# Anmol Singh v. State of U.P. & Anr

- **Citation:** (2021) 1 ILRA 1017
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-07
- **Case number:** Application u/s 482 No. 13804 of 2020
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anmol-singh-v-state-of-u-p-anr-46750
- **Pages:** 10

## Headnote

A. Criminal Law - Application u/s 482 -
Power and Jurisdiction of Magistrate while
deciding application u/s 156(3) Cr.P.C. -
Code
of
Criminal
Procedure:
Section
156(3), 202(1), 190 - The Magistrate
empowered under section 190 Cr.P.C. may
order an investigation by police under
section 156(3) but he need not order any
such investigation if he proposes to take
cognizance of the offence. Once he takes
cognizance he has to follow the procedure
envisaged in Chapter XV of the code. (Para 6, 8)

It is true that every application under Section
156(3) Cr.P.C. disclosing commission of a
cognizable offence may not be directed for
investigation by police and the Magistrate has
jurisdiction to treat the same as a complaint
case but in exercise of such jurisdiction the
Magistrate has to keep in view various factors.
The exercise of jurisdiction is basically guided
by interest of justice, from case to case. (Para
14)

B. The magistrate should apply judicial mind
while exercising his powers u/s 156 (3)
Cr.P.C. He could not act in a mechanical or
casual manner and go on with the complaint
after getting the report. The course adopted by
the Magistrate i.e. direction to the police for
registration of FIR and making investigation or to
treat the application as a complaint case, must be
supported by reasons. The order must also reflect
that the Magistrate on relevant considerations has
adopted one of these two modes open to him.
Mere mention in the order that he has gone
through the complaint and the police investigation
is not required or otherwise, would not be
sufficient compliance of application of judicial mind
while deciding application u/s 156(3) Cr.P.C. (Para
8)

The direction u/s 156(3) Cr.P.C. is to be issued
only after application of mind by the Magistrate.
When the Magistrate does not take cognizance
and does not find it necessary to postpone
issuance of process and finds that a case is made
out to proceed forthwith, direction under the
provision is issued. In other words, where on
account of credibility of information available or
weighing the interest of justice it is considered
appropriate to straightway direct investigation,
such a direction is issued. The cases where
Magistrate takes cognizance and postpones
issuance of process are cases where the
Magistrate is yet to determine existence of
sufficient ground to proceed. (Para 10)

In the present case, perusal of the order clearly
shows that the Magistrate has not applied
judicious mind to the facts of the case, which not
only made out commission of a cognizable
offence but an offence of molestation and sexual
assault on the mother of the applicant. The
application clearly stated that the accused
persons are related to influential persons and as
such neither the FIR was being lodged nor the
medical of the applicant's mother was carried
out. In such matters the medical examination of
the victim is necessary. Merely because the facts
are in the knowledge of the applicant, direction to
lodge
FIR
cannot
be
refused.
The
gravity/seriousness
of
the
offence,
the
requirement of the evidence for the purpose of
launching a successful prosecution, and basically
the interest of justice depending on the facts of
each case, need be considered in passing the
order under Section 156(3) Cr.P.C. The offence,
as per the contents of the application is not a
matrimonial, commercial or family dispute, etc.
The order does not assign any valid reason nor
reflects application of judicious mind to relevant
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
considerations and does not stand the test of the
law. (Para 15)

Writ Petition/Application allowed. (E-3)

Precedent followed:

## Text

1 All. Anmol Singh Vs. State of U.P. & Anr.
1017
(2021)01ILR A1017
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.01.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application u/s 482 No. 13804 of 2020

Anmol Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Hari Prakash Singh

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Application u/s 482 -
Power and Jurisdiction of Magistrate while
deciding application u/s 156(3) Cr.P.C. -
Code
of
Criminal
Procedure:
Section
156(3), 202(1), 190 - The Magistrate
empowered under section 190 Cr.P.C. may
order an investigation by police under
section 156(3) but he need not order any
such investigation if he proposes to take
cognizance of the offence. Once he takes
cognizance he has to follow the procedure
envisaged in Chapter XV of the code. (Para 6, 8)

