# Harish Shankar Revisionist v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 821
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-09
- **Case number:** Criminal Revision No. 66 of 2020
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harish-shankar-revisionist-v-state-of-u-p-anr-45734
- **Pages:** 7

## Headnote

Law-Code
of
Criminal
Procedure,1973-Section
156(3)-
rejection-calling the report or collecting
the evidence from the police station
concerned, if the Magistrate is satisfied
that no prima facie case is made out, he
is not bound to order for registration of
the case-He may or may not allow the
application
in
his
discretionHence,dismissed.(Para 7 to 18)

It is not incumbent upon a Magistrate to allow
an
application
u/s
156(3)
Cr.P.C.
for
registration of the case, he can exercise judicial
discretion in the matter and can pass order for
treating it as complaint or to reject it in suitable
cases.(Para 7)
822 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Revision dismissed. (E-6)

List of Cases Cited:

## Text

2 All. Hari Shankar Vs. State of U.P. & Anr.
821
jurisdiction. In the revisional jurisdiction
the evidence cannot be re-appreciated for
looking the the mere invalidity of the order
passed by the Court below.

12. In K.Chinnaswamy Reddy Vs.
State of Andhra Pradesh, AIR 1962 SC
1788
it
was
held
that
revisional
jurisdiction should be exercised by the
High Court in exceptional cases only when
there is some glaring defect in the
procedure or a manifest error on a point of
law resulting flagrant miscarriage of
justice.

13. Again in the case of Mahendra
Pratap Singh Vs. Sarju Singh, AIR 1968
SC 707, Jagannath Chaudhary and
others Vs. Ramayan Singh and another,
2002(5) SCC 659. In Ram Briksh Singh
and others Vs. Ambika Yadav and
another 2004(7) SCC 665 wherein it has
been held that under Sections 397 to 401
of the Court are group of sections
conferring higher and superior courts a
sort of supervisory jurisdiction. These
powers are required to be exercised
sparingly though the jurisdiction under
Section 401 cannot be invoked to only
correct wrong appreciation of evidence
and the High Court is not required to act as
a Court of appeal, but at the same time it is
duty of the Court to correct manifest
illegality resulting in gross miscarriage of
justice.

14. After hearing learned A.G.A. and
considering the grounds taken in the
criminal revision and the judgment, I do
not find any infirmity or illegality in the
impugned judgment.

15. In view of above, the revision
lacks merit.

16. Hence, the present criminal
revision is dismissed.

17. Interim order, if any, stands
vacated.

18. Certified copy of this judgment
be transmitted to court below for necessary
action.
----------
(2020)02ILR A821

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2020

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

Criminal Revision No. 66 of 2020

Harish Shankar ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Priyanshu Kumar Srivastava

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

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section
156(3)-
rejection-calling the report or collecting
the evidence from the police station
concerned, if the Magistrate is satisfied
that no prima facie case is made out, he
is not bound to order for registration of
the case-He may or may not allow the
application
in
his
discretionHence,dismissed.(Para 7 to 18)

It is not incumbent upon a Magistrate to allow
an
application
u/s
156(3)
Cr.P.C.
for
registration of the case, he can exercise judicial
discretion in the matter and can pass order for
treating it as complaint or to reject it in suitable
cases.(Para 7)
822 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Revision dismissed. (E-6)

List of Cases Cited:

1. Sukhwasi Vs. St. Of U.P. (2007) 59 ACC 739

2. Smt. Masuman Vs. St. Of U.P. & Ors. (2007)
1 ALJ 221

3. Ram Babu Gupta & Ors Vs. St. Of U.P.
(2001) 43 ACC 50

4. Rajendra Singh Katoch Vs. Chandigarh
Administration & Ors (2008) 60 ACC 347

5. Father Thomas Vs. St. Of U.P. and Anr.
(2011) Crl. Law Journal 2278

6. Aleque Padamsee & Ors. Vs. U.O.I.& Ors.
(2007) Crl. Law Journal 3729

7. All Institute of Medical Sciences Employees
Union Vs. U.O.I. (1996 ) 4 Crimes 189(SC)

8. Hari Singh Vs. St. Of U.P. (2006) Crl. Law
Journal 3283

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

1. Heard Mr. Priyanshu Kumar
Srivastava,
learned
counsel
for
the
revisionist and Mr. Amit Singh, Chauhan,
learned A.G.A. for the State.

