# Revisionist v. State of U.P

- **Citation:** (2009) 2 ILRA 501
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-06-08
- **Case number:** Criminal Revision No. 2308 of 2009
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-41646
- **Pages:** 14

## Headnote

Code of Criminal Procedure-Section 156
(3)-Rejection
of
application
by
magistrate-with observation the dispute
appear to be civil nature to approach
before police for action under Section
107/116-without considering this aspect
whether cognizable offence is made out
or
not?-held-illegal-although
the
Magistrate's power discretionary one-but
has to be exercised in judicial and not
arbitrary
manner-considering
groving
tendency of 156 (3) Application Court
expressed its great concern-to find out
the way certain guidelines issued to
check up the arbitrariness of Police-incharge to face disciplinary proceeding if
refused to lodged FIR and cognizable
offence found to be made out by the
Magistrate.

Held: Para 32
502 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Considering the above observations this
Court
gives
further
the
following
directions:

(i) When a Police Officer-in-Charge of
the police station or any other police
Officer, acting under the directions of the
Officer-in-Charge
of
police
station
refuses
to
register
an
information
disclosing a cognizable offence, the
informant
may
either
approach
the
Superintendent of Police under Section
154 (3) or the Magistrate concerned
under section 156 (3) of the Code.

(ii) If the Informant approaches the
Superintendent of Police, who finds that
the refusal of registration of F.I.R. by the
police Officer-in-Charge of the police
station was unjust or for reasons other
than valid, and where he directs for
investigation,
he
shall
initiate
disciplinary
proceedings
against
the
Officer-in-Charge of the police station for
such
non
observance
of
statutory
obligation treating the same to be a
serious misconduct justifying a major
penalty and complete the proceedings
within three months from the date he
passes an order for investigation into the
matter.

(iii) Where, the informant approaches
the Magistrate concerned under Section
156 (3) of the Code and the Magistrate
ultimately
finds
that
information
discloses a cognizable offence and direct
the police to proceed for investigation,
he shall cause a copy of the order sent to
Superintendent
of
Police/Senior
Superintendent of Police (hereinafter
referred to as the S.P/S.S.P) of the
concerned district and such S.P./S.S.P.
shall cause a disciplinary inquiry into the
matter to find out the person guilty of
such dereliction of duty i.e. failure to
discharge
statutory
obligation
i.e.
registration of an information disclosing
cognizable offence treating the said
failure as a serious misconduct justifying
major penalty and shall complete the
disciplinary proceedings within three
months from the date of receipt of the
copy of the order from the concerned
Magistrate.
After
completing
the
disciplinary proceedings, the S.P./S.S.P.
concerned shall inform about the action
taken
against
the
concerned
police
Officer-in-Charge of the police station to
the Magistrate concerned within 15 days
from the date of action taken b

## Text

_Characters 0–39,918 of 47,442. This is a partial read: ask again with offset=39918 for what follows._

2 All] Hari Shankar V. State of U.P.
501
and had married with the applicant Hari
Shankar Vishkarma. Next submission is
that the statement of prosecuttrix was
recorded before SDM and in that
statement also, she has not supported the
case of the prosecution. Regarding the
statement recorded under section 164
Cr.P.C. of the prosecutrix, it is submitted
by learned counsel that from that
statement also, it appears that the
prosecutrix was consenting party in living
with the applicant. It is further submitted
that other witnesses have not supported
the case of the prosecution

5. AGA and learned counsel for the
complainant have opposed the bail
application stating that prosecutrix has
fully supported the case of the Cr.P.C. and
hence, in this heinous crime of gang rape,
applicant should not be granted bail.

6. I have carefully gone through the
statement of the prosecutrix recorded
under section 164 Cr. P.C. although the
prosecutrix did not support the case of the
prosecution in her statement recorded
under section 161 Cr. P.C., but when her
statement
was
recorded
before
the
Magistrate under section 164 Cr. P.C. She
has fully supported the case of the
prosecution.
Therefore,
without
expressing any opinion on merit of the
case, in this heinous anti social crime of
gang rape and selling the prosecutrix from
one person to other person, the applicant
does not deserve bail.

