# Dhruv Karan Singh Revisionist v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 582
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-13
- **Case number:** Criminal Revision No. 2632 of 2021
- **Bench:** Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhruv-karan-singh-revisionist-v-state-of-u-p-ors-47478
- **Pages:** 6

## Headnote

Law-Code
of
Criminal
Procedure,
1973-Section
397/401
&
156(3) -revisionist moved application u/s
156(3) which was treated as complaintrevisionist contended that the application
filed u/s 156(3) was to allow with a
direction to the Station House Officer
concerned
for
registration
of
FIR
regarding the matter-application filed u/s
156(3) Cr.P.C. can be treated as complaint
u/s 200 Cr.P.C. and no separate complaint
is required to be filed-Magistrate has to
always apply his mind on the allegationsapplication which constitute cognizable
offence but makes a defective prayer,
such application will not cease to be a
complaint nor can the Magistrate refuse to
treat it as a complaint even though there
be no prayer seeking trial of the known or
unknown accused-Thus, application filed
u/s 156(3) as a complaint cannot be said
to be illegal.(Para 1 to 13)

The revision is dismissed. (E-6)

List of Cases cited:

## Text

582 INDIAN LAW REPORTS ALLAHABAD SERIES
Registration of F.I.R. was not required as
the learned Magistrate has already taken
cognizance under Section 190(1)(a) of the
Cr.P.C. It is settled principle of law that
Magistrate
who
has
entrusted
the
investigation under Section 202 Cr.P.C. is
not
bound
by
the
report
of
the
investigation.

It has been held in the Case of
Ramprabesh Rai Vs. Bishun Mandal,
1981 CrLJ 139 by the Division Bench of
Patna High Court that the Magistrate who
entrusted investigation under Section 202
Cr.P.C. may disagree with the report of
investigation and take cognizance.

In
Vadilal
Panchal
Vs.
Dattatraya AIR 1960 SC 1113, it has been
held that this Section does not mean that
the Magistrate is bound to accept the result
of the inquiry or investigation or that he
must accept any plea that is setup on behalf
of the person complained against. The
Magistrate must apply his judicial mind to
the materials on which he has to form his
judgment.

So, the Magistrate was not bound
by the final report submitted by the police
after investigation. Once he has taken
cognizance under Section 190(1)(a) Cr.P.C.
he may have taken into consideration the
evidence under Sections 200 & 202 Cr.P.C.
only which was available on record to pass
any order of summoning. From the
impugned order it appears that the learned
Magistrate while taking cognizance has
taken into consideration all the materials
available on the record i.e. evidence under
Sections 200 & 202 Cr.P.C., the evidence
collected during investigation and objections
of complainant filed against the final report.
He may have ignored the police report and
protest petition submitted against it and
should have only taken into consideration
the evidence produced under Sections 200 &
202 Cr.P.C. and then should have passed
any order either to summon the accused
under Section 204 Cr.P.C. or dismiss the
complaint under Section 203 Cr.P.C.. So,
the impugned order is not sustainable.

8. As the impugned order of
summoning dated 13.02.2015 suffers from
material illegality, it is hereby set aside with
a direction to the learned Magistrate to
proceed in accordance with the procedure
prescribed in Chapter XV of the Code.
Learned Magistrate will give an opportunity
to the complainant to produce any other
evidence under Section 202 Cr.P.C. if he so
desires. After taking into consideration the
evidence and material available on record
under Sections 200 & 202 Cr.P.C., if the
learned Magistrate comes to the conclusion
that a prima facie case is made out then he
may proceed under Section 204 Cr..P.C. and
issue process and if he comes to the
conclusion that there is no sufficient ground,
he may dismiss the complaint under Section
203 Cr.P.C.

9. The criminal revision is allowed,
accordingly. The learned Magistrate to
proceed further in the light of the directions
made in this order.
----------
(2022)01ILR A582
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Revision No. 2632 of 2021

Dhruv Karan Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties
1 All. Dhruv Karan Singh Vs. State of U.P. & Ors.
583
Counsel for the Revisionist:
Sri Saurabh Singh

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

A.
Criminal
Law-Code
of
Criminal
Procedure,
1973-Section
397/401
&
156(3) -revisionist moved application u/s
156(3) which was treated as complaintrevisionist contended that the application
filed u/s 156(3) was to allow with a
direction to the Station House Officer
concerned
for
registration
of
FIR
regarding the matter-application filed u/s
156(3) Cr.P.C. can be treated as complaint
u/s 200 Cr.P.C. and no separate complaint
is required to be filed-Magistrate has to
always apply his mind on the allegationsapplication which constitute cognizable
offence but makes a defective prayer,
such application will not cease to be a
complaint nor can the Magistrate refuse to
treat it as a complaint even though there
be no prayer seeking trial of the known or
unknown accused-Thus, application filed
u/s 156(3) as a complaint cannot be said
to be illegal.(Para 1 to 13)

