# Bare Lal Pandey v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 477
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-03
- **Case number:** Application U/S 482. No. 5716 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bare-lal-pandey-v-state-of-u-p-anr-52288
- **Pages:** 13

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Section 156(3) - Complaint case,
Indian Evidence Act, 1872 - Section 65B -
Admissibility of electronic records - if
investigation in the matter is not required
then
in
that
eventuality,
the
Magistrate/Court
of
competent
of
jurisdiction can treat the application
under
Section
156(3)
Cr.P.C.
as
a
'complaint case' - Magistrate/Court of
competent
of
jurisdiction
is
also
empowered to reject the application under
Section 156(3) Cr.P.C..(Para - 19,20,23)

(B) Evidence law - pleadings are not
evidence - a party who wants to prove
anything as made out in his/her pleading
has to give evidence to prove his/her
assertions - held - reliance on averment made
in regard to passing of order dated 26.02.2024
cannot be made.
Application preferred by applicant under Section
156(3) Cr.P.C. - trial Court entertained the
application as a complaint case - hence present
application - allegations of conspiracy against the
private opposite parties - Applicant produced CCTV
footage and certificate as evidence - CCTV footage
and recordings are in applicant's possession -
CCTV cameras are installed on applicant's
premises - Incident occurred on applicant's
premises. (Para - 2, 24)

HELD: - Trial and revisional court did not
commit any illegality in passing the challenged
orders, and the applicant's application under
Section 156(3) Cr.P.C. was treated as a
complaint case, requiring no interference and
rejecting the applicant's force. (Para -27)

Application u/s 482 Cr.P.C. rejected. (E-7)

List of Cases cited:

## Text

_Characters 0–39,574 of 41,021. This is a partial read: ask again with offset=39574 for what follows._

7 All. Bare Lal Pandey Vs. State of U.P. & Anr.
477
applicant to avail the remedy under Section
397 Cr.P.C. and accordingly, the issue of
maintainability is decided.

12. Accordingly, list this case on
29.07.2024 for final disposal.
----------
(2024) 7 ILRA 477
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.07.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482. No. 5716 of 2024

Bare Lal Pandey ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Surya Prakash Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Section 156(3) - Complaint case,
Indian Evidence Act, 1872 - Section 65B -
Admissibility of electronic records - if
investigation in the matter is not required
then
in
that
eventuality,
the
Magistrate/Court
of
competent
of
jurisdiction can treat the application
under
Section
156(3)
Cr.P.C.
as
a
'complaint case' - Magistrate/Court of
competent
of
jurisdiction
is
also
empowered to reject the application under
Section 156(3) Cr.P.C..(Para - 19,20,23)

(B) Evidence law - pleadings are not
evidence - a party who wants to prove
anything as made out in his/her pleading
has to give evidence to prove his/her
assertions - held - reliance on averment made
in regard to passing of order dated 26.02.2024
cannot be made.
Application preferred by applicant under Section
156(3) Cr.P.C. - trial Court entertained the
application as a complaint case - hence present
application - allegations of conspiracy against the
private opposite parties - Applicant produced CCTV
footage and certificate as evidence - CCTV footage
and recordings are in applicant's possession -
CCTV cameras are installed on applicant's
premises - Incident occurred on applicant's
premises. (Para - 2, 24)

HELD: - Trial and revisional court did not
commit any illegality in passing the challenged
orders, and the applicant's application under
Section 156(3) Cr.P.C. was treated as a
complaint case, requiring no interference and
rejecting the applicant's force. (Para -27)

Application u/s 482 Cr.P.C. rejected. (E-7)

List of Cases cited:

1. XYZ Vs St. of M.P. & ors., 2023 (1) JIC 538
(SC)

2. Lalita Kumari Vs St. of U.P., (2014) 2 SCC 1

3. Ramdev Food Products Pvt. Ltd. Vs St. of
Guj., (2015) 6 SCC 439

4. Vishwanath Vs St. of U.P. & ors, (2020) ILR 2
All 889

5. Sukhwasi Vs St. of U.P., 2007 (59) ACC 739
(All);

6. Lalita Kumari Vs St. of U.P., (2014) 2 SCC 1.

7. Priyanka Srivastava Vs St. of U.P., (2015) 6
SCC 287.

8. Vishwanath Vs St. of U.P. & ors, (2020) ILR 2
All 889.

9. Kailash Vijayvargiya Vs Rajlakshmi Chaudhuri,
(2023) SCC OnLine SC 569

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. for the State
as well as perused the records.
478 INDIAN LAW REPORTS ALLAHABAD SERIES