7. Consequently, the bail application
of the applicant Hari Shankar is hereby
rejected.

8. The trial court is directed to
conclude the trial of the applicant within a
period of six months applying the
provisions of section 309 Cr.P.C. and
avoiding unnecessary adjournment.

9. Office is directed to send a copy
of this order within a week to the trial
court concerned for necessary action.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.06.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Criminal Revision No. 2308 of 2009

Roop Ram

...Revisionist
Versus
State of U.P.
...Opposite Parties

Counsel for the Revisionist:
Sri Jai Shanker Audichya

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

Code of Criminal Procedure-Section 156
(3)-Rejection
of
application
by
magistrate-with observation the dispute
appear to be civil nature to approach
before police for action under Section
107/116-without considering this aspect
whether cognizable offence is made out
or
not?-held-illegal-although
the
Magistrate's power discretionary one-but
has to be exercised in judicial and not
arbitrary
manner-considering
groving
tendency of 156 (3) Application Court
expressed its great concern-to find out
the way certain guidelines issued to
check up the arbitrariness of Police-incharge to face disciplinary proceeding if
refused to lodged FIR and cognizable
offence found to be made out by the
Magistrate.

Held: Para 32
502 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Considering the above observations this
Court
gives
further
the
following
directions:

(i) When a Police Officer-in-Charge of
the police station or any other police
Officer, acting under the directions of the
Officer-in-Charge
of
police
station
refuses
to
register
an
information
disclosing a cognizable offence, the
informant
may
either
approach
the
Superintendent of Police under Section
154 (3) or the Magistrate concerned
under section 156 (3) of the Code.

(ii) If the Informant approaches the
Superintendent of Police, who finds that
the refusal of registration of F.I.R. by the
police Officer-in-Charge of the police
station was unjust or for reasons other
than valid, and where he directs for
investigation,
he
shall
initiate
disciplinary
proceedings
against
the
Officer-in-Charge of the police station for
such
non
observance
of
statutory
obligation treating the same to be a
serious misconduct justifying a major
penalty and complete the proceedings
within three months from the date he
passes an order for investigation into the
matter.

(iii) Where, the informant approaches
the Magistrate concerned under Section
156 (3) of the Code and the Magistrate
ultimately
finds
that
information
discloses a cognizable offence and direct
the police to proceed for investigation,
he shall cause a copy of the order sent to
Superintendent
of
Police/Senior
Superintendent of Police (hereinafter
referred to as the S.P/S.S.P) of the
concerned district and such S.P./S.S.P.
shall cause a disciplinary inquiry into the
matter to find out the person guilty of
such dereliction of duty i.e. failure to
discharge
statutory
obligation
i.e.
registration of an information disclosing
cognizable offence treating the said
failure as a serious misconduct justifying
major penalty and shall complete the
disciplinary proceedings within three
months from the date of receipt of the
copy of the order from the concerned
Magistrate.
After
completing
the
disciplinary proceedings, the S.P./S.S.P.
concerned shall inform about the action
taken
against
the
concerned
police
Officer-in-Charge of the police station to
the Magistrate concerned within 15 days
from the date of action taken by him but
not later than four months from the date
of receipt of the copy of the order from
the Magistrate concerned.

(iv) The
Magistrate
concerned
shall
review the cases in which the copy of the
orders passed under Section 156 (3) of
the Code has been sent to concerned
S.P./S.S.P. quarterly and when it is
found that the concerned S.P./S.S.P. has
also failed to comply with the above
directions of this Court, he shall sent a
copy
of
his
order
along
with
the
information about non- compliance of
this
Court's
order/direction
by
the
concerned S.P./S.S.P. to the Director
General of Police, U.P., Lucknow and the
Principal
Secretary
(Home),
U.P.,
Lucknow who shall look into the matter
and take appropriate action as directed
above against the police Officer-inCharge of the police station concerned as
well as the S.P./S.S.P. concerned for his
inaction also into the matter within three
months and communicate about the
action within next one month to the
Magistrate
concerned.
The
Principal
Secretary (Home), U.P., Lucknow and the
Director General of Police, U.P. Lucknow
shall also submit a report regarding
number of the cases informed by the
concerned Magistrate in a calender year
and also the action taken, by them as
directed above by the end of February of
every year to the Registrar General of
this Court.