The revision is dismissed. (E-6)

List of Cases cited:

1. Sukhwasi Vs St. of U.P. (2008) Cri LJ 452

2. Lalita Kumari Vs Govt. of U.P. & anr. (2014) 2
SCC 1

3. Smt. Neeb Devi Vs St. of U.P. & ors.(2010)
Cri LJ 2354

4. Yogendra Singh Vs St. of U.P. (2005) 51 ACC
890 : (2005 All LJ 1518 (Alld),

5. Mathuri @ Vishveswaranand Vs Swami
Sachchidanand Harishakshi (2001) Suppl ACC
957 SC

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. Heard learned counsel for the
revisionist, learned A.G.A for the State and
perused the record.

2. The instant criminal revision is
directed against the judgment and order
dated
27.08.2021
passed
by
learned
Additional Civil
Judge
(J.D.), Court
No.7/Judicial Magistrate, Agra in Misc.
Application No.1317 of 2021, under
Section 156 (3) Cr.P.C. "Dhrub Karan
Singh vs. Vipin Tiwari and others", Police
Station Nai Ki Mandi, District Agra,
whereby the learned Additional Civil Judge
(J.D.), Court No.7/Judicial Magistrate,
Agra has treated the aforesaid Misc.
Application No.1317 of 2021 as the
complaint case without considering the
records, which is illegal and arbitrary.

3. B rief facts are that the revisionist
has moved an application under Section
156 (3) Cr.P.C. for registration and
investigation of the case which was heard
and disposed of by Additional Civil Judge
(J.D.), Court No.7/Judicial Magistrate,
Agra
vide
impugned
order
dated
27.08.2021,
whereby
the
learned
Magistrate has directed that the application
filed under Section 156 (3) Cr.P.C. to be
treated as complaint by placing reliance on
the law laid down by Division Bench of
this Court in Sukhwasi vs. State of Uttar
Pradesh; 2008 Cri LJ 452.

4. Foremost submission of learned
counsel for the revisionist is that the
impugned order is not sustainable in the
eyes of law, insofar as the same is against
the law laid down by the Hon'ble Apex
Court in the case of Lalita Kumari vs.
Government of Uttar Pradesh and
another, reported in 2014 (2) SCC 1. He,
thus, submitted that the only option
584 INDIAN LAW REPORTS ALLAHABAD SERIES
available to the learned Magistrate was to
allow the application filed under Section
156 (3) Cr.P.C. with a direction to the
Station House Officer concerned for
registration of F.I.R. regarding the matter.
The learned Magistrate was not competent
to direct that the application filed under
Section 156 (3) Cr.P.C. be treated as
complaint. The impugned order is thus,
patently
illegal
which
would
cause
miscarriage of justice, therefore, the same
is liable to be quashed.

5. Per contra, learned A.G.A. has
supported the impugned order and has
pointed out that the grievance of the
revisionist has not gone unattended by the
court below. The court below after taking
into consideration the entire gamut of the
facts and circumstances of the case has
rightly decided to treat the application filed
by the revisionist under Section 156 (3)
Cr.P.C. as a complaint. The revisionist shall
still have an opportunity to prove his case
before the court below. His further
submission is that in Lalita Kumari
(supra) Hon'ble the Apex Court has not
referred, discussed and overruled the law
laid down by the Division Bench of this
Court in Sukhwasi (supra). Therefore, the
impugned order cannot be termed to be
illegal and no miscarriage of justice would
be caused by the impugned order.

6. The scope and ambit of law laid
down by the Hon'ble Supreme Court in
Lalita Kumari (supra) can be ascertained
from para no.6 of the judgment, which is
quoted hereinbelow :

"6) Therefore, the only question
before this Constitution Bench relates to
the interpretation of Section 154 of the
Code and incidentally to consider Sections
156 and 157 also."

(Emphasis supplied)

7. In case of Lalita Kumari (supra)
the controversy revolved around the
registration of F.I.R in cognizable cases by
the Police Officer. However, it did not
dwelve upon scope and ambit of power
vested in Magistrate by virtue of provision
of Section 156 (3) Cr.P.C. which is, for
ready reference, quoted hereinbelow :

"156. Police officer' s power to
investigate cognizable case.

(2) ............

(3) Any Magistrate empowered
under section 190 may order such an
investigation as above- mentioned."

