# Prem Narayan Mishra v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 503
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-24
- **Case number:** Application U/S 482. No. 6521 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-narayan-mishra-v-state-of-u-p-anr-52221
- **Pages:** 22

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 202 & 482 -
Application U/s 482 - for quashing the
impugned orders - wherein Application of the
applicant moved U/section 156(3) Cr.P.C was
rejected being dispute in question is related with
a forged Will which comes under the purview of
a civil court and the said order was also affirmed
by the revisional court -in view of perusal of
facts of the case, court finds that, impugned
orders have rightly been passed as the dispute
essentially appears to be a civil dispute - held, in
view of law laid down under the various
pronouncement by the Hon'ble Apex court, a
person should not be permitted to give a
criminal colour to a civil dispute - accordingly,
present Application is dismissed. (Para - 20, 21)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,934 of 75,257. This is a partial read: ask again with offset=39934 for what follows._

7 All. Prem Narayan Mishra Vs. State of U.P. & Anr.
503
to invoke the inherent jurisdiction of the
Court, but when he is posted with all the
facts and circumstances of a case, he
cannot withhold part of it for the purpose
of filing yet another petition seeking the
same relief.

11.
We
are
in
complete
agreement with these observations of the
Madras High Court. Though it is clear that
there can be no blanket rule that a second
petition under Section 482 Cr.P.C. would
not lie in any situation and it would depend
upon the facts and circumstances of the
individual case, it is not open to a person
aggrieved to raise one plea after the other,
by invoking the jurisdiction of the High
Court under Section 482 Cr.P.C., though
all such pleas were very much available
even at the first instance. Permitting the
filing of successive petitions under Section
482 Cr.P.C. ignoring this principle would
enable an ingenious accused to effectively
stall the proceedings against him to suit his
own interest and convenience, by filing one
petition after another under Section 482
Cr.P.C., irrespective of when the cause
therefor arose. Such abuse of process
cannot be permitted."

16. In view of above, this second
application on the same grounds is not
maintainable.

17. Having considered the aforesaid
facts of the case, as also taking note of the
observations of the Hon'ble Apex Court in
the judgments referred above, this Court is
of the view that no indulgence in the matter
is required. Accordingly, the present
application is rejected. No order as to
costs.
----------
(2024) 7 ILRA 503
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.07.2024
BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482. No. 6521 of 2024

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

Counsel for the Applicant:
Dhirendra Pratap Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 202 & 482 -
Application U/s 482 - for quashing the
impugned orders - wherein Application of the
applicant moved U/section 156(3) Cr.P.C was
rejected being dispute in question is related with
a forged Will which comes under the purview of
a civil court and the said order was also affirmed
by the revisional court -in view of perusal of
facts of the case, court finds that, impugned
orders have rightly been passed as the dispute
essentially appears to be a civil dispute - held, in
view of law laid down under the various
pronouncement by the Hon'ble Apex court, a
person should not be permitted to give a
criminal colour to a civil dispute - accordingly,
present Application is dismissed. (Para - 20, 21)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

1. Sukhwasi Vs St. of U.P. - 2007 SCC OnLine
All 1088,

2. Lalita Kumari Vs St. of U.P. - (2014) 2 SCC 1

3. Ramdev Food Products Pvt. Ltd.Vs St. of Guj.
- (2015) 6 SCC 439),

4. Priyanka Srivastava Vs St. of U.P., - (2015) 6
SCC 287,

5. Devarapalli Lakshminarayana Reddy Vs Vs
Narayana Reddy [(1976) 3 SCC 252),
504 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Anil Kumar Vs M.K. Aiyappa - (2013) 10 SCC
705),

7. Dilawar Singh Vs St. of Delhi - (2007) 12 SCC
641),

8. Mohd. Yousuf Vs 19 Afaq Jahan - (2006) 1
SCC 627),

9. CREF Finance Ltd. Vs Shree Shanthi Homes
(P) Ltd.- (2005) 7 SCC 467),

10. Madhao v. St. of Mah. - (2013) 5 SCC 615),

11. Ramdev Food Products (P) Ltd. Vs St. of
Guj. - (2015) 6 SCC 439),

12. Lalita Kumari Vs St. of U.P. - (2014) 2 SCC
1),

13. Criminal Revision No. 4629 of 2019
(Vishwanath Vs St. of U.P. & ors. dated
09.12.2019,

14. XYZ Vs St. of M.P. & ors. - (2023) 9 SCC
705,

15.
Kailash
Vijayvargiya
Vs
Rajlakshmi
Chaudhari & ors.- 2023 SCC OnLine SC 569.

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the applicant
and learned A.G.A. for the State and
perused the records.