2. The present criminal revision
under Section 397/401 Cr.P.C. has been
filed to quash the impugned order dated
27th November, 2019 passed by the
Special Judge (S.C./.S.T. Act), Bareilly in
Misc. Case No. 1117 of 2019 (Hari
Shanker Vs. Shishupal), whereby the
application made by the revisionist under
Section 156 (3) Cr.P.C. has been rejected.

3. Learned counsel for the revisionist
submits that the marriage of the revisionist
was solemnized with Geeta Devi, daughter
of Teeka Ram Diwakar on 23rd April,
2019. On 6th August, 2019 at 07:30 a.m.,
the opposite party no.2 entered into the
house of the revisionist and took away his
wife forcefully. When revisionist objected,
opposite party no.2 also abused and
assaulted the revisionist. Opposite party
no.2 has also taken away ornaments and
Rs. 1000/- cash. Opposite party no.2
immediately went to Police Station for
lodging of the first information report but
his report has not been registered.
Thereafter he made applications to the
Senior Superintendent of Police, Bareilly
8th August, 2019, 23rd August, 2019, 17th
September, 2019 and 8th October, 2019,
but all went in vain. Thereafter the
revisionist made an application under
Section 156 (3) Cr.P.C. before the
concerned Court but the same has also
been rejected by the court below vide the
impugned order dated 27th November,
2019. It is further submitted that from
perusal of the contents made in the
application under Section 156 (3) Cr.P.C.,
cognizable offence is made out but the
court below has illegally rejected the same
while passing the impugned order. Since
the opposite party no.2 had illegally taken
away the wife of revisionist and ornament
and cash, as per Section 156 (3) Cr.P.C.
the Magistrate is empowered under section
190 Cr.P.C. to direct investigation of any
cognizable
case.
It
is
vehemently
contended by the learned counsel that a
Magistrate, was bound to pass an order for
registration of the FIR and its investigation
by the police on the application under
section 156 (3) Cr.P.C. as a cognizable
offence
of
serious
nature
requiring
investigation is made out on the basis of
averments made in that application.

4. Per contra, Mr. Amit Singh
Chauhan, learned A.G.A. for the State
2 All. Hari Shankar Vs. State of U.P. & Anr.
823
submits that if the application under
section 156 (3) Cr.P.C. contains the
allegations of commission of a cognizable
offence, then the Magistrate is under
obligation to direct investigation after
registration of the FIR in each and every
case. However, in the application made by
the revisionist under Section 156 (3), court
below has not found any substance and he
has rightly rejected the application of the
revisionist. The court below has not
committed any error while passing the
impugned order. The court below has
recorded pure finding of fact. He,
therefore, submits that the impugned order
passed by the court below is legal and just
and the same does not warrant any
interference by this Court.

5. I have considered the submissions
made by the learned counsel for the parties
and have gone through the record of the
present criminal revision.

6. Before coming to the merits of
the case, it would be worthwhile to
peruse certain Sections of the Code of
Criminal Procedure. Information under
section 154 of Cr.P.C is generally
known as F.I.R. It is pertinent to see
that the word '' first'' is not used in
Cr.P.C in section 154 of Cr.P.C. Yet, it
is
popularly
known
as
FIRST
INFORMATION
REPORT.
Nevertheless
a
person,who
is
a
grievance that police officer is not
registering FIR under section 154 of
Cr.P.C, such a person can approach
Superintendent of Police (SP), with
written application, under sub-section
3 of section 154 of Cr.P.C. In case of
SP also does not still register FIR, or
despite FIR is registered, no proper
investigation is done, in such a case,
the aggrieved person can approach
Magistrate concerned under section
156 (3) of Cr.P.C. If that be so, it is
very essential and interest to know the
powers conferred on Magistrate under
section 156 (3) of Cr.P.C. Therefore, I
deem that it is very useful if it is
discussed with relevant case law as to
the powers of Magistrate under section
of 156 (3) of Cr.P.C. Section 156(3) is
very briefly worded. The powers of
Magistrate are not expressly mentioned
in section 156 (3) of Cr.P.C. If that be
so, a paucity will be crept mind that
whether there is an implied power in
the Magistrate under Section 156(3)
Cr.P.C. to order registration of a
criminal offence and /or to direct the
officer in charge of the concerned
police
station
to
hold
a
proper
investigation
and
take
all
such
necessary steps that may be necessary
for ensuring a proper investigation
including monitoring the same or not.

