# Prem Das v. State of U.P. & Ors. 864 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 9 ILRA 863
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-11
- **Case number:** Matters Under Article 227 No. 1328 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-das-v-state-of-u-p-ors-864-indian-law-reports-allahabad-series-47408
- **Pages:** 7

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 156(3) - Upon
receiving an application under Section 156(3) of
the Code disclosing a cognizable offence, the
Magistrate while exercising its discretion may
direct the police to register the F.I.R. and
investigate or alternatively the Magistrate can
take cognizance of the complaint, register it as
complaint case and follow the procedure under
Chapter XV of the Code. (Para 16)

Writ Petition Rejected. (E-10)

List of Cases cited:

## Text

9 All Prem Das Vs. State of U.P. & Ors.
863
rejected the claim of the appellant insofar
as pendente lite interest was concerned.
The omission in not granting the pendente
lite interest could not be held to be
accidental omission or mistake as was
wrongly done by the trial court vide order
dated 30-11-1973. The High Court was,
therefore, justified in setting aside the
aforesaid order by accepting the revision
petition filed by the State."

23. The law as laid down in Dwaraka
Das (supra) would apply with equal force to an
order passed under Rule 269 of the Rules, 1968
which is in pari materia with Section 152 C.P.C.
but with the difference that the omission etc.
contemplated in rule 269 and sought to be
corrected occurring in an order passed under
Section 128 of the Act, which goes to the merits
of the case the proper remedy would be to file
an appeal under Section 97 or 98 of the Act,
1965, as the case may be, and not the remedy of
review. In Dwaraka Das (supra) the remedy of
appeal or review was held to be proper remedy
as C.P.C. confers the power of review on the
courts, which power of review is not with the
Registrar to review an order passed under
Section 128 of the Act.

24. In State of Punjab Vs. Darshan
Singh (2004) 1 SCC 328 also the Hon'ble
Supreme Court has held that "the power under
Section 152 of the Code are neither to be
equated with the power of review nor can be
said to be akin to review or even said to clothe
the court concerned under the guise of invoking
after the result of the judgment earlier rendered,
in its entirety or any portion or part of it."

25. The order dated 11.11.2019, as is
evident has not been passed on any such ground
of clerical or arithmetical mistake or errors from
accidental slip or omission in the order dated
01.11.2019.

26. We therefore hold, on points 1 to 3 as
framed in paragraph 9 above, as under:

1) There is no power of review in the
Registrar against its order passed under Section
128 of the Co-operative Societies Act, 1965, but
if the order has been passed under an erroneous
assumption of its own power going to the root
of the matter, or, if, inter alia, it is found that
there was willful suppression of material fact or
fraud was practised the Registrar will have the
power to review its earlier order.

2) The scope of rule 269 of the
Rules, 1968 is only for correction of clerical or
arithmetical mistakes in judgments or order or
errors arising therein from any accidental slip or
omission and any error or omission which goes
to the merits of the case is beyond the scope of
rule 269 of the Rules, 1968.

3) The order dated 11.11.2019 is
illegal and without jurisdiction.

27. In view of the aforesaid, the order
dated 11.11.2019 cannot be sustained and is
hereby quashed. The order dated 01.11.2019
stands revived in terms thereof.

28. The writ petition is allowed.
----------
(2021)09ILR A863
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matters Under Article 227 No. 1328 of 2021

Prem Das ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
864 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Ram Jatan Yadav

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 156(3) - Upon
receiving an application under Section 156(3) of
the Code disclosing a cognizable offence, the
Magistrate while exercising its discretion may
direct the police to register the F.I.R. and
investigate or alternatively the Magistrate can
take cognizance of the complaint, register it as
complaint case and follow the procedure under
Chapter XV of the Code. (Para 16)

Writ Petition Rejected. (E-10)

List of Cases cited:

1. Gopal Das Sindhi & ors. Vs St. of Assam &
anr. AIR 1961 SC 989

2. Sukhwasi Vs St. of U.P. 2007 (9) ADJ 1 (DB)

3. Jagannath Verma & ors. Vs St.of U.P. & anr.
2014 (8) ADJ 439 (FB)

4. Madhao & anr. Vs St. of Mah. & anr. (2013) 5
SCC 615

5. Gulab Chand Upadhyaya Vs St. of U.P. & ors.
2002 CrLJ 2907 (Alld)

6. Kailash Nath Dwivedi Vs St. of U.P. & ors.
2021 (6) ADJ 686

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Ram Jatan Yadav,
learned counsel for the petitioner and Ms.
Sushma
Soni,
learned
Additional
Government Advocate appearing for the
State-Respondents.

2. The present petition under Article
227 of the Constitution of India has been
filed principally for the following prayers:

"(i) To set aside the judgment
order
dated
19.10.2020
passed
by
Additional District and Sessions Judge,
Room No.20, Agra in Criminal Revision
No.408 of 2019 (Prem Das Vs. State of
U.P. and Others) as well as order dated
31.05.2019 passed by Additional Chief
Judicial Magistrate, Room No.6, Agra in
Misc. Case No.24928 of 2019 (Prem Das
vs. Sandeep Agrawal) under Section 156(3)
Cr.P.C., Police Station -Hariparvat, District
Agra. (Annexure Nos. 4 and 2 of this
Petition).

(ii) To direct the respondent nos.
2 and 3 to register the first information
report against the respondent nos. 4 to 6
and investigate the matter and submit the
police report before the court concern in
accordance with law."

3. The records of the case indicate
that upon an application dated 4.2.2019
under section 156(3) of the Code of
Criminal Procedure, 19731, the Additional
Chief Judicial Magistrate, Court No. 6
Agra by means of an order dated 31.5.2019
has treated the same as a complaint and
directed it to be registered as complaint
case.

4. Learned Magistrate while passing
the aforesaid order has noticed that the
entire facts of the case are within the
knowledge of the complainant and the
necessary material evidence in regard to the
same can be placed before the court by the
complainant and in view thereof, there was
no reason to direct investigation of the case
by the police.

5. Aggrieved, against the aforesaid
order the applicant preferred a revision
being Criminal Revision No. 408/2019
which has also been rejected by order dated
9 All Prem Das Vs. State of U.P. & Ors.
865
19.10.2020, after recording similar reasons.
Both the courts below have relied upon the
legal proposition that the Magistrate is not
bound to allow the application under
section 156(3) of the Code and direct an
investigation; in appropriate cases the
Magistrate has a discretion to treat the
application under section 156(3) of the
Code as a complaint.

6. Learned counsel for the applicant
has referred to the factual aspects of the
case, as stated in the complaint, in order to
assail the orders passed by the courts
below.

7. Learned Additional Government
Advocate has supported the order passed
by the learned Magistrate as well as the
Revisional Court by contending that a bare
reading of the complaint would disclose
that the necessary facts are within the
knowledge
of
the
applicant
and
accordingly, the view taken by the courts
below that the case does not require any
investigation by the police cannot be said to
suffer from any illegality so as to call for
interference.

8. The scope and parameters for
exercise of discretionary powers by a
Magistrate in dealing with a complaint on
an application under section 156(3) of the
Code, are fairly well settled.

9. The Magistrate upon receiving a
complaint or an application under Section
156(3) of the Code, with regard to facts
disclosing commission of an offence, "may
take cognizance", which in the context of
Section 190 of the Code, cannot be read as
"must take cognizance". The use of the
expression "may" under Section 190 of the
Code gives a discretion to the Magistrate to
either take cognizance or to forward the
complaint
to
the
police
and
order
investigation under Section 156(3) of the
Code.

10. The question as to whether it is
mandatory for the Magistrate to order
registration of a criminal case and direct the
officer in charge of the concerned police
station to hold a proper investigation, is no
longer res integra and it has been
consistently held that where a Magistrate
receives an application under Section
156(3) of the Code, he is not bound to take
immediate cognizance even if the alleged
facts disclose commission of an offence.

