# Geeta Devi v. State of U.P. & Ors

- **Citation:** Application U/S 482 Cr.P.C. No. 3761 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-03
- **Case number:** Application U/S 482 Cr.P.C. No. 3761 of 2020
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/geeta-devi-v-state-of-u-p-ors-46376
- **Pages:** 6

## Headnote

(A) Criminal law- Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - police can
investigate into matters relating to
commission of 'cognizable offences'
brought to its notice under section
154 Cr.P.C. - Officer-in-charge of
police
station
has
power
to
investigate U/S 156(1) - Magistrate
has power to take cognizance u/s 190
Cr.P.C. on receiving the 'complaint' -
matter relating to section 156 (3)
Cr.P.C. relates to power of Magistrate
to order investigation by police in
matters
relating
to
cognizable
offences brought before it through
complaint - Sections 154 and 156
Cr.P.C.
provide
procedure
for
registration
and
investigation
of
complaint - Order dated 30.10.2019
passed by the Special Judge, S.C./S.T
(Prevention of Atrocities) Act - Set
aside.(Para-9,10)

Application under Section 156(3) Cr.P.C. filed by
the applicant has been directed to be treated as
complaint case - right and interest of the
1618 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant is involved in the present case as the
property of applicant has been looted -
allegations made in the application filed under
section 156 (3) Cr. P. C. are not only serious,
but also show the commission of a cognizable
offence. (Para-2,3,7)

HELD:- Accused persons have no right to be
heard at pre-cognizance stage - Special Judge,
S.C./S.T (Prevention of Atrocities) Act, directed
to exercise his discretionary power and decide
afresh the application under section 156(3)
Cr.P.C. moved by the applicant and to pass
appropriate order, in accordance with law.
(Para-14,15)

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

List Of Cases Cited:-

## Text

3-5 All. Geeta Devi Vs. State of U.P. & Ors.
1617
and observed that it is generally seen
that when any marriage goes in rough
weather the tendency of bride is to
insinuate as many members of the
family of her husband as possible with
the allegation of laying demand for
dowry and also treating her with cruelty
when their demand for dowry is not
being
fulfilled.
Allegations
of
misappropriation of dowry are also
made
some
times
against
those
members of the family of the husband
who do not have anything with the
dowry which is the basic concern of the
bride and bridegroom and at best
parents of the bridegroom. If there is no
entrustment of any article of dowry to
anyone and the ingredients of definition
of dowry under Section 2 of Act, 1961
are not satisfied, offence of Section 3/4
of Act, 1961 will also not be attracted.

66. In these circumstances, it
cannot be said that offences under
Section 3/4 of Act, 1961 against
applicants are made out and, in my
view, proceedings, if allowed against
applicants will be nothing except but a
gross abuse of process of law and ends
of justice required that the same must
be quashed against applicants.

67. In the result, application is
allowed. Impugned Charge-sheet No.38
of 2010 dated 31.03.2010 in Case
Crime No.51 of 2010 dated 17.02.2010
and also order dated 22.04.2010 passed
by Additional Chief Judicial Magistrate
IIIrd,
Lucknow
taking
cognizance,
issuing process and registering as Case
No.1908 of 2010, under Sections 498A, 427, 506 IPC read with Sections 3/4
of Act, 1961 as well as subsequent
proceedings thereto are hereby quashed.
----------
(2020)03-05ILR A1617
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.02.2020

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 Cr.P.C. No. 3761 of 2020

Geeta Devi ...Applicant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Sri Om Prakash Vishwakarma

Counsel for the Respondents:
A.G.A.