7.

The
issue
whether
the
Magistrate is bound to pass an order
for registration of the FIR and its
investigation by the police on each and
every application under section 156 (3)
Cr.P.C.
containing
allegation
of
commission of a cognizance offence is
not
'res-integra'
now,
as
this
controversy has been settled by the
Division Bench of the Court in the case
of Sukhwasi vs. State of U.P. reported
in 2007 (59) ACC 739. In the case of
Smt. Masuman vs. State of U.P. &
others reported in 2007 (1) ALJ 221
and some other cases, the single judges
of the Court had taken a view that if
the application under section 156 (3)
Cr.P.C. discloses the commission of a
prima-facie cognizable offence, then it
is obligatory for the magistrate to
direct investigation after registration of
824 INDIAN LAW REPORTS ALLAHABAD SERIES
the FIR on the basis of that application.
Disagreeing
with
this
view,
the
following question was referred to the
larger Bench for decision in the case of
Sukhwasi (Supra):-

"Whether
the
Magistrate
is
bound to pass an order on each and every
application under section 156(3) Cr.P.C.
containing allegations of commission of a
cognizable offence for registration of the
FIR and its investigation by the police
even if those allegations, prima-facie, do
not appear to be genuine and do not
appeal to reason, or he can exercise
judicial discretion in the matter and can
pass order for treating it as 'complaint' or
to reject it in suitable cases"?

8. After having considered the full
Bench decision of the Court in the case of
Ram Babu Gupta & others vs. State of
U.P. reported in 2001 (43) ACC 50 and
many other cases, the Division Bench in
the case of Sukhwasi vs. State of U.P. has
answered the question in paragraph 23 of
the report as under:-

"The reference is, therefore,
answered in the manner that it is not
incumbent upon a Magistrate to allow an
application under section 156(3) Cr. P . C.
and there is no such legal mandate. He
may or may not allow the application in
his discretion. The second leg of the
reference is also answered in the manner
that the Magistrate has a discretion to
treat an application under section 156(3)
Cr.P.C. as a complaint."

9. Therefore, in view of the law laid
down by the Division Bench in the
aforesaid case, the above mentioned
contention of the learned counsel for the
revisionist has got no force. In the case of
Rajendra Singh Katoch vs. Chandigarh
Administration & others reported in
2008 (60) ACC 347, the Apex Court has
made the following observation in para 8
of the report at page 348:-

"Although the officer-in-charge
of a police station is legally bound to
register a first information report in terms
of section 154 of the Code of Criminal
Procedure, if the allegations made by them
gives rise to an offence which can be
investigated
without
obtaining
any
permission
from
the
Magistrate
concerned; the same by itself, however,
does not take away the right of the
competent officer to make a preliminary
enquiry, in a given case, in order to find
out as to whether the first information
sought to be lodged had any substance or
not."