11. In the case of Gopal Das Sindhi
and others v State of Assam and
another2, while considering the provisions
of Section 190 of the Code it was held that
once a complaint is filed a Magistrate is not
bound to take cognizance as the word
"may" cannot be construed so as to be
"must" and it would be within the
discretion of the Magistrate to send the
complaint to the police for investigation
under Section 156(3) of the Code or to
exercise his discretion and take cognizance
and thereafter proceed. It was stated thus:-

"7.
...We
cannot
read
the
provisions of S. 190 to mean that once a
complaint is filed, a Magistrate is bound to
take cognizance if the 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 S. 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
866 INDIAN LAW REPORTS ALLAHABAD SERIES
the police. On the other hand, there may be
occasions
when
the
Magistrate
may
exercise his discretion and take cognizance
of a cognizable offence. If he does so then
he would have to proceed in the manner
provided by Chapter XVI of the Code..."

12.
T
he
question
whether
the
Magistrate is bound to pass an order on each
and every application under Section 156(3) of
the
Code
containing
allegations
of
commission of a cognizable offence for
registration of the F.I.R. and its investigation
by the police, even if those allegations, prima
facie, do not appear to be genuine and do not
appeal to reason, or he can exercise discretion
in the matter and can pass an order for
treating the same as "complaint" or to reject it
in
suitable
cases,
was
referred
for
consideration before a Division Bench in
Sukhwasi v State of U.P3, and the Division
Bench answered the reference by holding that
there is no legal mandate under which the
Magistrate is bound to allow an application
under Section 156(3) of the Code and he has
a discretion to treat an application under
Section 156(3) of the Code as a complaint.
The observations made by the Division
Bench are as follows:-

"23. The reference is, therefore,
answered in the manner that it is not
incumbent upon a Magistrate to allow an
application under Section 156(3) Cr.P.C.
and there is no such legal mandate. He may
or may not allow the application in his
discretion. The second leg of the reference
is also answered in the manner that the
Magistrate has a discretion to treat an
application under Section 156(3) Cr.P.C. as
a complaint."

13. The power conferred upon the
Magistrate to order investigation under
Section 156(3) of the Code again came up
for consideration before a Full Bench of
this Court in Jagannath Verma and others v
State of U.P. and another4, and taking note
of the provisions contained under Section
190 of the Code which uses the expression
"the Magistrate may take cognizance" and
not "the Magistrate must take cognizance",
it was held that under Section 190 a
Magistrate is not bound, once a complaint
is filed, to take cognizance even though the
complaint may disclose a cognizable
offence and he may well be justified in
sending the complaint under Section 156(3)
to the police for investigation.

14. The powers of the Magistrate, upon
receiving
complaint
with
regard to
a
cognizable offence again came up for
consideration in the case of Madhao and
another v State of Maharashtra and
another5, and amongst the courses open, it
was held that the Magistrate concerned can on
the one hand invoke power under Section
156(3) of the Code, direct investigation in such
matter and on the other hand he may take
cognizance and embark upon the procedure
embodied in Chapter XV. The relevant
extracts from the judgment are as follows:-

"15. Chapter XIV of the Code
speaks about conditions requisite for
initiation of proceedings. Section 190 deals
with
cognizance
of
offences
by
Magistrates. In terms of sub-section (1)
subject to the provisions of the said
Chapter, any Magistrate of 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;
9 All Prem Das Vs. State of U.P. & Ors.
867

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

16. Sub-section (3) of Section
156 of the Code enables any Magistrate
empowered under Section 190 to order
such an investigation in terms of subsection (1) of that section.

