# Ashok Kumar Revisionist v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 170
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-22
- **Case number:** Criminal Revision No. 2942 of 2021
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-revisionist-v-state-of-u-p-ors-46462
- **Pages:** 9

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 - Revision -
Indian Penal Code, 1860 - Power exercised
under Section 397/401 of the Code of Criminal
Procedure is limited - until and unless the
order so challenged therein passed by the
Magistrate is perverse or the view taken by the
Court wholly unreasonable or there is nonconsideration of any relevant material or there
is palpable misreading of record - revisional
court is not justified in interfering with the
order that too merely because also another
view is possible.(Para -17 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 156(3) - Provisions
under Section 156(3) Cr.P.C. should be used
sparingly - Should not be used unless there is
something unusual and extra ordinary like
miscarriage of justice - which warrants a
direction to the Police to register a case - Such
applications should not be allowed because the
law provides them with an alternative remedy
of filing a complaint - therefore, recourse
should not normally be permitted for availing
the provisions of Section 156(3) Cr.P.C.(Para -
27)

Revisionist filed the present revision - challenging the
order passed by Additional Judicial Magistrate - court
below rejected the application - preferred by the
revisionist under Section 156(3) Cr.P.C. - for lodging
the first information report against opposite parties
no. 2 to 9.

HELD:-Exercise of the powers under Section 156(3)
Cr.P.C. should be used sparingly and not in routine
manner . Pure findings of fact has been recorded
which has not been disputed by the revisionist either
by means of arguments or by pleading. (Para - 28,29)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

## Text

170 INDIAN LAW REPORTS ALLAHABAD SERIES
Kantibhai Patel and others 2017 (4) SCC 177
relevant paragraph 50 of the judgement is quoted
herein below:-

"The unamended and amended SubSection 8 of Section 173 of the Code if read in
juxtaposition, would overwhelmingly attest that
by the latter, the Investigating Agency/Officer
alone has been authorised to conduct further
investigation without limiting the stage of the
proceedings relatable thereto. The power qua
the
Investigating
Agency/Officer
is
thus
legislatively intended to be available at any
stage of the proceedings. The recommendation
of the Law Commission in its 41st Report which
manifestly
heralded
the
amendment,
significantly had limited its proposal to the
empowerment of the investigating agency
alone."

7. Learned counsel for the revisionist, on
the other hand, has placed reliance upon the
judgement rendered by the Hon'ble Supreme
Court in Vinubhai Haribhai Malviya and
Others Vs. State of Gujrat and Another 2019
(17) SCC 1.

8. This Court has considered paragraph 25
of the Judgement which has been relied upon by
the learned counsel for the revisionist and finds
that there is no specific direction issued by the
Hon'ble Supreme Court that even the accused
can file an application under Section 173 (8) for
further investigation.

9. This Court has also considered the order
of the learned trial court rejecting the application
of the revisionist. Learned trial court has
considered the fact that the discharge application
of the revisionist is already pending before it and
that charge-sheet had not been submitted only on
the basis of the CFSL report, there were other
attending circumstances and evidences that were
relied upon to submit the said charge-sheet and
also that even after investigation is closed, under
Section 173 (8), the Investigating Agency can
file an application or the learned trial court can
itself direct further investigation. It is not as if
only the CFSL report shall be relied upon by the
learned trial court in convicting the accused. As
and when evidences are led in the matter, the
accused shall have opportunity to question the
report and its validity. It has also been observed
by the learned trial court that the accused's file
had been separated from the original case file on
24.10.2019, it was received in the trial court on
03.03.2020 alongwith application, the case had
been continuously listed since 22.09.2021 for
arguments on discharge application of the
accused. Therefore, at that stage, where the trial
had to be still initiated, no application under
Section 173 (8) (B) by the accused could have
been entertained. A date has also been fixed for
hearing arguments on the discharge application
by the learned trial court.

