# Chandan v. State of U.P. and another

- **Citation:** (2007) 1 ILRA 324
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-25
- **Case number:** Criminal Misc. Application No. 6152 of 2006
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandan-v-state-of-u-p-and-another-40876
- **Pages:** 28

## Headnote

Code of Criminal Procedure-Section 156
(3)-Power of Magistrate-when aggrieved
person
approach
to
Magistrate-only
requirement to consider whether any
cognizable offence made out or notshould not saddle himself with additional
burden of the function of Police-held-the
view taken by Magistrate-illegal-order
Quashed-direction
issued
for
fresh
consideration.

Held: Para 49

At this stage it may be pointed out that
the Magistrate is not required to conduct
an enquiry under section 156(3) of the
code and he should not saddle himself
with additional burden of discharging
the
function
of
police
as
crime
prevention and crime detection is the
primary and foremost duty of the later
and so it must be left to it to perform this
part of his duty
Case law discussed:
2002 (44) ACC-670, 2002 (1) JCC-853, 2001
(2) JIC-231, AIR 1961 SC-896, 1977 ACC-364,
2001 (42) ACC-459, 2002 LCR-2907, 2001 (2)
320, 2005 (52) ACC-568, AIR 1950 Cal.-437,
2006 J.T. (1) SC-10, 1951 SCR-312, 2006 J.T.
(1) SC-10, ILR 36 Alld.-222, AIR 1951 Cal.-2,
ILR 19 Ban-51, ILR-35 Alld. 102, 2003 (47)
ACC-140, 2001 ACC-(Suppl.)-277, AIR 1929
Pat-473, AIR (36) 1949 Cal-55, AIR 1988 SCC111, 2001 J.T. (2) SC-81, AIR 1961 SC-986,
1976 ACC-230, 1997 (8) SCC-476, 2001 (50)
SCC-264, J.T. 1990 (4) SC-650, 2003 JIC (2)-
126, 2001 SCC (Crl.)-524, 2002 (44) ACC-248,
2003 C.B.C.-934

## Text

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324 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

This revision stands dismissed.
----------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.09.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No. 6152 of
2006

Smt. Masuman

...Applicant
Versus
State of U.P. & others...Opposite Parties

Connected
With Criminal Misc. Application No.1442
of 2006, With Criminal Misc. Application
No.3420 of 2006, With Criminal Misc.
Application
No.3313
of
2006,
With
Criminal Misc. Application No.3207 of
2006, With Criminal Misc. Application
No.3275 of 2006, With Criminal Misc.
Application
No.3184
of
2006,
With
Criminal Misc. Application No.3617 of
2006, With Criminal Misc. Application
No.3611 of 2006, With Criminal Misc.
Application
No.3637
of
2006,
With
Criminal Misc. Application No.3725 of
2006, With Criminal Misc. Application
NO.3106 of 2006, With Criminal Misc.
Application
No.2290
of
2006,
With
Criminal Misc. Application No.2298 of
2006, With Criminal Misc. Application
No.2199 of 2006, With Criminal Misc.
Application
No.2093
of
2006,
With
Criminal Misc. Application No.2301 of
2006, With Criminal Misc. Application
No.2385 of 2006, With Criminal Misc.
Application
No.2516
of
2006,
With
Criminal Misc. Application No.2773 of
2006

Counsel for the Applicant:
Sri Rajesh Dwivedi

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

Code of Criminal Procedure-Section 156
(3)-Power of Magistrate-when aggrieved
person
approach
to
Magistrate-only
requirement to consider whether any
cognizable offence made out or notshould not saddle himself with additional
burden of the function of Police-held-the
view taken by Magistrate-illegal-order
Quashed-direction
issued
for
fresh
consideration.

Held: Para 49

At this stage it may be pointed out that
the Magistrate is not required to conduct
an enquiry under section 156(3) of the
code and he should not saddle himself
with additional burden of discharging
the
function
of
police
as
crime
prevention and crime detection is the
primary and foremost duty of the later
and so it must be left to it to perform this
part of his duty
Case law discussed:
2002 (44) ACC-670, 2002 (1) JCC-853, 2001
(2) JIC-231, AIR 1961 SC-896, 1977 ACC-364,
2001 (42) ACC-459, 2002 LCR-2907, 2001 (2)
320, 2005 (52) ACC-568, AIR 1950 Cal.-437,
2006 J.T. (1) SC-10, 1951 SCR-312, 2006 J.T.
(1) SC-10, ILR 36 Alld.-222, AIR 1951 Cal.-2,
ILR 19 Ban-51, ILR-35 Alld. 102, 2003 (47)
ACC-140, 2001 ACC-(Suppl.)-277, AIR 1929
Pat-473, AIR (36) 1949 Cal-55, AIR 1988 SCC111, 2001 J.T. (2) SC-81, AIR 1961 SC-986,
1976 ACC-230, 1997 (8) SCC-476, 2001 (50)
SCC-264, J.T. 1990 (4) SC-650, 2003 JIC (2)-
126, 2001 SCC (Crl.)-524, 2002 (44) ACC-248,
2003 C.B.C.-934

