# Rajina Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-02
- **Case number:** Criminal Revision No. 715 of 2023
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajina-revisionist-v-state-of-u-p-anr-49409
- **Pages:** 14

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Section 156(3)--- Criminal
Revision against the impugned order whereby
learned court below has rejected the application
filed by the revisionist under Section 156(3)
Cr.P.C--- The Magistrate has discretion in
directing the police to investigate or proceeding
with the case as a complaint case. But this
discretion cannot be exercised arbitrarily and
must be guided by judicial reasoning---Where
not
only
does
the
Magistrate
find
the
commission of a cognizable offence alleged on a
prima facie reading of the complaint but also
such facts are brought to the Magistrate's notice
which clearly indicate the need for police
investigation, the discretion granted in Section
156(3) Cr.P.C. can only be read as it being the
Magistrate's duty to order the police to
investigate. In cases wherein, there is alleged to
be documentary or other evidence in the
physical possession of the accused or other
individuals which the police would be best
placed to investigate and retrieve using its
powers under the Cr.P.C., the matter ought to
be sent to the police for investigation--- Cases
alleging sexual harassment, sexual assault or
any similar criminal allegation wherein the victim
has possibly already been traumatized, the
Courts
should
not
further
burden
the
complainant and should press upon the police to
investigate. Due regard had to the fact that it is
not possible for the complainant to retrieve
important evidence regarding her complaint---
Matter remanded to concerned Judge to decide
application under Section 156(3) afresh.

Revision Allowed. (E-15)

List of the cases referred-:

## Text

_Characters 0–39,828 of 48,232. This is a partial read: ask again with offset=39828 for what follows._

78 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court, considering the long time
pendency of the case and no any other
criminal antecedent to the credit of the
revisionist, a lenient view with regard to the
sentencing under Section 325 I.P.C would be
better and would also meet the ends of justice.
According to this Court one year's simple
imprisonment and Rs.1,000/- fine would be
sufficient. Thus, the revision is liable to be decided
accordingly.

O R D E R

15. The revision is partly allowed. The
conviction under Section 326 I.P.C is converted
into Section 325 IPC. The convicted-revisionist
Chhabi Nath is awarded one year's simple
imprisonment and Rs.1,000/- fine which has to be
deposited within a month. If the fine is not
deposited, he shall serve one month's additional
incarceration in lieu of non-deposition of fine.

16. A copy of this order be sent immediately
to the Judicial Magistrate Ist Bareilly, for
compliance.

----------
(2023) 11 ILRA 78
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2023
BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 715 of 2023

Rajina ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sanjeev Kumar Shukla, Sri Dinesh
Kumar Rai

Counsel for the Opposite Parties:
G.A.
Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 156(3)--- Criminal
Revision against the impugned order whereby
learned court below has rejected the application
filed by the revisionist under Section 156(3)
Cr.P.C--- The Magistrate has discretion in
directing the police to investigate or proceeding
with the case as a complaint case. But this
discretion cannot be exercised arbitrarily and
must be guided by judicial reasoning---Where
not
only
does
the
Magistrate
find
the
commission of a cognizable offence alleged on a
prima facie reading of the complaint but also
such facts are brought to the Magistrate's notice
which clearly indicate the need for police
investigation, the discretion granted in Section
156(3) Cr.P.C. can only be read as it being the
Magistrate's duty to order the police to
investigate. In cases wherein, there is alleged to
be documentary or other evidence in the
physical possession of the accused or other
individuals which the police would be best
placed to investigate and retrieve using its
powers under the Cr.P.C., the matter ought to
be sent to the police for investigation--- Cases
alleging sexual harassment, sexual assault or
any similar criminal allegation wherein the victim
has possibly already been traumatized, the
Courts
should
not
further
burden
the
complainant and should press upon the police to
investigate. Due regard had to the fact that it is
not possible for the complainant to retrieve
important evidence regarding her complaint---
Matter remanded to concerned Judge to decide
application under Section 156(3) afresh.