10. This Court finds no good ground to
show interference in this revision.

11. Accordingly, this revision stands
rejected.
----------
(2021)12ILR A170
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 2942 of 2021

Ashok Kumar ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Dharmendra Singh

Counsel for the Opposite Parties:
A.G.A.
11 All. Ashok Kumar Vs. State of U.P. & Ors.
171
(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 - Revision -
Indian Penal Code, 1860 - Power exercised
under Section 397/401 of the Code of Criminal
Procedure is limited - until and unless the
order so challenged therein passed by the
Magistrate is perverse or the view taken by the
Court wholly unreasonable or there is nonconsideration of any relevant material or there
is palpable misreading of record - revisional
court is not justified in interfering with the
order that too merely because also another
view is possible.(Para -17 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 156(3) - Provisions
under Section 156(3) Cr.P.C. should be used
sparingly - Should not be used unless there is
something unusual and extra ordinary like
miscarriage of justice - which warrants a
direction to the Police to register a case - Such
applications should not be allowed because the
law provides them with an alternative remedy
of filing a complaint - therefore, recourse
should not normally be permitted for availing
the provisions of Section 156(3) Cr.P.C.(Para -
27)

Revisionist filed the present revision - challenging the
order passed by Additional Judicial Magistrate - court
below rejected the application - preferred by the
revisionist under Section 156(3) Cr.P.C. - for lodging
the first information report against opposite parties
no. 2 to 9.

HELD:-Exercise of the powers under Section 156(3)
Cr.P.C. should be used sparingly and not in routine
manner . Pure findings of fact has been recorded
which has not been disputed by the revisionist either
by means of arguments or by pleading. (Para - 28,29)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

1. K. Chinnaswamy Reddy Vs St. of A.P. & anr., AIR
1962, S.C. 1788

2. Mahendra Pratap Singh Vs Sarju Singh & anr., AIR
(55) 1968, S.C. 707

3. Johar & ors. Vs Mangal Prasad & ors. , 2008 Cr.
L.J. 1627
4. St. of Kerala Vs Puttumana Illath Jathavedan
Namboodiri , 1999(2) SCC 452

5. Sanjaysinh Ramrao Chavan Vs Dattatray Gulabrao
Phalke, (2015) 3 SCC 123

6. Kishan Rao Vs Shankargouda , (2018) 8 SCC 165

7. Priyanka Srivastava & ors. Vs St. of U.P. & Ors. ,
AIR 2015 SC 1758

8. Rambabu Gupta Vs St. of U.P. , Criminal Misc. Writ
Petition No.3672 of 2000

9. Sukhbali Vs St. of U.P., 2007 (59) ACC 739

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Sri Dharmendra Singh, learned
counsel for the revisionist and learned AGA,
who appears for the opposite party no.1.

2. The revisionist has filed the present
revision challenging the order dated 4.9.2021
passed by Additional Judicial Magistrate,
Moradabad in Misc. Case No.1129 of 2021
Ashok Kumar Vs. Smt. Mohini Mishra, whereby
whereunder the court below has rejected the
application preferred by the revisionist under
Section 156(3) Cr.P.C. for lodging the first
information report against opposite parties no. 2
to 9.

3. As per case set up by the revisionist,
revisionist is a social worker, who is effectively
involved in social work and he continuously
prefers application under Right To Information
Act, 2005 on account whereof the opposite party
no.2 bore personal enmity with him.

4. The revisionist has further come up with
the case that the villagers approach him
regarding solving their of difficulties and
problems. Revisionist was also in aspirant for
contesting the elections of the office of Pradhan.
However, the same was earmarked as a woman
seat, the revisionist made her mother the
172 INDIAN LAW REPORTS ALLAHABAD SERIES
contestant on account whereof the opposite party
no.2 became annoyed as according to the
opposite party no.2 the mother of the revisionist
was bound to win the elections of the office of
the Pradhan and she would expose opposite
party no.2 with respect to misappropriation so
committed by the opposite party no.2 with
regard to public money.

5. The revisionist has also alleged that on
16.2.2021, the fair price shop agent Sri
Mahendra's husband Gajraj, Raju along with a
Tangewala arrived on a road in front of the
house of the revisionist and he called the
revisionist but the mother of the revisionist came
out of the house and then the aforesaid persons
asked about the whereabouts of the revisionist
and when the mother of the revisionist informed
them that the revisionist is not in the house then
the fair price shop agent husband Gajraj and
Tangewala
requested
the
mother
of
the
revisionist to store the food-grains referable to
Public Distribution Scheme (PDS) in the house
of the revisionist as Tanga is not in a position to
move. When the mother of the revisionist
resisted then opposite party no.2 and the earlier
Pradhan Rajendra spread rumour that the foodgrains related to public distribution scheme is in
the house of the revisionist and then they
informed the police. The mother of the
revisionist resisted the said act and omission of
the opposite party but Rajendra and Jai Hind had
beaten up the mother of the revisionist and they
also entered into house forcibly and also had
beaten the sister and the younger brother of the
revisionist.