8. In Sukhwasi (supra) the Division
Bench of this Court in paragraph nos.6, 7, 8
& 9 has held as under:

"6. It will also be noticed that the
law was, and has always been, that if a
cognizable offence is made out, the Police
are bound to register the First Information
Report. In case, the Police do not register
the First Information Report, there is
provision under Section 154(3) Cr.P.C. to
send an application to Superintendent of
Police, who shall direct the registration of
a First Information Report, if a cognizable
offence is disclosed. There was as such, no
need for an authority in this regard being
given to the Magistrate. That, this has been
done and such authority as given to the
Magistrate indicates, that this has been
done, because the Magistrate will bring to
bear upon the matter a judicial and
judicious
approach,
which
will
be
necessarily implication be selective. That
gives a clear inkling to the intention of the
legislature,
that
the
Magistrate
may
1 All. Dhruv Karan Singh Vs. State of U.P. & Ors.
585
consider the feasibility and propriety, of
passing an order of registration of the First
Information Report.

7. The matter may be looked into
from another angle, and that is, in Section
154(3) Cr.P.C. where the Superintendent of
Police has been given the authority for
registration of First Information Report,
the word used is 'shall' Section 143(3)
Cr.P.C. is as hereunder

"154. Information of cognizable
cases ?

(1)

(2)

(3) Any person aggrieved by a
refusal on the part of an officer in charge
of
a
police
station
to
record
the
information referred to in sub-section (1)
may
send
the
substance
of
such
information, in writing, and by post, to the
Superintendent of Police concerned who,
if satisfied that such information discloses
the commission of a cognizable offence
shall either investigate the case himself or
direct an investigation to be made, by any
police officer subordinate to him, in the
manner provided by this Code, and such
officer shall have all the powers of an
officer incharge of the police station in
relation to that offence."

8. In Section 156 (3) Cr.P.C. the
word used is 'May' Section 156(3) Cr.P.C. is
as follows;

156. Police Officer's power
to investigate cognizable case?

(1)

(2)

(3) Any Magistrate empowered
under Section 190 may order such an
investigation as above-mentioned.

9. The use of the word 'shall' in
Section 154(3) Cr. P.C: and the use of word
'May' in Section 156(3) Cr.P.C. should
make the intention of the legislation clear.
If the legislature intended to close options
for the Magistrate, they could have used
the word 'shall' as has been done in Section
154(3) Cr.P.C. Instead, use of the word
'May' is, therefore, very significant, and
gives a very clear indication, that the
Magistrate has the discretion in the matter,
and can, in appropriate cases, refuse to
order registration."

9. While adverting to the issue, as to
whether the learned Magistrate can treat an
application filed under Section 156 (3)
Cr.P.C. as a complaint, the Division
Bench in Sukhwasi (supra) in parapraph
nos.13 and 14 has held as under :

"13. It is clear from the judgment
of the Supreme Court in the case Suresh
Chandra Jain v. State of Madhya Pradesh,
2001 (42) ACC 459 : ((2001) 2 SCC 628 :
AIR 2001 SC 571), that a Magistrate has
the authority to treat an application under
Section 156(3) Cr.P.C. as a complaint. This
will become clear from the reference in the
said report to the case of Gopal Das Sindhi
v. State of Assam, AIR 1961 SC 986, in
which the following observations were
made: (Para 7)

"If the Magistrate had not taken
cognizance of the offence on the complaint
filed before him, he was not obliged to
examine the complainant on oath and the
586 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses present at the time of filing of the
complaint. We cannot read the provisions of
Section 190 to mean that once a complaint
is filed, a Magistrate is bound to take
cognizance if the facts stated in the
complaint disclose the commission of any
offence. We are unable to construe the word
'may' in Section 190 to mean 'must'. The
reason is obvious. A complaint disclosing
cognizable offences may well justify a
police for investigation. There is no reason
why the time of the Magistrate should be
wasted
when primarily
the
duty
to
investigate in cases involving cognizable
offences is with the police. On the other
hand, there may be occasions when the
Magistrate may exercise his discretion and
'Take' cognizance of a cognizable offence."

14. It becomes clear from the said
underlined portion that the Magistrate has
the authority to treat an application under
Section 156(3) Cr.P.C. as a complaint.
Hon'ble Mr. Justice Vinod Prasad has also
referred to the case of Suresh Chand Jain
((2001) 2 SCC 628 : AIR 2001 SC 571),
'supra' and has extracted the following
portion therefrom in order to take a
different view: (para 7) :?