(v) Besides above, non compliance of
the above directions of this Court shall
also be treated to be a deliberate
defiance by the concerned authorities
above mentioned constituting contempt
of this Court and may be taken up before
the Court concerned having jurisdiction
2 All] Roop Ram V. State of U.P.
503
in the matter, whenever it is brought to
the notice of this Court.
Case law discussed:
[2007 (1) JIC 204 (All)], [2007 (1) JIC 205
(All)], 1992 Supp. (1) SCC 335, A.I.R. (32)
1945 Privy Council 18, 1980 (2) SCC 471, 2003
SCC (Crl.) 1305, JT 2008 (2) SC 8, JT 2006 (1)
SC 10, 2001 (3) Cr.L.J. 3363, 2008 (7) SCC
164.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1.

Learned
counsel
for
the
revisionist at the out set submitted that he
may be permitted to delete the opposite
parties no. 2 and 3 from the array of
parties and to make necessary corrections
in the memo of revision. The request is
allowed. The necessary corrections be
made during the course of the day.

2. Heard Sri Jai Shanker Audichya,
learned counsel for the revisionist and Sri
Mehrotra, learned A.G.A. for the State
and as agreed by the said learned counsel,
this revision is being decided finally.

3. The revision has been preferred
aggrieved by the order dated 13th
February, 2009 passed by the Special
Judge (D.A.A.) Farrukhabad in Misc.
Case No. 04/12/08 (Roop Ram Versus
Sonu
and
another)
rejecting
the
application of the revisionist preferred
under Section 156 (3) of the Code of
Criminal Procedure, 1973 (hereinafter
referred to as the 'Code') seeking a
direction
to
the
police
to
make
investigation in respect to his complaint
constituting commission of a cognizable
offence
after
registering
a
first
information report (hereinafter referred to
as the "F.I.R.").

4. It is contended by the learned
counsel for the revisionist that the court
below
has
rejected
the
application
observing that a Magistrate is not bound
to accept an application under Section 156
(3) of the Code and it is his discretion.
Further, it is also said by the court below
that the dispute prima facie appears to be
of a civil dispute, the Police reached the
spot took, appropriate action under
Sections 107 and 116 of the Code
apprehending
breach
of
peace,
the
allegations of the revisionist have not
been believed by the Police and it is open
to the revisionist to file a complaint case.
Learned counsel for the revisionist
submitted that the court below has erred
in law in failing to consider as to whether
the allegations or the information of the
revisionist amounts to occurrence of
cognizable offence or not and if that be
so, the court below ought to have directed
for investigation in the matter instead of
entering into the correctness of the
complaint. It was beyond its jurisdiction
at this stage to look into the truth of the
allegations. It is also contended that
discretion exercised under Section 156 (3)
of the Code is not arbitrary, but has to be
exercised in a lawful manner and in
accordance with law. In support of his
submissions reliance has been placed
upon Har Prasad Vs. State of U.P. [2007
(1) JIC 204 (All)] and Ram Pal Singh
Vs. State of U.P. [2007 (1) JIC 205 (All)]

5. Sri Mehrotra, learned A.G.A.
having gone through the order of the court
below could not justify the aforesaid order
as also could not dispute the proposition
advanced on behalf of the revisionist.

6. I have heard the matter at length
and perused the record as well as the
authorities cited at the Bar.
504 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
7. This matter ex-facie appears to be
plain and simple involving the correctness
of an order of the Magistrate under
Section 156 (3) of the Code refusing to
direct the Police to make investigation
into complaint of the applicant about the
occurrence of a cognizable offence but
judicial cognizance can be taken of the
fact that a large number of such cases are
being filed under Section 156 (3) of the
Code before the Magistrate concerned and
consequential proceedings have also been
carried to this Court.