(A) Criminal law- Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - police can
investigate into matters relating to
commission of 'cognizable offences'
brought to its notice under section
154 Cr.P.C. - Officer-in-charge of
police
station
has
power
to
investigate U/S 156(1) - Magistrate
has power to take cognizance u/s 190
Cr.P.C. on receiving the 'complaint' -
matter relating to section 156 (3)
Cr.P.C. relates to power of Magistrate
to order investigation by police in
matters
relating
to
cognizable
offences brought before it through
complaint - Sections 154 and 156
Cr.P.C.
provide
procedure
for
registration
and
investigation
of
complaint - Order dated 30.10.2019
passed by the Special Judge, S.C./S.T
(Prevention of Atrocities) Act - Set
aside.(Para-9,10)

Application under Section 156(3) Cr.P.C. filed by
the applicant has been directed to be treated as
complaint case - right and interest of the
1618 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant is involved in the present case as the
property of applicant has been looted -
allegations made in the application filed under
section 156 (3) Cr. P. C. are not only serious,
but also show the commission of a cognizable
offence. (Para-2,3,7)

HELD:- Accused persons have no right to be
heard at pre-cognizance stage - Special Judge,
S.C./S.T (Prevention of Atrocities) Act, directed
to exercise his discretionary power and decide
afresh the application under section 156(3)
Cr.P.C. moved by the applicant and to pass
appropriate order, in accordance with law.
(Para-14,15)

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

List Of Cases Cited:-

1. Lalita Kumari Vs. Government of U.P. and
others , 2014 (2) SCC 1

2. Lalita Kumari Vs Goverment of Uttar Pradesh
and another, 2014 (2) SCC 1

3. Sukhwasi v. State of U.P. , 2007(59) ACC 739

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1.

Heard
Mr.
Om
Prakash
Vishwakarma, learned counsel for the
applicant, and the learned A.G.A. for the
State.

2. This application under Section 482
Cr.P.C. has been filed challenging the order
dated 30.10.2019, passed by the Special
Judge, S.C./S.T (Prevention of Atrocities)
Act, Jaunpur in Misc. Case No. 117 of
2019 (Geeta Devi vs. Satya Narayan and
others), under Section 156(3) Cr.P.C.,
Police Station-Sikrara, District-Jaunpur by
which the application under Section 156(3)
Cr.P.C. filed by the applicant has been
directed to be treated as complaint case.

3. Learned counsel for the applicant
submits that a perusal of the complaint filed
by the applicant clearly discloses the
commission of a cognizable offence. He,
therefore, submits that once the application
filed by the applicant under Section 156 (3)
Cr.P.C. disclosed the commission of a
cognizable offence, the Magistrate has
erred in law in directing to proceed with the
application as a complaint case. He further
submits that the right and interest of the
applicant is involved in the present case as
the property of applicant has been looted.
The learned counsel for the applicant has
contended with vehemence that the court
below has passed the impugned order in a
mechanical manner and has ignored the
judgement of the Apex Court rendered in
the case of Lalita Kumari Vs. Government
of U.P. and others reported in 2014 (2)
SCC 1.

4. Learned A.G.A. on the other hand
has supported the impugned order and has
pointed out that the grievance of the
applicant 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 concluded to treat the application
filed by the applicant under Section 156 (3)
Cr.P.C. as a complaint. The applicant shall
still have an opportunity to prove his case
before the court below.

5. Considered the rival submissions
made by the learned counsel for the
parties.

6. A perusal of the impugned order
shows that no sufficient reason has been
disclosed, on the basis of which, the
Magistrate has proceeded to treat the
application under section 156(3) Cr.P.C.
as a complaint.
3-5 All. Geeta Devi Vs. State of U.P. & Ors.
1619

7. From the record, it transpires that
in the present case, the right and interest of
the applicant in her property is involved.
The allegations made in the application
filed under section 156 (3) Cr. P. C. are not
only serious, but also show the commission
of a cognizable offence. The applicant has
alleged in the complaint that on 19.06.2019
at about 09:00 p.m., the accused persons
came at the house of applicant and
destroyed her house and when the applicant
objected the same, accused-Sunil Mishra
and Anil Mishra threatened the applicant
by putting gun on applicant's chest and,
thereafter, Sunil Mishra entered into the
house of applicant and misbehaved with the
daughter-in-law of applicant. They also
forcefully took away several properties of
the applicant. However, the Magistrate vide
order dated 30.10.2019 directed that the
said application shall be treated as a
complaint. A perusal of the order impugned
passed by the Magistrate shows that the
Magistrate was of the view that since all
the evidence required in respect of the
incident which occurred on the alleged date
can be given by the applicant, there is no
necessity of police investigation in the
matter.