2. By means of the present application, the
applicant has impeached the order dated
28.07.2023 passed by Additional District
and Sessions Judge, Court No.1, Pratapgarh
(in short "Revisional Court") in Criminal
Revision No. 40 of 2016 (Prem Narayan vs.
State of U.P. and 6 Others) and also the
order dated 29.01.2016 passed by the
Additional C.J.M., Court No.13, Pratapgarh
(in short "Magistrate") in Misc. Case No.
335 of 2015 (Prem Narayan vs. Awadhesh
Kumar).

3. By the impugned order dated
29.01.2016, the trial Court rejected the
application preferred by the applicant under
Section 156(3) Cr.P.C.. The relevant
portion of the order dated 29.01.2016 reads
as under:-

"मामला रािथि न्द्यायालय से
सम्बस्न्द्िर् है। र्िाकचिर् िसीयर् कूटकृर्
है या नहीिं इसका ननिाारण सक्षम न्द्यायालय
द्िारा ही ककया िाना न्द्यायोचिर् है। प्रािाना
पत्र में िखणार् र्थ्यों के अिलोकन से थपष्ट
हो रहा है कक िर्ामान प्रकरण ससविल
प्रकृनर् का है र्िा माननीय उच्िर्म
न्द्यायालय ने मो० इब्रादहम बनाम बबहार
राज्य ए. एस. सी 2009 (67) पेि 629 में
यह विचिक मर् प्रकट ककया र्या है कक
िहािं मामला शुद्िर्ः दीिानी प्रकृनर् के है
उन्द्हे दास्ण्डक आिरण पहनाकर मामला
प्रथर्ुर् न ककया िाय। इसी प्रकार माननीय
उच्िर्म न्द्यायालय द्िारा मेससा इस्ण्डया
कापोरेशन बनाम मेससा एण्ड ए. ई. पी सी
एििं अन्द्य िे टी 2006 (6) सुप्रीम कोटा पेि
474 र्िा माननीय उच्ि न्द्यायालय की
विचि व्यिथिा िी सार्र सूरी ि अन्द्य
बनाम थटेट आि यू०पी० एििं अन्द्य 2002
एस सी सी 639 के पररप्रेक्ष्य में एििं प्रथर्ुर्
मामले के र्थ्य एििं पररस्थिनर्यों को देखर्े
हुये प्रािाना पत्र थिीकृर् ककये िाने का
आिार पयााप्र् नहीिं है और प्रथर्ुर् प्रािाना
पत्र अन्द्र्र्ार् िारा 156 (3) द०प्र०सिं० खाररि
ककये िाने योग्य है।
आदेश
7 All. Prem Narayan Mishra Vs. State of U.P. & Anr.
505

प्रािी प्रेमनारायण द्िारा प्रथर्ुर्
प्रािाना पत्र अन्द्र्र्ार् िारा 156 (3) द०प्र०सिं०
ससविल प्रकृनर् का होने के कारण खाररि
ककया िार्ा है।"

4. Being aggrieved by the order dated
29.01.2016, the applicant filed Criminal
Revision No. 40 of 2016 (Prem Narayan vs.
State of U.P. and 6 Others) and the
Revisional
Court
dismissed
the
said
revision vide order dated 28.07.2023 with
following observations:-

"The grounds shown in the
revision also established that there involves
a controversy of his civil nature. The
findings arrived by the learned Trial Court
is in accordance with law and the learned
Magistrate has relied upon the case laws
passed by the Hon'ble Apex Court and
Hon'ble High Courts.

8.- There is no illegality or
impropriety
in
the
impugned
order.
Revision is devoid of merits and is liable to
be dismissed.
Order

Crl Revision N0-40 of 2016
preferred by the revisionist is accordingly
dismissed. Record of the Learned Trial
Court be returned to Trial Court. And
record of this revision be consigned in
accordance with law."

5. From the submissions made by the
learned counsel for the applicant as also the
averments made in the application under
consideration, the order(s) aforesaid have
been impeached by the applicant on the
ground that from a bare reading of the
application under Section 156(3) Cr.P.C. it
appears that cognizable offence is made out
and as such the order dated 29.01.2016
rejecting the application under Section
156(3) Cr.P.C. and also the order dated
28.07.2023 affirming the order dated
29.01.2016 are liable to be interfered with
by this Court.

6. Per contra, learned AGA stated that
a bare reading of the application under
Section 156(3) Cr.P.C. would show that
subject matter of the same relates to a
"Will", which, according to the applicant, is
forged and the genuineness of the "Will"
can be ascertained by the Court of first
instance having competent jurisdiction on
the basis of evidence adduced before it and
accordingly no interference of this Court in
the present application is required. Prayer is
to dismiss the application.