It is true that every application under Section
156(3) Cr.P.C. disclosing commission of a
cognizable offence may not be directed for
investigation by police and the Magistrate has
jurisdiction to treat the same as a complaint
case but in exercise of such jurisdiction the
Magistrate has to keep in view various factors.
The exercise of jurisdiction is basically guided
by interest of justice, from case to case. (Para
14)

B. The magistrate should apply judicial mind
while exercising his powers u/s 156 (3)
Cr.P.C. He could not act in a mechanical or
casual manner and go on with the complaint
after getting the report. The course adopted by
the Magistrate i.e. direction to the police for
registration of FIR and making investigation or to
treat the application as a complaint case, must be
supported by reasons. The order must also reflect
that the Magistrate on relevant considerations has
adopted one of these two modes open to him.
Mere mention in the order that he has gone
through the complaint and the police investigation
is not required or otherwise, would not be
sufficient compliance of application of judicial mind
while deciding application u/s 156(3) Cr.P.C. (Para
8)

The direction u/s 156(3) Cr.P.C. is to be issued
only after application of mind by the Magistrate.
When the Magistrate does not take cognizance
and does not find it necessary to postpone
issuance of process and finds that a case is made
out to proceed forthwith, direction under the
provision is issued. In other words, where on
account of credibility of information available or
weighing the interest of justice it is considered
appropriate to straightway direct investigation,
such a direction is issued. The cases where
Magistrate takes cognizance and postpones
issuance of process are cases where the
Magistrate is yet to determine existence of
sufficient ground to proceed. (Para 10)

In the present case, perusal of the order clearly
shows that the Magistrate has not applied
judicious mind to the facts of the case, which not
only made out commission of a cognizable
offence but an offence of molestation and sexual
assault on the mother of the applicant. The
application clearly stated that the accused
persons are related to influential persons and as
such neither the FIR was being lodged nor the
medical of the applicant's mother was carried
out. In such matters the medical examination of
the victim is necessary. Merely because the facts
are in the knowledge of the applicant, direction to
lodge
FIR
cannot
be
refused.
The
gravity/seriousness
of
the
offence,
the
requirement of the evidence for the purpose of
launching a successful prosecution, and basically
the interest of justice depending on the facts of
each case, need be considered in passing the
order under Section 156(3) Cr.P.C. The offence,
as per the contents of the application is not a
matrimonial, commercial or family dispute, etc.
The order does not assign any valid reason nor
reflects application of judicious mind to relevant
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
considerations and does not stand the test of the
law. (Para 15)

Writ Petition/Application allowed. (E-3)

Precedent followed:

1. Lalita Kumari Vs Govt. of India & ors.,
reported in (2014) (2) SCC 1 (Para 5)

2. Jitendra Kumar Vs St. of U.P. & ors., Criminal
Revision No. 1768 of 2018, decided on
29.05.2018 (Para 5)

3. Shiv Mangal Singh Vs St. of U.P. & ors.,
Criminal Revision No. 715 of 2019, decided on
25.02.2019 (Para 5)

4. Ashok Kumar Pathak Vs St. of U.P. & anr.,
passed in application u/s 482 Cr.P.C. No. 43271
of 2018, decided on 30.11.2018 (Para 5)

5. Sukhwasi Vs St. of U.P. & ors., 2007 (59) ACC
739 (Allahabad) (D.B.) (Para 6)

6. Suresh Chandra Jain Vs St. of M.P. & anr.
(2001) 2 SCC 628 (Para 8)

7. Mohd. Yusuf Vs Smt. Afaq Jahan & anr.
(2006) 1 SCC 627 (Para 8)

8. Ram Babu Gupta Vs St. of U.P. & ors. [2001
(43) ACC 50 (FB) (Para 8)

9. Sukhwasi Vs St. of U.P. & ors., [2007] (9)
ADJI (DB) (Para 8)

10. Ram Dev Food Products Vs St. of Guj.,
(2015) 6 SCC 439 (Para 8)

11. Gulab Chand Upadhyay Vs St. of U.P. & ors.,
(2002) SCC OnLine All 1221 (Para 11)

12. Lalaram Vs St. of U.P. & ors., passed in
Criminal Revision No. 1611 of 2020, decided on
18.12.2020 (Para 12)

Present petition/application has been filed
challenging the order dated 17.07.2020,
passed
by
Chief
Judicial
Magistrate,
Janupur u/s 156(3) Cr.P.C., whereby the
said application has been registered as a
complaint case.
(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Shri Hari Prakash Singh,
learned counsel for the applicant and
learned A.G.A. appearing for the State and
perused the material brought on record.