Revision Allowed. (E-15)

List of the cases referred-:

1. Lalita Kumari Vs Government of U.P.,
reported in 2014 (2) SCC 1.

2. Priyanka Srivastava Vs St. of U.P. reported in
2015 (6) SCC 287

3. XYZ Vs St. of M.P. & ors.reported in 2022
SCC OnLIne SC 1002

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)
11 All. Rajina Vs. State of U.P. & Anr.
79

1. Heard Sri Sanjeev Kumar Shukla,
learned counsel for the revisionist and
learned A.G.A. for the State and perused
the records.

Challenge to the criminal revision

2. This criminal revision has been
filed for setting aside the impugned
judgment and order dated 05.11.2022
passed by learned Additional Sessions
Judge/ Special Judge (POCSO Act),
Bulandshahar in Criminal Misc. Case No.
717 of 2022 (Rajina Vs. Nishar and others),
under Section 156(3) Cr.P.C., Police Station
Jahangirabad,
District
Bulandshahar,
whereby learned court below has rejected
the application filed by the revisionist
under Section 156(3) Cr.P.C.

3. The Case of the Revisionist

In respect of an incident dated
15.9.2022
the
revisionist
filed
an
application under Section 156(3) Cr.P.C.
stating therein that opposite party no.2,
namely Nisar used to harass the minor
daughter of the revisionist by molesting her
and forcing her to make videos and share
them with him by taking her away from her
house. On 15.09.2022, when the revisionist
had gone to market, Nisar entered into her
house and started removing her minor
daughter's pajamas with the intention of
raping her on which she raised an alarm.
When the revisionist returned to her house,
the victim narrated her entire story. At 8:30
P.M. in the night Nisar alongwith his wife
Nafeesha,
sister-in-laws
Anisha
and
Shabana and two unknown male persons,
while abusing and threatening to kill her,
entered into the victim's house and tried to
drag the victim to their house by grabbing
her hair and also beaten her brutally by iron
rods and sticks. On hearing the scream and
alarm of the revisionist and the victim,
Jamaluddin and Gajju of the locality came
and saved her. The injured victim was
admitted
to
Government
Hospital,
Jahangirabad in critical condition. Taking
advantage of the opportunity at 11:30 P.M.
on the same night, Nisar and his nephew
Sarukh entered into the house of the
revisionist after breaking the door and there
they broke the things kept in her house and
stole nine thousand rupees, silver anklets
and a pair of earrings kept in the box.

4. When the police reached her house
after calling of the revisionist on Dial 112,
the accused ran away leaving their Bullet
Motorcycle on the spot, which was taken
into custody by the Police and was parked
at the police station. The police took the
complaint of the revisionist and was
pressurizing her to compromise, on refusal
to do so, she was scolded and sent away.
Hence the revisionist had no other option
but to move an application under Section
156 (3) Cr.P.C., which has been rejected by
the
court
below
while
passing
the
impugned order.

5. Under the impugned order, it has
been recorded by the court below that the
allegation made in the complaint by the
revisionist that opposite party no.2 Nisar
tried to remove the pajamas of the victim
with the intention of raping her and he
abused her and threatened to kill her and
also the allegation that they assaulted her
with iron rods and sticks etc. due to which
she sustained injuries are concocted on the
ground that in the medical examination
report of the victim, which was enclosed
along with the complaint, only a scratch
injury was mentioned, as such the entire
story appears to be suspicious. The victim
is minor girl. It has further been recorded
that as per the report of the concerned
80 INDIAN LAW REPORTS ALLAHABAD SERIES
Police Station, there is a dispute between
both the parties regarding children and in
order to humiliate the family of opposite
party no.2, this application under Section
156 (3) Cr.P.C. has been filed. Due to the
dispute between both the parties, the Police
has
also
initiated
proceedings
under
Sections 107 and 116 Cr.P.C. against both
the parties. On the strength of aforesaid
findings,
learned
Additional
Sessions
Judge/ Special Judge (POCSO Act),
Bulandshahar rejected the
 application under Section 156(3) filed by
revisionist vide order dated 05.11.2022.

6. Submission on behalf of the
learned counsel for the revisionist

(i) The revisionist is a poor lady
and after the incident she called the Police
through Dial 112 after which the police
came
and
admitted
the
victim
in
Government
Hospital
and
when
the
revisionist was busy in the treatment of the
victim, opposite party no.2 along with coaccused entered into her house forcefully
and stole cash and other precious items
kept in her house of which the revisionist
made written complaint to the concerned
Police Station on the next day of the
incident but the Police in collusion of
opposite party no.2, made pressure upon
her
to
compromise.
Resultantly,
the
revisionist moved an application under
Section 154 Cr.P.C. before the Senior
Superintendent of Police on 28.9.2022,
which is still not considered. Hence she
moved the application under Section 156
(3) Cr.P.C.