(Delivered by Hon'ble Vinod Prasad. J.)
1 All] Chandan V. State of U.P. and another
325

1. This cluster of petitions have been
filed by the aggrieved persons who have
been rebuffed by the Magistrate and in
some cases by the lower revisional court
as well in getting their FIR registered
under section 156(3) Cr.P.C. (herein after
referred to as the code). The applicants in
all these applications are victims of the
alleged
malefactors
and
all
these
applications raises a common question of
law and argument. In all these petitions
the applicants have questioned the scope
of section 156(3) Cr.P. C. and the power
of the Magistrate there under. The prayer
in all these applications are that the
impugned orders passed by the concerned
Magistrates, and in some cases also by the
lower revisional court, refusing to order
for registration of FIR on the application
filed by various applicants under section
156(3) Cr.P.C. be set aside and the
concerned Magistrates be directed to
reconsider the said applications afresh and
pass orders in accordance with law. The
applicants have also challenged the
correctness of the law laid down in Gulab
Chand Upadhyay Vs. State of UP. 2002
(44) ACC 670 as in their submissions it is
per-incurium. Since the arguments and
the prayer made in all these cases are
similar and identical therefore these
applications were clubbed together and
are being disposed of by this common
judgment.

2. Before coming to the contentions
raised a narration of the facts are inked
below.

Criminal Misc. Application No. 6152 of
2006
Smt. Masuman vs State of UP and Others

The applicant Smt. Masuman wife of Faiz
Mohmmad resident of village Rasoolpur
police station Billhor district Kanpur
Dehat invoked the power of the Chief
Judicial Magistrate, Kanpur Dehat on
20.9.2005, through an application under
section
156
(3)
Cr.P.C.
with
the
allegations that Kallu Pal, Ram Pal, Raju ,
Munshi Lal, Vipin, Suresh, Jaggi Lal
Kushwaha, and Chunna, alleged accused
persons are her co-villagers. Her's is 'the
only Mohammadan family in the village.
Her husband is old, and fragile. The
family earns it's livelihood by labouring.
In the village Pradhan election in the
recent past her family had supported the
candidature of one Rajjan Singh who had
defeated Sanjai in the said election. This
had generated a feeling of revenge in the
minds of alleged malefactors Kallu Pal,
Ram Pal, Raju, Munshi Lal, Vipin,
Suresh, Jaggi Lal Kushwaha, and Chunna
who all are either relatives or well wishers
of aforesaid Sanjai. Bubbling with feeling
of revenge, on 7.9.2005 at 8 P.M when all
the family members of the applicant
except Iqrar, the younger son, were
present in the house the aforesaid persons
surrounded the house of the applicant
vituperising the family. Faiz Mohd. and
Mister, husband and elder son of the
applicant Masuman were belaboured by
raiders when they protested against the
hurled abuses. Masuman, the applicant,
her daughter Iskiman and grand daughter
Afsana tried to save them but Iskiman
was thrown on the ground by the alleged
accused . Kallu, Raju and Chunna caught
hold of her hands and Juggi Lal by sliding
her clothes above her waist attempted to
rape her. Iskiman was also sexually
assaulted and molested by Munshi Lal
who pressed her breasts and after putting
his hands on her private parts tried to lift
her. On hue and cry being raised by the
326 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
victim's family they were saved by the covillagers who had collected there. The
accused left the place of the incident
threatening
the
family
with
dire
consequences. Masuman could not get her
FIR registered as she was surrounded in
the way by the malefactors and was
threatened for her life. Next day morning
her husband and son were picked up by
the alleged accused persons and were got
implicated in a false case of theft. Injured
Iskiman
and
Kumari
Afsana
got
themselves medically examined in Ursala
hospital, district Kanpur Nagar. The
application of the applicant to the Senior
Superintendent of Police, Kanpur Nagar,
dated 13.9.2005 yielded no results and
therefore the applicant approached the
Chief Judicial Magistrate, Kanpur Dehat ,
through an,application under section 156
(3) Cr.P.C. against the respondents
alleged accused to get her FIR registered
for
offences
under
sections
376/511/354/323/504/506 IPC and get it
investigated by the police. She appended
the injury reports of the two injured, her
own affidavit and a copy of her
application to SSP, Kanpur Nagar along
with her application which are filed as
annexure no. 1, 2 and 3 to the affidavit
filed in support of this application. The
aforesaid application of the applicant
under section 156 (3) Cr.P.C. was
however rejected by the Chief Judicial
Magistrate,
Kanpur
Dehat
by
the
impugned
order
dated
9.11.2005
(Annexure no. 4) by passing an order as
if, he was deciding the case finally. The
revision preferred by Masuman being
Criminal Revision No. 145 of 2005, too
also rejected by the lower revisional court
vide it's impugned order dated 24.2.2006
(Annexure no.6) Hence this application to
this court under section 482 Cr.P.C. by
the applicant for quashing both the
impugned orders and for a direction for
fresh consideration of her application
under Section 156(3) Cr.P.C. by the Chief
Judicial Magistrate, Kanpur Dehat.

