# Radhey Shyam Bharti Revisionist v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-14
- **Case number:** Criminal Revision No. 624 of 2022
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-bharti-revisionist-v-state-of-u-p-ors-48174
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 397/401, 156(3)
- Indian Electricity Act - Section 135 -
challenge to-rejection of application u/s
156(3) for issuing a direction for
registration of an FIR-revisionist let out
some portion of his land to install a mobile
tower-he
used
to
electricity
for
his
domestic use from the service connection
of the mobile company-he also let his
tenant to use the same-the act of
revisionist
is
amount
to
punishable
offence-vigilance team,UPPCL conducted a
special checking drive against the power
theft
and
lodged
FIR
agaisnt
the
revisionist-revisionist filed that complaint
in order to put counter pressure on the
officials for taking undue advantage in
plural cases of theft of electricity-the
process of law cannot be allowed to be
abused by a person who is facing trial for
theft of Electricity-The process of law can
be invoked by a pricipled and really
aggrieved person who approaches the
court with clean hands-order passed by
learned Special Judge does not suffer from
any legal infirmity.(Para 1 to 25)

B. Criminal Law - Code of Criminal
Procedure,1973 - Section 156 (3) - While
considering the application u/s 156(3)
CrPC the court is duty bound to consider
the
averments
as
alleged
in
the
application and if the same constitute any
cognizable offence, the Court has to pass
an order for registration of the case and
investigation, is also without force and
against the law laid down by the Hon'ble
Supreme Court. The Magistrate has to
carefully scrutinise the evidence brought
on record and has to find out the
truthfulness
of
the
allegations
or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused and in the present case, the
learned Court below has rightly done
so.(Para 15)

The revision is dismissed. (E-6)

## Text

3 All. Radhey Shyam Bharti Vs. State of U.P. & Ors.
195
of good behaviour and shall maintain peace
during the period of three months. The
bonds aforesaid be filed by the revisionists
within eight weeks.

13. In case of breach of any of the
above conditions, he shall be taken into
custody and shall have to undergo sentence
awarded to him.

14. With the above modification, the
instant revision is dismissed.

15. A copy of this order be
communicated to the trial Court concerned
for necessary information and compliance
through e-mail/fax.
----------
(2022)03ILR A195
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.03.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 624 of 2022

Radhey Shyam Bharti ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Ms. Pooja

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 397/401, 156(3)
- Indian Electricity Act - Section 135 -
challenge to-rejection of application u/s
156(3) for issuing a direction for
registration of an FIR-revisionist let out
some portion of his land to install a mobile
tower-he
used
to
electricity
for
his
domestic use from the service connection
of the mobile company-he also let his
tenant to use the same-the act of
revisionist
is
amount
to
punishable
offence-vigilance team,UPPCL conducted a
special checking drive against the power
theft
and
lodged
FIR
agaisnt
the
revisionist-revisionist filed that complaint
in order to put counter pressure on the
officials for taking undue advantage in
plural cases of theft of electricity-the
process of law cannot be allowed to be
abused by a person who is facing trial for
theft of Electricity-The process of law can
be invoked by a pricipled and really
aggrieved person who approaches the
court with clean hands-order passed by
learned Special Judge does not suffer from
any legal infirmity.(Para 1 to 25)

B. Criminal Law - Code of Criminal
Procedure,1973 - Section 156 (3) - While
considering the application u/s 156(3)
CrPC the court is duty bound to consider
the
averments
as
alleged
in
the
application and if the same constitute any
cognizable offence, the Court has to pass
an order for registration of the case and
investigation, is also without force and
against the law laid down by the Hon'ble
Supreme Court. The Magistrate has to
carefully scrutinise the evidence brought
on record and has to find out the
truthfulness
of
the
allegations
or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused and in the present case, the
learned Court below has rightly done
so.(Para 15)

The revision is dismissed. (E-6)
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Ms. Pooja, Advocate, the
learned counsel for the revisionist and the
learned A.G.A. appearing for the Staterespondent.