6. According to the revisionist, the incident
which occurred on 16.2.2021 was informed to the
police for registration of the FIR, however, the first
information report was not lodged then the
revisionist preferred an application under Section
156(3) Cr.P.C. which has been came to be rejected
by the order under challenge dated 4.9.2021 passed
by Chief Judicial Magistrate, Moradabad in
Complaint Case No.1129 of 2021, Ashok Vs.
Mohini and others.

7. The revisionist being aggrieved against the
order dated 6.9.2021 passed by the Chief Judicial
Magistrate,
Moradabad
in
Complaint
Case
No.1129 of 2001, Ashok Vs. Mohini and others is
before this Court while filing the present revision.

8. Before proceeding further it is apt to
discuss and analyse the statutory provisions
purported to be under Section 397/401 Cr.P.C.,
1973 as applicable in the State of U.P.

"397. Calling for records to exercise
powers of revision.

(1) The High Court or any Sessions
Judge may call for and examine the record of any
proceeding before any inferior Criminal Court
situate within its or his local jurisdiction for the
purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding,
sentence or order,- recorded or passed, and as to
the regularity of any proceedings of such inferior
Court, and may, when calling for such record,
direct that the execution of any sentence or order
be suspended, and if the accused is in confinement,
that he be released on bail or on his own bond
pending the examination of the record.

Explanation.- All Magistrates whether
Executive or Judicial, and whether exercising
original or appellate jurisdiction, shall be deemed
to be inferior to the Sessions Judge for the
purposes of this sub- section and of section 398.

(2) The powers of revision conferred
by sub- section (1) shall not be exercised in
relation to any interlocutory order passed in any
appeal, inquiry, trial or other proceeding.

(3) If an application under this section
has been made by any person either to the High
Court or to the Sessions Judge, no further
application by the same person shall be
entertained by the other of them.

401. High Court' s Powers of
revisions.
11 All. Ashok Kumar Vs. State of U.P. & Ors.
173

(1) In the case of any proceeding the
record of which has been called for by itself or
Which otherwise comes to its knowledge, the
High Court may, in its discretion, exercise any
of the powers conferred on a Court of Appeal by
sections 386, 389, 390 and 391 or on a Court of
Session by section 307 and, when the Judges
composing the Court of revision are equally
divided in opinion, the case shall be disposed of
in the manner provided by section 392.

(2) No order under this section shall
be made to the prejudice of the accused or other
person unless he has had an opportunity of
being heard either personally or by pleader in
his own defence.

(3) Nothing in this section shall be
deemed to authorise a High Court to convert a
finding of acquittal into one of conviction.

(4) Where under this Code an appeal
lies and no appeal is brought, no proceeding by
way of revision shall be entertained at the
instance of the party who could have appealed.

(5) Where under this Code tan appeal
lies but an application for revision has been
made to the High Court by any person and the
High Court Is satisfied that such application
was made under the erroneous belief that no
appeal lies thereto and that it is necessary in the
interests of justice

so to do, the High Court may treat the
application for revision as a petition of appeal
and deal with the same accordingly."

9. A conjoint reading of the provisions
contained under Section 397 as well as 401 of
the Code of Criminal Procedure, it will clearly
reveal that High Court of any Sessions Judge
may call for and examine the record of any
proceedings before any inferior criminal court
situate within its or its local jurisdiction for the
purposes of satisfying itself or himself as to the
correctness, legality or probability of any
finding, sentence or order recorded or passed
and as to the regularity of any proceedings of
such inferior court.