(ii) The victim is aged about 16
years and the offence committed upon her
comes
within
the
definition
of
the
provisions of the Protection of Children
from
Sexual
Offences
Act,
2012
(hereinafter referred to as the "POCSO
Act") and when the revisionist tried to
make complaint against the opposite party
no.2 and other co-accused, the concerned
Station House Officer, Jhangirabad instead
of lodging F.I.R. against the accused
persons, misbehaved with the revisionist.

(iii)
The
victim
sustained
grievous injuries caused by the opposite
party no.2 and other co-accused and the
medical examination of the victim was also
conducted in the Government Hospital.
Opposite party no.2 has no fear of law and
he is also making mockery of law. He is
also threatening the revisionist to face dire
consequences. He is moving freely and
used to threatened the revisionist for
compromise.

(iv) The revisionist filed an
application under Section 156 (3) Cr.P.C.
before Additional Sessions Judge/ Special
Judge (POCSO Act), Bulandshahar, which
was rejected without considering the facts
and circumstances of the case.

(v) The application made by the
revisionist under section 156(3) Cr.P.C.
discloses a cognizable offence, which has
been committed by the accused persons
including opposite party no.2 but the
concerned Judge has committed manifest
error of jurisdiction apparent on the face of
record by rejecting the same under the
order impugned.

(vi) The duty of police is to
register
First
Information
Report
in
cognizable offence and other aspects such
as to whether information is falsely given,
whether
information
is
genuine
and
whether information is credible etc.are
irrelevant. At the stage of registration of
First Information Report the aspects to be
considered is merely whether information
given ex-facie discloses commissioning of
cognizable offence. It is after investigation
information is found to be false and for that
there is always an option to prosecute
11 All. Rajina Vs. State of U.P. & Anr.
81
complainant
for
filing
false
first
information report.

(vii) As per the provisions of
156(3) Cr.P.C. it is now well settled that if
any application comes before a Magistrate
in which it appears that the cognizable
offence has been committed then under the
scope of 156(3) Cr.P.C. it is obligatory
upon the Magistrate to direct the concerned
police to register the First Information
Report of the revisionist and investigate
into the matter and even though heinous
offence has been committed upon the
victim as per the allegations made in the
complaint under Section 156 (3), the court
below rejected has the same, which is per
se illegal.

(viii) Section 156(3) of the Code
of Criminal Procedure, 1973 provides that
any Magistrate may treat the application
under Section 156(3) as a complaint case. It
is the duty of the Magistrate to see that
police follows the mandate of law. It is a
reminder to police to perform his duty. First
Information Report of all cognizable
offences must be registered.

7. Learned counsel for revisionist then
contends that the issue regarding scope of
jurisdiction of Magistrate while dealing
with an application under Section 156 (3)
Cr.P.C. has now been settled by a
Constitution Bench of Supreme Court in
Lalita Kumari Vs. Government of Uttar
Pradesh, reported in 2014 (2) SCC 1. He has
relied upon paragraphs-120 to 120.8 of
aforesaid judgement which read as under:-

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

120.1. The registration of F.I.R. 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 F.I.R.
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.

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 F.I.R. 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
82 INDIAN LAW REPORTS ALLAHABAD SERIES
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 7 days. The fact of such
delay and the causes of it must be reflected
in the General Diary entry.

120.8.
Since
the
Genera
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 F.I.R. 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."

8. In continuation of his challenge to
the impugned order, learned counsel for the
revisionist also contends that observations
made
by Apex
Court
in
Priyanka
Srivastava Vs. State of U.P. reported in
2015 (6) SCC 287 do not dilute the ratio
laid down in Constitution Bench judgement
of the Apex Court in the case of Lalita
Kumari (Supra). Observations made in
aforesaid judgement are only guidelines to
ensure that no rightful person is dragged in
criminal
prosecution.
For
better
appreciation, it shall be prudent to
reproduce paragraphs- 26, 27 and 28 of
aforesaid judgement which are relevant for
the controversy in issue. Same are
reproduced herein under:-

"26. At this stage, we may
usefully refer to what the Constitution
Bench has to say in Lalita Kumari v. Govt.
of U.P. in this regard. The larger Bench had
posed the following two questions:-

"(i) Whether the immediate nonregistration 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

(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."