7. Considered the submissions of
learned counsel for the parties and perused
the records.

8. Law dealing with an application
under Section 156(3) Cr.P.C. has already
been settled in various pronouncements
including the following judgments:-

9. Relevant paras of the judgment
passed in the case of Sukhwasi vs. State of
U.P., reported in 2007 SCC OnLine All
1088; wherein this Court answered the
question referred on account of difference
of opinion on the issue of exercise of power
under Section 156(3) Cr.P.C., are as
under:-

""Whether the Magistrate is
bound to pass an order on each and every
application under Section 156(3) Cr.P.C.
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 judicial
506 INDIAN LAW REPORTS ALLAHABAD SERIES
discretion in the matter and can pass order
for treating it as 'complaint' or to reject it
in suitable cases"?
XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX

18. It is hardly possible to infer
from the aforesaid observations that the
Magistrate cannot treat an application
under Section 156(3) Cr.P.C. as a
'complaint'. Even a nebulous of far fetched
interpretation
will not
lead
to
that
inference. The inference drawn by Hon'ble
Vinod Prasad, J. is not logical.

19. The Hon'ble Judge has also
referred to the case of State of Haryana v.
Bhajan Lal: JT 1990 (4) SC 650 : (1992
Supp (1) SCC 335 : AIR 1992 SC 604) and
has extracted the following observations:-
(Paras 30, 32)

"At the stage of registration of a
crime or a case on the basis of the
information disclosing a cognizable offence
in compliance with the mandate of Section
154(1) of the Code, the concerned police
officer cannot embark upon any enquiry as
to whether the information, laid by the
informant is reliable and genuine or
otherwise and refuse to register a case on
the ground that the information is not
reliable or credible. On the other hand, the
officer-in-charge of a police station is
statutorily obliged to register a case and
then to proceed with the investigation if he
has reason to suspect the commission of an
offence which he is empowered under
Section 157 of the Code to investigate,
subject to the proviso to Section 157 (as we
have
proposed
to
make
a
detailed
discussion about the power of a police
officer to the field of investigation of a
cognizable offence within the ambit of
Sections 156 and 157 of the Code in the
issuing part of this judgment, we do not
propose to deal with those sections in
extenso in the present context).

In case an offence incharge of a
police station refuses to exercise the
jurisdiction in him and to register a case on
the information of a cognizable offence
reported and thereby violates the statutory
duty cast upon him, the person aggrieved
by such refusal can send the substance of
the information in writing and by post to
the superintendent of police concerned who
if satisfied that the information forwarded
to him discloses a cognizable offence,
should either investigate the case himself
or direct an investigation to be made by
any police officer subordinate to him in the
manner provided by sub-section (3) of
Section 154 of the Code.

Be it noted that in Section 154(1)
of the Code, the legislature in its collective
wisdom has carefully and cautiously used
the
expression
"information"
without
qualifying the same as in Section 41(1)(a)
or (g) of the Code wherein the expressions,
"reasonable complaint", and "credible
information" are used. Evidently, the nonqualification of the word "information" in
Section 154(1) unlike in Section 41(1)(a)
and (g) of the Code may be for the reason
that the police officer should not refuse to
record an information relating to the
commission of a cognizable offence and to
register a case thereon on the ground that
he is not satisfied with the reasonableness
or credibility of the information. In other
words, 'reasonableness' or 'credibility' of
the said information is not a condition
precedent for registration of a case. A
comparison of the present Section 154 with
those of the earlier Codes will indicate that
the legislature had purposely thought it fit
to employ only the word "information"
without qualifying the said word. Section
139 of the Code of Criminal Procedure of
1861 (Act 25 of 1861) passed by the
Legislative Council of India read that
'every complaint or information' preferred
7 All. Prem Narayan Mishra Vs. State of U.P. & Anr.
507
to an officer-in-charge of a police station
should be reduced into writing which
provision was subsequently modified by
Section 112 of the Code of 1872 (Act 10 of
1872) which thereafter read that 'every
complaint' preferred to an officer-incharge of a police station shall be reduced
in writing. The word 'complaint' which
occurred in previous two codes of 1861 and
1872 was deleted and in that place the
word 'information' was used in the Codes
of 1882 and 1898 which word is now used
in Sections 154, 155, 157 and 189(c) of the
present Code of 1973 (Act 2 of 1974). An
overall reading of all the Codes makes it
clear that the condition which is sine qua
non for recording a first information report
is that there must be an information and
that information must disclose a cognizable
offence."