2. By means of the present
application, the applicant has assailed the
order dated 28.02.2023 passed by Chief
Judicial Magistrate, Pratapgarh (in short
"trial Court") in Criminal Misc. Case No.
349 of 2023 (Bade Lal Pandey Vs. Arpan
alias Anil Pandey and Another) whereby
the trial Court entertained the application
preferred by the applicant under Section
156(3) Cr.P.C. as a complaint case. The
order impugned, on reproduction, reads as
under:

"पत्रािली िाथर्े आदेशािा पेश
हुई। प्रथर्ुर् प्रािाना पत्र अन्द्र्र्ार् िारा 156
(3) दिं०प्र०सिं० प्रािी बडे लाल पाण्डेय द्िारा
इस आशय का प्रथर्ुर् ककया र्या है कक
प्रािी एक भूर्पूिा िायुसेना अचिकारी है
र्िा सेिाननिृत्त होन पर अपने पैर्ृक ग्राम
सदहली िाना माननकपुर में अपनी पत्क्नी के
साि रह रहा है। प्रािी के सर्े भाई, भाई
लाल पाण्डेय के घर में असभयुक्र्र्ण द्िारा
प्रािी ि उसकी पत्क्नी के उपर िानलेिा
हमला करने, झूठे मुकदमें में ििंसाने र्िा
घर लूट लेने आदद की योिना बना रहे िे।
प्रािी के घर में सी०सी०टी०िी० स्िसमें
आिाि भी ररकाडा होर्ी है, लर्ा हुआ है।
विपक्षीर्ण की उक्र् षडयन्द्त्रकारी योिना
कािी हद र्क प्रािी के घर में लर्े
सी०सी०टी०िी० में ररकाडा हुई है।

िाने की आख्या के अनुसार
प्रकरण के सम्बन्द्ि में कोई असभयोर् िाने
पर दिा नहीिं है। सुना र्िा अिलोकन
ककया।

घटना के समथर् र्थ्य प्रािी की
िानकारी में हैं। वििेिना कराये िाने से
कोई नया र्थ्य उभरकर प्रकट होने की
कोई सम्भािना प्रर्ीर् नहीिं होर्ी है। प्रािाना
पत्र में िखणार् र्थ्यों एििं माननीय उच्ि
न्द्यायालय इलाहाबाद द्िारा प्रनर्पाददर्
ननणायि विचि सुखिासी बनाम राज्य
उ०प्र०2007(59) एसीसी 739 ि अन्द्िुम
बनाम राज्य 2008 (61) ए०सी०सी० 181 के
आलोक में प्रािी द्िारा प्रथर्ुर् पत्र िारा
156(3) दिं०प्र०सिं० पररिाद के रूप में दिा
ककया िाना न्द्यायसिंर्र् है।
आदेश

प्रािाना पत्र पररिाद के रूप में दिा
ककया िाये। पत्रािली िाथर्े प्रथर्ुर् करने
सूिी र्िाहान एििं बयान अन्द्र्र्ार् िारा
200 दिं०प्र०स० ददनािंक 03.04.2023 को पेश
हो।"

3. The applicant has also assailed the
order
dated
06.03.2024
passed
by
Additional
Sessions
Judge/Fast
Tract
Court, Pratapgarh (in short "revisional
Court") passed in Criminal Revision No.
180 of 2023 (Bade Lal Pandey Vs. Arpan
alias Anil Pandey and Another) whereby
the revisional Court dismissed the criminal
revision filed by the applicant impeaching
the order dated 28.02.2023. The relevant
portion of the order, on reproduction, reads
as under:

"3.
पत्रािली
प्रथर्ुर्
हुई।
ननर्रानीकर्ाा के विद्िान अचििक्र्ा र्िा
विद्िान ए०डी०िी०सी० िौिदारी अचििक्र्ा
7 All. Bare Lal Pandey Vs. State of U.P. & Anr.
479
के र्कों को सुना और पत्रािली का
पररशीलन ककया।