2. By means of the instant revision
under
Section
397/401
Cr.P.C.,
the
revisionist has challenged the legality and
196 INDIAN LAW REPORTS ALLAHABAD SERIES
validity of the order dated 21.09.2021
passed by the learned Special Judge, SC/ST
(POA) Act, Sonebhadra in Criminal Misc.
Case No. 194 of 2021 whereby the
revisionist's application under Section 156
(3) Cr.P.C. for issuing a direction for
registration of an FIR, has been rejected.

3. On 28.07.2021, the revisionist had
filed an application under Section 156 (3)
Cr.P.C. alleging that he is a person
belonging to the Scheduled Caste. He has
let out some portion of his land to a mobile
communication
company
which
has
installed a mobile tower on the land and
has taken an electricity service connection
for
the
same.
The
revisionist
uses
electricity for his domestic use from the
service connection of the mobile company.
The revisionist has let out a building
constructed on another part of the said land
to one Anuj Kumar for doing some work
and electricity from the service connection
of the mobile company is being used for
that work also.

4. The revisionist has further alleged
in the application under Section 156 (3)
that some employees of the electricity
department
asked
him
not
to
use
electricity from the service connection of
the mobile communication company. The
revisionist has alleged that the aforesaid
employees asked for a sum of Rs.
50,000/-for the electricity connection and
the revisionist gave them the aforesaid
amount in cash without taking any
acknowledgement of receipt. After some
time,
the
said
persons
visited
the
revisionist's
home
again
and
they
demanded a further sum of Rs. 25,000/-
for the connection. When the revisionist
denied that he would not give any amount
in excess of the amount mentioned on the
receipt, they abused and threatened him.
When some other persons gathered there,
they went away.

5. A copy of the aforesaid
application under Section 156 (3) Cr.P.C.
has been filed as Annexure No. 1 to the
affidavit filed in support of the revision
and the same is not accompanied by a
copy of an affidavit filed in support of the
application. In the affidavit filed before
this Court also, there is no averment that
the revisionist had filed an affidavit in
support of the application under Section
156 (3) Cr.P.C.

6. The learned Special Judge called
for a report from the Circle Office, Obra in
respect of the petitioner's application under
Section 156 (3). The police reported that
the revisionist had sent a letter dated
16.06.2021 through registered post upon
which an enquiry was held. Upon enquiry,
it transpired that the respondent Vivek
Kumar was working as Sub-divisional
Officer, Arvind Kumar was working as a
Junior Engineer and Ashraf Ali was
working as Technician Grade 2 cum
Accountant in the Sub-divisional Office of
U. P. Power Corporation Ltd. (hereinafter
referred to as the ''U.P.P.C.L.') at Obra.
Vivek Kumar, S.D.O. has since been
transferred. U.P.P.C.L. was carrying out a
special drive against power theft and as a
part of the drive, a vigilance team of
U.P.P.C.L. had carried out checking in the
premises of the revisionist on 14-04-2021
and had found theft of electricity being
committed by him. On 15.04.2021, Case
Crime No. 386 of 2021 was registered
against the revisionist under Section 135 of
the Indian Electricity Act in Police Station
Anti Power Theft, Obera. Earlier, in the
year 2015 also, the revisionist was found
committing theft of electricity and the then
Junior Engineer had lodged Case Crime
3 All. Radhey Shyam Bharti Vs. State of U.P. & Ors.
197
No. 35 of 22015 against the revisionist.
Upon enquiry, prima facie the allegations
levelled by the revisionist have not been
found to be established and it appears that
the revisionist has filed the complaint to put
undue pressure on the respondents, who are
the officials of U.P.P.C.L.

7. After considering the aforesaid
report, on 21.09.2021 the learned Special
Judge passed an order holding that it does not
appear that the respondents have committed
any cognizable offence and accordingly, the
application under Section 156 (3) Cr.P.C. was
rejected by the learned Special Judge. The
revisionist has challenged the aforesaid order
dated 21.09.2021 mainly on the ground that
the report of the Circle Officer is wholly
irrelevant for consideration of the enquiry
contemplated under Section 156 (3) Cr.P.C.
and the report is relevant only to the extent
whether any FIR has been registered in
respect of the alleged incident or not.

8. The submission of the learned
counsel for the revisionist is that while
considering an application under Section 156
(3) Cr.P.C., the court is duty bound to
consider the averments as alleged in the
application and if the same constitute any
cognizable offence, the Court has to pass an
order for registration of the case and
investigation.

9. I have considered the submission of
learned counsel for the revisionist and
perused the record.

10. To understand the true purport of
the provision under Section 156 (3) Cr.P.C.,
the same is being reproduced herein below:
-

"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."

11. In Pepsi Food Limited vs. SubJudicial Magistrate, 1998 (5) SCC 749,
the Hon'ble Supreme Court held as follows:
-

"28. Summoning of an accused in
a criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of
course. It is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of
the Magistrate summoning the accused
must reflect that he has applied his mind to
the facts of the case and the law applicable
thereto. He has to examine the nature of
allegations made in the complaint and the
evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning of the accused. The
Magistrate has to carefully scrutinise the
evidence brought on record and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
198 INDIAN LAW REPORTS ALLAHABAD SERIES
out the truthfulness of the allegations or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused."

12. In Maksud Saiyed vs. State of
Gujarat, 2008 (5) SCC 668, the Hon'ble
Supreme
Court
held
that
"where
a
jurisdiction is exercised on a complaint
petition filed in terms of Section 156 (3)
Cr.P.C. or Section Section 200 of the Code
of Criminal Procedure, the Magistrate is
required to apply his mind."

13. The manner in which the Court
has to exercise power under Section 156 (3)
Cr.P.C. has been laid down in Priyanka
Srivastava vs. State of U.P., 2015 (6) SCC
287, wherein the Hon'ble Supreme Court
held that: -

"27. Regard being had to the
aforesaid enunciation of law, it needs to be
reiterated that the learned Magistrate has to
remain
vigilant
with
regard
to
the
allegations made and the nature of
allegations and not to issue directions
without proper application of mind. He has
also to bear in mind that sending the matter
would be conducive to justice and then he
may pass the requisite order. The present is
a case where the accused persons are
serving in high positions in the Bank. We
are absolutely conscious that the position
does not matter, for nobody is above the
law. But, the learned Magistrate should take
note of the allegations in entirety, the date
of incident and whether any cognizable
case is remotely made out.

...

29. At this stage it is seemly to
state that power under Section 156(3)
warrants application of judicial mind. A
court of law is involved. It is not the police
taking steps at the stage of Section 154 of
the Code. A litigant at his own whim cannot
invoke the authority of the Magistrate. A
principled and really grieved citizen with
clean hands must have free access to
invoke the said power. It protects the
citizens but when pervert litigations takes
this route to harass their fellow citizens,
efforts are to be made to scuttle and curb
the same."

14. In my considered opinion, the
submission
made
on
behalf
of
the
revisionist, that the report of the police is
wholly irrelevant for consideration of the
enquiry contemplated under Section 156
(3) Cr.P.C. and the report is relevant only to
the extent whether any FIR has been
registered in respect of the alleged incident
or not, is not acceptable in view of the law
laid down by the Hon'ble Supreme Court in
the above mentioned cases. The Magistrate
has to apply his mind to the entire material
before him in order to ascertain whether
commission of any cognizable offence is
prima facie made out so as to warrant trial
of the opposite party and he cannot direct
registration of an F.I.R. merely for the
reason that the police report mentions that
no F.I.R. has been registered previously.
The learned Court below has rightly
examined the allegations made in the
complaint as also the facts mentioned in the
police report to ascertain whether any
cognizable offence is made out or not.

15. The further submission of the
learned counsel for the revisionist, that
while considering the application under
Section 156 (3) Cr.P.C., the Court is duty
bound to consider the averments as alleged
in the application and if the same constitute
any cognizable offence, the Court has to
pass an order for registration of the case
and investigation, is also without force and
against the law laid down by the Hon'ble
3 All. Radhey Shyam Bharti Vs. State of U.P. & Ors.
199
Supreme Court. The Magistrate has to
carefully scrutinise the evidence brought on
record and has to find out the truthfulness
of the allegations or otherwise and then
examine if any offence is prima facie
committed by all or any of the accused and
in the present case, the learned Court below
has rightly done so.

16. In Priyanka Srivastava (Supra),
the Hon'ble Supreme Court was pleased to
further lay down that: -

"30. In our considered opinion, a
stage has come in this country where
Section 156(3) CrPC applications are to be
supported by an affidavit duly sworn by the
applicant who seeks the invocation of the
jurisdiction of the Magistrate. That apart, in
an appropriate case, the learned Magistrate
would be well advised to verify the truth
and also can verify the veracity of the
allegations. This affidavit can make the
applicant
more
responsible.
We
are
compelled to say so as such kind of
applications are being filed in a routine
manner without taking any responsibility
whatsoever only to harass certain persons.
That apart, it becomes more disturbing and
alarming when one tries to pick up people
who are passing orders under a statutory
provision which can be challenged under
the framework of the said Act or under
Article 226 of the Constitution of India.
But it cannot be done to take undue
advantage in a criminal court as if
somebody is determined to settle the
scores.

...

35. A copy of the order passed by
us be sent to the learned Chief Justices of all
the High Courts by the Registry of this Court
so that the High Courts would circulate the
same amongst the learned Sessions Judges
who, in turn, shall circulate it among the
learned Magistrates so that they can remain
more vigilant and diligent while exercising
the power under Section 156(3) CrPC."

17. As already mentioned above,
neither a copy of the affidavit filed in support
of the application has been annexed by the
revisionist nor has he made any averment that
an affidavit had been filed in support of the
application under Section 156 (3) Cr.P.C. The
omission of the complainant in filing an
affidavit in spite of the mandate contained in
Priyanka Srivastava (Supra) prima facie
indicates that the complainant deliberately
did not verify the allegations made in the
complaint on oath.

18. As per the averments made by the
revisionist himself under Section 156 (3)
Cr.P.C., he is using electricity from the
service
connection
of
a
mobile
communication company, which is a tenant
of the complainant and he has also permitted
the same to be used by his another tenant.

19. Section 135 of the Electricity Act,
2003 provides as follows: -

135. Theft of electricity.-- (1)
Whoever, dishonestly,--

(a) taps, makes or causes to be
made any connection with overhead,
underground or underwater lines or cables,
or service wires, or service facilities of a
licensee or supplier, as the case may be; or

(b) tampers a meter, installs or
uses a tampered meter, current reversing
transformer, loop connection or any other
device or method which interferes with
accurate or proper registration, calibration
or metering of electric current or otherwise
results in a manner whereby electricity is
stolen or wasted; or

(c) damages or destroys an
electric meter, apparatus, equipment, or
200 INDIAN LAW REPORTS ALLAHABAD SERIES
wire or causes or allows any of them to be
so damaged or destroyed as to interfere
with the proper or accurate metering of
electricity; or

(d) uses electricity through a
tampered meter; or

(e)
uses
electricity
for
the
purpose other than for which the usage of
electricity was authorised,

so as to abstract or consume or
use electricity shall be punishable with
imprisonment for a term which may extend
to three years or with fine or with both..."

 (emphasis supplied)

20. Electricity from the service
connection
taken
by
the
mobile
communication company for the purpose
of operating the equipments installed in
the mobile communication tower is not
meant to be used for any other purpose
and by any other person. From the
averments made in the application under
Section 156 (3) Cr.P.C. itself, prima facie
it appears that the revisionist is wrongly
consuming the electricity from the service
connection of the mobile communication
copany
without
taking
a
service
connection in his own name for his own
use and he is also letting the electricity
being used by the tenant - Anuj Kumar for
some work, which act of the revisionist is
illegal and it may amount to a punishable
offence.

21. As has come to light from the
report submitted by the police to the
Court, a Case Crime No. 35 of 2015 is
pending against the revisionist for theft of
power and another Case Crime No. 386 of
2021 has been lodged against him under
Section 135 of the Indian Electricity Act in
furtherance of a checking conducted by
the
vigilance
team
of
UPPCL
on
14.04.2021 as a part of a sepcial dirve
against power theft.

22. Taking into consideration the
aforesaid facts, the learned Magistrate
came to a conclusion that it appears that
the revisionist has filed the application
under Section 156 (3) Cr.P.C., to put
pressure on the officials of U.P.P.C.L.

23. It is settled law that the revisional
powers of the High Court can only be
exercised to prevent the abuse of the
process of law and to secure the ends of
justice. The process of law can be invoked
by a principled and really aggrieved
person who approaches the court with
clean hands. The process of law cannot be
allowed to be abused by a person who is
facing trial for theft of Electricity and who
himself avers such facts in his application
under Section 156 (3) Cr.P.C., as indicate
that he is guilty of committing theft of
Electricity; by making baseless allegations
against the officials of a Government
Corporation
without
any
supporting
material or evidence. Apparently, the
revisionist has filed that complaint in
order to put a counter pressure on the
officials for taking undue advantage in
plural cases of theft of electricity lodged
against the complainant.

24. Keeping in view the facts and
circumstances of the case, I am of the
considered opinion that the order dated
21.09.2021 passed by the learned Special
Judge, under Section 156 (3) Cr.P.C. does
not suffer from any legal infirmity so as to
warrant interference by this Court in
exercise of its discretionary power of
revision.

25. The revision lacks merits and is,
accordingly, dismissed.
----------
3 All. Anubhav Verma Vs. Principal Judge Family Court Faizabad & Ors.
201
(2022)03ILR A201
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.02.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 801 of 2021

Anubhav Verma ...Revisionist
Versus
Principal Judge Family Court Faizabad &
Ors. ...Opposite Parties

Counsel for the Revisionist:
Ashok Kumar Verma

Counsel for the Opposite Parties:
Vaibhav Srivastava

(A) Criminal Law - Family Courts Act ,1984
- Section 19(4) - Appeal - The Code of
Criminal
Procedure,
1973
-
Section
397/401 - revision , Section125 - order for
maintenance
of
Wives,
Children
and
Parents - litigant while approaching the
High Court for invoking its revisional
jurisdiction, must place on record all the
material and relevant documents and he
cannot be allowed play hide and seek with
the
Court
and
this
conduct
of
the
revisionist cannot be appreciated - court
has to consider the status of the parties,
their respective needs, the capacity of the
husband to pay having regard to his
reasonable
expenses
for
his
own
maintenance and of those he is obliged
under
the
law
and
statutory
but
involuntary payments or deductions.(Para
- 26,29)

Opposite party no. 2 filed application - seeking
interim maintenance from revisionist - Family
Court partly allowed application for interim
maintenance - awarding sum of Rs.15, 000/-
only to opposite party no. 2 (wife) - Rs.15,
000/- per month to opposite party no.3 (minor
daughter) -
revisionist
did
not
file
his
affidavit of assets and liabilities - not annexed
his salary slips, income tax returns and
statements of his bank accounts.(Para - 2,28)
HELD:-
Amount of Rs.15,000/- per month
each awarded as interim maintenance to the
opposite parties no. 2 and 3 does not suffer
from any such illegality . No interference by
Court in exercise of its revisional jurisdiction.
Impugned orders do not suffer from any
illegality or infirmity.(Para -31, 32)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

1. Rajnesh Vs Neha , (2021) 2 SCC 324

2. Jasbir Kaur Sehgal Vs Distt. Judge, Dehradun
, (1997) 7 SCC 7

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Mr. Ashok Kumar Verma,
learned counsel for the revisionist and Mr.
Vaibhav Srivastava, learned counsel for the
opposite parties no.2 and 3.

2. By means of the instant revision
filed under Section 19(4) of the Family
Courts Act read with Section 397/401 of
Code of Criminal Procedure, the revisionist
has challenged the order dated 13.08.2021
passed by the Principal Judge, Family
Court, Faizabad in Case No.187 of 2020
(Smt. Samiksha Saran & Another Vs.
Anubhav Verma), whereby the application
filed by the opposite party no. 2 seeking
interim maintenance from the revisionist
has been decided and as against the demand
of
Rs.50,000/-
per
month
towards
maintenance of the opposite party nos.2
and 3 who are the wife and the minor
daughter of the revisionist, the learned
Principal Judge, Family Court has directed
the revisionist to pay a sum of Rs.15,000/-
per month to his wife and Rs.15,000/- per
month to his daughter. He has also
challenged the order dated 27-09-2021,