Criminal Miscellaneous Application
No. 1442 of 2006
Uma Dutta Diwedi versus State ofU.P.

3. This application has been filed by
the applicants for quashing of the order
dated 18.1.2006 passed by Judicial
Magistrate, Mau in Case no. 315 of 2006.
By the aforesaid order, annexure no.7 the
trial court has rejected the prayer for
registration of FIR on application of the
applicant filed under Section 156(3)
Cr.P.C. on the ground that the applicant is
in the knowledge of complete facts about
the incident including the names of the
accused and therefore, in view of the
judgment in Gulab Chand Upadhyay Vs.
State of U.P. 2002 (1) JIC 853, Allahabad
and Ram Babu Gupta Vs. State of U. P.
2001 (2) JIC 203 the said application was
registered as a complaint case and an
order for getting statement under Section
200 Cr.P.C. recorded was passed. The
facts of the case were that the applicant
who is retired railway government servant
had very good relations with Virendra
Singh, Vinod Kumar Singh and Iftikhar
Ahmad. Seema Singh wife of Virendra
Singh, who is grand daughter of Jagdish
Singh was a teacher in the school started
by his grand father. Virendra Singh
aforesaid, who is a land mafia had
misappropriated Rs.125000/= which was
given to him by the applicant to start a
brick kiln. He also got a tractor financed
in the name of Vinod Kumar Singh,
brother of applicant Uma Dutta Diwedi by
deceiving Union Bank, Mazawara Branch
and had also obtained signature of the
applicant on papers to grab his property
1 All] Smt. Masuman V. State of U.P. and others
327
and
had
also,
committed
theft
of
applicant's
suit
case.
The
applicant
dispatched many registered letters on
24.12.2004,
27.12.04,
30.12.04
and
31.12.04 but no action was taken against
alleged accused so much so that his
registered letter dated 24.12.04 to S.S.P.
Mau, D.I.G. Azamgarh and I.G. Varanasi
range also proved futile in getting the FIR
registered. Hence he filed application
under section 156(3) Cr.P.C. on 14.3.2005
annexing therewith the photocopy of
forged stamp papers, the copy of the
application sent to S.S.P. on 24.12.04 and
the registry receipts. The Magistrate
however turned down his prayer by
passing the impugned order on 18.1.2006.
Hence this application.

Criminal Miscellaneous Application
No.3420 of 2006
Indra Mohan Gautam versus State of U.P.
And Others

4. In this application order dated
7.7.05 passed by A.C.J.M. Court no.1
Aligarh in Miscellaneous Application
No.838 of 2004 Indra Mohan Gautam Vs.
Ramesh Chandra and others as well as
order dated 24.3 .06 passed by Additional
Sessions Judge, court no.5 Aligarh in
Criminal Revision No. 531 of 2005, under
section 156(3) of the code is under
challenge.

5. By order dated 7.7.05 the
application under Section 156(3) filed by
the applicant was ordered to be registered
as a complaint case and 30.7.05 was fixed
for recording of the statement under
Section 200 Cr.P.C. By order dated
24.3.06, lower revisional court has
rejected the revision also filed by the
applicant. The facts of the case in nut
shell were that on 3.6.2005 at 9 AM,
when the applicant along with his father
Bas Deo Sahai Gautam was going on his
motor cycle to Aligarh to deposit the
installments of his Ambassador car then
near Nala crossing an attempt to murder
him was attempted by shooting at him by
the alleged accused Ramesh Chand
Sharma, Subhash, Vinod and Kuldeep
because his brother was a witness against
these persons in a case for offence under
section 392 IPC. The aforesaid persons
were also threatening him on phone to
annihilate him since last fifteen days, as a
result of which he was unable to go to the
police station to get his F.I.R lodged.
Even though he had intimated the incident
to S.S.P. Aligarh through registered post
on 25.6.05 his FIR was not registered and
hence he had filed application under
section 156(3) Cr.P.C. on 29.6.2005
which was ordered to be registered as
complaint by ACJM Court No.1, Aligarh
on the ground that the police report,
which was called for on the said
application
under
Section
156(3)
mentioned that there was enmity between
the applicant and Rarnesh Chandra
regarding the land dispute and that no
injury report was filed by the applicant in
the court . The revisional court also
rejected his revision hence this Criminal
Miscellaneous Application.

Criminal Miscellaneous Application
No.3313 of 2006
Pradeep Kumar versus State ofU.P.and
others