4. अिर न्द्यायालय द्िारा पाररर्
आदेश ददनािंककर् 28.02.203 की प्रमाखणर्
प्रनर् ननर्रानीकर्ाा द्िारा पत्रािली पर
दाखखल की र्यी है स्िसके अिलोकन से
विददर् होर्ा है कक अिर न्द्यायालय ने पाया
कक घटना के समथर् र्थ्य प्रािी की
िानकारी में है। वििेिना कराये िाने से
कोई नया र्थ्य प्रकट होने की सिंभािना
नहीिं है। अिर न्द्यायालय ने प्रािाना पत्र में
िखणार् र्थ्यों एििं माननीय उच्ि न्द्यायालय
द्िारा प्रनर्पाददर् ननणायि विचि सुखिासी
बनाम राज्य उ.प्र. 2007 (59) ए सी सी 739
ि अिंिुम बनाम राज्य 2008 (61) ए सी सी
181 के आलोक में प्रािी द्िारा प्रथर्ुर्
प्रािाना पत्र िारा 156 (3) दिं.प्र.सिं. को
पररिाद के रूप में दिा ककये िाने का
आदेश पाररर् ककया र्या है। ननर्रानीकर्ाा
द्िारा ननर्रानी में किन ककया र्या कक
अिर न्द्यायालय पाररर् आदेश विचि विरुद्ि
है। अिर न्द्यायालय द्िारा पाररर् आदेश
ददनािंककर् 28.02.2023 पत्रािली पर उपलब्ि
साक्ष्यों के अनुसार पाररर् ककया र्या है।
िैसा कक माननीय उच्िर्म न्द्यायालय
द्िारा Krishna Kumar Tiwari vs. State of
U.P., 2009 (5) ALU 1 (AII-LB.) मे
अििाररर्
ककया
है
कक
Where
an
application u/s. 156(3) CrPC was rejected
on the ground that the alleged offence was
not of heinous nature and the allegations
levelled in the application were not of such
a nature which could not be levelled
falsely, it has been held that rejection of the
application u/s. 156(3) CrPC was not
erroneous. Magistrate will not work u/s.
156(3) CrPC like a postman but he has to
examine
whether
from
reading
of
application/complaint filed u/s. 156(3)
CrPC prima facie commission of offence is
disclosed or not. If the dispute is purely of
civil nature, refusal to order registration of
FIR is proper. अर्ः उपरोक्र् विचि
व्यिथिाओिं
को
दृस्ष्टर्र्
रखर्े
हुए
अिीनथि न्द्यायालय द्िारा पाररर् आदेश
ददनािंककर् 28.02.2023, स्िसमें हथर्क्षेप ककये
िाने का कोई विचिक आिार नहीिं है।
ननर्रानी ननरथर् ककये िाने योग्य है।
आदेश

ननर्रानीकर्ाा की ओर से प्रथर्ुर्
दास्ण्डक ननर्रानी 180/23 बडे लाल पाण्डेय
बनाम अपाण उिा अननल ननरथर् की िार्ी
है। विद्िान न्द्यायालय मुख्य न्द्यानयक
मस्िथरेट प्रर्ापर्ढ द्िारा पाररर् आदेश
ददनािंककर् 28.02.2023 पुष्ट ककया िार्ा है।
ननर्रानी की पत्रािली आिचयक कायािाही
हेर्ु ननयमानुसार दाखखल दफ्र्र हो एििं
अिर न्द्यायालय की पत्रािली इस ननणाय की
प्रनर् के साि िापस भेिी िािे।"

4. Brief facts of the case are to the
effect that the applicant preferred an
application under Section 156(3) Cr.P.C.
levelling allegations of conspiracy against
the private opposite party nos. 2 to 6.
According to this application, in nutshell,
the opposite parties in the premises of the
applicant hatched a conspiracy (i) to attack
the applicant and his wife, (ii) to implicate
480 INDIAN LAW REPORTS ALLAHABAD SERIES
the applicant and his family in false
criminal cases and (iii) to commit loot in
the house of the applicant and this incident
was recorded in the Closed Circuit
Television (in short "CCTV") situated at
the premises of the applicant. The relevant
portion of the application, on reproduction,
reads as under:

"(3) यह कक प्रथर्ुर् प्रािाना-पत्र
मुख्य रूप से ददनािंक 25.04.2022 को शाम
लर्भर्7:15 से 8बिे के मध्य पाण्डेय के
घर में असभयुक्र्र्ण द्िारा प्रािी ि उसकी
पत्क्नी के ऊपर िानलेिा हमला करने, और
झूठे मुकदमें में ििंसाने र्िा घर लूट लेने
आदद की योिना बनाने के सिंबिंि में है।

(4) यह कक प्रािी ि असभयुक्र्र्ण
/असभयुक्र् 2 का घर प्रािी के घर से िुडा
हुआ है र्िा प्रािी के घर के सी०सी०टी०िी०
स्िसमें आिाि भी रेकॉडा होर्ी है लर्ा हुआ
है अर्ः विपक्षीर्ण की उक्र् षड्यिंत्रकारी
योिना कािी हद र्क प्रािी के घर में लर्े
सी०सी०टी०िी० में रेकॉडा हुई है- रेकॉडडिंर् में
आिाि िोडी िीमी है ककन्द्र्ु बार् समझ
आ रही है और आिचयकर्ा पडने पर
पुसलस िािंि के दौरान र्कनीकी विभार्
द्िारा आिाि को बढा कर थपष्ट सुना िा
सकर्ा है।"

5. It appears that the trial Court,
taking note of the facts indicated above
which includes the availability of the
evidence i.e. CCTV footage with the
applicant, observed that investigation in the
matter is not required. Accordingly, treated
the application under Section 156(3)
Cr.P.C. filed by the applicant as a
complaint
case
vide
order
dated
28.02.2023, quoted above.