Answering the questions posed,
the larger Bench opined thus:

"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.

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
court to which copies of each FIR are
required to be sent.

111. The Code gives power to the
police to close a matter both before and
11 All. Rajina Vs. State of U.P. & Anr.
83
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.

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."

After so stating the constitution
Bench proceeded to state that where a
preliminary enquiry is necessary, it is not
for
the
purpose
for
verification
or
otherwise of the information received but
only to ascertain whether the information
reveals any cognizable offence. After laying
down so, the larger Bench proceeded to
state:-

"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 7 days. The fact of such
delay and the causes of it must be reflected
in the General Diary entry."

We have referred to the aforesaid
pronouncement for the purpose that on
certain circumstances the police is also
required to hold a preliminary enquiry
whether any cognizable offence is made out
or not.

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 law.
84 INDIAN LAW REPORTS ALLAHABAD SERIES
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. It is also to be
noted that when a borrower of the financial
institution covered under the SARFAESI
Act, invokes the jurisdiction under Section
156(3) Cr.P.C. and also there is a separate
procedure under the Recovery of Debts due
to Banks and Financial Institutions Act,
1993, an attitude of more care, caution and
circumspection has to be adhered to.

28. Issuing a direction stating "as
per the application" to lodge an FIR
creates a very unhealthy situation in the
society and also reflects the erroneous
approach of the learned Magistrate. It also
encourages
the
unscrupulous
and
unprincipled litigants, like the respondent
no.3, namely, Prakash Kumar Bajaj, to take
adventurous steps with courts to bring the
financial institutions on their knees. As the
factual exposition would reveal, he had
prosecuted the earlier authorities and after
the matter is dealt with by the High Court
in a writ petition recording a settlement, he
does not withdraw the criminal case and
waits for some kind of situation where he
can take vengeance as if he is the emperor
of all he surveys. It is interesting to note
that during the tenure of the appellant
No.1, who is presently occupying the
position of Vice-President, neither the loan
was taken, nor the default was made, nor
any action under the SARFAESI Act was
taken. However, the action under the
SARFAESI Act was taken on the second
time at the instance of the present appellant
No.1. We are only stating about the devilish
design of the respondent No.3 to harass the
appellants with the sole intent to avoid the
payment of loan. When a citizen avails a
loan from a financial institution, it is his
obligation to pay back and not play truant
or for that matter play possum. As we have
noticed, he has been able to do such
adventurous acts as he has the embedded
conviction that he will not be taken to task
because an application under Section
156(3) Cr.P.C. is a simple application to the
court for issue of a direction to the
investigating
agency.
We
have
been
apprised that a carbon copy of a document
is filed to show the compliance of Section
154(3), indicating it has been sent to the
Superintendent of police concerned."

On the cumulative strength of the
aforesaid,
learned
counsel
for
the
revisionist submits that the impugned order
has been passed by the concerned Judge in
a routine and mechanical manner. Thus the
concerned Judge may be directed by this
Court to exercise his discretionary power
and decide the application under Section
156(3) moved by the revisionist afresh.

9. The learned A.G.A. for the State
has fairly conceded that interest of
substantial justice has not been served in
passing of the impugned order, as the
Special Judge has rejected the application
of the revisionist in a routine and
mechanical manner. He further submits that
the Special Court in an appropriate case
before taking cognizance can pass an order
under
Section
156
(3)
Cr.P.C.
for
registration
of
an
F.I.R.
and
its
investigation and may also take cognizance
on the complaint and may enter into the
procedure provided under Chapter-XV of
the Code of Criminal Procedure and in this
regard the discretion is always of the
Special Court or Magistrate to adopt an
appropriate course, thus, illegality has been
committed by the Special Court in passing
the impugned order.