6. In this application the order dated
3.12.05 passed by A.C.J.M court no.1
Kanpur Dehat in criminal case no. 3096
of 2005, Pradeep Kumar Vs. Rams
Shanker and others as well as order dated
20.12.05 passed by District Judge Kanpur
Dehat in criminal revision
328 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
no. Nil of 2005 have been challenged. By
the aforesaid orders the application under
Section 156(3) Cr.P.C. by the applicant
has been rejected by both the courts.
A.C.J.M. court no.1 has observed in his
impugned order that a report from police
station has been received and he has
perused the application and the annexure
appended therewith. It seems just to get
the application under Section 156(3)
registered as complaint in register no. 9
and hence he fixed 7.1.06 for recording of
statement under Section 200 Cr.P.C. The
lower revisional court relying upon the
judgment reported in 2001(2) JIC 231
Ram Babu Gupta Vs. State of U.P. has
rejected the revision only on the ground
that application under Section 156(3)
Cr.P.C. can be registered as a complaint
as well. The allegations in nutshell were
that Mahabir was assaulted with Kulhadi
and lathi by the alleged accused Rama
Shanker and Manoj on the pretext that he
had bet his pigs on 6.11.05 at 9 A.M.
Injured Mahavir had received injuries.
The incident was witnessed by the
applicant
and
Anil
Kumar.
The
application to S.S.P. Kanpur Nagar dated
7.11.2005
proved
futile
hence
the
application under Section 156(3) was
filed on 9.11.05. Along with it the
affidavit of the applicant Pradeep Kumar,
copy of application sent to S.S.P. Kanpur
Nagar ,registry receipt and the injury
report dated 7.11.05 were annexed. Injury
report indicated one incised wound and
three contusions caused by sharp edged
weapon and blunt object respectively
were sustained by the applicant. Since the
prayer for getting the FIR registered was
denied by both the courts below hence,
this application for setting aside the two
orders and for a fresh consideration of the
application under section 156(3) Cr.P.C.

Criminal Miscellaneous Application
No.3207 of 2006
Dimi versus State of Uttar Pradesh

7. In this case application under
Section 156(3) dated 17.1.06 filed by the
applicant was rejected on 25.1.06 by
Additional Civil Judge (Senior Division)
Room No. 13, Allahabad. The facts of the
case were that the respondents Rashid,
Sadhu, Dildar, Liyakat Ali and Shaukat
Ali armed with lathi and danda looted the
house of the applicant on 5.1. 06 at 9.00
P.M. and belaboured the application
inside his house. He was saved by the
intervention of the villagers. The accused
had left the spot threatening him. It is
mentioned in the impugned order by the
Magistrate that according to the police
report both the rival fractions assaulted
each other 5. 1.06 in which Saukat Ali
respondent had lodged a NCR No. 6/06,
under Sections 323, 504 I.P.C. The
A.C.J.M. has referred various ruling
reported in AIR 1961 S.C. 896 Gopal Das
Vs. State of Assam, 1977 ACC 364 (HC)
Tula Ram Vs. Kishore Singh 2001 (42)
ACC459 (HC) Suresh Chandra Jain Vs.
State of M.P. and ultimately ordered that
the application be registered as complaint
as there was no reason to direct the police
to register the F.I.R.
and investigate the case. He had fixed 27.2.06
for recording of statement under Section 200
Cr.P.C.

Hence, this application.

Criminal Miscellaneous Application
No.3275 of 2006
Mahakar Singh versus State of U.P.

8. In this Criminal Miscellaneous
Application order dated 22.3.06 passed by
Judicial
Magistrate/Additional
Civil
1 All] Smt. Masuman V. State of U.P. and others
329
Judge
Junior
Division,
Court
no.2,
Meerut, passed in case no. 461/06 has
been challenged by which the application
under Section 156(3) Cr.P.C. has been
rejected by the trial court. The synopsised
facts of the case were that the applicant
Mahkar
Singh
had
enmity
with
respondents Raj Karan because of land
dispute. On 2.3.06 at 4.30 P.M. the
applicant accompanied with his cousin
brother Harveer had gone to Bally Bazar
Meerut
for
purchasing
and
while
returning at 8 P.M. he met his friend
Bhanu Pratap Chandel. When they were
chatting
alleged
accused,
namely,
Rajkaran, Prem Singh with one person,
who
was
driving
the
motorcycle,
surrounded them and Rajkaran assaulted
the applicant with knife on the chest and
head. When the applicant tried to escape,
Prem Singh assaulted him with Saria as a
result of which the applicant sustained
injuries. On hue and cry being raised the
accused escaped on the motorcycle. The
F.I.R. of the applicant was not registered
at P.S. Delhi Gate and the applicant was
directed to get his medical examination
done. The applicant was got admitted in
P.L. Sharma Hospital and after two days
of hospitalization he was discharged.
Since the F.I.R. of the applicant was not
registered,
therefore,
he
filed
an
application under Section 156(3), for
offences under section 307, 324, 506,
120B I.P.C. before the Magistrate ACJM
II (JD), Meerut, on 13.3.06, which was
rejected by the impugned order on the
ground that the place of the incident is
populated and the applicant has not filed
any affidavit of witnesses, who had
reached
on
the
spot.
Hence,
this
application challenging the aforesaid
rejection.

