# Ram Sharan Jatav v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-17
- **Case number:** Criminal Appeal No. 6822 of 2019
- **Bench:** Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sharan-jatav-v-state-of-u-p-ors-46463
- **Pages:** 7

## Headnote

Criminal Law - Code of Criminal Procedure,
1973- Sections 154, 156(3) & 190- Rejection of
Application
Under
Section
156(3)-
The
registration of first information report is
mandatory under Section 154 Cr.P.C. if the
information
discloses
the
commission
of
cognizable offence and no preliminary inquiry
is permissible in such a situation. However, if
the information received does not disclose the
commission of cognizable offence but indicates
necessity for inquiry the preliminary inquiry
may be conducted in order to ascertain
whether cognizable offence is disclosed or not.
106 INDIAN LAW REPORTS ALLAHABAD SERIES
The preliminary inquiry is needed only when
the
information
does
not
disclose
the
cognizable offence - The only need was to
summon the report whether the case had been
registered
or
not
in
the
police
station
concerned regarding the complaint. It was
incumbent upon the Magistrate concerned to
order the registration of first information
report as the application itself disclosed the
commission of cognizable offence and in that
situation
no
preliminary
inquiry
was
permissible.

Where the application u/s 156(3) Cr.P.c discloses the
commission of a cognizable offence, then it is
incumbent upon the Magistrate to direct the police to
register an F.I.R and conduct investigation whereas a
preliminary inquiry is required only when the
information does not disclose the commission of a
cognizable offence. The purpose of calling for a police
report is only to ascertain whether any case has been
registered at the police station and for no other
purpose. (Para 21, 22, 24).

Criminal Appeal allowed. (E-3)

Judgements/Case law relied upon:-

## Text

11 All. Ram Sharan Jatav Vs. State of U.P. & Ors.
105
crime and disharmony. It is therefore, necessary
to avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective. At the
same time, undue harshness should also be
avoided keeping in view the reformative
approach underlying in our criminal justice
system.

22. Keeping in view the facts and
circumstances of the case and also keeping in view
criminal jurisprudence in our country which is
reformative and corrective and not retributive, this
Court considers that no accused person is
incapable of being reformed and therefore, all
measures should be applied to give them an
opportunity of reformation in order to bring them
in the social stream.

23. As discussed above, 'reformative theory
of punishment' is to be adopted and for that reason,
it is necessary to impose punishment keeping in
view the 'doctrine of proportionality'. It appears
from perusal of impugned judgment that sentence
awarded by learned trial court for life term is very
harsh keeping in view the entirety of facts and
circumstances of the case and gravity of offence.
Hon'ble Apex Court, as discussed above, has held
that undue harshness should be avoided taking into
account the reformative approach underlying in
criminal justice system.

24. Learned AGA also admitted the fact that
appellant is languishing in jail for the last more
than 14 years. Keeping in view of theory of
'doctrine of proportionality' as discussed above, the
sentence awarded to the appellant seems harsh.
Since, the appellant has already served 14 years of
sentence and ends of justice would be met if
sentence is reduced from life imprisonment to the
period of ten years.

25. We find that there were no external
injury or there were no external injury were
found. The accused-appellant was a young man
at the time when he committed the offence.
Hence, the sentence awarded to the appellant by
the learned trial-court is modified and is reduced
to fourteen years rigorous imprisonment with all
remissions and fine default sentence mentioned.

26. Accordingly, the appeal is partly
allowed with the modification of the sentence,
as above. Record be sent back to the Court
below forthwith.

27. Release order be sent to the Jail
Authority without waiting for detailed judgment.
----------
(2021)12ILR A105
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2021

BEFORE

THE HON'BLE MRS. SADHNA RANI (THAKUR), J.

Criminal Appeal No. 6822 of 2019

Ram Sharan Jatav ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Aay Sengar

Counsel for the Respondents:
A.G.A., Sri Rajiv Kumar Tripathi

Criminal Law - Code of Criminal Procedure,
1973- Sections 154, 156(3) & 190- Rejection of
Application
Under
Section
156(3)-
The
registration of first information report is
mandatory under Section 154 Cr.P.C. if the
information
discloses
the
commission
of
cognizable offence and no preliminary inquiry
is permissible in such a situation. However, if
the information received does not disclose the
commission of cognizable offence but indicates
necessity for inquiry the preliminary inquiry
may be conducted in order to ascertain
whether cognizable offence is disclosed or not.
106 INDIAN LAW REPORTS ALLAHABAD SERIES
The preliminary inquiry is needed only when
the
information
does
not
disclose
the
cognizable offence - The only need was to
summon the report whether the case had been
registered
or
not
in
the
police
station
concerned regarding the complaint. It was
incumbent upon the Magistrate concerned to
order the registration of first information
report as the application itself disclosed the
commission of cognizable offence and in that
situation
no
preliminary
inquiry
was
permissible.