"It is, therefore, manifestly clear
that if any information disclosing a
cognizable offence is laid therefore, officerin-charge of a police station satisfying the
requirements of Section 154(1) of the Code,
the said police officer had no other option
except to enter the substance thereof in the
prescribed from, that is to say, to register a
case on the basis of such information."

(Emphasis mine)

20. As in the earlier case, a
completely
irrational
and
egregiously
erroneous inference has been drawn from
the aforesaid observation. The observations
relate to the registration of a case by a
police officer as will appear from the last
paragraph with emphasis and they have
nothing to do with the order passed by the
Magistrate under Section 156(3) Cr.P.C.

21. It will not be out of place to
note that even for registration of a case by
a police officer, the condition is that he
must
have
reason
to
suspect
the
commission of an offence as will appear
from the following quotations extracted
from the case of Ramesh Kumari v. State
NCT of Delhi: JT 2006 (2) SC 548 :
((2006) 2 SCC 677 : AIR 2006 SC 1322)
the following are the words extracted:-

"The true test is whether the
information furnished provides a reason to
suspect the commission of an offence which
the concerned police officer is empowered
under Section 156 of the code to
investigate. If it does he has no option but
to record the information and proceed to
investigate the case either himself or
depute any other competent officer to
conduct the investigation. The question as
to whether the report is true, whether it
discloses full details regarding the manner
of occurrence, whether the accused is
named and whether there is sufficient
evidence to support the allegations are all
matters
which
are
alien
to
the
consideration of the question whether the
report
discloses
commission
of
a
cognizable offence. Even if the information
does not give full details regarding these
matters, the investigating officer is not
absolve of his duty to investigate the case
and discover the true facts, if he can."

22. In a recent pronouncement,
Hon'ble Mr. Justice Shiv Charan Sharma in
the case of Chandrika Singh v. State of
U.P. (2007 (58) ACC 777) : (2007 (4) ALJ
157), has held that a Magistrate can treat
an application under Section 156(3)
Cr.P.C. as a complaint. The Hon'ble Judge
referred to various cases in his judgment
and has come to this conclusion thereafter.
It was observed by Shiv Charan, J. as
follows (paras 24 to 26):

"In view of this judgment of Full
Bench, the Magistrate is fully competent to
pass an order to register a case and
investigate on an application under Section
156(3) Cr.P.C., all the application under
Section 156(3) Cr.P.C. may be treated as
508 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint and in the circumstance, the
Magistrate shall follow the procedure as
provided in Chapter XV Cr.P.C. This,
judgment of Full Bench has not been set
aside. Hence, in view of the Apex Court
and Full Bench of this Court the Magistrate
is fully competent to treat an application
under Section 156 Cr.P.C. as a complaint
and in the present case the Magistrate
passed an order in the circumstances of the
case that it may be registered as a
complaint case and proceed to record the
statement under Sections 200 and 202
Cr.P.C. There appears no illegality and
impropriety in the order of the Magistrate.

This controversy must come to an
end that an application under Section
156(3) Cr.P.C. can only be treated as an
application for passing an order for
registration of the case and investigation
cannot be treated as a complaint case. The
Magistrate is not bound in each and every
case to pass an order to register a case and
investigate if cognizable offence is made
out. The Magistrate is fully competent to
use this judicial direction in the matter.
This is wrong notion that if an application
has been moved under Section 156(3)
Cr.P.C. that the only order can be passed
for
registration
in
the
matter.
The
magistrate has got direction under Section
190 Cr.P.C. to take the cognizance directly
or to pass an order that the police to
investigate and then take cognizance on
submissions of a report under Section 173
Cr.P.C. The Magistrate is also expected to
act under some guidelines and it should not
be left at the arbitrary discretion of the
Magistrate to pass an order or not to pass
an order to register the case and
investigation under Section 156(3) Cr.P.C.
In Gulab Chandra Upadhaya v. State of
U.P. (2002 All LJ 1225). Hon'ble Single
Judge of this Court laid down the
guidelines for the guidance of Magistrate
while deciding the application under
Section 156(3) Cr.P.C. and the guidelines
cannot be said against any provision of law
or check on the judicial direction of the
Magistrate. Even Hon'ble Apex Court also
held that the Magistrate has got a direction
to pass an order to register the case and
investigation under Section 156(3) Cr.P.C.
or to treat an application as a complaint
case.

In the law laid down by Hon'ble
the Apex Court and various judgments of
this Court clearly laid down that the
Magistrate is not always bound to pass an
order to register a case and investigation
when application under Section 156(3)
Cr.P.C. is moved. It will not be proper to
deal with this hypothetical position that if
the Magistrate is of opinion that false and
frivolous allegation has been made in
application
then he
may
reject
the
application or it is for the investigating
officer to decide the truthfulness of the
story and if found false then launch
prosecution against the applicant. But it is
discretion of the Magistrate to be used
judiciously
while
disposing
of
the
application.