8. In view of the nature of the allegations
made by the applicant in the application filed
under Section 156 (3) Cr.P.C., the Special
Judge, S.C./S.T (Prevention of Atrocities) Act,
Jaunpur ought to have allowed the application
and directed the police of Police Station Sikrara,
Jaunpur to investigate into the matter and,
thereafter, submit a report.

9. Sections 154 and 156 Cr.P.C. provide
procedure for registration and investigation of
complaint. The same are quoted herein under:-

"154. Information in cognizable
cases- (1) Every information relating to the
commission of a cognizable offence, if given
orally to an officer in charge of a police station,
shall be reduced to writing by him or under his
direction, and be read Over to the informant;
and every such information, whether given in
writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the
substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf.:

[Provided that if the information is
given by the woman against whom an offence
under section 326A, Section 326B, Section 354,
Section 354A, Section 354B, Section 354C,
Section 354D, Section 376, Section 376A,
Section 376B, Section 376C, Section 376D,
Section 376E or Section 509 of the Indian
Penal Code (45 of 1860) is alleged to have been
committed or attempted, then such information
shall be recorded, by a woman police officer or
any woman officer:

Provided further that -

(a) in the event that the person
against whom an offence under section
354A, Section 354B, Section 354C, Section
354D, Section 376, Section 376A, Section
376B, Section 376C, Section 376D, Section
376E or Section 509 of the Indian Penal
Code (45 of 1860) is alleged to have been
committed or attempted, is temporarily or
permanently
mentally
or
physically
disabled, then such information shall be
recorded by a police officer, at the
residence of the person seeking to report
such offence or at a convenient place of
such person's choice, in the presence of an
interpreter or a special educator, as the
case may be;

(b)
the
recording
of
such
information shall be videographed;

(c) the police officer shall get the
statement of the person recorded by a
Judicial Magistrate under clause (a) of
sub-section (5A) of Section 164 as soon as
possible].
1620 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) A copy of the information as
recorded under sub- section (1) shall be
given forthwith, free of cost, to the
informant.

(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 subsection (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 in charge of the
police station in relation to that offence.

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

(1) Any officer in charge of a
police station may, without the order of
a
Magistrate,
investigate
any
cognizable case which a Court having
jurisdiction over the local area within
the limits of such station would have
power to inquire into or try under the
provisions of Chapter XIII.

(2) No proceeding of a police
officer in any such case shall at any
stage be called in question on the
ground that the case was one which
such officer was not empowered under
this section to investigate.

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

10. From the perusal of the
aforesaid provisions, it is evident that
the police can investigate into matters
relating to commission of 'cognizable
offences' brought to its notice under
section 154 Cr.P.C. Officer-in-charge of
police station has power to investigate
U/S 156(1) in such case. Magistrate has
power to take cognizance u/s 190
Cr.P.C. on receiving the 'complaint'.
Thus the matter relating to section 156
(3)
Cr.P.C.
relates
to
power
of
Magistrate to order investigation by
police in matters relating to cognizable
offences brought before it through
complaint. Complaint has been defined
in section 2(d) Cr.P.C. of as follows :
"complaint' means any allegation made
orally or in writing to a Magistrate,
with a view to his taking action under
this Code, that some person whether
known or unknown, has committed an
offence, but does not include a Police
report." Code of Criminal Procedure has
given different type of powers to deal
with
such
matters
relating
to
commission
of
cognizable
offences
when brought before it.

