# Mansur Ali v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 238
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-28
- **Case number:** Application U/S 482 No. 4928 of 2022
- **Bench:** Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mansur-ali-v-state-of-u-p-ors-48750
- **Pages:** 4

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 482 - Order of
treating application u/s 156(3) as the
complaint case - Quashing of - Held, a
Magistrate,
while
entertaining
an
application filed under Section 156 (3)
Cr.P.C. can reject or treat the same to be a
complaint - Impugned order treating the
application filed u/s 156 (3) Cr.P.C. as a
complaint, cannot be said to be illegal.
(Para 10 and 13)
Application disposed. (E-1)
List of Cases cited:-

## Text

238 INDIAN LAW REPORTS ALLAHABAD SERIES
of criminal proceedings to put undue
pressure on the petitioners and the Society.
This is nothing but a gross abuse of the
process of the Court. This Court is of the
considered view that continuance of the
proceedings would be wholly unjustified
and liable to be quashed. The Investigating
Officer has filed the charge-sheet without
there being any adequate evidence to
support the allegations for offences under
Sections 420, 467, 468, 471, 120B IPC.

45. In view of the aforesaid
discussion, the petitions are allowed and
impugned proceedings of charge-sheet
dated 24.09.2021 in FIR No.0085 of 2021
under Sections 420, 467, 468, 471, 120B
IPC registered at Police Station Wazirganj,
District Lucknow as well as summoning
order/cognizance order dated 05.10.2021
passed by leaned Special Additional Chief
Judicial Magistrate (CBI AP), Lucknow in
Criminal
Case
No.NIL
and
entire
proceedings of FIR No.0085 of 2021 under
Sections 420, 467, 468, 471, 120B IPC,
Police Station Wazirganj, District Lucknow
are hereby quashed.
----------
(2022) 8 ILRA 238
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.07.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Application U/S 482 No. 4928 of 2022

Mansur Ali ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Ambrish Kumar Dwivedi

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 482 - Order of
treating application u/s 156(3) as the
complaint case - Quashing of - Held, a
Magistrate,
while
entertaining
an
application filed under Section 156 (3)
Cr.P.C. can reject or treat the same to be a
complaint - Impugned order treating the
application filed u/s 156 (3) Cr.P.C. as a
complaint, cannot be said to be illegal.
(Para 10 and 13)
Application disposed. (E-1)
List of Cases cited:-
1. Lalita Kumari Vs Govt. of U.P. & anr. 2014 (2)
SCC 1
2. Sukhwasi Vs St. of U.P.; 2008 CriLJ 452.
3. Ramdev Food Products (P) Ltd. Vs St. of Guj.;
(2015) 6 SCC 439
4. M/s. Cucusan Foils Pvt. Ltd. Vs St. (Delhi
Admn.); 1991 Cr.LJ 683
(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. Heard learned counsel for the
revisionist, learned A.G.A for the State and
perused the record.

2. The instant application u/s 482
Cr.P.C. has been filed by the applicant for
quashing
the
impugned
order
dated
16.10.2020 passed by Chief Judicial
Magistrate, Gonda in Criminal Misc. Case
No.1890/2020, Yusuf Ali vs. Inayat Ali and
others in application under Section 156(3)
Cr.P.C.

3. Brief facts are that the applicant
moved an application under Section 156 (3)
Cr.P.C. for registration and investigation of
the case which was heard and learned
Magistrate vide order dated 16.10.2020
treated the same as complaint case and
8 All. Mansur Ali Vs. State of U.P. & Ors.
239
fixed the date 18.11.2020 for recording the
statement u/s 200 Cr.P.C.

4. Foremost submission of learned
counsel for the applicant is that the impugned
order is not sustainable in the law, insofar as the
same is against the law laid down by the
Hon'ble Apex Court in the case of Lalita
Kumari vs. Government of Uttar Pradesh
and another, reported in 2014 (2) SCC 1. He,
thus, submitted that the only option available to
the learned Magistrate was to allow the
application filed under Section 156 (3) Cr.P.C.
with a direction to the Station House Officer
concerned for registration of F.I.R. regarding
the matter. The learned Magistrate was not
competent to direct that the application filed
under Section 156 (3) Cr.P.C. be treated as
complaint. The impugned order is thus, patently
illegal which would cause miscarriage of
justice, therefore, the same is liable to be
quashed. He has also submitted that learned
trial Court while passing the impugned order
has lost sight of the fact that the question of
recovery of alleged tractor in question was also
involved which is otherwise not possible in a
case instituted upon private complaint and the
same would cause miscarriage of justice to the
revisionist/complainant. He has also submitted
that it was the duty of learned Magistrate
concerned to issue a direction to the police
station concerned to get the FIR lodged on the
basis of application moved by the revisionist
under Section 156(3) Cr.P.C. He, thus, prays
that the impugned order is illegal which could
not be sustained and deserves to be set aside.

