# Prem Chand & Ors v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 325
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-18
- **Case number:** Crl. Misc. Writ Petition No. 2102 of 2021
- **Bench:** Munishwar Nath Bhandari, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-chand-ors-v-state-of-u-p-ors-47090
- **Pages:** 4

## Headnote

Code of Criminal Procedure, 1973 -
Section 156 (3) - FIR challenged being lodged
as counter blast-to injunction order passed
against complainant-and without approaching
police officer-application u/s156 (3) filed-for
invocation of power u/s 156 (3)Cr.P.C. -
compliance of section 154 (3) Cr.P.C.not
mandatory-section 156 (3) Cr.P.C. gives power
to Magistrate u/s 190 Cr.P.C. to direct for
investigation. (E-7)
326 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1.St. of Har. Vs Bhajan Lal; 1992 SCC (Cr.) 426

## Text

7 All. Prem Chand & Ors. Vs. State of U.P. & Ors.
325
services. Relevant provisions are stated
hereunder:

"Section 12. Criteria for giving
legal services-Every person who has to file
or defend a case shall be entitled to legal
services under this Act if that person is -

(a) a member of a Scheduled Caste
or Scheduled Tribe;

(b) a victim of trafficking in human
beings or begar as referred to in Article 23 of
the Constitution;

(c) a woman or a child;

(d) a person with disability as
defind in clause (i) of section 2 of the persons
with
Disabilities
(Equal
Opertunities,
Protuction of Rights & Full Participation) Act
,1995]

(e) a person under circumstances of
undeserved want such as being a victim of a
mass disaster, ethnic violence, caste atrocity,
flood,drought,
earthquake
or
industrial
disaster; or

(f) an industrial workman; or (g) in
custody, including custody in a protective
home within the meaning of clause

(g) of Section 2 of the Immoral
Traffic (Prevention) Act,1956(104 of 1956)
or in a juvenile home within the meaning of
clause(j) of Section 2 of the Juvenile Justice
Act, 1986 (53 of 1986) or in a psychiatric
hospital or psychiatric nursing home within
the meaning of clause (g) of Section 2 of the
Mental Health Act, 1987(14 of 1987);or

(h) in receipt of annual income less
than rupeees nine thousand or such other
higher amount as may be prescribed by the
State Government, if the case is before a
court other than the Supreme Court, and less
than rupees twelve thousand or such other
higher amount as may be prescribed by the
Central Government, if the case is before the
Supreme Court.]

"Section 13. Entitlement to
Legal Services- (1) Persons who satisfy all or
any of the criteria specified in Section 12
shall be entitled to receive legal services
provided that the concerned Authority is
satisfied that such person has a prima-facie
case to prosecute or to defend.

(2) An affidavit made by a person
as to his income may be regarded as
sufficient for making him eligible to the
entitlement of legal services under this Act
unless the concerned Authority has reason to
disbelieve such affidavit."
----------
(2021)07ILR A325
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Writ Petition No. 2102 of 2021

Prem Chand & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rakesh Tripathi - I

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure, 1973 -
Section 156 (3) - FIR challenged being lodged
as counter blast-to injunction order passed
against complainant-and without approaching
police officer-application u/s156 (3) filed-for
invocation of power u/s 156 (3)Cr.P.C. -
compliance of section 154 (3) Cr.P.C.not
mandatory-section 156 (3) Cr.P.C. gives power
to Magistrate u/s 190 Cr.P.C. to direct for
investigation. (E-7)
326 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1.St. of Har. Vs Bhajan Lal; 1992 SCC (Cr.) 426

2. St.of Telangana Vs Habib Abdullah Jeelani &
ors.; 2017 (2) SCC 779

3. Sakiri Vasu Vs St. of U.P. & ors.; 2008 (1)
RLW (SC) 136

(Delivered by Hon'ble Munishwar Nath
Bhandari, J.
&
Hon'ble Shamim Ahmed. J.)

1. Heard Sri Rakesh Tripathi I,
learned counsel for the petitioners and Sri
Patanjali Mishra, learned AGA appearing
for the State.

2. By this writ petition, a challenge is
made
to
the
FIR
dated 04.02.2021
registered as Case Crime No. 0042 of 2021,
under Sections 323, 504, 506 and 307 IPC,
Police Station Garhmukteshwar, District
Hapur.

3. The FIR has been challenged
having been lodged as a counter blast to the
injunction
order
passed
against
the
complainant on a suit preferred by the
petitioner. In view of the above, prayer is to
quash the FIR, as it is motivated one.

4. The second argument of the learned
counsel for the petitioners is in reference to
Section 154 Cr.P.C. He submits that one
needs to approach the office incharge for
registration of the FIR. If FIR is not
registered
then
to
approach
the
Superintendent
of
Police.
Without
approaching
the
police
officer,
an
application under Section 156(3) Cr.P.C.
was filed. The FIR was registered pursuant
to the order passed by the Court under
Section 156(3) Cr.P.C. ignoring that order
aforesaid could not have been passed
without first complying the provision of
Section 154 Cr.P.C. On both the grounds,
challenge is made to the FIR.