For the reasons mentioned above,
I am of the opinion that the Magistrate is
not always bound to pass an order for
register of the case and investigation after
receipt of the application under Section
156(3) Cr.P.C. disclosing a cognizable
offence. The Magistrate may use his
discretion judiciously and if he is of the
opinion that in the circumstances of the
case, it will be proper to treat the
application as a complaint case then he
may proceed according to the procedure
provided under Chapter XV of Cr.P.C. I am
also of the opinion that it is not always
mandatory in each and every case for the
Magistrate to pass an order to register and
investigate on receipt of the application
7 All. Prem Narayan Mishra Vs. State of U.P. & Anr.
509
under Section 156(3) Cr.P.C. In the present
case, the Magistrate is perfectly within the
judicial power to treat the application
under Section 156(3) Cr.P.C. as a
complaint case. There is no illegality or
impropriety in the order. The revision is
devoid of merit and is liable to be
dismissed."

23. The Full Bench decision of
Ram Babu Gupta's case (2001 All LJ 1587)
(supra) also lays down that the Magistrate
can treat an application under Section
156(3) Cr.P.C. as a complaint. This will
appear from the following observations
(Para 18):-

"Coming to the second question
noted above, it is to be at once stated that a
provision empowering a Court to Act in a
particular manner and a provision creating
a right for an aggrieved person to
approach a Court or authority, must be
understood distinctly and should not be
mixed up. While Sections 154, 155 subsection (1) and (2) of 156, Cr.P.C. confer
right on an aggrieved person to reach the
police, 156(3) empowers a Magistrate to
act in a particular manner in a given
situation. Therefore, it is not possible to
hold that where a bare application is
moved before Court only praying for
exercise of powers under Section 156(3)
Cr.P.C., it will remain an application only
and would not be in the nature of a
complaint. It has been noted above that the
Magistrate has to always apply his mind on
the allegations in the complaint where he
may use his powers under Section 156(3)
Cr.P.C. In this connection, it may be
immediately added that where in an
application, a complainant states facts
which constitute cognizable offence but
makes
a
defective
prayer,
such
an
application will not cease to be a complaint
nor can the Magistrate refuse to treat it as
a complaint even though there be no prayer
seeking trial of the known or unknown
accused. The Magistrate has to deal with
such facts as constitute cognizable offence
and for all practical purposes even such an
application would be a complaint. This
Court can do no better than refer to the
following observations in Suresh Chand
Jain: ((2001) 2 SCC 628 : AIR 2001 SC
571) (supra) (Para 10):-

"The position is thus clear. Any
judicial
Magistrate,
before
taking
cognizance of the offence, can order
investigation under Section 156(3) of the
Code............... could take further steps
contemplated in Chapter XII of the Code
only thereafter."

10. In the case of Lalita Kumari vs.
State of U.P., reported in (2014) 2 SCC 1;
the Hon'ble Apex Court concluded as
under:-

"120. In view of the aforesaid
discussion, we hold:-

120.1. The registration of FIR is
mandatory under Section 154 of the Code,
if the information discloses commission of
a cognizable offence and no preliminary
inquiry is permissible in such a situation.

120.2. If the information received
does not disclose a cognizable offence but
indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only
to ascertain whether cognizable offence is
disclosed or not.

120.3. If the inquiry discloses the
commission of a cognizable offence, the
FIR must be registered. In cases where
preliminary inquiry ends in closing the
complaint, a copy of the entry of such
closure must be supplied to the first
informant forthwith and not later than one
week. It must disclose reasons in brief for
closing the complaint and not proceeding
further.
510 INDIAN LAW REPORTS ALLAHABAD SERIES

120.4. The police officer cannot
avoid his duty of registering offence if
cognizable offence is disclosed. Action
must be taken against erring officers who
do not register the FIR if information
received by him discloses a cognizable
offence.

120.5. The scope of preliminary
inquiry is not to verify the veracity or
otherwise of the information received but
only to ascertain whether the information
reveals any cognizable offence.

120.6. As to what type and in
which cases preliminary inquiry is to be
conducted will depend on the facts and
circumstances of each case. The category
of cases in which preliminary inquiry may
be made are as under:

(a) Matrimonial disputes/family
disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e)
Cases
where
there
is
abnormal
delay/laches
in
initiating
criminal prosecution, for example, over 3
months' delay in reporting the matter
without
satisfactorily
explaining
the
reasons for delay.

The
aforesaid
are
only
illustrations and not exhaustive of all
conditions which may warrant preliminary
inquiry.