10. The issue with regard to the scope and
the extent of revisional jurisdiction under
Section 391 read with Section 401 of the Code
of Criminal Procedure, 1973 is no more res
integra as the Hon'ble Supreme Court and this
Court in catena of decisions interpreted the same
which is being recapitulated hereunder:-

11. The Apex Court in the case of K.
Chinnaswamy Reddy Vs. State of Andhra
Pradesh and another reported in AIR 1962,
S.C. 1788 in para 7 observed as under :-

"7. It is true that it is open to a High
Court in revision to set aside an order of
acquittal even at the instance of private parties,
though the State may not have though fit to
appeal; but this jurisdiction should in our
opinion be exercised by the High Court only in
exceptional cases, when there is some glaring
defect in the procedure or there is a manifest
error on a point of law and consequently there
has been a flagrant miscarriage of justice. Subsection (4) of s. 439 forbids a High Court from
converting a finding of acquittal into one of
conviction and that makes it all the more
incumbent on the High Court to see that it does
not convert the finding of acquittal into one of
conviction by the indirect method of ordering
retrial, when it cannot itself directly convert a
finding of acquittal into a finding of conviction.
This places limitations on the power of the High
Court to set aside a finding of acquittal in
revision and it is only in exceptional cases that
this power should be exercised. It is not possible
to lay down the criteria for determining such
exceptional cases which would cover all
contingencies. We may however indicate some
cases of this kind, which would in our opinion
justify the High Court in interfering with a
finding of acquittal in revision. These cases may
be : where the trial court has no jurisdiction to
try the case but has still acquitted the accused,
or where the trial court has wrongly shut out
evidence which the prosecution wished of
174 INDIAN LAW REPORTS ALLAHABAD SERIES
produce, or where the appeal court has wrongly
held evidence which was admitted by the trial
court to be inadmissible, or where material
evidence has been overlooked either by the trial
court or by the appeal court, or where the
acquittal is based on a compounding of the
offence, which is invalid under the law.

These and other cases of similar
nature can properly be held to be cases of
exceptional nature, where the High Court can
justifiably interfere with an order of acquittal;
and in such a case it is obvious that it cannot be
said that the High Court was doing indirectly
what it could not do directly in view of the
provisions of s. 439.

(4) We have therefore to see whether
the order of the High Court setting aside the
order of acquittal in this case can be upheld on
these principles."

12. The Apex Court in the case of
Mahendra Pratap Singh Vs. Sarju Singh and
another reported in AIR (55) 1968, S.C. 707
in para 7 observed as under:-

"7. In revision, the learned Judge in
the High Court went into the evidence very
minutely. He questioned every single finding of
the learned Sessions Judge and gave his own
interpretation of the evidence and the inferences
to be drawn from it. He discounted the theory
that the weapon of attack was a revolver and
suggested that it might have been a shot gun or
country made pistol which the villagers in the
position of Kuldip and Sarju could not
distinguish from a revolver. He then took up
each single circumstance on which the learned
Sessions Judge had found some doubt and
interpreting the evidence de novo held, contrary
to the opinion of the Sessions Judge that they
were acceptable. All the time he appeared to
give the benefit of the doubt to the prosecution.
The only error of law which the learned Judge
found in the Sessions Judge's judgment was a
remark by the Sessions Judge that the defence
witnesses who were examined by the police
before they were brought as defence witnesses
ought to have been cross-examined with
reference to their previous statements recorded
by the police, which obviously is against the
provisions of the Code. Except for this error, no
defect of procedure or of law was discovered by
the learned Judge of the High Court in his
appraisal of the judgment of the Sessions Judge.
As stated already by us, he seems to have gone
into the matter as if an appeal against acquittal
was before him making no distinction between
the appellate and the revisional powers
exercisable by the High Court in matters of
acquittal except to the extent that instead of
convicting the appellant he only ordered his
retrial. In our opinion the learned Judge was
clearly in error in proceeding as he did in a
revision filed by a private party against the
acquittal reached in the Court of Session."

13. The Apex Court in the case of Johar
and Ors. vs. Mangal Prasad and Ors.
reported in 2008 Cr. L.J. 1627 in paras 9, 10,
11, 12, 13 has observed as under:-

"9. Revisional jurisdiction of the High
Court in terms of Section 397 read with Section
401 of the Code of Criminal Procedure is
limited. The High Court did not point out any
error of law on the part of the learned Trial
Judge. It was not opined that any relevant
evidence has been left out of its consideration by
the court below or irrelevant material has been
taken into consideration. The High Court
entered into the merit of the matter. It
commented upon the credentiality of the Autopsy
Surgeon. It sought to re- appreciate the whole
evidence. One possible view was sought to be
substituted by another possible view.