Criminal Miscellaneous Application
No.3184 of 2006
Smt. Suman Kumari versus State of
U.P.And Others

9. In this Criminal Miscellaneous
Application order dated 16.2.06 passed by
Additional Chief Judicial Magistrate,
Moradabad, passed in Miscellaneous Case
No. 82/9/06 has been challenged.
10. The facts were that on 2.1.06 at
9.45 A.M. when Pankaj son of applicant
Suman Kumari was going to school Asgar
Hussain (Constable in G.R.P.) started
abusing him. On protest being raised by
the applicant, Asgar Hussain aforesaid,
with knife and his wife Afrosh and others
bet Smt. Suman Kumari. The applicant
was saved by the neighbors. Since the
F.I.R. of Smt. Suman Kumari was not
taken down and she was arrested falsely
under Section 151 Cr.P.C. therefore, she
filed an application under Section 156(3)
Cr.P.C. The said application and her
prayer for registration of FIR was rejected
by
the
Magistrate
by
passing
the
impugned order on the ground that no
medical report was filed and the incident
was known to her and no new fact can
come to light. Therefore, in view of
Gulab Chand Upadhyay Vs. State 2002
LCR Page 2907 and 2001(2) 320 Joseph
Madhuri Vs. Sachidanand Hari Shashtri
the application was ordered to be
registered as complaint. Hence, challenge
has been thrown to the aforesaid order
dated 6.2.06 by this application.

Criminal Miscellaneous Application
No.3617 of 2006
Asraf AU versus State of U.P. and Others

11. In this case application under
Section 156(3) Cr.P.C. was ordered to be
registered as a complaint vide impugned
330 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
order dated 4.8.05. The facts were that an
application under Section 156(3) Cr.P.C.
was filed on 15.3.05 before Judicial
Magistrate
first,
Allahabad
being
Miscellaneous Case No. 750 of 2005 on
the facts that on 14.2.05 at 2.30 P.M. the
accused respondents Raja @ Irfan, Nafees
Khan, Muzibulla @ Majjan, Mohd.
Rijwan Khan, Farooq, Jameel, Ramjaan,
Laddan, Imran, Zulifikaar attacked the
complainant the other villagers and
caused injuries to the applicant Ashraf
Ali, Shakil, Imran @ Guddu. Two other
person Suhail and Jameel also received
injuries
while
trying
to
save
the
applicants. The police had connived with
the accused. Applicant Ashraf Ali, Shakil
and Imran @ Guddu have received
serious injuries including fracture. Suhail
and Mohd. Jameel had also received
serious injuries. Since the police has not
taken down the F.I.R. in spite of sending
registry to the S.S.P. Allahabad and
giving an application to him, therefore,
the
applicant
Asraf
Ali
filed
an
application under Section 156(3) Cr.P.C.
It is relevant to mention here that the
police in respect of this very incident had
registered the F.I.R. being crime no. 41 of
2005, under Section 307 I.P.C., crime no.
42 of 2005, under Section 25 Arms Act,
crime no. 43 of 2005, under Section 4/5
Explosive Act, crime no. 44 of 2005,
under Section 4/5 Explosive Act against
the applicant Asraf Ali and injured
Shakeel, Imran etc. Since the Magistrate
refused to get the F.I.R. registered for the
applicant's version of the incident hence
this application under Section 482 Cr.P.C.
for quashing of the aforesaid order.

Criminal Miscellaneous Application
No.3611 of 2006
Bobby Khan versus State of U.P. and
another

12. In this application the impugned
order is dated 13.3.06 passed by C.J.M.
Jaunpur by which the application under
Section 156(3) Cr.P.C. of the applicant
was rejected and the same has been
ordered to be registered as complaint on
the ground that there is no need for
investigation by the police and the
complainant can produce the evidence,
which is available to him. The facts in
nutshell were that the respondent Rakesh
Kumar
Srivastava
had
taken
away
Marshal Jeep No. MP 18BB 1372
belonging to the applicant and thereafter
was threatening him to get him murdered
through anti-social elements and was not
returning his aforesaid vehicle. The
alleged accused had wrongly detained the
vehicle and it was not possible to get the
vehicle recovered without the help of
police. Since his prayer for getting the
matter investigated by the police was
rejected by the impugned order therefore,
this application under Section 482 Cr.P.C.
for setting aside that order.

Criminal Miscellaneous Application
No.3637 of 2006
Om Prakash versus State of U.P. and
others

13. In this case the impugned order
is dated 20.3.06 passed by Additional
Chief Judicial Magistrate, Bijnor in
Miscellaneous Application No. Nil of
2006. In this case also the application
under Section 156(3) Cr.P.C. has been
ordered to be registered as complaint on
the ground that all the facts are clear
including the names of the accused with
1 All] Smt. Masuman V. State of U.P. and others
331
their addresses and hence there was no
need to order for investigation by the
police on the basis of judgment in Gulab
Chand Upadhyay and Ram Bahadur
Gupta (Supra).
The facts in nutshell were that the
applicant Om Prakash son of Ram Dayal
was cheated to a tune of Rs. 50,000/- by
Mohd. Arif, which was entrusted to him
by the applicant on 4.4.05 and repeated
demand of the same resulted in his
beating by Mohd. Arif aforesaid , his
brother Malwa, and father Mujareen
Ahmad with one more person inside his
house with lathi and Dandas. The
applicant had received injuries and got
himself medically examined in district
hospital yet his F.I.R. was not taken
down. Aggrieved by the said refusal by
the
Magistrate
in
getting the
FIR
registered and investigated by the police
this application under section 482 Cr.P.C.
to set aside the said impugned order has
been filed.

Criminal Miscellaneous Application
No. 3725 of 2006
Gava Prasad versus State of U.P. and
others

14. In this case the impugned order
is dated 17.2.06 passed by A.C.J.M. court
no.1 Kanpur Dehat in Case Gaya Prasad
Vs. Rajendra Singh @ Lakhan. By the
impugned order the application under
Section 156(3) Cr.P.C. by the applicant
has been ordered to be registered as
complaint fixing 1.3.06 for recording of
statement under Section 200 Cr.P. C. The
challenge has also been made to the
revisional court's order dated 25.3 .06 by
which
the
revision
has
also
been
dismissed mentioning cases of Ram Babu
Gupta and Gulab Chand Upadhyay which
was filed against the said order of
rejection. The facts in nutshell were that
Subhash Chandra @ Lalla son of
applicant Gaya Prasad was fired at when
he was sitting at his door by Sunil son of
Suresh Chand, who was accompanied by
Rajendra @ Lakhan, Sunil son of
Rajendra and Babloo, who all were armed
with lathi, kanta and barehi. This incident
was witnessed, by Puttu, Jamaluddeen,
Rambali
and
others
including
the
applicant. The son of the applicant was
sent for medical treatment to Kanpur. The
police had arrested the three accused but
later on released them. The accused
persons were threatening the applicant
with dire consequences. The injured son
of the applicant was admitted in Hallet
Hospital. Since the F.I.R.of the applicant
was refused to be registered the applicant
filed an application under Section 156(3)
Cr.P.C. but the registration of case by the
police was denied by the Magistrate as
well and also by lower revisional court.
Hence, this application under Section 482
Cr.P.C. to set aside both the orders.

Criminal Miscellaneous Application
No.3106 of 2006
Radhey Shyam Versus State of U.P. and
others

15. In this case the impugned order
is dated 18.2.06 passed by C.J.M.
Farrukhabad in Miscellaneous Case No.
Nil of 2005, Radhy Shyam Vs. Rakesh
and others by which application under
Section 156(3) Cr.P. C. filed by the
applicant has been rejected by C.J.M.
Farrukhabad on the ground that all the
facts were known to the applicant
including the names of witnesses. Hence,
on the basis of case of Glulab Chand
Upadhyay
there
was
no
need
for
investigation. The facts were that the
application under Section 156(3) Cr.P.C.
332 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
was filed on 16.12.05 by applicant
Radhey Shyam for offences under Section
147, 148, 323, 452, 504 and 506 I.P.C.
and SC/ST Act. The occurrence alleged in
nutshell were that on 28.11.05 at 7.30
P.M. the accused, ten in number armed
with lathi and danda and one accused
armed with licensee gun raided the house
of the applicant making utterances of
filthy abuses relating to castes and bet the
wife of the applicant Sushila Devi and
Shyam Singh. The accused left the spot
threatening the family members. Since the
registry
sent
to
the
administrative
authorities and the other applications did
not yielded any result in getting the F.I.R.
lodged therefore, the application under
Section 156(3) was filed by the applicant.
The medical examinations of the injured
was done in Dr. Ram Manohar Lohia
Government Hospital Farrukhabad on
1.12.2005. Since the F.I.R. was not
ordered to be registered by the impugned
order hence this application under Section
482 Cr.P.C. for quashing the said order
and direction for fresh consideration.

Criminal Miscellaneous Application
No.2290 of 2006
Mahendra Singh versus State of U.P.

16. In this case the impugned order
is dated 7.1.06 passed in Miscellaneous
Case No. 15 of 2005, Mahendra Singh Vs.
State of U.P. by which order of
registration of F.I.R. and investigation by
the police has been refused by A.C.J.M.
Ghaziabad and the application under
Section 156(3) Cr.P.C. was ordered to be
registered as complaint. The incident in
short were that a fraud has been
committed regarding a land scam in
respect of Gram Sabha land relating
which the civil suit is already pending.
The said land scam has been committed
by preparation of forged and false
documents, sale deeds, agreements to sell
etc. by the accused. Since the registration
of F.I.R. was denied by the Magistrate
hence this application under Section 482
Cr.P.C. for quashing and direction for
fresh consideration in accordance with
law of the application under Section
156(3) Cr.P.C.

Criminal Miscellaneous Application
No.2298 of 2006
Naresh Kumar Tanjia versus State of U.P.