On the cumulative strength of the
aforesaid, learned A.G.A. submits that in a
case wherein conviction of proposed
accused is possible, it is completely failure
11 All. Rajina Vs. State of U.P. & Anr.
85
on the part of the Special Court/Magistrate
in not allowing the application under
Section 156 (3) Cr.P.C. by directing the
registration of F.I.R. As such the order
impugned is liable to be set aside.

10. This Court has considered the
submissions made by the learned counsel
for the parties and gone through the records
of the present criminal revision specifically
the order impugned.

11. It is important for this Court to
refer the provisions of Section 156 (3)
Cr.P.C., under which the revisionist has
filed her complaint against the opposite
party no.2 and other accused persons,
which is extracted 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."

12. It is evident that the law with
regard to the manner in which the
application moved under Section 156 (3)
Cr.P.C are to be treated is now no more res
integra and the same has been settled by
various pronouncement of the Hon'ble
Supreme Court as well as by Division
Benches of this Court.

13. At this juncture, it would be
apposite to mention that the word "may"
occurring in Section 156(3) CrPC is of
utmost significance. It gives the Magistrate
a discretionary power to order or not for an
investigation into the cognizable offence
disclosed
in
the
application.
This
discretionary power has been given to
Magistrate
to
enable
them
to
deal
adequately
with
both
types
of
the
applications (i) the genuine application
containing truthful allegations about the
commission of cognizable offence, and (ii)
the applications having baseless or false
allegation, It is the duty of the Magistrate to
make it a point that no applicant of later
category may succeed in his wicked game.
His application need to be dismissed with
firmness and boldness. At the same time it
is the poise duty of the Magistrate to ensure
that no case of the former category may go
uninvestigated. The Magistrates are thus
saddled with a greate responsibility to keep
such balance.

14. While dealing with a similar issue
wherein application under Section 156 (3)
Cr.P.C. with the allegation of sexual
harassment of a victim, has been rejected
by a Magistrate, the Apex Court in the case
of XYZ Vs. State of Madhya Pradesh &
Ors. reported in 2022 SCC OnLIne SC
1002 has opined that the Magistrate has
discretion in directing the police to
investigate or proceeding with the case as a
complaint case. But this discretion cannot
be exercised arbitrarily and must be guided
by judicial reasoning. The Apex Court has
further opined that where not only does the
Magistrate find the commission of a
cognizable offence alleged on a prima facie
reading of the complaint but also such facts
86 INDIAN LAW REPORTS ALLAHABAD SERIES
are brought to the Magistrate's notice which
clearly indicate the need for police
investigation, the discretion granted in
Section 156(3) Cr.P.C. can only be read as
it being the Magistrate's duty to order the
police to investigate. In cases wherein,
there is alleged to be documentary or other
evidence in the physical possession of the
accused or other individuals which the
police would be best placed to investigate
and retrieve using its powers under the
Cr.P.C., the matter ought to be sent to the
police for investigation. The Apex Court
has also opined that in cases alleging sexual
harassment, sexual assault or any similar
criminal allegation wherein the victim has
possibly already been traumatized, the
Courts should not further burden the
complainant and should press upon the
police to investigate. Due regard had to the
fact that it is not possible for the
complainant to retrieve important evidence
regarding her complaint. The relevant
paragraphs of the judgment of the Apex
Court in the case of XYZ (Supra) read as
follows:

"20. A division bench of this
Court in Sakiri Vasu v. State of U.P.6
expounded upon the Magistrate's powers
under Section 156(3) of the CrPC. In this
decision, the Court noted:

11. In this connection we would
like to state that if a person has a grievance
that the police station is not registering his
FIR under Section 154 CrPC, then he can
approach the Superintendent of Police
under
Section
154(3)
CrPC
by
an
application in writing. Even if that does not
yield any satisfactory result in the sense
that either the FIR is still not registered, or
that even after registering it no proper
investigation is held, it is open to the
aggrieved person to file an application
under Section 156(3) CrPC before the
learned Magistrate concerned. If such an
application under Section 156(3) is filed
before the Magistrate, the Magistrate can
direct the FIR to be registered and also can
direct a proper investigation to be made, in
a case where, according to the aggrieved
person, no proper investigation was made.
The Magistrate can also under the same
provision monitor the investigation to
ensure a proper investigation.

...

