# Jafar Abbas Zaidi v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 405
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-25
- **Case number:** Application U/S 482. No. 37804 of 2022
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jafar-abbas-zaidi-v-state-of-u-p-ors-50214
- **Pages:** 9

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 482 - Inherent
power
-
Scope
of
interference
-
Interlocutory
order,
when
can
be
interfered with - Alternative remedy, how
far create bar in exercising inherent power
- Held, there is no total ban on the
exercise of inherent power where abuse of
the
process
of
the
court
or
other
extraordinary situation warrants exercise
of inherent jurisdiction. The limitation is
self-restraint, nothing more - Availability
of alternative remedy of criminal revision
under Section 397 Cr.P.C. by itself cannot
be
a
good
ground
to
dismiss
an
application under Section 482 Cr.P.C. -
Prabhu Chawla's case relied upon. (Para
12 and 14)
406 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Criminal law - Criminal Procedure
Code, 1973 - Section 156(3) - Allegation
of committing dacoity by taking away the
laptop, phone etc. was leveled - Question
of recovery and collection of incriminating
evidence
is
involved
-
However,
application u/s 156(3) was treated as the
complaint case - Validity challenged -
Held, in the case in hand, CCTV footage
was required to be retrieved and recovery
of the materials taken away by the
prospective accused persons was also
required. No doubt that the recovery of
the aforesaid materials was not possible
to be done by the private complainant
without the aid of the police - The learned
Magistrate, while passing the impugned
order, ignored the settled legal position in
disposal of the application under Section
156 (3) Cr.P.C. and ordered to treat it as
complaint. (Para 25, 28 and 31)

Application allowed. (E-1)

List of Cases cited:

## Text

5 All. Jafar Abbas Zaidi Vs. State of U.P. & Ors.
405
SCC 57 : 1980 SCC (Cri) 513] this Court
observed : (SCC p. 62, para 13)

"13. ... What constitutes an
"attempt" is a mixed question of law and
fact,
depending
largely
upon
the
circumstances
of
a
particular
case.
"Attempt" defies a precise and exact
definition. Broadly speaking, all crimes
which consist of the commission of
affirmative acts are preceded by some
covert or overt conduct which may be
divided into three stages. The first stage
exists when the culprit first entertains the
idea or intention to commit an offence. In
the second stage, he makes preparations to
commit it. The third stage is reached when
the culprit takes deliberate overt act or step
to commit the offence. Such overt act or
step in order to be "criminal" need not be
the penultimate act towards the commission
of the offence. It is sufficient if such act or
acts were deliberately done, and manifest a
clear intention to commit the offence
aimed, being reasonably proximate to the
consummation of the offence."

106. On the scope of proximity, it
was elucidated in State of Maharashtra v.
Mohd.Yakub [State of Maharashtra v.
Mohd. Yakub, (1980) 3 SCC 57: 1980 SCC
(Cri) 513] that the measure of proximity is
not in relation to time and place but in
relation to intention."

20. Considering the context and the
intention with which the offending words
were spoken in a public meeting, at this
stage it cannot be said that the offence
under Section 153-A IPC is not attracted
against the petitioners. The scope of power
under Section 482 Cr.P.C. is limited, and it
should be exercised in exceptional cases
where the complaint or charge sheet does
not disclose any offence. Whether the
offence under Section 153-A IPC gets
attracted or not, would depend on the
quality of evidence lead by the prosecution
during trial. However, at this stage, this
Court does not find any ground to interfere
with the ongoing proceedings or the charge
sheet.

21. Thus, the petition being devoid of
merit and substance, is hereby dismissed.
Interim order, if any, stands vacated. Trial
court to proceed accordingly.
----------
(2023) 5 ILRA 405
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Application U/S 482. No. 37804 of 2022

Jafar Abbas Zaidi ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Syed Mohammad Jafer Husain

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 482 - Inherent
power
-
Scope
of
interference
-
Interlocutory
order,
when
can
be
interfered with - Alternative remedy, how
far create bar in exercising inherent power
- Held, there is no total ban on the
exercise of inherent power where abuse of
the
process
of
the
court
or
other
extraordinary situation warrants exercise
of inherent jurisdiction. The limitation is
self-restraint, nothing more - Availability
of alternative remedy of criminal revision
under Section 397 Cr.P.C. by itself cannot
be
a
good
ground
to
dismiss
an
application under Section 482 Cr.P.C. -
Prabhu Chawla's case relied upon. (Para
12 and 14)
406 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Criminal law - Criminal Procedure
Code, 1973 - Section 156(3) - Allegation
of committing dacoity by taking away the
laptop, phone etc. was leveled - Question
of recovery and collection of incriminating
evidence
is
involved
-
However,
application u/s 156(3) was treated as the
complaint case - Validity challenged -
Held, in the case in hand, CCTV footage
was required to be retrieved and recovery
of the materials taken away by the
prospective accused persons was also
required. No doubt that the recovery of
the aforesaid materials was not possible
to be done by the private complainant
without the aid of the police - The learned
Magistrate, while passing the impugned
order, ignored the settled legal position in
disposal of the application under Section
156 (3) Cr.P.C. and ordered to treat it as
complaint. (Para 25, 28 and 31)

Application allowed. (E-1)

List of Cases cited:

1. Prabhu Chawla Vs St. of Raj. & anr.; (2016)
16 SCC 30

2. Sanjay Bhandari Vs St. of Raj.; (2009) (1)
CrLR (Raj.) 282

3. Mohit alias Sonu & anr. Vs St. of U.P. & anr.;
(2013) 7 SCC 789

4. Dhariwal Tobacco Products Ltd. Vs St. of
Mah.; (2009) 2 SCC 370

5. R.P. Kapur Vs St. of Pun.; AIR 1960 SC 866

6. Som Mittal Vs St. of Karn.; (2008) 3 SCC 574

7. Raj Kapoor Vs St.; (1980) SCC (Cri) 72

8. Madhu Limaye Vs St. of Mah.; 1978 SCC (Cri)
10

9. Vijay Vs St. of Mah.; (2017) 13 SCC 317

10. Madhao Vs St. of Mah.; (2013) 5 SCC 615

11. Ram Babu Gupta Vs St. of U.P.; 2001 SCC
OnLine All 264
12. Sukhwasi Vs St. of U.P.; (2007) 59 ACC 730

13. Ramdev Food Products (P) Ltd. Vs St. of
Guj.; (2015) 6 SCC 439

14. Anil Kumar Vs M.K. Aiyappa; (2013) 10 SCC
705

15. Gulab Chand Upadhyaya Vs St. of U.P. &
ors.; (2002) 44 ACC 670

16. Anmol Singh Vs St. of U.P. & ors.; (2021)
117 ACC 146

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. By way of present Application
under Section 482 Cr.P.C., prayer has been
made to quash the impugned order dated
3.10.2022 passed by Special Chief Judicial
Magistrate, Varanasi in Case No.207529 of
2022 (Jafar Abbas Zaidi Vs. Ali Abbas
Zaidi and others) whereby application
under section 156 (3) Cr.P.C. of the
applicant has been treated as complaint.

2. The brief facts of the case, as
narrated in the affidavit, are as follows :

3. On 21.8.2021 at about 7:00 P.M.,
the opposite parties no.2, 3 and 4, in order
to commit offence, alongwith 10 - 12
unknown persons entered into the house of
the applicant and his laptop, oven, iron,
wrist watch, handicam, digital camera,
clothes and other costly items worth
Rs.2,50,000/-
were
taken
away
by
committing dacoity and further, sofa,
chauki and other furniture were also
damaged and thrown by the opposite
parties. When the incident was not
registered at the police station, application
under section 156 (3) Cr.P.C. was filed
before the Magistrate concerned. Report
from the police station was called for which
narrated that the applicant and opposite
5 All. Jafar Abbas Zaidi Vs. State of U.P. & Ors.
407
party no.2 are real brothers and the house in
dispute
was
divided
amongst
three
brothers, but opposite party no.2 with
intention to grab the property claims that
her mother had executed Hibbanama of the
half portion of the entire house and he had
been appointed as Mutwalli and the same
had got registered in the Nagar Nigam,
Varanasi. However, the said application
was rejected by the Court of Magistrate.

4. After rejection of the aforesaid
application, criminal revision no.273 of
2021 was preferred, which was allowed by
the revisional court vide order dated
26.9.2022 and the matter was remitted back
to the Magistrate Court to reconsider the
matter in the light of the observations made
in the revisional order. Subsequently, in
pursuance of the order dated 26.9.2022, the
matter was reheard and this time by way of
impugned order, the application under
section 156 (3) Cr.P.C. was ordered to be
treated as complaint vide impugned order
dated
03.10.2022,
which
is
under
challenge.

5. The learned counsel for the
applicant submits that the impugned order
suffers from grave error of law and the
jurisdictional error was also involved
therein. The learned trial court did not take
into account the observations and directions
given by the revisional court. The said
application has been ordered to be treated
as complaint merely on the ground that the
applicant is having knowledge of the entire
facts and evidence in respect thereof can be
adduced by him at his own label which was
a wrong notion. It is further submitted that
from the very perusal of the said
application, a cognizable offence is made
out, but the learned trial court being misled
and misrepresented by police report and
without there being due application of
mind, has passed the impugned order,
which is against the settled preposition of
law.

6. The facts alleged in the aforesaid
application clearly show that the matter
was requiring investigation by the police
and the applicant was not competent to
adduce all the evidence relating to the
offence himself. The learned trial court did
not even pay any attention to the direction
of the revisional court to take into account
the CCTV footage of the spot. The reasons
behind the impugned order given by the
learned
Magistrate
Court
are
totally
contrary to the evidence available on record
and on the aforesaid ground, a prayer to
quash the impugned order dated 3.10.2022
passed
by
Special
Chief
Judicial
Magistrate, Varanasi has been made.

7. The said application has been
vehemently opposed by the learned A.G.A.
mainly on two grounds. Firstly, the order of
the Magistrate treating the application
under section 156 (3) Cr.P.C. as complaint
cannot be challenged by way of an
application under section 482 Cr.P.C. and
the applicant ought to have filed criminal
revision against the said order. Secondly,
the learned Magistrate has committed no
error in passing the impugned order
because
there
was
nothing
in
the
application under section 156 (3) Cr.P.C.
which could be investigated by the police
and the applicant / complainant could
easily collect all the relevant evidence
himself. There is no legal or jurisdictional
error
in
the
impugned
order.
The
Magistrate is not bound to pass an order for
investigation on each and every application
under section 156 (3) Cr.P.C. which
discloses the commission of a cognizable
offence, rather it is well competent to treat
such an application as a complaint also and
408 INDIAN LAW REPORTS ALLAHABAD SERIES
to proceed under the provisions of Chapter
XV of Cr.P.C. even if a cognizable offence
is made out from the perusal of the
aforesaid application.

8. Learned counsel for the applicant
has relied upon the decision of the three
Judges Bench in the case of Prabhu
Chawla Vs. State of Rajasthan and
Another, (2016) 16 Supreme Court Cases
30 in respect of the first point. In this
matter, the point in issue was whether the
inherent power of the High Court under
Section 482 Cr.P.C. stands repelled when
the revisional court power under Section
397 Cr.P.C. overlaps.

9. In this matter, in view of the
judgment of Rajasthan High Court in the
case of Sanjay Bhandari Vs. State of
Rajasthan, (2009) (1) CrLR (Raj.) 282
the High Court of Judicature for Rajasthan
at Jodhpur dismissed the petitions preferred
by the appellants under Section 482 of
Cr.P.C. holding that availability of remedy
under Section 397 Cr.P.C. would make a
petition under Section 482 Cr.P.C. not
maintainable and the same was challenged.