6. The order dated 28.02.2023 was
challenged by the applicant by preferring
revision under Section 397 Cr.P.C., which
was registered as Criminal Revision No.
180 of 2023. In the memo of revision, in
nutshell, it has been stated that in the
present matter, the investigation is required
as such, the trial Court erred in entertaining
the application under Section 156(3)
Cr.P.C. as a complaint case. The revisional
Court dismissed the revision vide order
dated 06.03.2024, quoted above.

7.

Learned
counsel
for
the
applicant, while impeaching the orders
in issue, stated that the case of the
appicant is squarely covered by the
judgment passed by the Hon'ble Apex
Court in the case of XYZ Vs. State of
M.P. and Ors. reported in 2023 (1) JIC
538 (SC) and Lalita Kumari Vs. State
of U.P. reported in (2014) 2 SCC 1. In
continuation, he stated that the evidence
i.e.
CCTV
footage
can
only
be
retrieved/collected/recovered
by
the
Investigating
Officer
during
the
investigation. As such, the orders are
liable to be interfered and direction be
issued to police to lodge an FIR.

8. Learned counsel for the applicant
also submitted that an application was
preferred before the trial Court in terms of
order dated 26.02.2024 and along with
same, the CCTV footage as also the
certificate which is required under Section
65B of Indian Evidence Act, 1872 (in short
"Act of 1872") were filed and this
application was not considered by the
revisional Court while passing the order
dated 06.03.2024. Para 38 of the instant
7 All. Bare Lal Pandey Vs. State of U.P. & Anr.
481
application referred in this regard reads as
under:

"38. That the Ld. Additional
Sessions
Judge/Fast
Track
Court,
Pratapgarh, on 26.02.2024, directed the
Petitioner to file the CCTV footage
available with him and the Petitioner along
with a Miscellaneous Application Dated:
04.03.2024 narrating the part of the
conversation of Opposite Party No. 2 to 6
filed the CCTV footage in a Pen Drive duly
supported by a Certificate under Section
65B of the Indian Evidence Act, 1872. A
certified true copy of the Miscellaneous
Application narrating the conversation of
Opposite Party No. 2 to 6 is being filed and
marked as Annexure No. 6 to this affidavit.
A certified true copy of the Certificate
under Section 65B of the Indian Evidence
Act, 1872 is being filed and marked as
Annexure No. 7 to this affidavit."

9. At this stage, on being asked as to
whether the order dated 26.02.2024 is on record
and as to whether in absence of the same, the
facts related to the same mentioned in para 38
of the application can be considered.

10. In response, learned counsel for the
applicant stated that the copy of the order dated
26.02.2024 has not been brought on record.

11. In view of the aforesaid, after taking
note of the settled principle that pleadings are
not evidence and that a party who wants to
prove anything as made out in his/her pleading
has to give evidence to prove his/her assertions,
this Court finds that the reliance on averment
made in regard to passing of order dated
26.02.2024 cannot be made.

12. Learned A.G.A. opposed the
application. He stated that the order(s)
passed by the trial Court as also by the
revisional Court are just and proper in the
facts and circumstances of the case and
accordingly, no interference in the matter is
required.

13. Learned counsel for the applicant
in support of his contentions placed
reliance on the following paras of the
judgment passed in the case of XYZ
(supra):

"15. First, we find it appropriate
to reiterate the duty of police to register an
FIR whenever a cognizable offence is made
out in a complaint. A Constitution Bench of
this Court in Lalita Kumari v Government
of Uttar Pradesh5 has laid out the position
of law as summarized in the following
extract of the decision:

"119. Therefore, in view of
various
counterclaims
regarding
registration or non-registration, what is
necessary is only that the information given
to the police must disclose the commission
of a cognizable offence. In such a situation,
registration of an FIR is mandatory.
However, if no cognizable offence is made
out in the information given, then the FIR
need not be registered immediately and
perhaps the police can conduct a sort of
preliminary verification or inquiry for the
limited purpose of ascertaining as to
whether a cognizable offence has been
committed. But, if the information given
clearly mentions the commission of a
cognizable offence, there is no other option
but to register an FIR forthwith. Other
considerations are not relevant at the stage
of registration of FIR, such as, whether the
information is falsely given, whether the
information
is
genuine,
whether
the
information is credible, etc. These are the
issues that have to be verified during the
investigation of the FIR. At the stage of
registration of FIR, what is to be seen is
482 INDIAN LAW REPORTS ALLAHABAD SERIES
merely whether the information given ex
facie discloses the commission of a
cognizable offence. If, after investigation,
the information given is found to be false,
there is always an option to prosecute the
complainant for filing a false FIR."

