# Madhukar Jetely Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 388
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-02
- **Case number:** Criminal Revision No. 295 of 2012
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madhukar-jetely-revisionist-v-state-of-u-p-ors-51156
- **Pages:** 6

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision -Magistrate's Power - To treat
application as a complaint under Section
156(3) Cr.P.C. - to proceed to record
statements under Section 200 and 202
Cr.P.C. - decide application in accordance
with provisions of law. (Para - 15)

(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 154(3) -
Superintendent of Police has authority
for
registration
of
First
Information
Report - word used is 'Shall' , Section
156(3) - Magistrate empowered under
Section 190 may order an investigation -
word used is 'May' .(Para - 13,14)
Civil dispute arose between revisionist and
ESIC - revisionist agreed to provide his
consultancy services on a 20% payment from
accused - Opposition parties failed to comply,
leading to unpaid consultancy services -
complaint registered under Section 156(3)
Cr.P.C. - accused-opposite parties were
summoned under Section 506 I.P.C. - court
found that dispute is civil/contractual - can be
decided by Civil Court based on evidence -
revisional court opined - allegation as to the
extension of threats seems to be only
ornamental giving colour to the allegations of
the complaint.(Para - 9)

HELD: -Court acted in accordance with powers
vested in it by provisions of Section 156(3)
Cr.P.C.. Magistrate acted with the judicious
approach to convert the application moved
under
Section
156(3)
into
complaint.
Magistrate's powers not challenged in first
appeal against order. No illegality, irregularity,
or perversity in the impugned order. (Para -
16)

Revision dismissed. (E-7)

List of Cases cited:
1 All. Madhukar Jetely Vs. State of U.P. & Ors.
389

## Text

388 INDIAN LAW REPORTS ALLAHABAD SERIES
material available with the trial court was
the statement of Kamla recorded under
Section 161 Cr.P.C. by the investigating
officer prior to her death which was being
treated as dying declaration by the trial court.
In view of discussion made above, the same
could not be relied upon against the
appellants. Further, with regard to the charge
under Section 302 I.P.C. for committing
murder of Suman, the aforesaid statement of
Kamla under Section 161 Cr.P.C. definitely
cannot be relied upon as the same does not
relate to the death of Kamla but in fact related
to the death of Suman and was outside the
purview of Section 32 of Evidence Act.
Consequently, the appeal deserves to be
allowed. The impugned judgment and order
of conviction is set aside.

In view of that following order :-

(I) The appeal stands allowed.

(II) The judgment and order of
conviction dated 19.04.2016 passed by
District Judge, Rampur stands quashed and
set aside.

(III)
The
accused-appellants,
Smt.
Gangotri Devi, Madan Lal and Daulat Ram
are acquitted of the offence punishable under
Section 302 I.P.C. and Section 307 I.P.C.

(IV) The accused be released from jail
forthwith, if not required in any other offence.

(V) The amount of fine, if deposited, be
refunded to the accused.
----------
(2024) 1 ILRA 388
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.01.2024

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Revision No. 295 of 2012

Madhukar Jetely ...Revisionist
Versus
State of U.P. & Ors. ...Respondent

Counsel for the Revisionist:
Ashok Kumer Verma, Viplav Sharma

Counsel for the Respondent:
Govt. Advocate, Arun Sinha, Siddhartha Sinha

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision -Magistrate's Power - To treat
application as a complaint under Section
156(3) Cr.P.C. - to proceed to record
statements under Section 200 and 202
Cr.P.C. - decide application in accordance
with provisions of law. (Para - 15)

(B) Criminal Law - Code of Criminal
Procedure, 1973 - Section 154(3) -
Superintendent of Police has authority
for
registration
of
First
Information
Report - word used is 'Shall' , Section
156(3) - Magistrate empowered under
Section 190 may order an investigation -
word used is 'May' .(Para - 13,14)
Civil dispute arose between revisionist and
ESIC - revisionist agreed to provide his
consultancy services on a 20% payment from
accused - Opposition parties failed to comply,
leading to unpaid consultancy services -
complaint registered under Section 156(3)
Cr.P.C. - accused-opposite parties were
summoned under Section 506 I.P.C. - court
found that dispute is civil/contractual - can be
decided by Civil Court based on evidence -
revisional court opined - allegation as to the
extension of threats seems to be only
ornamental giving colour to the allegations of
the complaint.(Para - 9)

