# Naresh Kumar Valmiki v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 490
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-19
- **Case number:** Application U/S 482 No. 14443 of 2022
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naresh-kumar-valmiki-v-state-of-u-p-ors-48901
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 & 156(3)-
Application u/s 156(3) was filed against
the accused but the court concerned
directed the same to be registered as a
complaint-It cannot be that by treating an
application moved u/s 156(3) Cr.P.C. as a
complaint, making an inquiry into it and
then proceeding as per section 204
Cr.P.C., the complainant will not get an
effective
and
efficacious
remedy
to
ventilate his grievances-The power of a
Magistrate or such court cannot be
curtailed so as to place it in a tight
compartment to exercise it in a particular
direction
and
way
only
mechanically
without being left to pass any other order
as per his wisdom- Moreso,the Court
differed with a view taken in the Case of
Soni Devi in which the FIR to be ordered
to be registered whereas special judge
takes cognizance, the mode of taking
cognizance will be as prescribed u/s 190
Cr.P.C., hence, the Special Judge, SC/ST
(PA) Act is well within his powers to treat
an application moved u/s 156(3) Cr.P.C.
7 All. Naresh Kumar Valmiki Vs. State of U.P. & Ors.
491
as a complaint-Hence, the matter directed
to be placed before a Division Bench.(Para
1 to 21)

The application is disposed of. (E-6)
List of Cases cited:

## Text

490 INDIAN LAW REPORTS ALLAHABAD SERIES
Court with clean hands and filed this
application suppressing the material facts,
therefore,
they
do not deserve
any
indulgence by this Court. The courts of law
are meant for imparting justice between the
parties. One, who comes to the court, must
come with clean hands and no material
facts should be concealed. I am constrained
to hold that more often the process of the
court is being abused by unscrupulous
litigants to achieve their nefarious design. I
have no hesitation in saying that a person,
whose case is based on falsehood can be
summarily thrown out at any stage of the
litigation. The judicial process cannot
become an instrument of oppression or
abuse or a means in the process of the
Court to subvert justice, for the reason that
the Court exercises its jurisdiction, only in
furtherance of justice. The applicants have
misused the process of law by filing
successive applications before this Court
suppressing
the
material
facts
and
documents and misled the Court. Honesty,
fairness, purity of mind should be of the
highest order to approach the court, failing
which the litigant should be shown the exit
door at the earliest point of time.

7- In view of the above, the
application is rejected with costs, which is
quantified at Rs.5,000/- (rupees five
thousand only) to be deposited by the
deponent (Rajesh s/o Late Baccha Lal, R/o
village
Pakri
Siswa,
police
stationGhughuli District Maharajganj) within one
month with the Registrar General of this
Court, failing which the same shall be
recovered from the deponent as arrears of
land revenue. After deposition of aforesaid
amount,
the
Registrar
General
shall
forward the same to the account of Rajkiya
Bal Greh Shishu, Allahabad being Account
No. 3785336735, State Bank of India,
Khuldabad Branch, Prayagraj, IFSC Code
SBI N0002560, 9 Micro Code 211002015,
which shall be used for the welfare of the
children
----------
(2022)07ILR A490
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.07.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Application U/S 482 No. 14443 of 2022

Naresh Kumar Valmiki ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Arvind Kumar Singh

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 & 156(3)-
Application u/s 156(3) was filed against
the accused but the court concerned
directed the same to be registered as a
complaint-It cannot be that by treating an
application moved u/s 156(3) Cr.P.C. as a
complaint, making an inquiry into it and
then proceeding as per section 204
Cr.P.C., the complainant will not get an
effective
and
efficacious
remedy
to
ventilate his grievances-The power of a
Magistrate or such court cannot be
curtailed so as to place it in a tight
compartment to exercise it in a particular
direction
and
way
only
mechanically
without being left to pass any other order
as per his wisdom- Moreso,the Court
differed with a view taken in the Case of
Soni Devi in which the FIR to be ordered
to be registered whereas special judge
takes cognizance, the mode of taking
cognizance will be as prescribed u/s 190
Cr.P.C., hence, the Special Judge, SC/ST
(PA) Act is well within his powers to treat
an application moved u/s 156(3) Cr.P.C.
7 All. Naresh Kumar Valmiki Vs. State of U.P. & Ors.
491
as a complaint-Hence, the matter directed
to be placed before a Division Bench.(Para
1 to 21)

The application is disposed of. (E-6)
List of Cases cited:

1. Soni Devi Vs St. of U.P. & ors. (2022) 5 ADJ
64

2. Ram Swarup Vs Mohd. Javed Razack &
anr.(2005) 10 SCC 393

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Arvind Kumar Singh,
learned counsel for the applicant, Sri Ankit
Srivastava, learned counsel for the State
and perused the records.