120.7 . While ensuring and
protecting the rights of the accused and the
complainant, a preliminary inquiry should
be made time-bound and in any case it
should not exceed fifteen days generally
and in exceptional cases, by giving
adequate reasons, six weeks' time is
provided. The fact of such delay and the
causes of it must be reflected in the
General Diary entry.

120.8.
Since
the
General
Diary/Station Diary/Daily Diary is the
record of all information received in a
police
station,
we
direct
that
all
information relating to cognizable offences,
whether resulting in registration of FIR or
leading to an inquiry, must be mandatorily
and meticulously reflected in the said diary
and the decision to conduct a preliminary
inquiry
must
also
be
reflected,
as
mentioned above."

11. In the case of Ramdev Food
Products Private Limited vs. State of
Gujarat reported in (2015) 6 SCC 439, the
appellant making allegations of preparing
forged partnership deed, sought directions
for investigation under Section 156(3)
Cr.P.C. and the Magistrate instead of
directing investigation as prayed for,
thought it fit to conduct further inquiry
under Section 202 and sought report of the
Police Sub-Inspector within thirty days and
being aggrieved by the order of Magistrate
the appellant approached the High Court
and the High Court declined to interfere in
the order of Magistrate and thereafter the
appellant approached the Hon'ble Apex
Court and after considering the facts and
issue involved the Hon'ble Apex Court
framed three questions and while dealing
with question as to "(i) Whether the
discretion of the Magistrate to call for a
report under Section 202 instead of
directing
investigation
under
Section
156(3) is controlled by any defined
parameters?" the Hon'ble Apex Court
observed as under:-

"15. Cognizance is taken by a
Magistrate under Section 190 (in Chapter
XIV) either on "receiving a complaint", on
"a
police
report"
or
"information
received" from any person other than a
police officer or upon his own knowledge.

16. Chapter XV deals exclusively
with complaints to Magistrates. Reference
7 All. Prem Narayan Mishra Vs. State of U.P. & Anr.
511
to Section 202, in the said Chapter, shows
that it provides for "postponement of issue
of process" which is mandatory if the
accused resides beyond the Magistrate's
jurisdiction (with which situation this case
does not concern) and discretionary in
other cases in which event an enquiry can
be conducted by the Magistrate or
investigation can be directed to be made by
a police officer or such other person as
may be thought fit "for the purpose of
deciding whether or not there is sufficient
ground for proceeding". We are skipping
the proviso as it does not concern the
question under discussion. Clause (3)
provides that if investigation is by a person
other than a police officer, he shall have all
the powers of an officer in charge of a
police station except the power to arrest.

17. Chapter XII, dealing with the
information to the police and their powers
to
investigate,
provides
for
entering
information relating to a "cognizable
offence" in a book to be kept by the officer
in charge of a police station (Section 154)
and such entry is called "FIR". If from the
information, the officer in charge of the
police station has reason to suspect
commission of an offence which he is
empowered
to
investigate
subject
to
compliance with other requirements, he
shall proceed, to the spot, to investigate the
facts and circumstances and, if necessary,
to take measure, for the discovery and
arrest of the offender [Section 157(1)].

18. In Lalita Kumari v. State of
U.P. [Lalita Kumari v. State of U.P.,
(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] ,
this Court dealt with the questions : (SCC
p. 28, para 30)

"30.1. (i) Whether the immediate
non-registration of FIR leads to scope for
manipulation by the police which affects
the right of the victim/complainant to have
a complaint immediately investigated upon
allegations being made; and

30.2. (ii) Whether in cases where
the complaint/information does not clearly
disclose the commission of a cognizable
offence but the FIR is compulsorily
registered then does it infringe the rights of
an accused."

These questions were answered
as follows : (Lalita Kumari case [Lalita
Kumari v. State of U.P., (2014) 2 SCC 1 :
(2014) 1 SCC (Cri) 524] , SCC pp. 35-36,
41, 51-52, 57-59 & 61, paras 49, 72-73, 94,
107-108, 111, 114-15 & 120)

49. "Consequently, the condition
that is sine qua non for recording an FIR
under Section 154 of the Code is that there
must be information and that information
must disclose a cognizable offence. If any
information disclosing a cognizable offence
is led before an officer in charge of the
police station satisfying the requirement of
Section 154(1), the said police officer has
no other option except to enter the
substance thereof in the prescribed form,
that is to say, to register a case on the basis
of such information. The provision of
Section 154 of the Code is mandatory and
the officer concerned is duty-bound to
register
the
case
on
the
basis
of
information
disclosing
a
cognizable
offence. Thus, the plain words of Section
154(1) of the Code have to be given their
literal meaning.