2. This application/petition under
Section 482 Code of Criminal Procedure
(Cr.P.C.) has been filed challenging the
order dated 17.07.2020, passed by learned
Chief Judicial Magistrate, Court No. 11,
Janupur in Criminal Misc. Application No.
180 of 2020 (Anmol Singh versus Krishan
Kumar Singh and others) under Section
156(3)
Cr.P.C.
Police
Station-Sarai
Khwaja, District- Jaunpur, whereby the
said application has been registered as a
complaint case.

3. Considering the nature of the order
under challenge; the pre-cognizance stage
of the case at which the proposed accused
have no right of hearing, that keeping this
application pending would serve no fruitful
purpose which would delay the proceedings
of the criminal case as well as the order
proposed to be passed, the notice to the
private respondents is dispensed with.

4. Briefly stated the facts of the case
as per the application/petition are that on
05.05.2020 at about 8.30 a.m. the accused
opposite party nos. 2 to 4 forcibly entered
in the house of the applicant armed with
lathi and danda, abused and misbehaved the
applicant and her mother. They also
threatened the applicant to kill him. The
accused committed sexual assault on the
mother of the applicant. The applicant was
medically
examined
but
no
medical
examination of the mother was conducted
in spite of request. The accused are related
to influential persons. The applicant's
report was not being registered, therefore,
1 All. Anmol Singh Vs. State of U.P. & Anr.
1019
the application under Section 156(3)
Cr.P.C. was filed on which the order under
challenge was passed.

5. Learned counsel for the applicant
submits that the application under Section
156(3) Cr.P.C. discloses commission of
cognizable offence and as such the
Magistrate
must
have
directed
the
registration of the first information report
and investigation by police, instead of
treating the application as a complaint case.
He further submits that the order under
challenge has been passed mechanically
and in a routine manner, which does not
manifest the application of judicious mind
to the facts of the case and law applicable
therein. He has placed reliance on the cases
of 'Lalita Kumari Vs. Government of India
and others', reported in 2014(2) SCC 1;
'Jitendra Kumar Vs. State of U.P. and 2
others', Criminal Revision No.1768 of
2018,
decided
on
29.05.2018;
'Shiv
Mangal Singh Vs. State of U.P. and
others', Criminal Revision No.715 of 2019,
decided on 25.02.2019 and 'Ashok Kumar
Pathak Vs. State of U.P. and another',
passed in application under Section 482
Cr.P.C. No.43271 of 2018, decided on
30.11.2018.

6. Learned AGA has submitted that
the Magistrate has the jurisdiction to direct
the police to register the F.I.R. and make
investigation without taking cognizance.
But, he has also the jurisdiction to take
cognizance and proceed to inquire the
matter
by
himself,
registering
the
application as a complaint case. In such
circumstance
he
has
to
follow
the
procedure prescribed for complaint case.
He has submitted that the Magistrate while
proceeding as a complaint case has still the
power to direct for police investigation, in
view of Section 202(1) Cr.P.C. If the
Magistrate in his discretion has adopted the
option of registering the application as a
complaint case, no illegality has been
committed by the Magistrate. Learned
A.G.A. has placed reliance on the case of
'Sukhwasi Vs. State of U.P. and others'
2007 (59) ACC 739 (Allahabad) (D.B.) in
support of his contention that it is in the
discretion of the Magistrate to direct for
police
investigation
before
taking
cognizance under Section 156(3) Cr.P.C.,
or after taking cognizance to proceed with
the application as a complaint case.

