents: A.G.A. Code of Criminal Procedure-190 (1) (b)- cognizance taken-on affidavit filed by complainants-composite consideration of case diary as well as affidavits filed by complainant-held-not proper-could have consider the statements of complainants and witnesses under Section 200 and 202-summoning order-illegal-quashed Held: Para 9 The Magistrate has not adopted any of the courses mentioned above but has adopted the novel method by combining the material available in the case diary as well as affidavits submitted by the complainant, which was not permissible. Therefore, the impugned orders cannot be sustained. Learned Incharge Sessions Judge has also not considered this aspect of the case. Therefore, both the impugned orders are liable to be quashed. Case law discussed: 2001 (43) ACC 1096