16. We cannot help but note that
the police's inaction in this case is most
unfortunate. It is every police officer's
bounden duty to carry out his or her
functions in a public-spirited manner. The
police must be cognizant of the fact that
they are usually the first point of contact
for a victim of a crime or a complainant.
They must abide by the law and enable the
smooth registration of an FIR. Needless to
say, they must treat all members of the
public in a fair and impartial manner. This
is all the more essential in cases of sexual
harassment or violence, where victims
(who are usually women) face great
societal stigma when they attempt to file a
complaint. It is no secret that women's
families often do not approve of initiating
criminal proceedings in cases of sexual
harassment. Various quarters of society
attempt to persuade the survivor not to
register a complaint or initiate other
formal
proceedings,
and
they
often
succeed. Finally, visiting the police station
and interacting with police officers can be
an intimidating experience for many. This
discomfort is often compounded if the
reason for visiting the police station is to
complain of a sexual offence.
X X X X X..

23. It is true that the use of the
word "may" implies that the Magistrate has
discretion in directing the police to
investigate or proceeding with the case as a
complaint case. But this discretion cannot
be exercised arbitrarily and must be guided
by judicial reasoning. An important fact to
take note of, which ought to have been, but
has not been considered by either the Trial
Court or the High Court, is that the
appellant had sought the production of
DVRs containing the audio-video recording
of the CCTV footage of the then ViceChancellor's (i.e., the second respondent)
chamber. As a matter of fact, the Institute
itself had addressed communications to the
second respondent directing the production
of the recordings, noting that these
recordings had been handed over on his
oral direction by the then Registrar of the
Institute as he was the Vice-Chancellor.
Due to the lack of response despite multiple
attempts, the Institute had even filed a
complaint with PS Gole Ka Mandir on 29
October 2021 for registering an FIR
against the second respondent for theft of
the DVRs.

24. Therefore, in such cases,
where not only does the Magistrate find the
commission of a cognizable offence alleged
on a prima facie reading of the complaint
but also such facts are brought to the
Magistrate's notice which clearly indicate
the need for police investigation, the
discretion granted in Section 156(3) can
only be read as it being the Magistrate's
duty to order the police to investigate. In
cases such as the present, wherein, there is
alleged to be documentary or other
evidence in the physical possession of the
accused or other individuals which the
police would be best placed to investigate
and retrieve using its powers under the
CrPC, the matter ought to be sent to the
police for investigation."

14. He also placed reliance on para
120 of the judgment passed in the case of
Lalita Kumari Vs. State of U.P., reported
in (2014) 2 SCC 1, which reads as under:

"120. In view of the aforesaid
discussion, we hold:-
7 All. Bare Lal Pandey Vs. State of U.P. & Anr.
483

120.1. The 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.

120.2. 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.

120.3. 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.

120.4. 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.

120.5. 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.

120.6. 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.

120.7 . 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 fifteen days generally
and in exceptional cases, by giving
adequate reasons, six weeks' time is
provided. The fact of such delay and the
causes of it must be reflected in the
General Diary entry.

120.8.
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."

15. Learned A.G.A. for the State
indicated para 20 and 22 of the judgment
passed in the case of Ramdev Food
Products Private Limited Vs. State of
Gujarat, reported in (2015) 6 SCC 439:

"20. It has been held, for the
same reasons, that direction by the
Magistrate for investigation under Section
156(3) cannot be given mechanically. In
Anil Kumar v. M.K. Aiyappa [(2013) 10
SCC 705 : (2014) 1 SCC (Cri) 35] , it was
observed : (SCC p. 711, para 11)
484 INDIAN LAW REPORTS ALLAHABAD SERIES

11. "The scope of Section 156(3)
CrPC came up for consideration before
this Court in several cases. This Court in
Maksud Saiyed case [Maksud Saiyed v.
State of Gujarat, (2008) 5 SCC 668 :
(2008) 2 SCC (Cri) 692] examined the
requirement of the application of mind by
the
Magistrate
before
exercising
jurisdiction under Section 156(3) and held
that where jurisdiction is exercised on a
complaint filed in terms of Section 156(3)
or Section 200 CrPC, the Magistrate is
required to apply his mind, in such a case,
the Special Judge/Magistrate cannot refer
the matter under Section 156(3) against a
public servant without a valid sanction
order. The application of mind by the
Magistrate should be reflected in the order.
The mere statement that he has gone
through the complaint, documents and
heard the complainant, as such, as
reflected in the order, will not be sufficient.
After
going
through
the
complaint,
documents and hearing the complainant,
what weighed with the Magistrate to order
investigation under Section 156(3) CrPC,
should be reflected in the order, though a
detailed expression of his views is neither
required nor warranted. We have already
extracted the order passed by the learned
Special Judge which, in our view, has
stated
no
reasons
for
ordering
investigation."

The above observations apply to
category of cases mentioned in para 120.6
in Lalita Kumari [Lalita Kumari v. State of
U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri)
524] .

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 Kumari
[Lalita Kumari v. State of U.P., (2014) 2
SCC 1 : (2014) 1 SCC (Cri) 524] may fall
under Section 202.

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.

16. Learned A.G.A. also placed
reliance on the judgmetn passed in the case
of Vishwanath Vs. State of U.P. and 4
Ors, reported in (2020) ILR 2 All 889,
wherein this Court while dealing with
similar issue, after considering the relevant
previsions
of
Cr.P.C.
and
various
pronouncements, concluded as under:

55. Thus, in the whole scheme of
the Code of Criminal Procedure as
clarified in the pronouncements of the Apex
Court ranging from 1951 to 2019, it is
evident that if a person has a grievance
that his F.I.R. has not been registered by
the police, his first remedy is to approach
the Superintendent of Police under Section
154(3), Cr.P.C. or other police officer
referred to in Section 36, Cr.P.C. If his
grievances still persist, then he can
approach a Magistrate under Section
7 All. Bare Lal Pandey Vs. State of U.P. & Anr.
485
156(3), Cr.P.C. He has a further remedy of
filing a criminal complaint under Section
200, Cr.P.C. On receipt of the complaint,
however, several courses are open to the
Magistrate:

(i) He may take cognizance of the
offence at once and proceed to record
statements of the complaints and the
witnesses present under Section 200, and
proceed under Chapter XV and Chapter
XVI, accordingly.

(ii) If, he thinks fit, he may
postpone the issue of process and either
inquire into the case himself or direct an
investigation to be made by the police
officer or such other process as he may
thinks fit, for the purpose of deciding
whether or not there is sufficient ground for
proceeding. He may then issue process if in
his opinion there is sufficient ground of
proceeding; or dismiss the complaint if
there
is
no
sufficient
ground
for
proceeding.

(iii) Yet another course open to
the Magistrate is that instead of taking
cognizance of the offence and following the
procedure laid down under Section 200 or
Section 202, he may order investigation to
be made by the police under Section
156(3).

(iv) On receiving the police
report, the Magistrate may take cognizance
of the offence under Section 190(1)(b) and
issue process straightway to the accused.
The Magistrate may exercise his power in
this behalf irrespective of the view
expressed by the police in their report
whether an offence has been made out or
not. This is because the Magistrate is not
bound by the opinion of the police officer
as to whether an offence has been made out
or not.

56. Thus, the above discussion
pertaining to the power of the Magistrate
under Section 156(3) in Chapter XII read
with Section 190 in Chapter XIV of the
Code leaves no room for doubt that there is
nothing in the Code of Criminal Procedure,
which curtails or puts any embargo on the
power of the Magistrate to make an
"inquiry" as defined under Section 2(g) of
the Code or to order for "investigation"
defined under Section 2(h) of the Code, in
dealing with the application under Section
156(3), Cr.P.C. i.e., in exercise of the
power conferred upon it under Chapter XII
or Chapter XIV of the Code to satisfy itself
about the veracity of the allegations of
commission of a criminal offence made
therein.

57. In its discretionary power, it
is open for the Magistrate to direct the
police to register a criminal case under
Section
154,
Cr.P.C.
and
conduct
investigation. At the same time, it is open
for the Magistrate, where the facts of the
case and the ends of justice so demand, to
take cognizance of the matter by treating it
as a complaint and proceed for the
"inquiry" under Sections 200 and 202,
Cr.P.C.

58. It cannot be said nor it could
be demonstrated that in each case, without
application of its independent mind, the
Magistrate shall issue simply direction "to
register and investigate" i.e., to lodge a
first information report on an application
filed under Section 156(3), Cr.P.C. The
power to conduct a preliminary inquiry
into the report of commission of criminal
offence(s), conferred on the Magistrate
within the scheme of the Code of Criminal
Procedure has not been curtailed by any of
the observations made by the Apex Court in
the
case
of
Lalita
Kumari,
MANU/SC/1166/2013MANU/SC/1166/201
3 : 2014(2) SCC 1.

59. However, it is pertinent to
note that while exercising its discretionary
power under Section 156(3), Cr.P.C., the
486 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate
like
any
other
court
of
discretionary jurisdiction is to act fairly
and consciously and ensure that the
discretion conferred upon it is exercised
within the limits of judicial discretion. The
entire emphasis is to act in an unbiased
and just manner, strictly in accordance
with law, to find but the truth of the case
which shall come before it.

60. It is a Magistrate who is the
competent authority to take cognizance of
an offence and it is his duty to decide
whether on the basis of the record and
documents produced, an offence is made
out or not and if made out, what course of
law should be adopted. Emphasis is laid to
the statement in Vinubhai (supra), wherein
it is stated that "it is the judicial conscience
of the Magistrate which has to be satisfied
with reference to the record and the
documents placed before him by the
investigating agency, in coming to an
appropriate conclusion in consonance with
the principles of law." It would not be out
of place to note para '17' of the report in
Vinubhai, at this stage:

"17. It is clear that a fair trial
must kick off only after an investigation is
itself fair and just. The ultimate aim of all
investigation and inquiry, whether by the
police or by the Magistrate, is to ensure
that those who have actually committed a
crime are correctly booked, and those who
have not/are not arraigned to stand trial
That this is the minimal procedural
requirement
that
is
the
fundamental
requirement
of
Article
21
of
the
Constitution of India cannot be doubted. It
is the hovering omnipresence of Article 21
over the Cr.P.C. that must needs inform the
interpretation of all the provisions of the
Cr.P.C., so as to ensure that Article 21 is
followed both in letter and in spirit."

(Emphasis added)

61. Applying the above legal
principles, in the facts of the present case,
this Court finds that the application under
Section 156(3), Cr.P.C. was filed after a
period of two months of the alleged
incident and it was noted by the court
concerned that nothing could be traced in
favour of the prosecution by medical
examination etc. In the circumstances
before it, the court deemed it fair, just and
proper to search the evidence(s) which
is/are well known to the applicant and in
his possession so as to find out the truth of
the allegations in the application.

62. Having perused the contents
of the application and the order of the
court below, it cannot be said that the court
concerned has committed illegally in
exercise of its discretionary jurisdiction
under Section 156(3), Cr.P.C. or it has
exceeded in its jurisdiction in any manner
or has exercised jurisdiction not vested in it
in law. It cannot be said also that any
material injustice has been caused to the
applicant on account of the decision of the
court below to treat the application under
Section 156(3), Cr.P.C. as a complaint for
the purpose of deciding whether or not
there is sufficient ground for proceeding,
rather than directing the police to register
an F.I.R. and investigate under Section 154
of the Code."

17.

Considered
the
aforesaid
submissions and perused the records.

18. Law related to dealing with an
application under Section 156(3) Cr.P.C.
has already been settled in various
pronouncements including the following
judgments:

(i) Sukhwasi Vs. State of U.P.,
reported in 2007 (59) ACC 739 (All);
7 All. Bare Lal Pandey Vs. State of U.P. & Anr.
487

(ii) Lalita Kumari Vs. State of
U.P., reported in (2014) 2 SCC 1;

(iii) Priyanka Srivastava Vs.
State of U.P., reported in (2015) 6 SCC
287;

(iv) Ramdev Food Products
Private Limited (supra);

(v) Vishwanath Vs. State of
U.P. and 4 Ors, reported in (2020) ILR 2
All 889;

(vi) Kailash Vijayvargiya vs
Rajlakshmi
Chaudhuri,
reported
in
(2023) SCC OnLine SC 569

19. As per settled view, the
Magistrate/Court
of
competent
of
jurisdiction, after verifying the truth and
veracity of the allegations made in the
application under Section 156(3) Cr.P.C.,
can (i) pass an order contemplated by
Section
156(3)
Cr.P.C.,
(ii)
direct
examination of complaint and witnesses
and proceed further in the manner provided
by Section 202 Cr.P.C. and (iii) can also
direct the preliminary inquiry by police in
terms of law laid down in the judgment
passed in the case of Lalita Kumari
(supra).
The
Magistrate/Court
of
competent
of
jurisdiction
is
also
empowered to reject the application under
Section 156(3) Cr.P.C..

20.

In
other
words,
the
Magistrate/Court
of
competent
of
jurisdiction
while
dealing
with
an
application under Section 156(3) Cr.P.C. is
empowered to pass an order for registration
of FIR and investigate into he matter or to
treat such application as a 'complaint case'
and he is fully empowered to reject the
application under Section 156(3) Cr.P.C.

21.

Regarding
expression
'investigation', it would be appropriate to
refer the paras 53 to 55 of the judgment
passed in the case of Kailash Vijayvargiya
(supra), which reads as under:

"Relevant legal provisions of
Chapter XII of the Criminal Procedure
Code, 1973.