17. In CREF Finance Ltd. vs.
Shree Shanthi Homes (P) Ltd., (2005) 7
SCC 467, while considering the power of a
Magistrate
taking
cognizance
of
the
offence, this Court held: (SCC p.471, para
10)

"10. ...Cognizance is taken at the
initial stage when the Magistrate peruses the
complaint with a view to ascertain whether
the commission of any offence is disclosed.
The issuance of process is at a later stage
when after considering the material placed
before it, the court decides to proceed against
the offenders against whom a prima facie
case is made out. It is possible that a
complaint may be filed against several
persons, but the Magistrate may choose to
issue process only against some of the
accused. It may also be that after taking
cognizance and examining the complainant
on oath, the court may come to the
conclusion that no case is made out for
issuance of process and it may reject the
complaint. It may also be that having
considered the complaint, the court may
consider it appropriate to send the complaint
to the police for investigation under Section
156(3) of the Code of Criminal Procedure."

It is clear that any judicial
magistrate before taking cognizance of the
offence can order investigation under
Section 156(3) of the Code. If he does so,
he is not to examine the complainant on
oath because he was not taking cognizance
of any offence therein.

18. When a Magistrate receives a
complaint he is not bound to take
cognizance if the facts alleged in the
complaint disclose the commission of an
offence. The Magistrate has discretion in
the matter. If on a reading of the complaint,
he finds that the allegations therein disclose
a cognizable offence and the forwarding of
the complaint to the police for investigation
under Section 156(3) will be conducive to
justice and save the valuable time of the
Magistrate from being wasted in enquiring
into a matter which was primarily the duty
of the police to investigate, he will be
justified in adopting that course as an
alternative to taking cognizance of the
offence itself. As said earlier, in the case of
a complaint regarding the commission of
cognizable offence, the power under
Section 156(3) can be invoked by the
Magistrate before he takes cognizance of
the offence under Section 190(1)(a).
However, if he once takes such cognizance
and embarks upon the procedure embodied
in Chapter XV, he is not competent to
revert back to the pre-cognizance stage and
avail of Section 156(3)."

15. It may be apposite to refer to the
case of Gulab Chand Upadhyaya v State
of U.P. and others6, wherein considering
the question whether the Magistrate was
justified in directing that an application
under Section 156(3) of the Code seeking
for
registration
of
an
F.I.R.
and
investigation, be registered as complaint,
certain guidelines were formulated for
exercise of discretion by the Magistrate in
regard
to
such
cases.
The
relevant
observations made in the judgment are as
follows:-
868 INDIAN LAW REPORTS ALLAHABAD SERIES

"22. The scheme of Cr.P.C. and
the prevailing circumstances require that
the option to direct the registration of the
case and its investigation by the police
should
be
exercised
where
some
"investigation" is required, which is of a
nature that is not possible for the private
complainant, and which can only be done
by the police upon whom statute has
conferred
the
powers
essential
for
investigation, for example

(1) where the full details of the
accused are not known to the complainant
and the same can be determined only as a
result of investigation, or

(2) where recovery of abducted
person or stolen property is required to be
made by conducting raids or searches of
suspected places or persons, or

(3) where for the purpose of
launching a successful prosecution of the
accused evidence is required to be collected
and preserved. To illustrate by example
cases
may
be visualised
where
for
production before Court at the trail (a)
sample of blood soaked soil is to be taken
and kept sealed for fixing the place of
incident; or (b) recovery of cases property
is to be made and kept sealed; or (c)
recovery under Section 27 of the Evidence
Act; or (d) preparation of inquest report; or
(e) witnesses are not known and have to be
found out or discovered through the
process of investigation.

23. But where the complainant is
in possession of the complete details of all
the accused as well as the witnesses who
have to be examined and neither recovery
is needed nor any such material evidence is
required to be collected which can be done
only by the police, no "investigation"
would normally be required and the
procedure of complaint case should be
adopted. The facts of the present case given
below serve as an example. It must be kept
in mind that adding unnecessary cases to
the diary of the police would impair their
efficiency in respect of cases genuinely
requiring investigation. Besides even after
taking cognizance and proceeding under
Chapter XV the Magistrate can still under
Section 202(1) Cr.P.C. order investigation,
even thought of a limited nature..."