10. Hon'ble the Apex Court after
hearing the parties found that the impugned
judgments were not sustainable and also
discussed the law laid down in Mohit alias
Sonu and Another Vs. State of U.P. and
another (2013) 7 SCC 789 and held like
this.

"7. As a sequel we are constraint
to
hold
that
the
Division
Bench,
particularly in paragraph 28, in the case of
Mohit alias Sonu and another (supra) in
respect of inherent power of the High Court
in Section 482 of Cr.P.C. does not state the
law correctly. We record our respectful
disagreement."

11. It will be relevant to note here that
in Mohit alias Sonu (supra), it was held that
when an order under assail is not
interlocutory in nature and is amenable to
the revisional court jurisdiction of the High
Court, then there should be a bar in
invoking the inherent jurisdiction of the
High Court. It would also be pertinent to
mention here that the matter was referred
and decided by the larger Bench of the
Hon'ble Apex Court for resolving the
conflict in Prabhu Chawla case (supra).

12. It was held in Prabhu Chawla case
(supra) that there is no total ban on the
exercise of inherent power where abuse of
the
process
of
the
court
or
other
extraordinary situation warrants exercise of
inherent jurisdiction. The limitation is selfrestraint, nothing more. The policy of the
law is clear that interlocutory orders, pure
and simple, should not be taken up to the
High Court resulting in unnecessary
litigation and delay. At the other extreme,
final orders are clearly capable of being
considered in exercise of inherent power, if
glaring injustice stares the court in the face.

13.

Hon'ble
the
Apex
Court,
discussing several laws promulgated in
Dhariwal Tobacco Products Ltd. Vs.
State of Maharashtra, (2009) 2 SCC 370,
R.P. Kapur Vs. State of Punjab, AIR
1960 Supreme Court 866, Som Mittal Vs.
State of Karnataka, (2008) 3 SCC 574,
Raj Kapoor Vs. State, (1980) SCC (Cri)
72,
Madhu
Limaye
Vs.
State
of
Mahrashtra, 1978 SCC (Cri) 10, finally
held that -

"6. In our considered view any
attempt to explain the law further as
regards the issue relating to inherent power
of High Court under Section 482 Cr.P.C. is
unwarranted...............We venture to add a
5 All. Jafar Abbas Zaidi Vs. State of U.P. & Ors.
409
further reason in support. Since Section 397
Cr.P.C. is attracted against all orders other
than interlocutory, a contrary view would
limit the availability of inherent powers
under Section 482 Cr.P.C. only to petty
interlocutory orders! A situation wholly
unwarranted and undesirable."

14. The final verdict given by the
Hon'ble Apex Court in Prabhu Chawla case
(supra) was that availability of alternative
remedy of criminal revision under Section
397 Cr.P.C. by itself cannot be a good
ground to dismiss an application under
Section 482 Cr.P.C.

15. The aforesaid view was further
reiterated
in
Vijay
Vs.
State
of
Maharashtra, (2017) 13 SCC 317 and it
was held that as Section 397 Cr.P.C. is
attracted against all orders other than
interlocutory, a contrary view would limit
availability of inherent powers under Section
482 Cr.P.C. only to petty interlocutory orders.
In view of settled law, mere availability of
alternative remedy cannot be a ground to
disentitle relief under Section 482 Cr.P.C.
and the first issue finds its reply in this
manner.

16. In the present matter, the application
under Section 156 (3) Cr.P.C. has been
ordered to be registered as complaint. The
question arises before this Court as to
whether the Magistrate was competent to
treat the application under Section 156 (3)
Cr.P.C. as complaint or he was bound by law
only to pass an order on the said application
for the investigation by the police.

17.

In
Madhao
Vs.
State
of
Maharashtra, (2013) 5 SCC 615, it was held -

"13. When a Magistrate receives
a complaint he is not bound to take
cognizance if the facts alleged in the
complaint disclose the commission of an
offence. The magistrate has discretion in
the matter. If on a reading of the complaint,
he finds that the allegations therein disclose
a cognizable offence and the forwarding of
the complaint to the police for investigation
under Section 156 (3) will be conducive to
justice and save the valuable time of the
Magistrate from being wasted in enquiring
into a matter which was primarily the duty
of the police to investigate, he will be
justified in adopting that course as an
alternative to taking cognizance of the
offence itself."

18. A Full Bench of this Court in the
case of Ram Babu Gupta Vs. State of
U.P., 2001 SCC OnLine All 264 has
observed as hereinbelow:

"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 Ss. 154, 155 sub-section (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.P.C. In this
connection it may be immediately added
that where in an application, a complainant
410 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

19. Also in the case of Sukhwasi Vs.
State of U.P., (2007) 59 ACC 730, which
has been referred in the impugned order
passed by the Special Chief Judicial
Magistrate, Varanasi, it has also been
clarified by the Division Bench of this
Court that the Magistrate, on receiving an
application under Section 156 (3) Cr.P.C.
and finding that cognizable offence is made
out from the perusal of such application, is
not bound in all cases to make an order for
lodging of the F.I.R. and investigation of
the case by police.

20. It has been reiterated that the
Magistrate is competent enough to treat an
application under Section 156 (3) Cr.P.C.
as a complaint. This theory is also
governed by the observation made by the
Hon'ble Apex Court in Suresh Chandra Jain
Vs. State of Madhya Pradesh, (2001) 42
ACC 459 that a Magistrate has an authority
to treat an application as a complaint.

21. Hence, indubitably the Magistrate
had got jurisdiction to treat an application
under Section 156 (3) Cr.P.C. as a
complaint and he commits no legal wrong
to make such an order.

22. However, in the given facts and
circumstances of the present case, it is to be
remembered as has been highlighted in a
catena of decisions that the Magistrate is
always duty bound to apply his judicial
mind as to the facts and circumstances
mentioned in such application.

23. In Ramdev Food Products (P)
Ltd. Vs. State of Gujarat, (2015) 6 SCC
439, the scope of exercise of power under
Section 156 (3) Cr.P.C. by the Magistrate
was dealt with and it was explicitly held
that : (Pg.456, para 22)

"22.1.
The
direction
under
Section 156 (3) Cr.P.C. is to be issued, only
after
application
of
mind
by
the
Magistrate."

24. In this case, reference of Anil
Kumar Vs. M.K. Aiyappa, (2013) 10
SCC 705 was made wherein it was
observed -

"11. The scope of Section 156
(3) Cr.P.C. came up for consideration
before this Court in several cases. This
Court in Maksud Saiyed case [(2008) 5
SCC 668] examined the requirement of
application of mind by the Magistrate
before
exercising
jurisdiction
under
Section 156 (3) Cr.P.C. and held that
where jurisdiction is exercised on a
complaint filed in terms of Section 156 (3)
or Section 200 CrPC, the Magistrate is
required to apply his mind."

25. This fact can't be oversighted that
there may be situations when some kind of
question of recovery is involved in the
matter and the Magistrate should always
keep in mind, if he is going to treat an
application under Section 156 (3) Cr.P.C.
as a complaint, whether the applicant is in
position to himself collect the incriminating
evidence and to produce it before the
Court.
5 All. Jafar Abbas Zaidi Vs. State of U.P. & Ors.
411

26. Learned Single Judge of this
Court in Gulab Chand Upadhyaya Vs.
State of U.P. and others, (2002) 44 ACC
670, issuing some directive guidelines in
the matter of the discretion of Magistrate to
decide the application under Section 156
(3) Cr.P.C., in a particular manner, held -

"21. The scheme of Cr.P.C. and
the prevailing circumstances require that
the option to direct the registration of the
case and its investigation by the police
should
be
exercised
where
some
"investigation" is required, which is of a
nature that is not possible for the private
complainant, and which can only be done
by the police upon whom statute has
conferred
the
powers
essential
for
investigation, for example

(1) where the full details of the
accused are not known to the complainant
and the same can be determined only as a
result of investigation, or

(2) where recovery of abducted
person or stolen property is required to be
made by conducting raids or searches of
suspected places or persons, or

(3) where for the purpose of
launching a successful prosecution of the
accused evidence is required to be collected
and preserved. To illustrate by example
cases
may
be visualised
where
for
production before Court at the trial (a)
sample of blood soaked soil is to be taken
and kept sealed for fixing the place of
incident; or (b) recovery of case property is
to be made and kept sealed; or (c) recovery
under Section 27 of the Evidence Act; or
(d) preparation of inquest report; or (e)
witnesses are not known and have to be
found out or discovered through the
process of investigation."

27. Later on, another learned Single
Judge of this Court in Anmol Singh Vs.
State of U.P. and Others, (2021) 117
ACC 146 reiterated that -

"The magistrate should apply
judicial mind while exercising his powers
under Section 156 (3) Cr.P.C. He could not
act in a mechanical or casual manner and
go on with the complaint after getting the
report.
The
course
adopted
by
the
Magistrate i.e. direction to the police for
registration
of
FIR
and
making
investigation or to treat the application as a
complaint case, must be supported by
reasons. The order must also reflect that the
Magistrate on relevant considerations has
adopted one of these two modes open to
him. Mere mention in the order that he has
gone through the complaint and the police
investigation is not required or otherwise,
would not be sufficient compliance of
application of judicial mind while deciding
application under Section 156(3) Cr.P.C."

28. If the legal position discussed
above is translated into the facts and
circumstances of the present case and the
application under Section 156 (3) Cr.P.C. is
examined, it is found that there was a
specific
allegation
in
the
aforesaid
application that the prospective accused
took away the laptop, phone, press, wrist
watch, handicam, digital camera, clothing
and other items of the applicant after
entering into his room by committing
dacoity. It was also mentioned in the
aforesaid application that CCTV footage of
the said occurrence is also available. In
these
circumstances,
the
question
of
recovery of the items taken away by the
prospective accused committing dacoity in
the house of the applicant was clearly
involved. It was apparently clear that the
applicant himself was not capable to make
recovery of those items from the possession
of the prospective accused and it could be
412 INDIAN LAW REPORTS ALLAHABAD SERIES
done only by the police and that is why
police action into the matter was required.
The
learned
Magistrate
completely
misguided when he wrongly interpreted
principle laid down in the case of Sukhwasi
(supra), which although empowers the
Magistrate to treat an application under
Section 156 (3) Cr.P.C. as a complaint, but
also cautions that the order should be made
after applying the judicial mind and in
appropriate cases.

29. In Gulab Chand Upadhyaya
(supra) case, some instances have been
mentioned wherein police investigation is
necessary to be directed.

30. One more factor has been
impressed upon by the learned counsel for
the applicant, who has drawn the attention
of this Court, to the judgment and order
dated 26.09.2022 passed by the Sessions
Court, Varanasi whereby the impugned
order dated 01.10.2021 passed by the
learned Magistrate was set-aside and by
allowing the criminal revision no.273 of
2021, the matter was remanded to the
Magistrate concerned with a specific
direction to rehear the matter in the light of
the revisional court order after taking into
account the whole evidence on record
including the evidence relating to CCTV
footage. It is in compliance of the
revisional court order, the impugned order
dated 03.10.2022 was passed by the learned
Magistrate. It is amply clear from the
perusal of the impugned order that the
learned Magistrate even did not take care of
the order of the revisional court and no
attempt
was
made
by
the
learned
Magistrate even to make a preliminary
inquiry in respect of CCTV footage and
this Court does not find any whisper to the
effect that the fact and evidence of CCTV
footage was considered by the learned
Magistrate in passing the impugned order.
Needless to say that the Magistrate was
bound to comply with the directions given
by the revisional court and its defiance is a
matter of violation of judicial discipline.