10. From the aforesaid observations
made by the Hon'ble Apex Court, this fact
is borne out that before lodging the FIR,
the competent police officer can make a
preliminary enquiry in order to find out as
to whether the first information sought to
be lodged had any substance or not. If the
police officer is competent to make a
preliminary enquiry in a given case in
order to find out as to whether the first
information sought to be lodged had any
substance or not, then how the Magistrate
can be bound to direct registration of FIR
and its investigation on each and every
application under section 156 (3) Cr.P.C.
containing allegations of commission of a
cognizable offence without applying its
mind to find out whether the allegations
made on the application have any
substance or not. In my considered
opinion, the Magistrate is required to
apply its mind to find out whether the first
information sought to be lodged by the
2 All. Hari Shankar Vs. State of U.P. & Anr.
825
applicant had any substance or not. If the
allegations made in the application under
section 156(3) Cr.P.C. prima-facie appear
to be without any substance, then in such
case the Magistrate can refuse to direct
registration of the FIR and its investigation
by the police, even if the application
contains the allegations of commission of
a cognizable offence. In such case, the
Magistrate is fully competent to reject the
application. Even in the cases, where
prima facie cognizable offence is disclosed
from
the
averments
made
in
the
application under section 156 (3) Cr.P.C.
in appropriate case according to facts and
nature of the offences alleged to have been
committed, the Magistrate can decline to
direct investigation and in such cases the
application under section 156(3) Cr.P.C.
can be treated as complaint, as held by the
Division Bench in the case of Sukhwasi
vs. State of U.P. (supra).

11. The Magistrates should not shirk
their legal responsibility to pass an order
for registration of the FIR and its
investigation
by
the police
on
the
applications under section 156 (3) Cr.P.C.
in the cases where on the basis of the
averments made therein and the material,
if any, brought on record in support
thereof, prima facie cognizable offence of
serious
nature
requiring
police
investigation is made out and in such cases
the aggrieved person should not be
compelled to collect and produce the
evidence at his cost to bring home the
charges to the accused by passing an order
to treat the application under section 156
(3) Cr.P.C. as complaint thereby forcing
the aggrieved person to proceed in the
manner provided by chapter XV Cr.P.C.

12. In the case of Father Thomas
Vs. State of U.P and Anr. reported in
2011 Crl. Law Journal 2278 though the
matter was that an application under
Section 156(3) Cr.P.C. was allowed and
when revision came before court for
decision, the court was of the view that the
accused has no locus standi to challenge
an order passed, and an order directing
investigation is purely interlocutory in
nature in view of statutory bar contain
under section 397(2) of the Code.

13. In the case of Aleque Padamsee
and Ors. Vs. Union of India (U0I) and
Ors. 2007 reported in Criminal Law
Journal 3729; the Apex Court has held that
Whenever any information is received by
the police about the alleged commission of
offence which is a cognizable one there is
a duty to register the FIR. There can be no
dispute on that score. The only question is
whether an order can be issued to the
police authorities to register the same. The
basic question is as to what course is to be
adopted if the police does not do it. The
correct position in law, therefore, is that
the police officials ought to register the
FIR whenever facts brought to its notice
show that cognizable offence has been
made out. In case the police officials fail
to do so, the modalities to be adopted are
as set out in Section 190 read with Section
200 of the Code.

14. In the case of All Institute of
Medical Sciences Employees Union Vs.
Union of India reported in 1996 (4)
Crimes 189 (Supreme Court), the Apex
Court has held Para 4:

"4. When the information is laid
with the police but no action in that behalf
was taken, the complainant is given power
under Section 190 read with Section 200
of the Code to lay the complaint before the
Magistrate having jurisdiction to take
826 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance of the offence and the
Magistrate is required to inquire into the
complaint as provided in Chapter XV of
the Code. In case the Magistrate after
recording evidence finds a prima facie
case, instead of issuing process to the
accused, he is empowered to direct the
concerned police to investigate into the
offence under Chapter XII of the Code and
to submit a report. If he finds that the
complaint does not disclose any offence to
take further action, he is empowered to
dismiss the complaint under Section 203 of
the Code. In case he finds that the
complaint/ evidence recorded prima facie
discloses offence, he is empowered to take
cognisance of the offence and would issue
process to the accused."

15. Similarly, the Apex Court has
again in the Case of Hari Singh Vs. State
of U.P reported in 2006 Criminal Law
Journal 3283 held that para 4:

"4. When the information is laid
with the police, but no action in that behalf
is taken, the complainant can under
Section 190 read with Section 200 of the
Code lay the complaint before the
Magistrate having jurisdiction to take
cognizance of the offence and the
Magistrate is required to enquire into the
complaint as provided in Chapter XV of
the Code. In case the Magistrate after
recording evidence finds a prima facie
case, instead of issuing process to the
accused, he is empowered to direct the
police concerned to investigate into
offence under Chapter XII of the Code and
to submit a report. If he finds that the
complaint does not disclose any offence to
take further action, he is empowered to
dismiss the complaint under Section 203 of
the Code. In case he finds that the
complaint/evidence recorded prima facie
discloses an offence, he is empowered to
take cognizance of the offence and would
issue process to the accused. These
aspects have been highlighted by this
Court in All India Institute of Medical
Sciences Employees' Union (Reg) through
its President v. Union of India and Ors.
MANU/SC/1769/1996 : (1996)115CC582 .
It was specifically observed that a writ
petition in such cases is not to be
entertained. The above position was again
highlighted
recently
in
Gangadhar
Janardan Mhatre v. State of Maharashtra
MANU/SC/0830/2004 : 2004CriLJ4623
and in Minu Kumari and Ant v. State of
Bihar and Ors. MANU/SC/8098/2006:
2006CriLJ2468."

16. Perusal of the certain provisions
of Code of Criminal Procedure and the law
laid down herein above, this Court is of
the firm opinion that it is for the
satisfaction of the Magistrate concerned
and if after calling the report or collecting
the material evidence from the police
station concerned, he is of the satisfaction
that no prima facie case is made out
against the opposite parties, Magistrate is
not bound to order for registration of the
case. The court below after appreciating
the contents of the application made under
Section 156 (3) as well as other evidence
on record has also found any substance in
the contents of the revisionist that he has
made several applications before the
Station House Officer concerned and
Senior Superintendent of Police, Bareilly,
as the revisionist has failed to produce any
receipt or other documents in support
thereof.

17. In light of the above facts and
above proposition of law, this Court is of
the view that there is no illegality or
irregularity in the order impugned and
2 All. Hari Shankar Vs. State of U.P. & Anr.
827
after collecting the report from the police
station concerned or the report otherwise
the Magistrate was of the view that no
prima facie case was made out. Thus, the
application has rightly been rejected by the
court below under the order impugned.

18. In light of above facts, this Court
is of the view that no interference is
required in the order impugned. The
present criminal revision lacks merit and
deserves to be dismissed. It is accordingly
dismissed.
----------
(2020)02ILR A827

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Revision No. 166 of 2020

Lalit ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Raghuraj Kishore

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

A. Criminal Law- Code of Criminal
Procedure, 1973-Sections 397/401 &
Indian Penal Code, 1860- Section 316-
rejection-causing
miscarriage
to
victim-meticulous
analysis

or
requirement of medical evidence is
not required at the time of framing of
charges-framing
of
charges
for
offence
punishable
under
various
section of IPC, for which cognizance is
taken, only ingredients are requiredno illegality in the order passed by
revisional
court-Hence,
dismissed.(Para 6)
Criminal Revision dismissed. (E-6)

List of Cases Cited:

1. Palwinder Singh Vs. Balwinder Singh & Ors.
(2008) 14 SCC 504

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. Present Revision, under Sections
397/401
of
the
Code
of
Criminal
Procedure, 1973 (In short 'Cr.P.C.'), has
been filed by the revisionist, Lalit,
assailing order, dated 14.11.2019, passed
by the Sessions Judge, Baghpat, with this
contention that the Revisional court failed
to appreciate facts and law placed before it
and passed impugned order, under failure
of exercise of appropriate jurisdiction and
the order, being apparently erroneous on
the face of record, deserves to be set aside.

2. Learned counsel for revisionist
argued that there is no evidence for
offence, punishable, under Section 316 of
Indian Penal Code, 1860, (In short 'IPC'),
whereas, occurrence was said to have
occurred at the parental house of the
informant and mother of the victim and it
was said to be the month of November,
whereas, medical report of hospital reveals
that it was a case of June, 2017, i.e., not
corroborating with the accusation levelled
by the informant and her daughter-victim.
Hence, it was asked specifically that is
there any medical document or reference
regarding miscarriage and it was answered
that no such medical document is there.
Hence, above conclusion of trial court was
apparently against fact on record. Hence,
this revision with above prayer.

3. From very perusal of the impugned
order, dated 14.11.2019, it is apparent that