10. Sub-section (3) of Section 401
reads as under:

401(3). Nothing in this section shall be
deemed to authorize a High Court to convert a
finding of acquittal into one of conviction.
11 All. Ashok Kumar Vs. State of U.P. & Ors.
175

Technically, although Ms. Makhija
may be correct that the High Court has not
converted the judgment of acquittal passed by
the learned Trial Court to a judgment of
conviction, but for arriving at a finding as to
whether the High Court has exceeded its
jurisdiction or not, the approach of the High
Court must be borne in mind. For the said
purpose, we may notice a few precedents.

11. In D. Stephens v. Nosibolla [1951]
1 SCR 284 this Court opined:

10.
The
revisional
jurisdiction
conferred on the High Court under Section 439
of the Code of Criminal Procedure is not to be
lightly exercised when it is invoked by a private
complainant against an order of acquittal,
against which the Government has a right of
appeal under Section 417. It could be exercised
only in exceptional cases where the interests of
public justice require interference for the
correction of a manifest illegality, or the
prevention of a gross miscarriage of justice.
This jurisdiction is not ordinarily invoked or
used merely because the lower court has taken a
wrong view of the law or misappreciated the
evidence on record.

12. The same principle was reiterated
in Logendra Nath Jha and Ors. v. Polailal
Biswas [1951 SCR676] stating:

...Though Sub-section (1) of Section
439 authorises the High Court to exercise, in its
discretion, any of the powers conferred on a
court of appeal by Section 423, Sub-section (4)
specifically excludes the power to "convert a
finding of acquittal into one of conviction". This
does not mean that in dealing with a revision
petition by a private party against an order of
acquittal the High Court could in the absence of
any error on a point of law re-appraise the
evidence and reverse the findings of facts on
which the acquittal was based, provided only it
stopped short of finding the accused guilty and
passing
sentence
on
him.
By
merely
characterizing the judgment of the trial court as
"perverse" and "lacking in perspective", the
High Court cannot reverse pure findings of fact
based on the trial Court's appreciation of the
evidence in the case. That is what the learned
Judge in the court below has done, but could
not, in our opinion, properly do on an
application in revision filed by a private party
against acquittal....

13. In the instant case the High Court
not only entered into the merit of the matter but
also analysed the depositions of all the witnesses
examined on behalf of the prosecution. It, in
particular, went to the extent of criticizing the
testimony of Autopsy Surgeon. It relied upon the
evidence of the so called eye witnesses to hold
that although appellants herein had inflicted
injuries on the head of the deceased, Dr. Y.K.
Malaiya, PW-9, deliberately suppressed the
same. He was, for all intent and purport, found
guilty of the offence under Section 193 and 196
of the Indian Penal Code. The Autopsy Surgeon
was not cross-examined by the State. He was not
declared hostile. The State did not even prefer
any appeal against the judgment."

14. In the case of State of Kerala Vs.
Puttumana Illath Jathavedan Namboodiri
reported in 1999(2) SCC 452, the Hon'ble
Supreme Court interpreted the scope and the
extent jurisdiction to be exercised by High Court
under the provisions contained under Section
397/401 of the Code of Criminal Procedure.

"5....... In its revisional jurisdiction,
the High Court can call for and examine the
record of any proceedings for the purpose of
satisfying itself as to the correctness, legality or
propriety of any finding, sentence or order. In
other words, the jurisdiction is one of
supervisory jurisdiction exercised by the High
Court for correcting miscarriage of justice. But
the said revisional power cannot be equated
with the power of an appellate court nor can it
be treated even as a second appellate
jurisdiction. Ordinarily, therefore, it would not
be
appropriate
for
the
High
Court
to
176 INDIAN LAW REPORTS ALLAHABAD SERIES
reappreciate the evidence and come to its own
conclusion on the same when the evidence has
already been appreciated by the Magistrate as
well as the Sessions Judge in appeal, unless any
glaring feature is brought to the notice of the
High Court which would otherwise tantamount
to gross miscarriage of justice. On scrutinizing
the impugned judgment of the High Court from
the aforesaid standpoint, we have no hesitation
to come to the conclusion that the High Court
exceeded its jurisdiction in interfering with the
conviction of the Respondent by reappreciating
the oral evidence....."