7. I have considered the submissions
as advanced by the learned counsel for the
applicant, the learned AGA and perused the
material brought on record.

8. In the cases of Suresh Chandra
Jain vs State of M.P. and another (2001)
2 SCC 628; Mohd. Yousuf Vs. Smt. Afaq
Jahan & another another (2006) 1 SCC
627; Ram Babu Gupta Vs. State of U.P.
& others [2001 (43) ACC 50 (FB);
Sukhwasi Vs. State of U.P. & others
[2007 (9) ADJI (DB) & Ram Dev Food
Products Vs. State of Gujarat (2015) 6
SCC 439 it has been laid down that the
Magistrate empowered under section 190
Cr.P.C. may order an investigation by
police under section 156 (3) but he need
not order any such investigation if he
proposes to take cognizance of the offence.
Once he takes cognizance he has to follow
the procedure envisaged in Chapter XV of
the code. The magistrate should apply
judicial mind while exercising his powers
under Section 156 (3) Cr.P.C. He could not
act in a mechanical or casual manner and
go on with the complaint after getting the
report.
The
course
adopted
by
the
Magistrate i.e. direction to the police for
registration
of
FIR
and
making
investigation or to treat the application as a
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint case, must be supported by
reasons. The order must also reflect that the
Magistrate on relevant considerations has
adopted one of these two modes open to
him.Mere mention in the order that he has
gone through the complaint and the police
investigation is not required or otherwise,
would not be sufficient compliance of
application of judicial mind while deciding
application under Section 156(3) Cr.P.C.

9. In the case of Lalita Kumari Vs.
Government
of
India
and
others
reported in 2014 (2) SCC 1 the Hon'ble
Supreme Court has held as under:

"120) In view of the aforesaid
discussion, we hold:

"i)
Registration
of
FIR
is
mandatory under Section 154 of the Code,
if the information discloses commission of
a cognizable offence and no preliminary
inquiry is permissible in such a situation.

ii) If the information received
does not disclose a cognizable offence but
indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only
to ascertain whether cognizable offence is
disclosed or not.

iii) If the inquiry discloses the
commission of a cognizable offence, the
FIR must be registered. In cases where
preliminary inquiry ends in closing the
complaint, a copy of the entry of such
closure must be supplied to the first
informant forthwith and not later than one
week. It must disclose reasons in brief for
closing the complaint and not proceeding
further.

iv) The police officer cannot
avoid his duty of registering offence if
cognizable offence is disclosed. Action
must be taken against erring officers who
do not register the FIR if information
received by him discloses a cognizable
offence.

v) The scope of preliminary
inquiry is not to verify the veracity or
otherwise of the information received but
only to ascertain whether the information
reveals any cognizable offence.

vi) As to what type and in which
cases
preliminary
inquiry
is
to
be
conducted will depend on the facts and
circumstances of each case. The category
of cases in which preliminary inquiry may
be made are as under:

a) Matrimonial disputes/ family
disputes

b)Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal
delay/laches
in
initiating
criminal
prosecution, for example, over 3 months
delay in reporting the matter without
satisfactorily explaining the reasons for
delay.

The
aforesaid
are
only
illustrations and not exhaustive of all
conditions which may warrant preliminary
inquiry.

vii)
While
ensuring
and
protecting the rights of the accused and the
complainant, a preliminary inquiry should
be made time bound and in any case it
should not exceed 7 days. The fact of such
1 All. Anmol Singh Vs. State of U.P. & Anr.
1021
delay and the causes of it must be reflected
in the General Diary entry.

viii)
Since
the
General
Diary/Station Diary/Daily Diary is the
record of all information received in a
police
station,
we
direct
that
all
information relating to cognizable offences,
whether resulting in registration of FIR or
leading to an inquiry, must be mandatorily
and meticulously reflected in the said Diary
and the decision to conduct a preliminary
inquiry
must
also
be
reflected,
as
mentioned above."

10. The case of Lalita Kumari
(supra) came to be considered in Ramdev
Food Products Private Ltd. Vs. State of
Gujarat (2015) 6 SCC 439 the first question
as framed therein was "whether the
discretion of the Magistrate to call for a
report under Section 202 Cr.P.C. instead of
directing
investigation
under
Section
156(3) Cr.P.C. is controlled by any defined
parameters? The Hon'ble Supreme Court
answered the first question by holding that
the direction under Section 156(3) Cr.P.C.
is to be issued only after application of
mind by the Magistrate. When the
Magistrate does not take cognizance and
does not find it necessary to postpone
issuance of process and finds that a case is
made out to proceed forthwith, direction
under the provision is issued. In other
words, where on account of credibility of
information available or weighing the
interest
of
justice
it
is
considered
appropriate
to
straightway
direct
investigation, such a direction is issued.
The
cases
where
Magistrate
takes
cognizance and postpones issuance of
process are cases where the Magistrate is
yet to determine existence of sufficient
ground to proceed. The category of cases
falling under para 120.6 in Lalita Kumari
may fall under section 202 Cr.P.C. Subject
to these broad guidelines available from the
scheme of the Court, exercise of discretion
by the Magistrate is guided by interest of
justice from case to case. Para Nos. 22 to
22.3 of Ramdev Food Products (P) Ltd.
(supra) is being reproduced as under:

"22. Thus, we answer the first
question by holding that:

22.1. The direction under Section
156 (3) is to be issued, only after
application of mind by the Magistrate.
When the Magistrate does not take
cognizance and does not find it necessary
to postpone the issuance of process and
finds a case made out to proceed forthwith,
direction under the said provision is issued.
In other words, where on account of
credibility of information available, or
weighing the interest of justice it is
considered appropriate to straightaway
direct investigation, such a direction is
issued.

22.2. The cases where Magistrate
takes cognizance and postpones issuance of
process are cases where the Magistrate has
yet to determine "existence of sufficient
ground to proceed". Category of cases
falling under para 120.6 in Lalita Kumar
may fall under Section 202 Cr.P.C..

22.3. Subject to these broad
guidelines available from the scheme of the
Code, exercise of discretion by the
Magistrate is guided by interest of justice
from
case
to
case."

11. It would also be appropriate to
refer to the judgment of this Court in the
case of Gulab Chand Upadhyay Vs State of
U.P. and others 2002 SCC OnLine All
1221 in which this Hon'ble Court has held
as under:
1022 INDIAN LAW REPORTS ALLAHABAD SERIES

"20. In these circumstances, the
question arises that when a Magistrate is
approached by a complainant with an
application praying for a direction to the
police under Section 156 (3) to register and
investigate an alleged cognizable offence,
why should he

(A) grant the relief of registration
of a case and its investigation by the police
under Section 156 (3) Cr.P.C. and when
should he

(B) treat the application as a
complaint and follow the procedure of
Chapter XV of Cr.P.C.

21. The scheme of Cr.P.C. and
the prevailing circumstances require that
the option to direct the registration of the
case and its investigation by the police
should
be
exercised
where
some
investigation is required, which is of a
nature that is not possible for the private
complainant, and which can only be done
by the police under whom statute has
conferred
the
powers
essential
for
investigation, for example

(1) where the full details of the
accused
are
not
known
to
the
complainant and the same can be
determined
only
as
a
result
of
investigation, or

(2) where recovery of abducted
person or stolen property is required to
be made by conducting raids or searches
of suspected places or persons, or

(3) where for the purpose of
launching a successful prosecution of the
accused evidence is required to be
collected and preserved. To illustrate by
example cases may be visualised where
for production before Court at the trial
(a) sample of blood soaked soil is to be
taken and kept sealed for fixing the place
of incident; or (b) recovery of case
property is to be made and kept sealed;
or (c) recovery under Section 27 of the
Evidence Act; or (d) preparation of
inquest report; or (e) witnesses are not
known and have to be found out or
discovered
through
the
process
of
investigation.

22. But where the complainant
is in possession of the complete details of
all the accused as well as the witnesses
who have to be examined and neither
recovery is needed nor any such material
evidence is required to be collected which
can be done only by the police, no
"investigation"
would
normally
be
required and the procedure of complaint
case should be adopted. The facts of the
present case given below serve as an
example. It must be kept in mind that
adding unnecessary cases to the diary of
the police would impair their efficiency in
respect of cases genuinely requiring
investigation. Besides even after taking
cognizance
and
proceeding
under
Chapter XV the Magistrate can still
under Section 202 (1) Cr.P.C. order
investigation, even thought of a limited
nature (see para 7 of JT (2001) 2 (SC)
81: ((2001) 2 SCC 628: AIR 2001 SC
571)."

12. Recently, in the case of 'Lalaram
Vs. State of U.P. and 13 others' passed in
Criminal Revision No.1611 of 2020,
decided on 18.12.2020, this Court has
summarized the well settled proposition of
law on the scope of Section 156(3) Cr.P.C.,
the power and jurisdiction of the Magistrate
while deciding such an application. It
would
be
appropriate
to
reproduce
1 All. Anmol Singh Vs. State of U.P. & Anr.
1023
paragraph no.40 of the case of Lalaram
(Supra), as under:-

"40.
From
the
aforesaid
judgments,
some
of
the
following
proposition of law, well settled, may be
summarized as under:-

(40.01). Under Section 154 of the
Code,
if
the
information
discloses
commission of a cognizable offence it is the
mandatory duty of the police officer in
charge to register the FIR. He cannot avoid
his duty of registering offence, if cognizable
offence is made out.

(40.02). If FIR is not registered,
the person aggrieved by a refusal to record
the information has remedy to approach
the Superintendent of Police by submitting
an application in writing and by post to
enable him to satisfy if such information
discloses the commission of a cognizable
offence and in case of such satisfaction,
either to investigate himself or direct an
investigation to be made by any police
officer subordinate to him.

(40.03). If the person still feels
aggrieved from inaction of the police
authorities he has the remedy to approach
the Magistrate by way of application under
Section 156(3) Cr.P.C.,

(40.04). On such an application
having been made, if, the Magistrate finds
that a cognizable offence is made out, the
Magistrate may direct the police to register
the FIR and investigate the matter, without
taking cognizance.

(40.05). The other option open to
the Magistrate is to take cognizance on the
complaint, register it as a complaint case
and
proceed
as
per
the
procedure
prescribed under Chapter XV Cr.P.C. The
Magistrate would record the statement of
the complainant and the witnesses if any
present, under Section 200 Cr.P.C. He
may, if he thinks fit and shall in cases
where accused resides out side the area of
exercise of jurisdiction of the Magistrate
concerned, either enquire into the case
himself or direct an investigation to be
made by a police officer or by such other
person as he thinks fit, under Section
202(1) Cr.P.C. Thereafter, he shall pass
order, either under Section 203 dismissing
the complaint, for brief reasons to be
recorded, or he shall issue process under
Section 204 Cr.P.C.

(40.06). In either case, i.e. issuing
direction for investigation by the police
officer under Section 156(3) Cr.P.C. or
taking cognizance and registering it as a
complaint case, the Magistrate has to apply
judicial mind. There cannot be mechanical
exercise of jurisdiction or exercise in a
routine manner. Mere statement in the
order that he has gone through the
complaint, documents and heard the
complainant will not be sufficient. What
weighed with the Magistrate to order
investigation or to take cognizance should
be reflected in the order, although a
detailed expression of his view is neither
required nor warranted.

(40.07).
The
exercise
of
discretion by the Magistrate is basically
guided by interest of justice, from case to
case.

(40.08). However, where some
investigation is required which is of a
nature that is not possible for the private
complainant and which can only be done
by the police officer upon whom statute has
conferred
the
powers
essential
for
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation, the option to direct the
registration of the FIR and its investigation
by the police officer should be exercised,
for example:-

(i) where the full details of the
accused are not known to the complainant
and the same can be determined only as a
result of investigation, or

(ii) where recovery of abducted
person or stolen property is required to be
made by conducting raids or searches of
suspected places or persons, or

(iii) where for the purpose of
launching a successful prosecution of the
accused evidence is required to be
collected and preserved, and to illustrate
this, by few example cases may be
visualised where for production before
Court at the trial

(a) sample of blood soaked soil is
to be taken and kept sealed for fixing the
place of incident; or

(b) recovery of case property is to
be made and kept sealed; or

(c) recovery under Section 27 of
the Evidence Act; or

(d) preparation of inquest report;
or

(e) witnesses are not known and
have to be found out or discovered through
the process of investigation.