16. It is therefore seen that upon an
application received under Section 156(3)
of the Code disclosing a cognizable
offence, the Magistrate may direct the
police to register the F.I.R. and investigate
or alternatively the Magistrate can take
cognizance of the complaint, register it as
complaint case and follow the procedure
under Chapter XV of the Code. While
exercising this discretion and taking either
of the courses, it would be incumbent upon
the Magistrate to apply judicial mind and
the exercise of discretion would have to be
guided by interest of justice, depending
upon the facts of the case. In a situation
where the investigation required is of a
nature which can only be made by a police
officer
upon whom
the
statute
has
conferred the powers of investigation, the
Magistrate
may
be
well
within his
discretion to direct the registration of an
F.I.R. and its investigation by the police
officer. In a case where the complainant is
in possession of the complete details of the
case and also the material evidence, such
that 'investigation' by the police may not be
required, the Magistrate may follow the
procedure of a complaint case.

17. The aforementioned legal position
with regard to the exercise of discretion by
the
Magistrate
upon
receiving
an
9 All Manoj Kumar & Ors. Vs. State of U.P. & Anr.
869
application under section 156(3) of the
Code has been considered in a recent
judgment of this Court in Kailash Nath
Dwivedi Vs State of U.P. and Others7.

18. Learned counsel for the petitioner
has not been able to dispute the aforesaid
settled legal position with regard to the
ambit
and
scope
of
exercise
of
discretionary powers by a Magistrate under
section 156(3) of the Code with regard to
issuing a direction for registration of an
F.I.R. and its investigation or in a case
where the complainant is in possession of
the complete details of the case and also the
material evidence, issuing a direction for
registration of the case as a complaint case.

19. The courts below having followed
the aforestated principles with regard to the
exercise of powers under section 156(3) of
the Code, the orders, which are sought to
be assailed by means of the present petition
cannot be said to suffer from any infirmity
so as to warrant interference in exercise of
jurisdiction under Article 227 of the
Constitution of India.

20. The petition stands accordingly,
dismissed.
----------
(2021)09ILR A869
ORIGINAL JURISDICTION
CIVILL SIDE
DATED: ALLAHABAD 30.07.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Civil Misc. Review Application No. 121 of 2021
In
Writ C No. 14512 of 2021

Manoj Kumar & Ors. ....Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Sudhanshu Srivastava, Sri Jagannath
Maurya

Counsel for the Respondents:
Sri Ajay Kumar, Sri Amrendra Nath Singh
(Senior Adv.)

A.
Practice
&
Procedure
-
Review
Application - The petitioners are elected
members of Zila Panchayat and have not been
disqualified to cast their vote in election of
President
of
Zila
Panchayat,
Firozabad.
Therefore, the petitioner failed to point out any
error apparent on the face of the record of the
judgment dated 02.07.2021. (Para 11)

Review Application Rejected. (E-10)

List of Cases cited:

1. Chief Election Commissioner & ors. Vs Jan
Chaukidar (Peoples Watch) & ors. (2013) 7
SCC507

2. Boddula Krishnaiah Aiyar & ors. Vs State
Election Commissioner A.P. & ors. (1996) 3 SCC
416

3. Northern India Caterers (India) Ltd. Vs Lt.
Governor of Delhi AIR 1980 SC 674

4. Kamlesh Verma Vs Mayawati (2013) 8 SCC
320

5. Sarla Mudgal Vs U.O.I.(1995) 3 SCC 635

6. Kerala State Electricity Board Vs Hitech
Electronics & Hydropower Ltd. & ors.(2005) 6
SCC 651

7. M/s Jain Studios Ltd. Vs ShinSatellite Public
Co. Ltd. (2006) 5 SCC 501

8. Moran Mar Basselios Catholics Vs The Most
Rev. Mar Poulose Athanasius AIR 1954 SC 526

9. T.C. Basappa Vs T. Nagappa & anr. AIR1954
SC 440