HELD: -Court acted in accordance with powers
vested in it by provisions of Section 156(3)
Cr.P.C.. Magistrate acted with the judicious
approach to convert the application moved
under
Section
156(3)
into
complaint.
Magistrate's powers not challenged in first
appeal against order. No illegality, irregularity,
or perversity in the impugned order. (Para -
16)

Revision dismissed. (E-7)

List of Cases cited:
1 All. Madhukar Jetely Vs. State of U.P. & Ors.
389
1. Inder Mohan Goswami Vs St. of Uttaranchal,
(2007) 12 SCC 1

2. Dharam Pal & anr. Vs St. of Uttarakhand,
2012 (77) ACC 775

3. M.J. Scindia Vs S.C. Angre, 1988 AIR 709

4. Bakulabai Vs Gangaram, (1998) 1 SCC 537

5. S.C. Jain Vs St. of M.P. & anr., 2001 (42)
A.C.C. 459

6. G.D. Sindhi & ors. Vs St. of Assam & anr.,
A.I.R. 1961 S.C. 986

7. Chandrika Singh Vs St. of U.P. & ors., 2007
(58) ACC 777

8. Sukhwasi Vs St. of U.P., 2007 (59) SCC 739
(Alld)

(Delivered by Hon'ble Mrs. Renu Agarwal,
J.)

1. Instant criminal revision under
Sections 397/401 Cr.P.C. has been preferred
against the impugned judgment and order
dated
27.08.2012
passed
in
Criminal
Revision No.136 of 2012 (Sanjay Sinha and
Ors. Vs. The State and Anr.) passed by the
District & Sessions Judge, Lucknow by
which the learned District and Sessions
Judge, Lucknow has partly allowed the
revision and set-aside the order of CJM by
which the opposite party No. 2 to 4 were
summoned under Section 506 I.P.C.

2. When the case was called up today
for hearing, none appeared on behalf of the
revisionist. It transpires from the order
sheet dated 05.05.2023 that none was
present on behalf of the revisionist on that
day also.

3. Heard Mr. Arun Sinha, learned
counsel for opposite parties and perused the
entire material brought on record.

4. Perusal of the revision reveals that
some civil dispute was pending between
the revisionist and the private respondents
who were empanelled with Employees
State Insurance Corporation, New Delhi
(hereinafter referred to as "ESIC"). The
revisionist acceding to the request of the
accused mutually agreed to provide his
consultancy service on the payment of 20
per cent of the amount which was to be
paid by accused from time to time and
further to continue to pay the aforesaid 20
per cent from amount received from ESIC.
Opposite party No. 2 to 4 failed to comply
with the agreement and the payments due
against
the
consultancy
services
of
revisionist has not been paid, therefore, an
application under Section 156(3) Cr.P.C.
was
moved
by
the
revisionist
for
registration of F.I.R. against the opposite
party Nos. 2 to 4. Trial Court called for
report from police station concerned and
finding that no case is registered in police
station and considering the facts disclosed
in the application moved in the application
under Section 156(3) Cr.P.C. registered the
application
as
complaint
case
on
12.12.2011 and after recording of statement
of revisionist under Section 200 and
statement of witnesses under Section 202
Cr.P.C., summoned the accused-opposite
party Nos. 2 to 4 under Section 506 I.P.C.
vide order dated 06.02.2012. Learned
C.J.M. specifically mentioned in the his
order that the dispute between the parties is
civil/contractual in nature that can be
decided by the Civil Court on the basis of
evidence produced before it, hence, the
opposite parties No. 2 to 4 were summoned
only under Section 506 I.P.C.

5. Aggrieved with the order of the
learned C.J.M., opposite parties No. 2 to 4
(proposed accused) filed a revision before
the Court of Sessions and Sessions Court
390 INDIAN LAW REPORTS ALLAHABAD SERIES
set-aside the summoning order dated
06.02.2012. It is pertinent to mention here
that summoning order dated 06.02.2012
was not challenged by the revisionistMadhukar Jetely.

6. The present revision is filed on
03.09.2012 directly to this Court without
availing the opportunity of filing revision
before the Sessions Court. It is also
mentioned in the revision itself that the
Sessions Judge has acted illegally and with
material irregularity in exercise of his
jurisdiction in overlooking that while
exercising powers under Section 397
Cr.P.C., the powers exercisable by the
Hon'ble High Court under Section 482
Cr.P.C. in rarest of rare cases could not be
exercised. It is also revealed in the second
supplementary affidavit that learned CJM
was not empowered to convert the
application moved by him under Section
156(3) into complaint. The aforesaid order
of learned CJM ex facie suffers error as the
learned CJM without taking cognizance of
the
matter
wrongfully
ordered
the
registration of case as complaint which is
not permissible and beyond his jurisdiction,
accordingly, all subsequent proceedings
arising therefrom are without jurisdiction
and are liable to be set-aside. Therefore, the
subsequent proceedings are also liable to be
vitiated and deserved to be quashed.