(40.09). Where the complainant is
in possession of the complete details of all
the accused and the witnesses who have to
be examined and neither recovery is
needed nor any such material evidence is
required to be collected which can be done
only by the police, no "investigation" would
normally be required and the procedure of
complaint case should be adopted.

(40.10). Category of cases falling
under para 120.6 in Lalita Kumari (Supra)
i.e.

(a) Matrimonial disputes/family
disputes

(b) Commercial offences

(c) Medical negligence cases,

(d) Corruption cases

(e)
Cases
where
there
is
abnormal
delay
in
filling
criminal
complaint etc. may fall under Section 202
Cr.P.C .

(40.11). The Magistrate should
also keep in view that primarily, it is the
duty of the State/police to investigate the
cases
involving
cognizable
offence.
Generally, the burden of proof to bring the
guilt of the accused is on the State and this
burden is a heavy burden to prove the guilt
beyond all reasonable doubts. This burden
should not unreasonably be shifted on an
individual/complainant from the State by
treating the application under Section
156(3) Cr.P.C. as a complaint case.

(40.12). The investigation which
the police officer or such other person
makes in pursuance of the direction of the
Magistrate under Section 202(1) Cr.P.C. is
the same kind of investigation as is
required to be conducted by police officer,
under Chapter XII Cr.P.C. which ends with
submission of the report as per Section
173(2) Cr.P.C.
1 All. Anmol Singh Vs. State of U.P. & Anr.
1025

(40.13).
The
distinction
between the investigation by the police
officer under Section 156(3) and under
Section 202(1) Cr.P.C. is that the
former is at the pre-cognizance stage
and the latter is at post cognizance
stage, when the Magistrate is seisin of
the
case.
The
investigation
under
Section 202(1) Cr.P.C. is for the
purpose of ascertaining the truth or
false hood of the complaint for helping
the Magistrate to decide, whether or not
there is sufficient ground, for him to
proceed further against the accused by
issuing process, whereas, the inquiry
report under Section 173(2) Cr.P.C. of
the investigation made by the police of
its own or under the directions of the
Magistrate
under
Section
156(3)
Cr.P.C. is for the purpose of enabling
the Magistrate to take cognizance of an
offence under Section 190(1)(a) Cr.P.C.

(40.14). Once cognizance is
taken on the application under Section
156(3) Cr.P.C. by the Magistrate and
he
embarks
upon
the
procedure
embodied in Chapter XV, he would not
be competent to revert to the precognizance stage under Section 156(3)
Cr.P.C.

(40.15). If the Magistrate did
not order for police investigation under
Section
156(3)
Cr.P.C.
and
took
cognizance of the case, that would not
be bar to the exercise of the power of
the Magistrate for directing the police
investigation
under
Section
202(1)
Cr.P.C."

13. In 'Jitendra Kumar' (Supra),
'Shiv Mangal Singh' (Supra) and 'Ashok
Kumar Pathak' (Supra) relied upon by the
learned counsel for the applicant also it was
held that the Magistrate shall pass order
with due application of judicious mind.

14. It is true that every application
under Section 156(3) Cr.P.C. disclosing
commission of a cognizable offence may
not be directed for investigation by police
and the Magistrate has jurisdiction to treat
the same as a complaint case but in
exercise of such jurisdiction the Magistrate
has to keep in view various factors as laid
down in Lalaram (supra), which are only
illustrative
and
not
exhaustive.
The
exercise of jurisdiction is basically guided
by interest of justice, from case to case.

15. Perusal of the order clearly shows
that the Magistrate has not applied
judicious mind to the facts of the case and
in particular paragraph no.3 of the
application, which not only made out
commission of a cognizable offence but an
offence of molestation and sexual assault
on the mother of the applicant. The
application clearly stated that the accused
persons are related to influential persons
and as such neither the FIR was being
lodged nor the medical of the applicant's
mother was carried out. In such matters the
medical examination of the victim is
necessary. The medical report of the victim
is of importance. Merely because the facts
are in the knowledge of the applicant,
direction to lodge FIR cannot be refused.
The gravity/seriousness of the offence; the
requirement of the evidence for the purpose
of launching a successful prosecution, and
basically the interest of justice depending
on the facts of each case, need be
considered in passing the order under
Section 156(3) Cr.P.C. The offence, as per
the contents of the application is not a
matrimonial, commercial or family dispute,
etc. The order does not assign any valid
reason nor reflects application of judicious
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
mind to relevant considerations and does
not stand the test of the law as laid down in
the cases of ''Ram Deo Food Products'
(Supra) and 'Gulab Chand Upadhyay'
(Supra).

16. The present petition/application is,
therefore,
allowed.
The
order
under
challenge is set-aside with the direction to
the learned Magistrate to pass fresh orders
on the application of the applicant after
affording opportunity of hearing to him, in
accordance with law, in the light of the
observations made herein above, within a
period of one month from the date of
production of true/attested copy of this
judgment before the learned Magistrate
concerned.

17. No orders as to costs.
----------
(2021)01ILR A1026
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2020

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Matter Under Article 227 No. 3189 of 2020

Gurmej Singh & Ors. ...Petitioners
Versus
Ranjit Kaur & Ors. ...Respondents

Counsel for the Petitioners:
Sri
Praveen
Kumar,
Sri
Onkar
Nath
Vishwakarma, Sri Pradeep Kumar

Counsel for the Respondents:
Sri
Arvind
Kumar
Tiwari,
Sri
Arvind
Srivastava

A. Civil Law - Constitution of India: Article
227 - Maintainability of appeal against
order passed in exercise of powers under
Proviso to Rule 3 of Order 39 CPC - Code
of Civil Procedure, 1908: Order 39 Rule 3A, Order 39 Rule 3, Order 43 Rule (1)(r) -
In Order 43 Rule (1) (r) CPC, though Rule
3 (which necessarily include Proviso to
Rule 3 of Order 39 CPC) has not been
mentioned, however, in view of the
authorities the appeal under the aforesaid
provision would be maintainable.

Such appeal, if filed, would be maintainable
only after expiry of thirty days, where the
provision of added Rule 3-A to Order 39 CPC
is in force. However, in the State of U.P.,
since the Circular dated 16.8.2017 has been
issued providing for six months time for
disposal of applications of interim injunction
failing which the subordinate court must
have to record reasons in the order-sheet,
therefore, such misc. appeal would be
maintainable only after expiry of six months.
(Para 38)

In
absence
of
any
specific
statutory
provision, such appeal, if filed, on expiry of
aforesaid time period can be entertained
guided by the parameters set out in the
judgment of A. Venkatasubbiah Naidu (infra)
or in any other judgment on this issue.

In the present case, the defendant has not
filed any application before the trial court to
vacate the ex-parte temporary injunction and
it is also not a case where plaintiff is
aggrieved that the trial court is not deciding
or has failed to decide the temporary
injunction
application.
Therefore,
as
observed by Hon'ble Supreme Court in A.
Venkatasubbiah Naidu (infra), the order
dated 5.8.2020 passed by the trial court
cannot be deemed to be final order in nature
on the date of expiry of thirty days
mentioned in Order 39 Rule 3-A CPC. The
natural consequence whereof is that misc.
appeal under Order 43 Rule 1(r) CPC would
not be maintainable. (Para 16)

In
the
State
of
U.P.
in
absence
of
applicability of Rule 3-A thirty days time limit
can be safely treated to be six months for
disposal of temporary injunction application
and also for the purpose of deemed inclusion
of order passed in exercise of powers under
Proviso to Rule 3 of Order 39 CPC (after six