17. In this case the impugned order
is dated 29.1l .2005 by which the
application under Section 156(3) Cr.P.C.
of the applicant has been ordered to be
registered
as
complaint
and
the
registration of F.I.R. and investigation has
been denied by the Judicial Magistrate II,
court No. 15, Saharanpur. The aforesaid
application
was
for
offences
under
Section 323, 504,506,441, 120B, 427,
327, 341, 342 I.P.C. The incident
incapisulated was that the applicant
Naresh Kumar Taneja was assaulted on
2.10.05 at 11.00 A.M. and the accused
had grabbed the plot belonging to the
applicant by opening a way on the said
plots. The accused also snatched away his
licensee
revolver
and
had
illegally
captured the plot belonging to the nephew
of the applicant. The police had registered
a false case against the applicant under
Section 307 I.P.C. and had taken his
licensee revolver as well. The applicant
was got medically examined by the
police. Since the applicant's efforts to get
the F.I.R. registered failed he filed an
application under Section 156(3) for
getting his F.I.R. registered, which was
denied by the Magistrate on the basis of
cases of Glulab Chand Upadhyay Vs.
State and Vinay Pandey Vs. State 2005
1 All] Smt. Masuman V. State of U.P. and others
333
(52) ACC 568. Since the effort to get his
F.I.R.
registered
failed
hence,
this
application under Section 482 Cr.P.C. by
the applicant.

Criminal Miscellaneous Application
No. 2199 of 2006
Badshah versus State of U.P.& others

18. In this case the impugned order
is dated 19.4.05 passed by A.C.J.M court
no.8, Aligarh in case no. 1100 of 2004
Badhshah Vs. Netrapal Singh and others
wherein application under Section 156(3)
Cr.P.C. was ordered to be registered as
complaint and the revision against the
said
order was also dismissed by
Additional Sessions Judge court no.5,
Aligarh vide impugned order dated
29.8.05 in revision no. 373 of 2004. The
facts indicated that the applicant was
defrauded of his land as well as of an
amount of more than Rs. 3 lakhs on the
basis of a false sale deed, which had been
registered in the name of Rosh Kumar,
Sunil Kumar and Subhash Kumar by the
power of attorney holder Netra Pal Singh.
Because of the aforesaid fact Badshah
was threatened on 17.10.03 at 8.00 P.M.
for being annihilated by the said Netra Pal
and his sons and hence he had filed
application under section 156(3) Cr.P.C.
The rejection of his prayer to order for
registration of FIR by the Magistrate is
under challenge in this application.

Criminal Miscellaneous Application
No.2093 of 2006
Anil Versus State of U.P.

19. In this case the impugned order
is dated 7.2.06 passed by A.C.J.M. II,
Meerut by which the application under
Section 156(3) Cr.P.C. had been ordered
to be registered as complaint. The
allegations were that on 1.1.06 at 7.30
P.M. the accused armed with country
made pistol entered into the house of the
applicant Anil and committed a decoity of
motorcycle, colour T.V., Fridge, C.D.
Player, Almirah, Dressing table, Mixy etc.
when the applicant was in jail. The
registration of the F.I.R. was denied on
the basis of judgment reported in 2005
(52) ACC 568 by the A.C.J.M. (2)
Meerut. Hence, this application under
Section 482 Cr.P.C. for quashing the said
order
and
for
a
direction
for
reconsideration of the application under
Section 156(3) afresh by the Magistrate
concerned A.C.J.M. II, Meerut.

Criminal Miscellaneous Application
No.2301 of 2006
Rajendra Singh versus State of U.P. And
Others

20. In this case" the impugned order
is dated 16.1.06 passed by Special Judge
(D.A.A.) Etawah in Miscellaneous Case
No. 7 of 2006, under Sections 395 I.P.C.
By the impugned order the registration of
the F.I.R. has been denied by the Special
Judge D.A.A. Etawah the ground that the
applicant knew the accused, who are
resident of his village and all the facts
regarding the incident is known to the
him. The impugned order mentions the
rulings of Ram Babu Gupta reported in
2001
(43)
A.C.C.
page
50.
The
application under Section 156(3) Cr.P.C.
has been ordered to be registered as
complaint. Since the registration of F.I.R.
was denied and hence this application for
quashing
and
direction
for
fresh
consideration by the Special Judge D.A.A
of the application filed by the applicant.
334 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Criminal Miscellaneous Application
No.2385 of 2006
Brij Kishore Diwedi versus State of U.P.
and others

21. In this case the impugned order
is dated 16. 1. 06 passed by A.C.J.M.
Court no.2 Kanpur Dehat by which the
application under Section 156(3) Cr.P.C.
filed by the applicant Brij Kishore being
case No. 24 of 2006 has been ordered to
be
registered
as
complaint.
The
application under Section 156(3) was
filed for offences under Section 323, 324,
325, 452, 504, 506 I.P.C. on the
synopsized allegations that on 22.8.05 at
10.30 A.M. the accused filthily abused the
applicant on the ground of washing of
clothes and after entering into his house
bet the applicant and his wife Madhu
Dwivedi with lathi, danda and Kurphi as
a result of which they sustained injuries.
The applicant got themselves medically
examined
on
24.8.05
and
25.8.05.
Fractures were found in their injuries.
Along with the application the applicant
had appended the medical reports as well
as the X-ray reports. Inspite of the fact
that the application disclosed cognizable
offences his F.I.R. was not registered and
therefore, he filed application under
Section 156(3) Cr.P.C. for registration of
his F.I.R., which was denied by the
Magistrate, ACJM Kanpur Dehat , Court
no.1 and the application under Section
156(3) was ordered to be registered as a
complaint. Hence, this application under
Section 482 Cr.P.C. for quashing of the
aforesaid order and for a direction to the
Magistrate concerned to proceed in
accordance with law.