2. The present Criminal Misc.
Application under Section 482 of Code of
Criminal Procedure, 1973 (Cr.P.C.) has
been filed by the applicant Naresh Kumar
Valmiki, with the following prayers :

"It, therefore, most respectfully
prayed that this Hon'ble Court may kindly
be pleased to stay the effect and operation
of the order dated 12.8.2021 (Annexure No.
2) passed by Special Judge (SC/ST), Etah
and also be pleased to direct to the police of
police station : Aliganj, District : Etah to
lodge the FIR and investigate the case
against the accused persons in accordance
with law and/or may pass such other and
further order as this Hon'ble Court may
deem fit and proper, so the justice be done
between the parties.

It is further, most respectfully
prayed that this Hon'ble Court may
graciously be pleased to quash the order
dated 12.8.2021 (Annexure No. 2) passed
by Special Judge (SC/ST), Etah in criminal
misc. case no. 220 of 2021 (Naresh Kumar
vs. Indrajit & ors.) and further be pleased to
direct to the learned Special Judge (SC/ST
(PA) Act, Etah to proceed application u/s
156(3) Cr.P.C. in accordance with law and
direct to the police of police station :
Aliganj, District : Etah to lodge the FIR and
investigate the case against the accused
persons in accordance with law and/or may
pass such other and further order as this
Hon'ble Court may deem fit and proper, so
the justice be done between the parties."

3. Learned counsel for the applicant
has confined his argument only to the
aspect that the impugned order dated
12.8.2021 passed by Special Judge, SC/ST
(PA) Act, Etah is ex-facie bad, illegal and
not sustainable in the eyes of law as an
application dated 5.4.2021 was filed under
Section 156(3) Cr.P.C. against Indrajit
Singh, Abhijit @Chhote Yadav, Akhilesh
and
Umesh,
with
the
prayer
that
appropriate order be passed for registration
of F.I.R. and investigation upon the same,
but the court concerned vide its order dated
12.8.2021 directed the said application filed
under Section 156(3) Cr.P.C. to be
registered as a complaint and further
directed that the matter be posted for
further date for recording of statement of
the complainant under Section 200 Cr.P.C.

4. Learned counsel for the applicant
argued that the opposite party no. 2 to 5
who are the accused in the application
under Section 156(3) Cr.P.C., are not the
members of Scheduled Castes and/or
Scheduled Tribes. He has relied upon the
judgment of a co-ordinate Bench of this
Court in the case of Soni Devi vs. State of
U.P. and others : 2022 (5) ADJ 64 and has
argued that the issue as to whether an
application under Section 156(3) Cr.P.C.
specifically with regards to an offence
under The Scheduled Castes and the
492 INDIAN LAW REPORTS ALLAHABAD SERIES
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter referred as ''the Act
1989'), can be treated as a complaint or not,
is no more res integra but it has been held
in the said judgement that the same cannot
be treated as a complaint and the only
option before the concerned court is to
direct lodging of a First Information Report
and investigation thereupon. It is argued
that in view of the said judgement, the
order impugned be set aside and the
application under Section 156(3) Cr.P.C. be
directed to be ordered to be registered as a
First Information Report and investigation
be carried out against the accused persons.

5. Per contra, learned State counsel
has opposed the said argument and has
argued that Special Judge, SC/ST(PA) Act
is not bound to direct lodging of a F.I.R.
only on an application moved under
Section 156(3) Cr.P.C. before him. It is
argued that the court concerned has to
apply its judicial mind and then reach to a
conclusion as to what order has to be
passed and the order as such passed, has to
reflect the independent opinion of the court
concerned.

6. This Court has gone through the
judgement passed in the case of Soni Devi
(Supra).

7. Two questions were framed in the
same. The first question is not being
referred to, as the same does not relate to
the issue in dispute. The second question as
framed therein in paragraph 15 is as
follows:

"15. The second question for
consideration before this Court is as to
whether Special Judge can treat the
application under Section 156(3) Cr.P.C.
as a complaint case or not."