13. The same view was taken by
this Court in Dilawar Singh v. State of
Delhi3 (JT vide para 17). We would further
clarify that even if an FIR has been
registered and even if the police has made
the investigation, or is actually making the
investigation, which the aggrieved person
feels is not proper, such a person can
approach the Magistrate under Section
156(3) CrPC, and if the Magistrate is
satisfied
he
can
order
a
proper
investigation and take other suitable steps
and pass such order(s) as he thinks
necessary
for
ensuring
a
proper
investigation.
All
these
powers
a
Magistrate enjoys under Section 156(3)
CrPC.

...

15. Section 156(3) provides for a
check by the Magistrate on the police
performing its duties under Chapter XII
CrPC. In cases where the Magistrate finds
that the police has not done its duty of
investigating the case at all, or has not
done it satisfactorily, he can issue a
direction
to
the
police
to
do
the
investigation properly, and can monitor the
same.

...

17. In our opinion Section 156(3)
CrPC is wide enough to include all such
powers
in
a
Magistrate
which
are
necessary
for
ensuring
a
proper
investigation, and it includes the power to
11 All. Rajina Vs. State of U.P. & Anr.
87
order registration of an FIR and of
ordering a proper investigation if the
Magistrate is satisfied that a proper
investigation has not been done, or is not
being done by the police. Section 156(3)
CrPC, though briefly worded, in our
opinion, is very wide and it will include all
such incidental powers as are necessary for
ensuring a proper investigation.

...

26. If a person has a grievance
that his FIR has not been registered by the
police station his first remedy is to
approach the Superintendent of Police
under Section 154(3) CrPC or other police
officer referred to in Section 36 CrPC. If
despite approaching the Superintendent of
Police or the officer referred to in Section
36 his grievance still persists, then he can
approach a Magistrate under Section
156(3) CrPC instead of rushing to the High
Court by way of a writ petition or a petition
under Section 482 CrPC. Moreover, he has
a further remedy of filing a criminal
complaint under Section 200 CrPC. Why
then should writ petitions or Section 482
petitions be entertained when there are so
many alternative remedies?"
(emphasis supplied)

21. It is clear from the above
extract that the Magistrate has wide
powers under Section 156(3) which ought
to be exercised towards meeting the ends of
justice. A two-judge Bench of this Court in
Srinivas Gundluri v. SEPCO Electric
Power
Construction
Corpn.,7
further
clarified the powers of a Magistrate and
held that whenever a cognizable offence is
made out on the bare reading of complaint,
the Magistrate may direct police to
investigate:

"23. To make it clear and in
respect of doubt raised by Mr. Singhvi to
proceed under Section 156(3) of the Code,
what is required is a bare reading of the
complaint and if it discloses a cognizable
offence, then the Magistrate instead of
applying his mind to the complaint for
deciding whether or not there is sufficient
ground for proceeding, may direct the
police for investigation. In the case on
hand, the learned Single Judge and the
Division Bench of the High Court rightly
pointed out that the Magistrate did not
apply his mind to the complaint for
deciding whether or not there is sufficient
ground for proceeding and, therefore, we
are of the view that the Magistrate has not
committed any illegality in directing the
police for investigation. In the facts and
circumstances, it cannot be said that while
directing the police to register FIR, the
Magistrate has committed any illegality. As
a matter of fact, even after receipt of such
report, the Magistrate under Section
190(1)(b) may or may not take cognizance
of offence. In other words, he is not bound
to take cognizance upon submission of the
police report by the investigating officer,
hence, by directing the police to file
charge-sheet or final report and to hold
investigation with a particular result
cannot be construed that the Magistrate
has exceeded his power as provided in subsection (3) of Section 156.

22. In the present case, the
narration of facts makes it clear that upon
the invocation of the jurisdiction of the
Magistrate under Section 156(3) of CrPC,
the JMFC came to the conclusion that
serious allegations had been levelled
against the accused by the appellant and,
that, from a perusal of the documents in
this
regard,
the
statements
of
the
complainant were satisfactory. After taking
note of the fact that the police had at an
earlier stage reported that the occurrence
of an incident or offence was not found, the
JMFC opined that, from the facts which
were set out by the complainant in the
88 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint, prima facie, the occurrence of
an offence was shown.