5. Per contra, learned A.G.A. 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
decided 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. His further submission is that in
Lalita Kumari (supra) Hon'ble the Apex
Court has not referred, discussed and
overruled the law laid down by the Division
Bench of this Court in Sukhwasi vs. State of
Uttar Pradesh; 2008 Cri LJ 452. Therefore,
the impugned order cannot be termed to be
illegal and no miscarriage of justice would be
caused by the impugned order.

6. The scope and ambit of law laid
down by the Hon'ble Supreme Court in
Lalita Kumari (supra) can be ascertained
from para no.6 of the judgment, which is
quoted hereinbelow :

"6) Therefore, the only question
before this Constitution Bench relates to
the interpretation of Section 154 of the
Code and incidentally to consider Sections
156 and 157 also." (Emphasis supplied)

7. In case of Lalita Kumari (supra)
the controversy revolved around the
registration of F.I.R in cognizable cases by
the Police Officer. However, it did not
dwelve upon scope and ambit of power
vested in Magistrate by virtue of provision
of Section 156 (3) Cr.P.C. which is, for
ready reference, quoted hereinbelow :

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

(1) ...........

(2) ............

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

8. In Sukhwasi (supra) the Division
Bench of this Court in paragraph nos.6, 7, 8
& 9 has held as under:
240 INDIAN LAW REPORTS ALLAHABAD SERIES

"6. 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
be
necessarily implication be selective. That
gives a clear inkling 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.

7. 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 143(3)
Cr.P.C. is as hereunder

"154. Information of 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 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 incharge of the
police station in relation to that offence."

8. 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)

(2)
(3) Any Magistrate empowered under
Section
190
may
order
such
an
investigation as above-mentioned.

9. The use of the word 'shall' in
Section 154(3) Cr. P.C: and the use of
word 'May' in Section 156(3) Cr.P.C.
should make the intention of the legislation
clear. If the legislature intended to close
options for the Magistrate, they could have
used the word 'shall' as has been done in
Section 154(3) Cr.P.C. Instead, use of the
word 'May' is, therefore, very significant,
and gives a very clear indication, that the
Magistrate has the discretion in the matter,
and can, in appropriate cases, refuse to
order registration." (emphasis supplied)

9. The Hon'ble Supreme Court in the
case of Ramdev Food Products (P) Ltd. v.
State of Gujarat, (2015) 6 SCC 439 in
paragraph no.32 has held as under:-

"32. We now come to the last
question whether in the present case the
Magistrate ought to have proceeded under
Section 156(3) instead of Section 202. Our
answer is in the negative. The Magistrate
has given reasons, which have been upheld
by the High Court. The case has been held
to be primarily of civil nature. The accused
is alleged to have forged partnership.
Whether such forgery actually took place,
8 All. Aditya Mishra Vs. State of U.P. & Anr.
241
whether it caused any loss to the
complainant and whether there is the
requisite mens rea are the questions which
are yet to be determined. The Magistrate
has not found clear material to proceed
against the accused. Even a case for
summoning has not yet been found. While a
transaction giving rise to cause of action
for a civil action may also involve a crime
in
which
case
resort
to
criminal
proceedings may be justified, there is
judicially acknowledged tendency in the
commercial world to give colour of a
criminal case to a purely commercial
transaction. This Court has cautioned
against such abuse."

10. It is, thus, abundantly clear that in
view of law laid down by the Division
Bench of this Court in Sukhwasi (supra)
and Ramdev Food Products (P) Ltd.
(supra), it cannot be said that a Magistrate,
while entertaining an application filed
under Section 156 (3) Cr.P.C. cannot reject
or treat the same to be a complaint.

11. So far as the question of recovery
of alleged tractor is concerned, it is
pertinent to mention that keeping in view
the provisions contained in Section 202
Cr.P.C. in its entirety it is held in M/s.
Cucusan Foils Pvt. Ltd. vs. State (Delhi
Admn.), 1991 Cr.LJ 683 in paragraph
No.16, as under :-

"16. Even this judgment says
that once the Magistrate proceeds on the
basis of the original complaint, then he
must first proceed to examine on oath the
complainant and his witnesses under
Section 200 and thereafter either hold an
enquiry himself or direct the enquiry to be
held by police officer under Section 202 of
the Code, as he thinks fit and then either
dismiss the complaint or issue the process,
as the case may be."

 (emphasis supplied)

12. Therefore, it is also open to the
learned Magistrate, at the appropriate stage,
to do the needful in this regard, keeping in
view the provisions of Section 202 Cr.P.C.
and law laid down by Delhi High Court in
M/s. Cucusan Foils (Supra).

13. In view of what has been
discussed above, the impugned order
passed by learned Magistrate, whereby he
has treated the application filed under
Section 156 (3) Cr.P.C. as a complaint,
cannot be said to be illegal. The impugned
order cannot be said to be an abuse of
process of the Court either. Therefore, the
present application lacks merit and is liable
to be dismissed.

14. In view of the aforesaid
discussion, the present application is
disposed of.
----------
(2022) 8 ILRA 241
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.08.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA I, J.

Application U/S 482 No. 5154 of 2022

Aditya Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Anil Kumar Tiwari, Abhishek Dwivedi

Counsel for the Opposite Parties:
G.A., Gaurav Mehrotra