15. Yet in the case of Sanjaysinh Ramrao
Chavan Vs. Dattatray Gulabrao Phalke,
reported in (2015) 3 SCC 123, Hon'ble
Supreme Court observed as under:-

"14...... Unless the order passed by the
Magistrate is perverse or the view taken by the court
is wholly unreasonable or there is non-consideration
of any relevant material or there is palpable
misreading of records, the Revisional Court is not
justified in setting aside the order, merely because
another view is possible. The Revisional Court is not
meant to act as an appellate court. The whole
purpose of the revisional jurisdiction is to preserve
the power in the court to do justice in accordance
with the principles of criminal jurisprudence. The
revisional power of the court Under Sections 397 to
401 Code of Criminal Procedure is not to be equated
with that of an appeal. Unless the finding of the court,
whose decision is sought to be revised, is shown to be
perverse or untenable in law or is grossly erroneous
or glaringly unreasonable or where the decision is
based on no material or where the material facts are
wholly ignored or where the judicial discretion is
exercised arbitrarily or capriciously, the courts may
not interfere with decision in exercise of their
revisional jurisdiction."

16. The aforesaid two judgments in the
case of Kishan Rao vs. Shankargouda (2018)
8 SCC 165 in para 14 observed as under:-

"14. In the above case also conviction
of the Accused was recorded, the High Court set
aside the order of conviction by substituting its
own view. This Court set aside the High Court's
order holding that the High Court exceeded its
jurisdiction in substituting its views and that too
without any legal basis."

17. From the legal proposition so culled out
by the Hon'ble Apex Court in the aforesaid
decisions itself goes to show that the power so
exercised under Section 397/401 of the Code of
Criminal Procedure is limited and until and unless
the order so challenged therein passed by the
Magistrate is perverse or the view taken by the
Court wholly unreasonable or there is nonconsideration of any relevant material or there is
palpable misreading of record, the revisional court
is not justified in interfering with the order that too
merely because also another view is possible.

18. In nutshell, the Hon'ble Apex Court has
cautioned the High Court not to act as an
appellate court as the whole purpose of
revisional jurisdiction is to preserve the power in
the court to do justice in accordance with the
principles of criminal procedure.

19. Now, the present case in hand is to be
decided in the light of the principles of the law
laid down by the Hon'ble Apex Court while
exercising the powers under Section 397/401 of
the Code of Criminal Procedure, 1973.

20. Learned counsel for the revisionist had
argued that they were sufficient material before
the court below for lodging of the first
information report under Section 156(3) Cr.P.C.
and thus the application preferred by the
revisionist for lodging of the FIR has been
rejected in illegal manner without going through
the documents available on record.

21. Learned AGA has refuted the
contention of the revisionist and has supported
11 All. Ashok Kumar Vs. State of U.P. & Ors.
177
the order under challenge while contenting that
there was no material available on record so as
to warrant issuance of a direction for lodging the
FIR under Section 156(3) of the Cr.P.C.

22. Having gone through the pleading on
record and after considering the arguments of
the learned counsel for the revisionist, the
undisputed position emerges that an application
was preferred by the revisionist under Section
156(3) Cr.P.C. for lodging of an FIR.

23. The court below has applied its mind
while going through the contends of the
allegations mentioned in the application under
Section 156(3) Cr.P.C. and has recorded a clear
cut finding of fact that the present case did not
warrant any direction for lodging an FIR as
according to the court below. It is clear that
already proceedings under Section 3/7 of the
Essential Commodities Act, 1955 has been
lodged against the revisionist. Further, there is a
report of the concerned police station that in the
house of the revisionist itself the food-grains of
mid day meal was found and thus proceedings
were initiated under Section 3/7 of the E.C. Act.

24. For the amongst other grounds, this is
also one of the grounds which has been taken
note by the court below while rejecting the
application preferred by the revisionist.

25. The issue with respect to exercise of
powers under Section 156(3) of the Code of
Criminal Procedure has also been taken note in
the case of Priyanka Srivastava and Ors. vs.
State of U.P. and Ors. reported in AIR 2015
SC 1758 wherein para 26 and 27 following has
observed:-

"26. At this stage it is seemly to state
that power Under Section 156(3) warrants
application of judicial mind. A court of law is
involved. It is not the police taking steps at the
stage of Section 154 of the code. A litigant at his
own whim cannot invoke the authority of the
Magistrate. A principled and really grieved
citizen with clean hands must have free access to
invoke the said power. It protects the citizens but
when pervert litigations takes this route to
harass their fellows citizens, efforts are to be
made to scuttle and curb the same.

27. In our considered opinion, a stage
has come in this country where Section 156(3)
Code of Criminal Procedure applications are to
be supported by an affidavit duly sworn by the
applicant who seeks the invocation of the
jurisdiction of the Magistrate. That apart, in an
appropriate case, the learned Magistrate would
be well advised to verify the truth and also can
verify the veracity of the allegations. This
affidavit
can
make
the
applicant
more
responsible. We are compelled to say so as such
kind of applications are being filed in a routine
manner without taking any responsibility
whatsoever only to harass certain persons. That
apart, it becomes more disturbing and alarming
when one tries to pick up people who are
passing orders under a statutory provision
which can be challenged under the framework of
said Act or Under Article 226 of the Constitution
of India. But it cannot be done to take undue
advantage in a criminal court as if somebody is
determined to settle the scores. We have already
indicated that there has to be prior applications
Under Section 154(1) and 154(3) while filing a
petition Under Section 156(3). Both the aspects
should be clearly spelt out in the application and
necessary documents to that effect shall be filed.
The warrant for giving a direction that an the
application Under Section 156(3) be supported
by an affidavit so that the person making the
application should be conscious and also
endeavour to see that no false affidavit is made.
It is because once an affidavit is found to be
false, he will be liable for prosecution in
accordance with law. This will deter him to
casually invoke the authority of the Magistrate
Under Section 156(3). That apart, we have
already stated that the veracity of the same can
178 INDIAN LAW REPORTS ALLAHABAD SERIES
also be verified by the learned Magistrate,
regard being had to the nature of allegations of
the case. We are compelled to say so as a
number of cases pertaining to fiscal sphere,
matrimonial dispute/family disputes, commercial
offences, medical negligence cases, corruption
cases and the cases where there is abnormal
delay/laches in initiating criminal prosecution,
as are illustrated in Lalita Kumari are being
filed. That apart, the learned Magistrate would
also be aware of the delay in lodging of the
FIR."

26. The Full Bench of this Hon'ble Court
in Criminal Misc. Writ Petition No.3672 of
2000 decided on 27.4.2001, Rambabu Gupta
Vs. State of U.P. in para 17 observed as under:-

"17.
In
view
of
the
aforesaid
discussion on the legal provisions and decisions
of the Supreme Court as on date, it is hereby
held that on receiving a complaint, the
Magistrate has to apply his mind to the
allegations in the complaint upon which he may
not at once proceed to take cognizance and may
order it to go to the police station for being
registered and investigated. The Magistrate's
order must indicate application of mind. If the
Magistrate takes cognizance, he proceeds to
follow the procedure provided in Chapter XV of
Cr P.C. The first question stands answered
thus."

27. Yet a Division Bench of this Court in
Criminal Misc. Application No.9297 of 2007
decided on 18.9.2007. A Division Bench of this
Court in the case of Sukhbali Vs. State of Uttar
Pradesh reported in 2007 (59) ACC 739 in
para 22 has observed as under:-

"22. Applications under Section 156(3)
Cr. P.C. are now coming in torrents. Provisions
under Section 156(3) Cr.P.C. should be used
sparingly. They should not be used unless there
is something unusual and extra ordinary like
miscarriage of justice, which warrants a
direction to the Police to register a case. Such
applications should not be allowed because the
law provides them with an alternative remedy of
filing a complaint, therefore, recourse should
not normally be permitted for availing the
provisions of Section 156(3) Cr.P.C."

28. A judicial notice has been taken by this
Court in the case of Sukhbali (Supra) that
applications under Section 156(3) Cr.P.C. are
now coming in torrent and thus exercise of the
powers under Section 156(3) Cr.P.C. should be
used sparingly and not in routine manner.

29. The Court finds that pure findings of
fact has been recorded which has not been
disputed by the revisionist either by means of
arguments or by pleading.

30. No other point has been raised by
learned counsel for the applicant.

31. Accordingly, the application is
dismissed.
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(2021)12ILR A178
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 2992 of 2021

Smt. Suman ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Manoj Kumar Tripathi

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