5.

We
have
considered
the
submissions made by the learned counsel
for the petitioners and perused the record.

6. The challenge to the FIR has been
made alleging it to be as a counter blast. It
is ignoring that allegation for commission
of offence under Section 323 and 307 has
also been made thus case does not fall
under any of the ground set out by the
Apex Court in the case of State of
Haryana Vs. Bhajan Lal; 1992 SCC
(Cr.) 426 and in a recent judgment of the
Apex Court in the case of State of
Telangana Vs. Habib Abdullah Jeelani
and others; 2017 (2) SCC 779. Any
comment on the facts may cause prejudice
to either of the party. We are thus not
making any comment on facts.

7. So far as second argument is
concerned, a reference of Section 154(3)
Cr.P.C. has been given. The same is quoted
hereunder for ready reference:

154. Information in cognizable
cases. (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:
7 All. Prem Chand & Ors. Vs. State of U.P. & Ors.
327

Provided that if the information is
given by the woman against whom an offence
under Section 326A, Section 326B, 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 aninterpreter 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.

(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 subsection (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.

8. Section 154(3) Cr.P.C. gives
remedy to the complainant if a case is not
registered by the office incharge.

9. Learned counsel for the petitioners
has made a reference to a judgment of
Apex Court in the case of Sakiri Vasu Vs.
State of U.P. and others; 2008 (1) RLW
(SC) 136. It is to show that Section 156(3)
can be involved only when steps were
earlier taken under Section 154(3).

10. Here we refer to Section 156(3)
Cr.P.C. for ready reference:

156. Police officer's power to
investigate
cognizable
case.--(1)
Any
officer in charge of a police station may,
without
the
order
of a
Magistrate,
investigate any cognizable case which a
Court having jurisdiction over the local
area

within the limits of such station
would have power to inquire into or try
under the provisions of Chapter XIII.

(2) No proceeding of a police
officer in any such case shall at any stage
be called in question on the ground

that the case was one which such
officer was not empowered under this
section to investigate.

(3) Any Magistrate empowered
under section 190 may order such an
investigation as above-mentioned.
328 INDIAN LAW REPORTS ALLAHABAD SERIES

11. The perusal of section 156 (3)
Cr.P.C. shows the power of the Magistrate
to send the matter for investigation. The
jurisdiction can be exercised by the
Magistrate empowered Section 190 Cr.P.C.
to
order
for
such
investigation
as
mentioned in sub section (1) and (2) of
Section 156 Cr.P.C. Since a reference of
Section 190 Cr.P.C. has been given in
Section 156(3) Cr.P.C., it would be gainful
to refer even Section 190 Cr.P.C. which is
quoted thus:

190. Cognizance of offences by
Magistrates.-- (1) Subject to the provisions
of this Chapter, any Magistrate of

the first class, and any Magistrate
of the second class specially empowered in
this behalf under sub-section (2), may

take cognizance of any offence--

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that

such offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under

sub-section (1) of such offences
as are within his competence to inquire into
or try.

12. Section 190 Cr.P.C. provides for
filing of the complaint on such facts which
constitute an offence. The Magistrate
empowered under Section 190 Cr.P.C. can
pass an order under Section 156 (3) Cr.P.C.
to send the matter for investigation. Section
156(3) Cr.P.C. does not provide for an
application
but
gives
power
to
the
Magistrate empowered under Section 190
Cr.P.C. to direct for investigation.

13. It would be gainful to refer even
chapter XII in which section 156 Cr.P.C.
exist. Chapter XII is about information to
the police and their powers to investigate.
Section 156 (3) Cr.P.C. falls under Chapter
XII which is basically in regards to power
of the police to investigate the matter.

14. In the light of aforesaid, we are of the
opinion that for invocation of power under
Section 156(3) Cr.P.C. the compliance of
section 154 (3) Cr.P.C. is not mandatory though
even after exhausting aforesaid provision, FIR
is not lodged, one can invoke Section 190
Cr.P.C. Therein an order can be passed under
Section 156(3) Cr.P.C. The perusal of the FIR
however reveals invocation of Section 154(3)
Cr.P.C. The complainant first approached the
station officer and thereafter the S.P. of the
district.

15. Taking into consideration the
discussion made above, we do not find a case
for quashing of the FIR. The writ petition is,
accordingly, dismissed.

16. It is, however, made clear that the
investigation in the matter would not be guided
by any observations made by us rather it would
be made independently on merits of the case.
----------

(2021)07ILR A328
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE VIVEK AGARWAL, J.

Crl. Misc. Writ Petition No. 10162 of 2020

Namdev Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents