# Makholi & Ors v. State of U.P &Anr

- **Citation:** (2019) 1 ILRA 146
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-04
- **Case number:** SRIVASTAVA J. CIVIL MISC. WRIT PETITION No.25552 of 2019
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/makholi-ors-v-state-of-u-p-anr-44427
- **Pages:** 3

## Headnote

Section
156(3)
Cr.P.C.
-
order
passed under - court below directed
complaint
to
be
registered
as
complaint case - application was not
accompanied by an affidavit - order to
register the application as complaint
case is not same as directing to
register an F.I.R and direction to
investigate.
Such
order
will
be
followed
by
due
inquiry
and
the
statement of the complainants and
other witnesses will be recorded on
oath. Hence, affidavit is not required
in support of the application.(Para 6)

Application u/s 482 Cr.P.C. dismissed

Chronological list of Cases Cited:

## Text

146 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation, hence, at this stage such a plea
cannot be entertained.

10. Counsel for applicants has placed
reliance on a Supreme Court's decision in
State of Bihar Vs. Baidnath Prasad @
Baidyanath Shah and Another AIR
(2002) SC 64, wherein request was made
for quashing of proceeding which was
pending for six years but Court declined to
do so. Court observed that delay is
attributable to accused as they challenged
various
orders
passed
in
different
proceedings and, therefore, accused cannot
be allowed to take advantage of delay for
which they are substantially responsible.

11. Reliance is also placed on behalf of
applicants on a Single Judge judgment in
Ishwar Saran Shukla and Another Vs.
State of U.P. (1999) CRI. L.J. 1075 (Ald),
wherein
Court
found
that
because
complainant failed to appear on three dates,
Magistrate has rightly declined to accept the
request of dismissal of complaint and
discharge of accused person by invoking
Section 249 Cr.P.C.. Therein, reliance was
also placed on a Supreme Court's decision
in Common Cause, a Registered Society
v. Union of India AIR (1996) SC 1619,
wherein Court declined to accept the request
of accused for dropping of case since case
was pending for more than two years
observing that an offence under Section 3 of
Act, 1966 does not fall in such category
since offence therein is punishable with
imprisonment for a term which may extend
to five years, or with fine, or with both.

12. I may also add that even otherwise, if
a report submitted by a police officer in a noncognizable offence, in view of Explanation to
Section 2(d) of Cr.P.C., such report can be
deemed to be a complaint and Magistrate can
proceed accordingly but for that reason alone
proceedings are not to be quashed since report
submitted by a police cannot be held to be
without
jurisdiction
merely
because
proceedings were instituted by police officer
after investigation, when he had no power to
investigate. Here also, I am fortified in taking
the above view by the observations made by
Supreme Court in State of Bihar Vs.
Chandra Bhusan Singh (supra), where,
referring to Explanation to Section 2(d) of
Cr.P.C., Court said as under:-

"Section
2(d)
of
the
Code
emcompasses a police report also as a
deemed
complaint
if
the
matter
is
investigated by a police officer regarding
the case involving commission of a noncognizable offence. In such a case, the
report submitted by a police officer cannot
be held to be without jurisdiction merely
because proceedings were instituted by the
police officer after investigation, when he
had no power to investigate."

12. In view of above discussion, I do
not find that proceedings in the present case
can be said to be without jurisdiction and
liable to be quashed.

13. Application lacks merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.07.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA J.

CIVIL MISC. WRIT PETITION No.25552 of
2019
(u/s -482 Cr. P.C.)

Makholi & Ors. ...Applicants
Versus
State of U.P &Anr. ...Opposite Parties

Counsel for the Applicants:
Sri
Ashik
Kumar
Dubey.
1 All. Makholi & Ors. Vs. State of U.P. & Anr.
147
Counsel for the Opposite Parties:
A.G.A.

A.
Section
156(3)
Cr.P.C.
-
order
passed under - court below directed
complaint
to
be
registered
as
complaint case - application was not
accompanied by an affidavit - order to
register the application as complaint
case is not same as directing to
register an F.I.R and direction to
investigate.
Such
order
will
be
followed
by
due
inquiry
and
the
statement of the complainants and
other witnesses will be recorded on
oath. Hence, affidavit is not required
in support of the application.(Para 6)

Application u/s 482 Cr.P.C. dismissed

Chronological list of Cases Cited:
1. 2006 (1) SCC (Cri.) 460 Mohd. Yusuf Vs.
Afaq Jahan and others

2. (2007) 59 ACC 739 Sukhwasi Vs. State of
U.P.

3. (2015) 6 SCC 287 Priyanka Srivastava & Another
Vs State of Uttar Pradesh& Others(E-10)
(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Ashok Kumar Dubey,
learned counsel for the applicants, learned
A.G.A. and perused the record.

2. This application under Section 482
Cr.P.C. has been preferred with the prayer to
quash the impugned order dated 08.01.2015,
passed
by
Additional
Chief
Judicial
Magistrate, Court No. 9, Allahabad, in Case
No. 18 of 2015 (Jai Prakash Tiwari vs.
Makholi and others), under Section 156(3)
Cr.P.C., Police Station Meja, District
Allahabad by which the learned court below
has directed that the aforesaid complaint be
registered as complaint case.

3. Learned counsel for the applicants
has submitted that this application was
given as a counter blast to one first
information report lodged on the side of
applicants. It has further been submitted
that the application filed by opposite party
no. 2 was not supported with any
affidavit, whereas under the law it needs
to be supported with affidavit and,
therefore, there is misuse and abuse of the
power of the court and the order is liable
to be set aside. In support of the said
argument,
learned
counsel
for
the
applicants has placed reliance upon the
judgment of the Supreme Court in the
case of Priyanka Srivastava & Another
vs. State of Uttar Pradesh & Others,
(2015) 6 Supreme Court Cases 287,
wherein it has been held as under :-

"We have already indicated that
there has to be prior applications under
Section 154(1) and 154(3) while filing a
petition under Section 156(3). Both the
aspects should be clearly spelt out in the
application and necessary documents to that
effect shall be filed. The warrant for giving a
direction that an the application under
Section 156(3) be supported by an affidavit
so that the person making the application
should be conscious and also endeavour to
see that no false affidavit is made. It is
because once an affidavit is found to be false,
he will be liable for prosecution in
accordance with law. This will deter him to
casually invoke the authority of the
Magistrate under Section 156(3). That apart,
we have already stated that the veracity of
the same can also be verified by the learned
Magistrate, regard being had to the nature of
allegations of the case. We are compelled to
say so as a number of cases pertaining to
fiscal sphere, matrimonial dispute/family
disputes, commercial offences, medical
negligence cases, corruption cases and the
148 INDIAN LAW REPORTS ALLAHABAD SERIES
cases where there is abnormal delay/laches
in initiating criminal prosecution, as are
illustrated in Lalita Kumari are being filed.
That apart, the learned Magistrate would
also be aware of the delay in lodging of the
FIR."

4. The argument of the learned
counsel for the applicants that the
application was not supported by any
affidavit due to which, the learned
Magistrate should have rejected the
application on this basis only, cannot be
given weight due to reason that the
complaint was filed on 20.12.2014 and
the impugned order was passed on
08.01.2015 much before the judgment in
Priyanka Srivastava & Another vs. State
of Uttar Pradesh & Others (supra) which
was decided on 19.03.2015 and prior to
this judgment, no such affidavit was
required to be filed with application.
Secondly, the Magistrate has not directed
for registration of F.I.R. in this case. It
cannot be said that mere direction to
register the application under Section
156(3) Cr.P.C., will in any way, cause
prejudice to the applicants. It cannot be
categorised as misuse of the process of
the Court. When the application was
registered
as
complaint,
on
oath,
statement of the complainant will be
recorded, which is no less than affidavit.

5. From perusal of the application
filed under Section 156(3) Cr.P.C. by the
opposite party no. 2, it appears that the
applicants on the date of incident came to
the house of opposite party no. 2 with
lathi and danda in their hands and started
abusing the opposite party no. 2. When he
opposed, they started beating him. At this
the opposite party no. 2 ran into the house
where also he was beaten by the
applicants and due to beating he sustained
injuries. The applicants also damaged the
television etc., which was kept in the
house.

6. Relying on the judgment of this
Court in the case of Sukhwasi vs. State of
U.P., (2007) 59 ACC 739 and of the Apex
Court in Mohd. Yusuf vs. Afaq Jahan
and others, 2006 (1) SCC (Cri.)460, the
learned count below has passed the order
to register the application as complaint
case. It is pertinent to mention that no
order directing police to register the first
information report and for investigation
was passed. When the case was registered
as complaint case, it will be followed by
due inquiry and the statement of the
complainants and other witnesses will be
recorded on oath and, therefore, there was
no incumbency for the court to require
any affidavit in support of the application.

7. Considering the aforesaid facts
and circumstances, I do not find any
ground to interfere in the order, however,
there was no ground for invoking the
extraordinary jurisdiction under Section
482 Cr.P.C. before this Court because the
said order was passed after due inquiry
against
the
applicants,
hence,
the
application is liable to be dismissed.

8. Accordingly the application is
dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2017

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

CIVIL MISC. WRIT PETITION No.23913 of 2017
(u/s -482 Cr. P.C.)

Omkar & Ors. ...Applicants