8. At this stage before further going
into the issue, answer as given to the
second question in paragraph 18 of the
judgement is as follows:

" 18. .... Therefore answer to the
second question that Special Judge can
treat the application under Section 156
(3)Cr.P.C. as a complaint case or not ?
Answer is "No" in view of Rule 5(1) of the
Amended Act."

9. A Special Judge established or
specified for the purposes of the Act 1989,
is for providing speedy trial and also shall
have the power to directly take cognizance
of the offence under the Act 1989. It is
settled proposition of law that on receipt of
a complaint a Magistrate has to apply his
judicial mind to the allegations in the
complaint and then to take a decision as to
whether he would proceed at once to take
cognizance of the offence in terms of
Section
190
Cr.P.C.
or
order
for
investigation under Section 156(3) Cr.P.C.

10. In the case of Ram Swarup vs
Mohd. Javed Razack & Anr: (2005) 10
SCC 393, the Apex Court has held that
forwarding a complaint to the police for
investigation is not necessary in every case.
If, prima facie, an offence is made,
cognizance can be taken by the Magistrate
himself.

11. Legal position in a situation of
filing of a complaint before a Magistrate is
very well clear and explicit. A Magistrate
or such court, as the case may be, has to
apply his judicial mind to the allegations in
the complaint against the accused persons
and thereafter, he has to make up his mind
and proceed as to whether it should be sent
to the police station with directions to
Officer In-charge for its registration and
7 All. Naresh Kumar Valmiki Vs. State of U.P. & Ors.
493
investigation in terms of Section 156(3)
Cr.P.C. or to take cognizance of the offence
as alleged and proceed to examine the
complainant and his witnesses and take
further steps in this regard as per the Code
of Criminal Procedure or even reject the
same. The powers of a Magistrate or such
court cannot be curtailed so as to place it in
a tight compartment to exercise it in a
particular
direction
and
way
only
mechanically without being left to pass any
other order as per his wisdom. A court
cannot be ordered to pass a particular order
and act in a particular way only without
any discretion left to its wisdom. It cannot
be that by treating an application moved
under
Section
156(3)
Cr.P.C.
as
a
complaint, making an inquiry into it and
then proceeding as per Section 204 Cr.P.C.,
the complainant will not get an effective
and efficacious remedy to ventilate his
grievances.

12. Section 14(1) of the Act, 1989
reads as under :

"14. (1) For the purpose of
providing for speedy trial, the State
Government shall, with the concurrence of
the Chief Justice of the High Court, by
notification
in
the
Official
Gazette,
establish an Exclusive Special Court for
one or more Districts:

Provided that in Districts where
less number of cases under this Act is
recorded, the State Government shall, with
the concurrence of the Chief Justice of the
High Court, by notification in the Official
Gazette, specify for such Districts, the
Court of Session to be a Special Court to
try the offences under this Act:

Provided further that the Courts
so established or specified shall have
powers to take cognizance directly of
offences under this Act."

13. Section 193 Cr.P.C. reads as
under :

"193.
Except
as
otherwise
expressly provided by this Code or by any
other law for the time being in force, no
Court of Session shall take cognizance of
any offence as a Court of original
jurisdiction unless the case has been
committed to it by a Magistrate under this
Code."

14. A perusal of these two sections
makes it clear that there is an express
provision under Section 14 (1) of the Act
which provides powers to Special Court to
directly take cognizance of an offence
under the Act 1989. The mode of taking
cognizance has to be as per Section 190
Cr.P.C. Since the scheme of Code of
Criminal
Procedure
provides
for
cognizance to be taken by Magistrates in
the manner specified under Section 190
Cr.P.C. and the Session Judges are
restricted to directly take cognizance of the
offences except where there is specific
provision for the same. Hence, if a Sessions
Judge or a Special Judge, as the case may
be, takes cognizance, the mode of taking
cognizance of an offence will be as
prescribed under Section 190 Cr.P.C. and
hence, the Special Judge, SC/ST (PA) Act
is well within his powers to treat an
application moved under Section 156(3)
Cr.P.C. as a complaint.

15. Rule 5 of The Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Rules, 1995 reads as under :

"5. (1) Every information relating
to the commission of an offence under the
Act, if given orally to an officer in-charge
494 INDIAN LAW REPORTS ALLAHABAD SERIES
of a police station shall be reduced to
writing by him or under his direction, and
be read over to the informant, and every
such information, whether given in writing
or reduced to writing as aforesaid, shall be
signed by the persons giving it, and the
substance thereof shall be entered in a
book to be maintained by that police
station.