23. It is true that the use of the
word "may" implies that the Magistrate
has discretion in directing the police to
investigate or proceeding with the case as a
complaint case. But this discretion cannot
be exercised arbitrarily and must be guided
by judicial reasoning. An important fact to
take note of, which ought to have been, but
has not been considered by either the Trial
Court or the High Court, is that the
appellant had sought the production of
DVRs containing the audio-video recording
of the CCTV footage of the then ViceChancellor's (i.e., the second respondent)
chamber. As a matter of fact, the Institute
itself had addressed communications to the
second respondent directing the production
of the recordings, noting that these
recordings had been handed over on his
oral direction by the then Registrar of the
Institute as he was the Vice-Chancellor.
Due to the lack of response despite multiple
attempts, the Institute had even filed a
complaint with PS Gole Ka Mandir on 29
October 2021 for registering an FIR
against the second respondent for theft of
the DVRs.

24. Therefore, in such cases,
where not only does the Magistrate find the
commission of a cognizable offence alleged
on a prima facie reading of the complaint
but also such facts are brought to the
Magistrate's notice which clearly indicate
the need for police investigation, the
discretion granted in Section 156(3) can
only be read as it being the Magistrate's
duty to order the police to investigate. In
cases such as the present, wherein, there is
alleged to be documentary or other
evidence in the physical possession of the
accused or other individuals which the
police would be best placed to investigate
and retrieve using its powers under the
CrPC, the matter ought to be sent to the
police for investigation.

25. Especially in cases alleging
sexual harassment, sexual assault or any
similar criminal allegation wherein the
victim
has
possibly
already
been
traumatized, the Courts should not further
burden the complainant and should press
upon the police to investigate. Due regard
must be had to the fact that it is not
possible for the complainant to retrieve
important
evidence
regarding
her
complaint. It may not be possible to arrive
at the truth of the matter in the absence of
such evidence. The complainant would then
be required to prove her case without being
able to bring relevant evidence (which is
potentially of great probative value) on
record, which would be unjust.

26. In this backdrop, we are
clearly of the view that the JMFC ought to
have exercised jurisdiction under Section
156(3) of CrPC to direct the police to
investigate.

27. At this stage, the Court is not
called upon to decide upon the veracity of
the allegations in the complaint, save and
except to underscore the importance of an
investigation by the police in a matter
where the CCTV footage (or other
evidence) is not under the possession or
control of the appellant, but to be inquired
into in the course of an investigation by the
police. The discretion which has been
conferred upon the Magistrate by Section
156(3) CrPC, must be exercised in a
judicious manner.

28. In the facts of the present case
and bearing in mind the position of law
which has been laid down by this Court,
recourse to the jurisdiction under Section
156(3) CrPC was warranted.

29. For the above reasons, we are
inclined to set aside the impugned
judgment of the High Court and to direct
11 All. Rajina Vs. State of U.P. & Anr.
89
that the JMFC Gwalior shall, in terms of
the observations contained above, order an
investigation by the police under Section
156(3) CrPC. Having regard to all the facts
and circumstances, including the need for a
fair investigation, we direct that the
investigation shall be supervised by a
woman officer not below the rank of
Superintendent of Police to be nominated
by the DIG of the zone concerned. The
judgment of the High Court dated 6
January 2022 shall accordingly stand set
aside. The directions which have been
issued by the JMFC to the effect that the
complaint could be treated as a complaint
case shall accordingly, to that extent, stand
set aside and be substituted in terms of the
directions which have been issued above.

30. Finally, we wish to once
again reiterate the importance of courts
dealing with complainants of sexual
harassment and sexual assault in a
sensitive manner. It is important for all
courts to remain cognizant of the fact that
the legal process tends to be even more
onerous
for
complainants
who
are
potentially dealing with trauma and
societal shame due to the unwarranted
stigma attached to victims of sexual
harassment and assault. At this juncture,
especially in cases where the police fails
to
address
the
grievance
of
such
complainants,
the
Courts
have
an
important responsibility. As the Delhi
High Court held in Virender v. State of
NCT of Delhi,8 courts have to remain
alive
to
both
treating
the
victim
sensitively while also discharging the
onerous task of ensuring that the
complete truth is brought on record so as
to facilitate adjudication and answering
the basic question regarding the complicity
of the accused in the commission of the
offence. In that case, the High Court held
that:

22.