'Shall'
***

72. It is thus unequivocally clear
that registration of FIR is mandatory and
also that it is to be recorded in the FIR
book by giving a unique annual number to
each FIR to enable strict tracking of each
and every registered FIR by the superior
police officers as well as by the competent
512 INDIAN LAW REPORTS ALLAHABAD SERIES
court to which copies of each FIR are
required to be sent.

"Information"

73.
The
legislature
has
consciously
used
the
expression
'information' in Section 154(1) of the Code
as against the expression used in Sections
41(1)(a) [Ed. : Vide Act 5 of 2009, w.e.f. 11-2010 Sections 41(1)(a) and (b) of the
principal
Act
were
substituted
with
differently worded Sections 41(1)(a) and
(b) : the new clause (b) being substantially
in pari materia with the old clause (a). A
new clause (ba) was also added. The old
clause (a) mentioned in most of the
judgments cited hereinbelow stood as
follows:"41.
(1)(a)
who
has
been
concerned in any cognizable offence, or
against whom a reasonable complaint has
been made, or credible information has
been received, or a reasonable suspicion
exists, of his having been so concerned;
or"The new Sections 41(1)(a), (b) and (ba)
are as follows:"41. (1)(a) who commits, in
the presence of a police officer, a
cognizable offence;(b) against whom a
reasonable complaint has been made, or
credible information has been received
...(ba) against whom credible information
has been received that he has committed a
cognizable offence ..."Clause (g) of Section
41(1) remains unaltered.] and (g) where
the expression used for arresting a person
without warrant is 'reasonable complaint'
or 'credible information'. The expression
under Section 154(1) of the Code is not
qualified by the prefix 'reasonable' or
'credible'. The non-qualification of the
word 'information' in Section 154(1) unlike
in Sections 41(1)(a) [Ed. : Vide Act 5 of
2009, w.e.f. 1-1-2010 Sections 41(1)(a) and
(b) of the principal Act were substituted
with differently worded Sections 41(1)(a)
and (b) : the new clause (b) being
substantially in pari materia with the old
clause (a). A new clause (ba) was also
added. The old clause (a) mentioned in
most of the judgments cited hereinbelow
stood as follows:"41. (1)(a) who has been
concerned in any cognizable offence, or
against whom a reasonable complaint has
been made, or credible information has
been received, or a reasonable suspicion
exists, of his having been so concerned;
or"The new Sections 41(1)(a), (b) and (ba)
are as follows:"41. (1)(a) who commits, in
the presence of a police officer, a
cognizable offence;(b) against whom a
reasonable complaint has been made, or
credible information has been received
...(ba) against whom credible information
has been received that he has committed a
cognizable offence ..."Clause (g) of Section
41(1) remains unaltered.] and (g) of the
Code is for the reason that the police
officer should not refuse to record any
information relating to the commission of a
cognizable offence on the ground that he is
not satisfied with the reasonableness or
credibility of the information. In other
words, reasonableness or credibility of the
said information is not a condition
precedent for the registration of a case.
***

94. Principles of democracy and
liberty demand a regular and efficient
check on police powers. One way of
keeping check on authorities with such
powers is by documenting every action of
theirs.

Accordingly, under the Code,
actions of the police, etc. are provided to
be written and documented. For example,
in case of arrest under Section 41(1)(b) of
the Code, the arrest memo along with the
grounds has to be in writing mandatorily;
under Section 55 of the Code, if an officer
is deputed to make an arrest, then the
superior officer has to write down and
record the offence, etc. for which the
7 All. Prem Narayan Mishra Vs. State of U.P. & Anr.
513
person is to be arrested; under Section 91
of the Code, a written order has to be
passed by the officer concerned to seek
documents; under Section 160 of the Code,
a written notice has to be issued to the
witness so that he can be called for
recording of his/her statement, seizure
memo/panchnama has to be drawn for
every article seized, etc.
***

107. While registration of FIR is
mandatory,
arrest
of
the
accused
immediately on registration of FIR is not at
all mandatory. In fact, registration of FIR
and arrest of an accused person are two
entirely different concepts under the law,
and there are several safeguards available
against arrest. Moreover, it is also
pertinent to mention that an accused
person also has a right to apply for
'anticipatory bail' under the provisions of
Section 438 of the Code if the conditions
mentioned therein are satisfied. Thus, in
appropriate cases, he can avoid the arrest
under that provision by obtaining an order
from the court.