Where the application u/s 156(3) Cr.P.c discloses the
commission of a cognizable offence, then it is
incumbent upon the Magistrate to direct the police to
register an F.I.R and conduct investigation whereas a
preliminary inquiry is required only when the
information does not disclose the commission of a
cognizable offence. The purpose of calling for a police
report is only to ascertain whether any case has been
registered at the police station and for no other
purpose. (Para 21, 22, 24).

Criminal Appeal allowed. (E-3)

Judgements/Case law relied upon:-

1. Har Prasad Vs. St. of U.P., 2006 (10) ADJ 412

2. Seema Devi Vs. St. of U.P. & 3 ors, 2018 (3) All.
Crl. Rulings 3294

3. Lalita Kumari Vs. Govt. of U.P & anr., 2014 (2) SCC
1

(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. Heard Sri Ajay Sengar, learned counsel
for the appellant, learned A.G.A. and perused
the record.

2. The challenge in this appeal is to the
order dated 14.10.2019 of the Special Judge (SC
& ST Act), Jalaun at Orai in Criminal Misc.
Case No. 72 of 2019 Ram Sharan Jatav Vs.
Sandeep Dixit and others Police Station
Madhogarh, District Jalaun. By the impugned
order the lower court rejected the application of
the appellant under Section 156 (3) Cr.P.C. of
the appellant.

3. Brief facts of the case are that the
appellant
Ram
Sharan
Jatav
moved
an
application under Section 156 (3) Cr.P.C. before
the Special Judge (SC & ST Act) Jalaun on
18.09.2019 along with affidavit that he is a
resident of Village Bangara, P.S. Madhogarh,
District Jalaun and is by caste 'Chamar'
(scheduled caste). Sandeep Dixit the son of
Gram Pradhan Brahmin by caste is a person of
criminal nature. He exploits the weaker section
persons and on protest abuses them and gives
them threat of life. Because of his terror no one
comes forward to file a suit or depose against
him. On 07.09.2019 at 9.00 p.m. he was coming
back from the market to his home along with
Uday Singh, as soon as he reached in front of the
house of the Village Pradhan and was
purchasing something from the shop existing in
the house of Village Pradhan, Sandeep Dixit
along with his companion Prem Babu Pachori
came there. Sandeep Dixit kicked him from the
back. When he resisted both of them in
furtherance of their common intention hurled
caste based abuses and asked him why did he
refuse to come on their call to work for them.
Both of them assaulted and beat him badly with
fists, blows and kicks. Mohit s/o Ram Swaroop,
Udai Singh s/o Veer Singh and other persons
standing thereby saved him. He submitted his
complaint in the police station Madhogarh on
08th September, 2019 his report was taken but
the same was not registered. He got himself
medically examined on 09.09.2019 by his own
and gave his complaint to the Circle Officer
Madhogarh on 10.09.2019 and Superintendent
of Police, Jalaun on 12.09.2019 by registered
post but his report has not been lodged till now.
The accused persons who are influential persons
are giving threat not to let him live in the village,
hence the officer incharge of police station
concerned be directed to lodge the first
information report and investigate the matter.
11 All. Ram Sharan Jatav Vs. State of U.P. & Ors.
107

4. After receiving this application, the
court concerned summoned the report from the
police station Madhogarh. The witness Mohit
filed an affidavit denying to witness the incident.

5. After perusal of the report of police
station concerned and affidavit of witness, the
officer concerned passed the impugned order
and rejected the application of the appellant
under Section 156 (3) Cr.P.C. on 14.10.2019.

6. The present appeal has been preferred
against this rejection order dated 14.10.2019
passed on Misc. Application No. 72 of 2019
(Ram Sharan Jatav Vs. Sandip Dixit), P.S.
Madhogarh, District Jalaun on the premise that
the lower court has committed manifest error of
law by not considering the case of the appellant.
He being the member of scheduled caste
community is exploited at the hands of opposite
party nos. 2 and 3 and is compelled to do the
forced labour. On 07.09.2019 at 9.00 p.m. he
was assaulted with kicks and fists and abused by
hurling caste base words by both the opposite
party nos. 2 and 3. The cognizable offence has
been committed but his report was not lodged in
the police station concerned. The Circle Officer
concerned and the Superintendent of Police also
did not pay any heed so he was compelled to file
the application under Section 156 (3) Cr.P.C.
and that too has been rejected by the Court
concerned after summoning a report from the
police station concerned. The witness Mohit was
compelled by the opposite party nos. 2 and 3 to
give affidavit to the effect that he did not witness
the incident. The police has submitted false
report. Prima facie a cognizable offence is
proved to be committed by the opposite party
nos. 2 and 3. The Special Judge, SC/ST Act,
Jalaun has reached at the wrong conclusion that
there is party bandi in the village and the
appellant is a member of party of Shivam Gurjar
and upon instigation of Shivam Gurjar he is
falsely implicating the opposite party nos. 2 and
3, who are witnesses of the crime committed by
Shivam Gurjar. So the appeal be allowed, the
impugned order be set aside and an F.I.R. be
registered with regard to the cognizable offence
committed against him.

7. On the date fixed, neither the opposite
party nos. 2 and 3 or their counsel appeared nor
any counter affidavit has been filed on their
behalf.

8. Learned A.G.A. in his counter affidavit
has stated that the eye witness in the application
under Section 156 (3) Cr.P.C. has filed an
application supported with an affidavit that he
did not witness the incident as on the date of
incident he was in Jaipur. After considering the
said affidavit and each and every aspects of the
mater, the lower court has rightly rejected the
application moved by the appellant under
Section 156 (3) Cr.P.C. The order impugned is
perfect, just, legal and valid and does not suffer
from any infirmity or illegality.

9. In support of his contentions the
appellant has placed before this Court the copy
of application under Section 156 (3) Cr.P.C., his
injury report dated 09.09.2019, copy of
complaint given to the Superintendent of Police,
Jalaun, copy of complaint give to the Circle
Officer, Madhogarh, enquiry report filed by the
concerned police station, affidavit of witness
Mohit along with his application and the
impugned order dated 14.10.2019.

10. A perusal of the impugned order
reveals the observation of the lower court that as
one of the witnesses Mohit has refused to
witness the occurrence by filing an affidavit and
the report has been received from the concerned
police station that in the village there are two
parties one of Shivam Gurjar, who had murdered
Hari Om Pachori on 13.06.2017 along with his
companion and the case was registered in the
matter. The present opposite party no. 2 Sandip
Dixit and Prem Babu Pachori are the eye
108 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses of the incident and thus belong to the
rival party and the present appellant belongs to
the party of Shivam Gurjar, so on the basis of
this party bandi on false allegation the
application under Section 156 (3) Cr.P.C. has
been moved by the appellant. The lower court
opined that as per injury report the injuries
sustained by the applicant-appellant are of
simple in nature and could be self inflicted and
so placing reliance on the judgement in the case
of Sukhvasi Vs. State of U.P., 2007 (59) ACC
739 Allahabad, the lower court rejected the
application of the appellant under Section 156
(3)
Cr.P.C.
vide
impugned
order
dated
14.10.2019.

11. As the application of appellant under
Section 156 (3) Cr.P.c. has been rejected so let us
see what are the requirements to move an
application under Section 156 (3) Cr.P.C. Section
156 Cr.P.C. can be reproduced as under:-

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. As per this Section 156 (3) Cr.P.C. as
the Magistrate is empowered under Section 190
Cr.P.C. to order such investigation. So section
190 Cr.P.C. is also to be looked into, which runs
as under:-

190. Cognizance of offences by
Magistrates.

(1) Subject to the provisions of this
Chapter, any Magistrate of the first class, and
any Magistrate of the second class specially
empowered in this behalf under sub- section (2),
may take cognizance of any offence-

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

(b) upon a police report of such facts;

(c) upon information received from
any person other than a police officer,

or upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate may
empower any Magistrate of the second class to
take cognizance under sub- section (1) of such
offences as are within his competence to inquire
into or try.

13. According to this section, the
Magistrate is empowered to take cognizance of
any offence upon receiving a complaint of facts
which constitute such offence, upon a police
report of such facts and upon information
received from any person.

14. The complaint is defined under Section
2 (d) of Cr.P.C., which reads as under:-

Section 2(d) of The Code Of Criminal
Procedure, 1973

(d) " complaint" means any allegation
made orally or in writing to a Magistrate, with a
view to his taking action under this Code, that
some person, whether known or unknown, has
committed an offence, but does not include a
police report. Explanation.- A report made by a
police officer in a case which discloses, after
investigation, the commission of a non-
cognizable offence shall be deemed to be a
complaint; and the police officer by whom such
report is made shall be deemed to be the
complainant;
11 All. Ram Sharan Jatav Vs. State of U.P. & Ors.
109

15. Thus, the Magistrate is empowered to
take cognizance when an application under
Section 156 (3) Cr.P.C. is moved before him.

16. The lower court has placed reliance on
the judgement of Sukhvasi (supra), wherein the
Court has opined as under:-

"Applications under section 156 (3)
Cr.P.C. are comig in torrents. Provisions under
section 156 (3) Cr.P.C. should be used
sparingly. They should not be used unless there
is something unusual and extra ordinary like
miscarriage of justice which warrants a
direction to the Police to register a case. Such
application should not be allowed because the
law provides them with an alternative remedy of
filing a complaint, therefore, recourse should
not normally be permitted for availing the
provisions of section 156 (3) Cr.P.C.

The reference is, therefore, answered
in the manner that it is not incumbent upon a
Magistrate to allow an application section 156
(3) Cr.P.C. and there is no such legal mandate."

17. While in this regard the appellant has
placed reliance on the judgement in Har Prasad
Vs. State of U.P., 2006 (10) ADJ 412, wherein
the coordinate Bench of this Court allowed the
revision of the revisionist and hold that if the
application under Section 156 (3) Cr.P.C.
discloses the commission of cognizable offence
and at the stage of Section 156 (3) Cr.P.C.,
which
is
a
pre-cognizance
stage,
once
cognizable offence is disclosed through an
application it was the duty of the concerned
court to order for registration and investigation
of the offence as crime detection and crime
prevention are the foremost duty of the police
and not of the court.

18. The reliance has also been placed on
the judgement in Seema Devi Vs. State of U.P.
& 3 others, 2018 (3) All. Crl. Rulings 3294
(Criminal Appeal No. 1647 of 2018 decided on
24.09.2018) wherein the coordinate Bench of
this Court held that if the averments of the
complaint are trustworthy or these are found so
after preliminary inquiry, then the Magistrate
under Section 156 (3) Cr.P.C., 1973 may direct
the S.H.O. to register F.I.R. and conduct
investigation on the basis of averments of the
complaint.

19. However, the findings of the
Constitution Bench of the Apex Court in the
case of Lalita Kumari Vs. Government of Uttar
Pradesh and another, reported in 2014 (2) SCC
1, can be looked into. Paragraph-111 of the
aforesaid judgement, is reproduced herein:-

"111) In view of the aforesaid
discussion, we hold:

i)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."

20. Section 154 Cr.P.C. runs as under:-

154. Information in cognizable cases.

(1) Every information relating to the
commission of a cognizable offence, if given
orally to an officer in charge of a police station,
shall be reduced to writing by him or under his
direction, and be read Over to the informant;
and every such information, whether given in
writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the
substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf.

[Provided that if the information is
given by the woman against whom an offence
under section 326A, section 326B, section 354,
section 354A, section 354B, section 354C,
section 354D, section 376, [section 376A,
section 376AB, section 375B, section 376C,
section 376D, section 376DA, section 376DB,]
110 INDIAN LAW REPORTS ALLAHABAD SERIES
section 376E or section 509 of the Indian Penal
Code is alleged to have been committed or
attempted, then such information shall be
recorded, by a woman police officer or any
woman officer:

Provided further that-

(a) in the event that the person against
whom an offence under section 354, section 354A,
section 354B, section 354C, section 354D, section
376, [section 376A, section 376AB, section 376B,
section 376C, section 376D, section 376DA, section
376DB] section 376E or section 509 of the Indian
Penal Code is alleged to have been committed or
attempted, is temporarily or permanently mentally
or physically disabled, then such information shall
be recorded by a police officer, at the residence of
the person seeking to report such offence or at a
convenient place of such person's choice, in the
presence of aninterpreter or a special educator, as
the case may be;

(b) the recording of such information
shall be videographed;

(c) the police officer shall get the
statement of the person recorded by a Judicial
Magistrate under clause (a) of such-section (5A) of
section 164 as soon as possible.]

(2) A copy of the information as
recorded under sub- section (1) shall be given
forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on
the part of an officer in charge of a police station
to record the information referred to in subsection
(1) may send the substance of such information, in
writing and by post, to the Superintendent of
Police concerned who, if satisfied that such
information discloses the commission of a
cognizable offence, shall either investigate the case
himself or direct an investigation to be made by
any police officer subordinate to him, in the
manner provided by this Code, and such officer
shall have all the powers of an officer in charge of
the police station in relation to that offence.

21. Thus, from the findings of the Apex
Court and the provisions mentioned above, it is
clear that the registration of first information
report is mandatory under Section 154 Cr.P.C. if
the information discloses the commission of
cognizable offence and no preliminary inquiry is
permissible in such a situation. However, if the
information received does not disclose the
commission of cognizable offence but indicates
necessity for inquiry the preliminary inquiry
may be conducted in order to ascertain whether
cognizable offence is disclosed or not. Though
in sub-para 5 of para-111 of the judgement
Lalita Kumar (supra) it is mentioned that 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, though, in which
case preliminary inquiry may be made, has also
been mentioned in sub-para 6 of para-111 of the
judgement. It is clear from the above findings
that the preliminary inquiry is needed only when
the information does not disclose the cognizable
offence.

22. In the application under Section 156
(3) Cr.P.C. moved by the appellant, he has
mentioned that the "opposite party nos. 2 and 3
hurled caste based abuses and beaten him with
kicks and fists." It makes clear that in the
application itself commission of cognizable
offence has been mentioned so as per judgment
of the Apex Court in Lalita Kumari (supra) no
preliminary
inquiry
was
needed
by
the
Magistrate. The only need was to summon the
report whether the case had been registered or
not in the police station concerned regarding the
complaint. The fact is admitted by the concerned
court in the impugned order that the purpose of
summoning the police report was only to
ascertain the fact as to whether an F.I.R. in the
matter had been registered in the police station
or not and in the report of police station it is
clearly mentioned that no first information
report has been registered in the police station
concerned regarding allegation made in the
application under Section 156 (3) Cr.P.C.
11 All. Kunwar Pal Vs. State
111

23. The lower court after perusing the
application under Section 156 (3) Cr.P.C. was
aware of the fact that commission of cognizable
offence is reported in the application under
Section 156 (3) Cr.P.C. and in the report of
police station also it was mentioned that some
incident took place on the date and time
mentioned in the application under Section 156
(3) Cr.P.C. Though, in the report it is mentioned
that the applicant-appellant was hurling abuses
and after hearing the noise the opposite party
nos. 2 and 3 came out of their houses pursuaded
the applicant and sent him to his home but after
some time the applicant-appellant again came to
the shop and again started hurling abuses. Both
the opposite party nos. 2 and 3 holding his hands
then brought the applicant-appellant to his home.
The report also discloses that to pressurize
Sandip Dixit and Prem Babu Pachori this false
application has been given.

24. Thus, from the report itself it is clear
that on 07.09.2019 at 9.00 p.m. some incident
took place and what was that incident it was not
to be inquired by the police at the stage of precognizance as the application under Section 156
(3) Cr.P.C itself discloses the commission of
cognizable offence. Thus, on the basis of
judgement in Lalita Kumari (supra) it was
incumbent upon the Magistrate concerned to
order the registration of first information report
as
the
application
itself
disclosed
the
commission of cognizable offence and in that
situation
no
preliminary
inquiry
was
permissible.

25. In view of above, I am of the view that
the lower court has misinterpreted the provisions
and has wrongly relied upon the report of police
station concerned, hence the appeal is allowed.
The impugned order dated 14.10.2019 is hereby
set aside.

26. The file be sent to lower court where
the parties shall appear on 04th January, 2022.
----------
(2021)12ILR A111
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Jail Appeal No. 7744 of 2009

Kunwar Pal ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Ms. Kanchan Chaudhary

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

A. Criminal Law -Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections
302,
376/511-challenge
toconviction-accused took the deceased six year
old girl from her house and she was found dead
in the room of accused house-at that time
there was no one in the house of accusedHence, burden lies on the shoulder of accused
to prove as to how the death of deceased took
place because this fact was within the special
knowledge of the accused but accused failed to
do so-minor contradictions about the timing
when he had come and dead body was found
will not dislodge the prosecution case-Moreso,
young girl died due to asphyxia as per postmortem report, the appellant cannot be given
any benefit of doubt.(Para 1 to 17)

The appeal is dismissed. (E-6)

List of Cases cited:

1. U.O.I. Vs Dharam Pal (2019) 0 AIJEL SC 64322

2. Vikas Yadav Vs St. of U.P. (2016) 9 541

3. Maru Ram Vs U.O.I. (1980) AIR SC 2147