53. The Code vide Chapter XII,
ranging from Section 154 to Section 176,
deals with information to the Police and
their power to investigate. Section 154
deals with the information relating to the
commission of a cognizable offence and
fiats the procedure to be adopted when
prima facie commission of a cognizable
offence is made out. Section 156 authorises
a police officer in-charge of a Police
station to investigate any cognizable
offence without the order of a Magistrate.
Sub-section (3) of Section 156 provides for
any Magistrate empowered under Section
190 to order an investigation as mentioned
in Section 156(1). In cases where a
cognizable offence is suspected to have
been committed, the officer in-charge of the
Police station, after sending a report to the
Magistrate empowered to take cognizance
of such offence, is entitled under Section
157
to
investigate
the
facts
and
circumstances of the case and also to take
steps for discovery and arrest of the
offender. Clauses (a) and (b) of the proviso
to sub-section (1) to Section 157 give
discretion to the officer in-charge not to
investigate a case, when information of
such offence is given against any person by
name and the case is not of serious nature;
or when it appears to the officer in-charge
of the Police station that there is no
sufficient
ground
for
entering
the
investigation.
In
each
of
the
cases
mentioned in clauses (a) and (b) to the
proviso to sub-section (1) to Section 157,
the officer in-charge of the Police station
has to file a report giving reasons for not
complying with the requirements of sub-
488 INDIAN LAW REPORTS ALLAHABAD SERIES
section (1) and in a case covered by clause
(b) to the proviso, also notify the informant
that he will not investigate the case or
cause it to be investigated. Section 159
gives power to a Magistrate, on receiving
such report of the officer in-charge, to
either direct an investigation or if he thinks
fit, proceed to hold a preliminary inquiry
himself
or
through
a
Magistrate
subordinate to him, or otherwise dispose of
the case in the manner provided by the
Code.

54. Sections 160 to 164 deal with
the power of the Police to require
attendance of witnesses, examination of
witnesses, use of such statements in
evidence,
inducement
for
recording
statement and recording of statements.
Section 165 deals with the power of a
Police officer to conduct search during
investigation
in
the
circumstances
mentioned therein.

55. The power under the Code to
investigate generally consists of following
steps : (a) proceeding to the spot; (b)
ascertainment of facts and circumstances of
the case; (c) discovery and arrest of the
suspected offender; (d)
collection of
evidence relating to commission of offence,
which may consist of examination of
various persons, including the person
accused, and reduction of the statement
into writing if the officer thinks fit; (e) the
search of places of seizure of things
considered necessary for investigation and
to be produced for trial; and (f) formation
of opinion as to whether on the material
collected there is a case to place the
accused before the Magistrate for trial and
if so, taking the necessary steps by filing a
chargesheet under Section 173."

22. Even in the judgment passed in
the case of XYZ (supra) referred by learned
counsel for the applicant, the Hon'ble Apex
Court in para 23 has observed as under:

"It is true that the use of the word
"may" implies that the Magistrate has
discretion in directing the police to
investigate or proceeding with the case as a
complaint case. But this discretion cannot
be exercised arbitrarily and must be guided
by judicial reasoning."

23. In view of aforesaid, this Court is
of the view that if investigation in the
matter is not required then in that
eventuality,
the
Magistrate/Court
of
competent of jurisdiction can treat the
application under Section 156(3) Cr.P.C. as
a 'complaint case'.

24. The undisputed facts of the case
are to the effect that :

(i) The alleged incident took
place in the premises of the applicant;

(ii) The CCTV is situated in the
premises of the applicant;

(iii) The CCTV footage and the
recording, as indicated in the application
under Section 156(3) Cr.P.C. as also in
para 38 of the instant application, quoted in
para 8 of this judgment, was/is available
with the applicant;

(iv)
The
applicant
himself
produced the evidence i.e. CCTV footage
and the certificate, which is apparent from
record available before this Court, which
includes the application filed before the
revisional Court.

25. In the aforesaid facts of the case,
this Court is of the view that the judgment
passed by the Hon'ble Apex Court in the
case of XYZ (supra) would not help the
applicant. For the reason that the CCTV
footage in the case of XYZ (supra) was
7 All. Mohammad Javed Farooqui Vs. State of U.P. & Anr.
489
not
in
possession
of
the
informant/complainant and the same was
required as such the Hon'ble Apex took
note of the said fact and thereafter observed
that in the matter the investigation is
required.

26. In the present case, the certificate,
as required under Section 65B of the Act of
1872, and evidence i.e. CCTV footage is
available with the applicant, as observed
above.

27. Having considered the aforesaid,
this Court finds that the trial Court as also
the revisional Court have not committed
any illegality in passing the orders under
challenge and the trial Court has rightly
treated the application under Section 156(3)
Cr.P.C. filed by the applicant as a
'complaint
case'.
Accordingly,
no
interference in the matter is required and
being so the instant applicant having no
force is hereby rejected.
----------
(2024) 7 ILRA 489
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.07.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Application U/S 482. No. 5955 of 2024
Along With
Application U/S 482 No. 5927 of 2024

Mohammad Javed Farooqui ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ashok Kumar Singh

Counsel for the Opposite Parties:
G.A.
Criminal
Law-
(The
Bhartiya
Nagrik
Suraksha Sanhita, 2023-Section-528) (The
Negotiable Instrument Act, 1881-Section
148)- When Appellate Court considers the
prayer under Section 389 Cr.P.C of an accused
who has been convicted for offence under
Section 138 of the N.I.