31. In the case in hand, CCTV
footage was required to be retrieved and
recovery of the materials taken away by the
prospective accused persons was also
required. No doubt that the recovery of the
aforesaid materials was not possible to be
done by the private complainant without
the aid of the police. The learned
Magistrate, while passing the impugned
order, ignored the settled legal position in
disposal of the application under Section
156 (3) Cr.P.C. and ordered to treat it as
complaint,
which
in
the
facts
and
circumstances of the case was not a
reasonable and legally sustainable order
and thus the second point in issue also finds
its answer.

32. On the basis of aforesaid
discussion, I find substance in the present
application and hence the impugned order
dated 03.10.2022 passed by the Special
Chief Judicial Magistrate, Varanasi in Case
No.207529 of 2022 (Jafar Abbas Zaidi Vs.
Ali Abbas Zaidi and others) whereby the
application under Section 156 (3) Cr.P.C.
of the applicant has been ordered to be
treated as complaint case, is not sustainable
in law and is hereby quashed and the
learned Magistrate is further directed to
rehear the applicant into the matter after
providing
reasonable
opportunity
of
hearing to him and also taking into account
the directions given by the revisional court
vide judgment and order dated 26.09.2022
and the observations of this Court as well.

33. Application under Section 482
Cr.P.C.
is
accordingly
allowed.
5 All. Om Prakash @ Guddu & Ors. Vs. State of U.P. & Anr.
413
----------
(2023) 5 ILRA 413
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 37952 of 2022

Om Prakash @ Guddu & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Pranav Tiwary, Sri Atharva Dixit, Sri
Aushim Luthra, Sri Manish Tiwari, (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A., Sri Udai Chandani

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
482
-
Inherent power - Indian Penal Code,
1860 - Sections 498-A & 304-B , Dowry
prohibition Act,1961 - Section 3/4 ,
Indian Evidence Act, 1872 - Section
32(1) - dying declaration ,Section 65B -
Admissibility of electronic records ,
Section 113B - Presumption of dowry
death

-
at
the
time
of
taking
cognizance or framing charge there
would be no requirement of certificate
under
Section
65B(4)
even
if
the
document so produced is a secondary
evidence - when prima facie case of
murder is made out, the discharge of
the
accused
merely
because
the
accused had no intention to kill the
deceased is not proper - At the stage of
charge, the standard of tests regarding
guilt
or otherwise
of
the
accused
cannot be applied - If two views are
equally possible and the evidence gives
rise to a grave suspicion, charge may be
framed - It is the trial in which the guilt
or the innocence of the accused will be
d etermined and not at the time of
taking cognizance or framing of charge.
(Para - 42,52,54)

Unnatural death within seven years of
marriage - Demand of dowry - accused
persons and deceased beaten -mental and
physical cruelty - caused in her matrimonial
house - ante mortem injury - mysterious
circumstances - difference of opinion of the
doctors
-
manual
strangulation
-
maltreatment and cruelty - unethical relation
between the applicant no.1 and the applicant
no.5. (Para - 29,50)

HELD:- Charge sheet and the rejection of
the discharge application of the applicants
under Section 227 CrPC not liable to be
interfered with. Court need not undertake an
elaborate inquiry in sifting and weighing the
materials nor is it necessary to delve deep
into various aspects. Defence of accused not
seen. No case made out in favour of
applicants. Charge sheet submission lacks
proper
ground.
Rejection
of
discharge
application bad in view of the facts and
law.(Para - 52,54,55)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:

1. Anwar P.V. Vs P.K. Basheer & ors., (2014) 10
SCC 473

2.
Arjun
PanditraoKhotkar
Vs
Kailash
KushanraoGorantyal, (2020) 7 SCC 1

3. Ravinder Singh @ Kuku Vs St. of Punj., 2022
Live Law (SC) 461

4. Anvar P.V. Vs P.K. Basheer, (2014) 10 SCC
473 (three-Judge Bench)

5. St. of U.P. Vs Ajai Kumar Sharma, 2016 (92)
ACC 981 (SC)

6. Mukesh Vs St. (NCT) of Delhi & ors., AIR
2017 SC 2161

7.R.M. Malkani Vs St. of Maha., AIR 1973 SC
157