7. In the counter affidavit, opposite
party No. 2 to 4 simply controverted the
factual matrix given by revisionist and
submitted that the revisionist along with
filing the application under Section 156(3)
Cr.P.C. also moved an application to the
police station-Hajratganj. Opposite party
Nos. 2 to 4 filed the statement of witnesses
recorded under Section 202 Cr.P.C. and
submitted that there are multitudes of
contradictions in the statement of witnesses
and on the basis of statements, opposite
parties were summoned by the Trial Court
under Section 506 I.P.C only which was not
sustainable in the eyes of law, therefore,
learned Sessions Judge set-aside the order
of Magistrate by the impugned order dated
27.08.2012.

8. So far as summoning of opposite
parties under Section 506 is concerned,
learned Sessions Judge has dealt with the
question
in
detail
in
his
impugned
judgment. Learned Sessions Judge relied
upon the Judgment of Hon'ble the Supreme
Court in case of Inder Mohan Goswami Vs.
State of Uttaranchal reported in (2007) 12
SCC 1, Dharam Pal and Anr. Vs. State of
Uttarakhand reported in 2012 (77) ACC
775 and Madhavrao Jiwjirao Scindia Vs.
Sambhajirao Chandrojirao Angre reported
in 1988 AIR 709.

9. In Bakulabai Vs. Gangaram
reported in (1998) 1 SCC 537, Hon'ble the
Supreme Court has held that:

"7.
The
other
findings
of
the
Magistrate on the disputed question of fact
were recorded after a full consideration of
the evidence and should have been left
undisturbed in revision. No error of law
appears to have been discovered in his
judgment and so the revisional courts were
not justified in making a reassessment of
the evidence and substitute their own views
for those of the Magistrate"

Sessions Court also observed that the
said dispute between the parties is of
payment of consultancy fee. The dispute is
purely based on contract and MoU
(Memorandum of Understanding) which
can be decided by the Civil Court only. The
revisional court opined that the allegation
as to the extension of threats seems to be
only ornamental giving colour to the
1 All. Madhukar Jetely Vs. State of U.P. & Ors.
391
allegations of the complaint. Reliance has
also been placed on the note of caution
issued by Hon'ble the Supreme Court that
the sub-ordinate courts must ensure that
criminal prosecution is not used as an
instrument of harassment or for seeking
private mandate with an ulterior motive to
pressurize the accused. The revisional court
found that bare statement regarding the
extension of threat is on record, court
should
see
whether
the
allegations
regarding extension of threats are supported
with any cogent evidence. When the notice
was given by revisionist to opposite party
Nos. 2 to 4, the extension of threats did not
find any place in that notice and no date or
time of the incident is revealed. Witness
Saklain Nakvi did not support the version
of complaint, hence, Sessions Court itself
found that Trial Court did not consider the
ingredients
of
Section
506
while
summoning the accused in the above
mentioned Section. The revisionist raised
the plea during the revision in this Court
without availing the opportunity in the first
revisional court that learned CJM has no
jurisdiction to convert his application
moved under Section 156(3) Cr.P.C. into
complaint. Now, it is well settled principle
that court has ample opportunity to pass
appropriate order on the application moved
under Section 156(3) Cr.P.C.

10. It is clear from the judgment of
the Supreme Court in the case Suresh
Chandra Jain v. State of Madhya
Pradesh and Anr. 2001 (42) A.C.C. 459,
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 and Ors. v. State of
Assam and Anr. A.I.R. 1961 S.C. 986, in
which the following observations were
made:

"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
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 we 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 Magistrate in sending
the complaint, under Section 156(3) to
the 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."