11. A Division bench of this Court
in the case of ''Sukhwasi v. State of
U.P., 2007(59) ACC 739" held as
under:

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

The
reference
is,
therefore,
answered in the manner that it is not
incumbent upon a Magistrate to allow an
application section 156(3) Cr.P.C. and
there is no such legal mandate".
3-5 All. Geeta Devi Vs. State of U.P. & Ors.
1621

12. However, the said judgement does
not provide any reason as to why F.I.R.
should not be registered in respect of a
cognizable offence.

13. Learned counsel for the applicant
has placed reliance upon the judgement of
the Apex Court in the case of Lalita
Kumari Vs Goverment of Uttar Pradesh
and another, reported in 2014 (2) SCC 1.
He has relied upon paragraph 111 of the
aforesaid judgement, which is reproduced
herein under:-

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

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

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

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

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

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

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

a) Matrimonial disputes/ family
disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

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

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

vii)
While
ensuring
and
protecting the rights of the accused and the
complainant, a preliminary inquiry should
be made time bound and in any case it
should not exceed 7 days. The fact of such
delay and the causes of it must be reflected
in the General Diary entry.

viii)
Since
the
General
Diary/Station Diary/Daily Diary is the
record of all information received in a
police
station,
we
direct
that
all
information relating to cognizable offences,
whether resulting in registration of FIR or
leading to an inquiry, must be mandatorily
and meticulously reflected in the said Diary
and the decision to conduct a preliminary
inquiry
must
also
be
reflected,
as
mentioned above."
1622 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In view of the aforesaid, the
orders dated 30.10.2019 passed by Special
Judge, S.C./S.T (Prevention of Atrocities)
Act,
Jaunpur
cannot
be
sustained.
Accordingly, the present criminal misc.
application succeeds and is allowed at the
admission stage without issuing notice to
the prospective accused persons as they
have no right to be heard at pre-cognizance
stage. The order dated 30.10.2019 passed
by the Special Judge, S.C./S.T (Prevention
of
Atrocities)
Act,
Jaunpur
are
consequently set aside.

15. The concerned court below i.e.
Special Judge, S.C./S.T (Prevention of
Atrocities) Act, Jaunpur is directed to
exercise his discretionary power and decide
afresh the application under section 156(3)
Cr.P.C. moved by the applicant and to pass
appropriate order, in accordance with law,
keeping in view the observations made by
this court, within a period of one month
from the date of production of a certified
copy of this order.

16. With the aforesaid directions, the
present application is allowed.
----------
(2020)03-05ILR A1622
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 Cr.P.C. No. 3821 of 2020

Kaushal Kumar Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mohammad Waseem

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

(A) Criminal law - Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal Code,
1860 - Sections 323, 504, 506, 354, 354A,
354B IPC - taking cognizance - when the
Magistrate applies his judicial mind to the
facts mentioned in a complaint or to a
police report or upon information received
from any person regarding an offence -
summoning order has to be passed after
considering relevant material and showing
appropriate reasons. (Para- 11,14)

Summoning order passed in a cyclostyled
proforma and only the case number, name of
accused and Sections of IPC were written by
pen and rest of the contents are on a printed
proforma order. (Para-14)

HELD:- It is apparent that there is nothing to
indicate that the impugned order has been
passed after applying judicial mind and thus, the
impugned summoning order is not sustainable
and, accordingly, the impugned summoning
order is, hereby, set aside and learned trial
court is directed to pass order afresh, in
accordance with law. (Para-15)

Application u/s 482 Cr.P.C. disposed of
finally. (E-7)

List Of Cases Cited:-

1. Akash Garg Vs. St. of U.P., 2011 (11) ADJ
849

2. Ankit vs. St. of U.P. & anr., JIC 2010 (1) 432

(Delivered by Hon'ble Suresh Kumar Gupta, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. for the State.

2. This application under Section 482,
Cr.P.C. has been filed for quashing the
entire criminal proceedings of case No.
1505 of 2019 (State vs. Kaushal Kumar