108. It is also relevant to note
that in Joginder Kumar v. State of U.P.
[(1994) 4 SCC 260 : 1994 SCC (Cri) 1172]
, this Court has held that arrest cannot be
made by the police in a routine manner.
Some
important
observations
are
reproduced as under : (SCC pp. 267-68,
para 20)

'20. ... No arrest can be made in
a routine manner on a mere allegation of
commission of an offence made against a
person. It would be prudent for a police
officer in the interest of protection of the
constitutional rights of a citizen and
perhaps in his own interest that no arrest
should be made without a reasonable
satisfaction
reached
after
some
investigation as to the genuineness and
bona fides of a complaint and a reasonable
belief both as to the person's complicity
and even so as to the need to effect arrest.
Denying a person of his liberty is a serious
matter. The recommendations of the Police
Commission
merely
reflect
the
constitutional
concomitants
of
the
fundamental right to personal liberty and
freedom. A person is not liable to arrest
merely on the suspicion of complicity in an
offence. There must be some reasonable
justification in the opinion of the officer
effecting the arrest that such arrest is
necessary and justified. Except in heinous
offences, an arrest must be avoided if a
police officer issues notice to person to
attend the Station House and not to leave
the Station without permission would do.'
***

111. Besides, the Code gives
power to the police to close a matter both
before and after investigation. A police
officer can foreclose an FIR before an
investigation under Section 157 of the
Code, if it appears to him that there is no
sufficient ground to investigate the same.
The section itself states that a police officer
can start investigation when he has
"reason to suspect the commission of an
offence". Therefore, the requirements of
launching an investigation under Section
157 of the Code are higher than the
requirement under Section 154 of the Code.
The police officer can also, in a given case,
investigate the matter and then file a final
report under Section 173 of the Code
seeking closure of the matter. Therefore,
the police is not liable to launch an
investigation in every FIR which is
mandatorily
registered
on
receiving
information relating to commission of a
cognizable offence.
***
(emphasis in original)

114. It is true that a delicate
balance has to be maintained between the
514 INDIAN LAW REPORTS ALLAHABAD SERIES
interest of the society and protecting the
liberty of an individual. As already
discussed
above,
there
are
already
sufficient safeguards provided in the Code
which duly protect the liberty of an
individual in case of registration of false
FIR. At the same time, Section 154 was
drafted keeping in mind the interest of the
victim and the society. Therefore, we are of
the cogent view that mandatory registration
of FIRs under Section 154 of the Code will
not be in contravention of Article 21 of the
Constitution as purported by various
counsel.

Exceptions

115.
Although,
we,
in
unequivocal terms, hold that Section 154 of
the
Code
postulates
the
mandatory
registration of FIRs on receipt of all
cognizable offences, yet, there may be
instances where preliminary inquiry may
be required owing to the change in genesis
and novelty of crimes with the passage of
time. One such instance is in the case of
allegations relating to medical negligence
on the part of doctors. It will be unfair and
inequitable
to
prosecute
a
medical
professional only on the basis of the
allegations in the complaint.
***

120.6. As to what type and in
which cases preliminary inquiry is to be
conducted will depend on the facts and
circumstances of each case. The category
of cases in which preliminary inquiry may
be made are as under:

(a) Matrimonial disputes/family
disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e)
Cases
where
there
is
abnormal
delay/laches
in
initiating
criminal prosecution, for example, over 3
months' delay in reporting the matter
without
satisfactorily
explaining
the
reasons for delay."

19. Thus, this Court has laid
down that while prompt registration of FIR
is mandatory, checks and balances on
power of police are equally important.
Power of arrest or of investigation is not
mechanical. It requires application of mind
in the manner provided. Existence of power
and its exercise are different. Delicate
balance had to be maintained between the
interest of society and liberty of an
individual. Commercial offences have been
put in the category of cases where FIR may
not be warranted without enquiry.

20. It has been held, for the same
reasons, that direction by the Magistrate
for investigation under Section 156(3)
cannot be given mechanically. In Anil
Kumar v. M.K. Aiyappa [(2013) 10 SCC
705 : (2014) 1 SCC (Cri) 35] , it was
observed : (SCC p. 711, para 11)

11. "The scope of Section 156(3)
CrPC came up for consideration before
this Court in several cases. This Court in
Maksud Saiyed case [Maksud Saiyed v.
State of Gujarat, (2008) 5 SCC 668 :
(2008) 2 SCC (Cri) 692] examined the
requirement of the application of mind by
the
Magistrate
before
exercising
jurisdiction under Section 156(3) and held
that where jurisdiction is exercised on a
complaint filed in terms of Section 156(3)
or Section 200 CrPC, the Magistrate is
required to apply his mind, in such a case,
the Special Judge/Magistrate cannot refer
the matter under Section 156(3) against a
public servant without a valid sanction
order.