11. In the case of Chandrika Singh v.
State of U.P. and Ors. 2007 (58) ACC
777, this Court has held that a Magistrate
can treat an application under Section
156(3) Cr.P.C. as a complaint. The Hon'ble
Judge referred to various cases in his
judgment and has come to this conclusion
thereafter. It was observed as follows:

"In view of this judgment of Full
Bench, the Magistrate is fully competent to
pass an order to register a case and
investigate on an application under Section
156(3) Cr.P.C., all the application under
Section 156(3) Cr.P.C. may be treated as
complaint and in the circumstance, the
Magistrate shall follow the procedure as
provided in Chapter XV Cr.P.C. This
judgment of Full Bench has not been set
392 INDIAN LAW REPORTS ALLAHABAD SERIES
aside. Hence, in view of the Apex Court
and Full Bench of this Court the Magistrate
is fully competent to treat an application
under Section 156(3)Cr.P.C as a complaint
and in the present case the Magistrate
passed an order in the circumstances of the
case that it may be registered as a
complaint case and proceed to record the
statement under Sections 200 and 202
Cr.P.C. There appears no illegality and
impropriety in the order of the Magistrate."

12. This Court in the case of
Sukhwasi Vs. State of U.P. 2007 (59)
SCC 739 (Allahabad) has held as follows:

".......... in view of the aforesaid
discussion on the legal provisions and
decisions of the Supreme Court as on date,
it is hereby held that on receiving a
complaint, the Magistrate has to apply his
mind to the allegations in the complaint
upon which he may not at once proceed to
take cognizance and may order it to go to
the police station for being registered and
investigated. The Magistrate's order must
indicate application of mind. If the
Magistrate takes cognizance, he proceeds
to follow the procedure provided in
Chapter-XV of Cr.P.C....?
7. 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
by
necessarily implication be selective. That
gives a clear incling to the intention of the
legislature,
that
the
Magistrate
may
consider the feasibility and propriety, of
passing an order of registration of the First
Information Report.?

13. 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 154(3) Cr.P.C.
is as hereunder;

154. Information in 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 Superintend 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.

14. 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) ....
1 All. Satish Chandra Shukla Vs. State of U.P. & Anr.
393

(2) ....

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

15. Hence, in view of the case law cited
above, it is evident that it is the powers of the
Magistrate to treat the application under
Section 156(3) Cr.P.C. as a complaint and to
proceed to record the statement under Section
200 and 202 Cr.P.C. and decide the
application in accordance with the provisions
of law.

16. In the present case, court has acted
in accordance with the powers vested in it by
the provisions of Section 156(3) Cr.P.C., the
Magistrate acted with the judicious approach
to convert the application moved under
Section 156(3) into complaint. Moreover, the
powers of Magistrate was not challenged
when the first appeal was filed by the
revisionist against the impugned order dated
27.08.2012, hence, the revision has no force,
there is no illegality, irregularity or perversity
in the impugned order, hence revision is
liable to be dismissed and is accordingly
dismissed.

17. Let the copy of the order be sent
to the court concerned for necessary
information and compliance.
----------
(2024) 1 ILRA 393
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 546 of 2022

Satish Chandra Shukla ...Revisionist
Versus
State of U.P. & Anr. ...Respondents
Counsel for the Revisionist:
Ranjana Agnihotri, Satyendra Tiwari

Counsel for the Respondent:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision, Section 239 - Discharge,
Section 468 (2)(c) - limitation for taking
cognizance of an offence will be three
years - no court can take cognizance of
the offence after the expiry of period of
limitation

-
for
the
purpose
of
computing the period of limitation under
Section 468CrPC, the relevant date is
the date of filing of the complaint or the
date of institution of prosecution and
not the date on which the Magistrate
takes cognizance of the offence - Indian
Penal Code, 1860 - Section 405,406 -
Criminal breach of trust, Section 409 -
Criminal
breach
of
trust
by
Public
servant, or by banker, merchant or
agent.(Para - 7)

Revisionist was Secretary of Sadhan Sahkari
Samiti - not a public servant - cannot be tried
for an offence under section 409 I.P.C. -
allegations could potentially constitute an
offence under Section 405 I.P.C, defining
criminal breach of trust - Court clarified that
Secretary of a Sadhan Sahkari Samiti is not an
agent of the Government. - Validity of an
order passed by ACJ under challenge - which
rejected revisionist's application for discharge
under Section 239 Cr.P.C. (Para - 2,11,16)

HELD:-No trial for revisionist under Section
409 Cr.P.C. .No illegality in prosecution under
Section 406 I.P.C. . Order rejecting application
for discharge filed by revisionist set aside.
Directs trial court to decide revision under
Section 239 Cr.P.C afresh.(Para - 17,18)

Revision allowed. (E-7)

List of Cases cited:

1. Sarah Mathew Vs Institute of Cardio Vascular
Diseases, (2014) 2 SCC 62

2. Amritlal Vs Shantilal Soni, (2022) 13 SCC 128