"Section
156,
falling
within
Chapter XII, deals with powers of the
police officers to investigate cognizable
offences. True, Section 202 which falls
under Chapter XV, also refers to the power
of a Magistrate to "direct an investigation
by a police officer". But the investigation
envisaged in Section 202 is different from
the investigation contemplated in Section
156 of the Code."

10. It is, thus, abundantly clear that in
view of law laid down by the Division
Bench of this Court in Sukhwasi (supra),
it cannot be said that a Magistrate, while
entertaining an application filed under
Section 156 (3) Cr.P.C. cannot treat the
same to be a complaint.

11. In the aforesaid context, assistance
can also be taken from a judgment rendered
by this Court in Smt. Neeb Devi vs. State
of U.P. and Ors. 2010 Cri LJ 2354,
wherein a challenge was made to an order
passed by the Magistrate treating the
application moved under Section 156 (3)
Cr.P.C. as a complaint. In Smt. Neeb Devi
(supra), in paragraph nos.6, 7 & 8 it has
been observed as under :

"6. I have considered over the
respective arguments. In this reference a
Full Bench decision of this High Court in
Ram Babu Gupta v. State of U.P., 2001 (43)
ACC 50 : (2001 All LJ 1587) may be
referred in which the Hon'ble High Court
held as under:

"Coming to the second question
noted above, it is to be at once stated that a
provision empowering a Court to act in a
particular manner and a provision creating
a right for an aggrieved person to
approach a Court or authority, must be
understood distinctively and should not be
mixed up. While sections 154, 155, subsections (1) and (2) of 156 Cr. P.C. confer
right on an aggrieved person to reach the
police, 156(3) empowers a Magistrate to
act in a particular manner in a given
situation. Therefore, it is not possible to
hold that where a bare application is
moved before Court only praying for
exercise of powers under Section 156(3) Cr.
P.C. it will remain an application only and
would not be in the nature of a complaint.
It has been noted above that the Magistrate
has to always apply his mind on the
allegations in the complaint where he may
use his powers under Section 156(3) Cr.
1 All. Pratima Singh Vs. State of U.P. & Anr.
587
P.C. In this connection, it may be
immediately added that where in an
application, a complaint states facts which
constitute cognizable offence but makes a
defective prayer, such an application will
not cease to be a complaint nor can the
Magistrate refuse to treat it as a complaint
even though there be no prayer seeking
trial of the known or unknown accused. The
Magistrate has to deal with such facts as
constitute cognizable offence and for all
practical
purposes
even
such
an
application would be a complaint."

7. Moreover, this court in the case
of Yogendra Singh v. State of UP, 2005 (51)
ACC 890 : (2005 All LJ 1518) (Alld), has
held that application filed under Section
156(3) Cr. P.C. can be treated as complaint
under Section 200 Cr. P.C. and no separate
complaint is required to be filed.

8. In the case of Joseph Mathuri
@
Vishveswaranand
v.
Swami
Sachchidanand Harishakshi, 2001 (Suppl)
ACC 957 (SC), the application was moved
by the complainant under section 156(3) Cr.
P.C. before the Magistrate for directing the
police to register the case against the
appellant. In that matter Hon'ble Apex Court
has held that there was nothing wrong if the
application was directed to be treated as
complaint."

12. In view of what has been discussed
above, the impugned order passed by
learned Additional Civil Judge (J.D.), Court
No.7/Judicial Magistrate, Agra, whereby he
has treated the application filed under
Section 156 (3) Cr.P.C. as a complaint,
cannot be said to be illegal. No material
irregularity has been committed by the
learned trial Court while passing the
impugned order either. Therefore, the
present revision lacks merit an

13. In view of the aforesaid discussion,
the present revision is dismissed.
----------
(2022)01ILR A587
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2022

BEFORE

THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Revision No. 2921 of 2018
connected with
Criminal Revision No. 2922 of 2018

Pratima Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rajiv Lochan Shukla, Sri Anand Pati
Tiwari, Sri Chandra Shekhar Rai, Sri Ravi
Kant Shukla

Counsel for the Opposite Parties:
A.G.A., Sri Suresh Chandra Pandey

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section
397/401,
125-
enhancement of maintenance-husband is
unemployed-Hence, maintenance cannot
be
enhanced-trial
court
rightly
appreciated the ground of maintenance
and evidence.(Para 1 to 13)

The revision is dismissed. (E-6)

List of Cases cited:

1. Rajnesh Vs Neha & anr. (2021) 2 SCC 324

2. Kurvan Ansari @ Kurvan Ali & anr. Vs Shyam
Kishore Murmu & anr.,Civil Appeal No. 6902 of
2021