Criminal Miscellaneous Application
No.2516 of 2006
Naimuddin versus State of U.P. and
another

22. In this case the impugned order
is dated 4.2.06 passed by A.C.J.M. 1st
Bulandshahar in Miscellaneous Case No.
31 of 2006 Naimuddin Vs. Shamsu by
which application under Section 156(3)
Cr.P.C., which was filed by the applicant
Naimudeen has been ordered to be
registered as complaint by the impugned
order. The facts in short were that the
applicant is litigating with the family
members of his wife and because of the
aforesaid enmity on 12.1.06 at 4.30 P.M.
the accused armed with knife, country
made pistol and danda assaulted the
applicant
Naimuddin,
who
sustained
injuries.
Since
his
F.I.R.
was
not
registered he filed application under
Section 156(3) Cr.P.C. but the Magistrate
also
denied
passing
an
order
for
registration of the F.I.R. by the impugned
order. Hence, this application under
Section 482 Cr.P.C. for quashing of the
impugned order and a direction for
registration
of
the
F.
I.R.
and
investigation thereon.

Criminal Miscellaneous Application
No.2773 of 2006
Ram Prasad Tiwari versus State of U.P.
And Others.

23. In this case the impugned order
is dated 3.3.06 passed by civil Judge,
Judicial Magistrate, court no.6, Allahabad
in Miscellaneous Case No. 34/XII/06. The
order for registration of F.I.R. was not
made by the Magistrate on the basis of the
case of Gulab Chand Upadhyay. The facts
were that the tractor and trolley belonging
to the applicant Ram Prasad Tiwari had
1 All] Smt. Masuman V. State of U.P. and others
335
been stolen but his F .I.R. was not taken
down by the police nor his aforesaid
tractor being tractor no. U.P. 70 V 9289
and the trolley have been recovered by the
police. The Magistrate had refused to
order for registration of the FIR on the
ground
that
there
is
no
need
of
investigation
and
ordered
that
the
application under Section 156(3) be
registered as complaint. Hence this
application under section 482 to set aside
the said order and for a direction for
reconsideration of the application under
section 156(3) Cr.P.C. afresh by the
Magistrate.

24. From the facts mentioned above
there is a comity of prayer and legal
question which is engulfing all these
cases. All these applications are filed by
victims who had earlier approached the
concerned
Magistrates
under
section
156(3) CLP.C. for getting their FIR
registered by the police but the said
prayer has been rebuffed by the concerned
Magistrates and in some cases even by the
lower revisional courts mainly on two
grounds, in some cases by ordering the
applicant to file a complaint as he is in
full knowledge of all the facts and
investigation is not required on the basis
of Gulab Chand Upadhyay's and Ram
Lal's case and in others by rejecting his
application under Section 156(3) Cr.P.C.
Thus, in all these cases a common
grievance and a common question of law
have been raised.

25. I have heard respective counsels
for the applicants in all these applications
in support of their case as well as learned
A.G.A. in opposition

26. Learned counsels for the
applicants in all these cases contended
with force that the order passed by the
Magistrate is wholly illegal without
jurisdiction and de horse the law. They
contended that the application under
Section
156(3)
Cr.P.C.
disclosed
commission of cognizable offences and
hence the Magistrate had no jurisdiction
to refuse passing of an order for
registration and investigation of the FIR.
The
counsels
contended
that
the
Magistrate has to act in accordance with
law and he cannot travel beyond the scope
of the power, which has been conferred
on him under Section 156(3) Cr.P.C.
They harangued that once a cognizable
offence is disclosed in the application
filed under section 156(3) Cr.P.C. the
Magistrate is left with no other option but
to order for investigation as the applicants
had
invoked
the
administrative
jurisdiction of the Magistrate for a
direction to the police to register the FIR
under chapter XII of the code and the
Magistrate acted illegally in not granting
the said relief. They further argued that
the Magistrate who is not in a position to
deal with the cases already pending before
him further saddled himself to inquire into
the matter under chapter XV Cr.P.C.
when the applicants never wanted it from
him under chapter XII of the code. They
urged that the Magistrate has acted on his
own by passing the impugned orders and
it is he who has started the lis by taking
cognizance under chapter XV which was
never prayed for by the applicants and
which is not permissible under the law.
According to their submission the power
of investigation lies with the police and
not with the Magistrate and hence he is
incompetent to decide as to whether a
cognizable offence is investigable or not
and it is only the police who can decide it
under section 157 (1) &(2) Cr.P.C. and if
the police decides not to investigate the
336 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
FIR then it has to record it's reasons for
the same and communicate it to the
informant. They contended that the
Magistrate by usurping the power of the
police has acted de-hors the law and
without
jurisdiction.
They
further
submitted that it was choice of the
applicants to decide as to under, which
forum he wants the redressal of his
grievances and start the lis. They further
contended that the Magistrate cannot be a
party to a lis and he cannot decide the
forum for it, which is the right of the
victim. The Magistrate does not have the
advisory jurisdiction to direct them to file
a complaint they harangued.