(2) A copy of the information as
so recorded under sub-rule (1) above shall
be given forthwith, free of cost, to the
informant.

(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-rule (1) may send the
substance of such information, in writing
and by post, to the Superintendent of Police
concerned who after investigation either by
himself or by a police officer not below the
rank of Deputy Superintendent of Police,
shall make an order in writing to the officer
in-charge of the concerned police station to
enter the substance of that information to
be entered in the book to be maintained by
the police station."

16 . Section 154 Cr.P.C. reads as
under :

"154.
(1)
Every
information
relating to the commission of a cognizable
offence, if given orally to an officer in
charge of a police station, shall be reduced
to writing by him or under his direction,
and be read over to the informant; and
every such information, whether given in
writing or reduced to writing as aforesaid,
shall be signed by the person giving it, and
the substance thereof shall be entered in a
book to be kept by such officer in such form
as the State Government may prescribe in
this behalf:

Provided that if the information is
given by the woman against whom an
offence under section 326A, section 326 B,
section 354, section 354A, section 354B,
section 354C, section 354D, section 376,
section 376A, section 376AB, section 376B,
section
376C,
section
376D,
section
376DA, section 376DB, section 376E or
section 509 of the Indian Penal Code (45 of
1860) is alleged to have been committed or
attempted, then such information shall be
recorded, by a woman police officer or any
woman officer:

Provided further that -

(a) in the event that the person
against whom an offence under section
354, section 354A, section 354B, section
354C, section 354D, section 376, section
376A, section 376AB, section 376B, section
376C, section 376D, section 376DA,
section 376DB, section 376E or section 509
of the Indian Penal Code (45 of 1860) is
alleged to have been committed or
attempted, is temporarily or permanently
mentally or physically disabled, then such
information shall be recorded by a police
officer, at the residence of the person
seeking to report such offence or at a
convenient place of such person's choice, in
the presence of an interpreter or a special
educator, as the case may be;

(b)
the
recording
of
such
information shall be videographed;

(c) the police officer shall get the
statement of the person recorded by a Judicial
Magistrate under clause (a) of sub-section
(5A) of section 164 as soon as possible.
7 All. Ayush Anurag Vs. State of U.P. & Anr.
495

(2) A copy of the information as
recorded under sub-section (1) shall be
given forthwith, free of cost, to the
informant.

(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 in charge of the
police station in relation to that offence."

17. The reading of said rules makes it
clear that the language of Rule 5 and that of
Section 154 Cr.P.C. is akin. Since Rule 5
talks of information to the Officer Incharge of a police station, the said
provisions can never be strictly applied on
a Special Judge who has been empowered
to pass appropriate orders on an application
moved under Section 156(3) Cr.P.C.

18. Thus, this Court differs with the
view taken in the case of Soni Devi
(Supra) in its second question as decided as
to whether it is correct ?

19. Let the matter be placed before a
Division
Bench
of
this
Court
for
appropriate decision on the same.

20. Since there is a difference from
the view taken in the case of Soni Devi
(Supra) by this Court which is the only
argument raised by learned counsel for the
applicant and there is a prayer for staying
the effect and operation of the impugned
order, the same is not allowed.

21. Let the matter be placed before
Honourable
The
Chief
Justice
for
nominating a Bench for deciding the issue
in question.
----------
(2022)07ILR A495
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2022

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Application U/S 482 No. 19717 of 2021

Ayush Anurag ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Lalit Kumar, Sri Kamalesh Kumar
Nishad, Sri V.P. Srivastava (Senior Adv.)

Counsel for the Opposite Parties:
G.A., Sri Awadhesh Rai

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1860-Sections 328, 376, 504,
506 & 3⁄4 POCSO Act - IT Act-Section 66quashing of entire proceedings-In the
present case POCSO Act had leveled
against the applicant but in support of the
age proof of O.P. Private Party no.
document
has
been
filed
whereas
according
to
prosecution
case
the
Opposite Private party has taken the
admission after passing the XII Class-the
High school and intermediate certificates
are the most relevant documents for
examining and ascertaining the age of the
girl-The exercise of power u/s 311 Cr.P.C.
should be resorted to only with the object