8. Section 154 (1) of the Code
provides that every information relating to
the commission of a cognizable offence,
if given orally or in writing to an Officerin-charge of a police station, shall be
reduced to writing by him or under his
direction, shall be signed by the person
giving it and the substance thereof shall
be entered into a book to be kept by such
officer in such form as the State
Government may prescribe. A copy of
such information free of cost is supposed
to be given to the informant as provided
under Section 154 (2) of the Code.

9. The law has also perceived a
situation where the Officer-in-Charge of a
police station may refuse to record the
information referred to in sub-section 1
and in such a case the informant can
approach the Superintendent of Police
concerned by giving him in writing and
by post the above information and if the
Superintendent of Police is satisfied that
the information disclosed commission of
a cognizable offence, he shall either
investigate the case himself or direct
investigation
by
any
police
officer
subordinate to him in the manner
provided in the Code. The entire Section
154 of the Code, therefore, makes it
obligatory on the part of the Officer-inCharge of the police station as well as the
Superintendent of Police, as the case may
be, to record information and to make
investigation provided the information
relates to commission of a cognizable
offence. The only scope of enquiry at the
stage of Section 154 of the Code is about
the fact that the information discloses
commission of a cognizable offence.

10. In State of Haryana and others
Vs. Bhajan Lal and others 1992 Supp.
(1) SCC 335, the Apex Court had the
occasion to consider Section 154 of the
Code and it was held that the recording of
report under Section 154 (1) of the Code,
known as registration of a criminal case,
is a legal mandate. The concerned police
officer cannot embark upon an enquiry as
to whether the information given is
reliable and genuine or not and on the
contrary, subject to only scrutiny as to
whether the information discloses a
cognizable offence, the Officer-in-Charge
of a police station is under an obligation
to register a case and then to proceed with
the investigation. The refusal on the part
of an Officer-in-Charge of a police station
to register a report amounts to violation of
a statutory duty cast upon him, if in-spite
of the fact that the information discloses a
cognizable offence yet it is not registered
by him.

11. Further, in case of such a refusal,
the informant has remedy to apprise the
Superintendent of Police about the
commission of a cognizable offence and if
the information discloses such an offence,
the Superintendent of Police is also under
a statutory obligation to make or to direct
for investigation either by himself or by
an officer subordinate to him. The Apex
Court very categorically has held in
2 All] Roop Ram V. State of U.P.
505
Bhajan Lal (supra) that the police officer
should not refuse to record an information
relating to commission of a cognizable
offence and to register a case thereon on
the ground that he is not satisfied with the
reasonableness or credibility of the
information.
The
credibility
or
reasonableness of the information in fact
is
not
a
condition
precedent
for
registration of a case. It would be useful
to reproduce the following extract from
the above judgment:

"30. The legal mandate enshrined in
Section 154 (1) is that every information
relating
to
the
commission
of
a
"cognizable offence" (as defined under
Section 2 (c) of the Code) if given orally
(in which case it is to be reduced into
writing) or in writing to "an officer in
charge of a police station" (within the
meaning of Section 2 (o) of the Code) and
signed by the informant should be entered
in a book to be kept by such officer in
such form as the State Government may
prescribe which form is commonly called
as "First Information Report" and which
act of entering the information in the said
form is known as registration of a crime
or a case.
31. At the stage of registration of a
crime or a case on the basis of the
information
disclosing
a
cognizable
offence in compliance with the mandate of
Section 154 (1) of the Code, the
concerned police officer cannot embark
upon an enquiry as to whether the
information, laid by the informant is
reliable and genuine or otherwise and
refuse to register a case on the ground
that the information is not reliable or
credible. On the other hand, the officer in
charge of a police station is statutorily
obliged to register a case and then to
proceed with the investigation if he has
reason to suspect the commission of an
offence which he is empowered under
Section 156 of the Code to investigate,
subject to the proviso to Section 157 (As
we have proposed to make a detailed
discussion about the power of a police
officer in the field of investigation of a
cognizable offence within the ambit of
Sections 156 and 157 of the Code in the
ensuing part of this judgment, we do not
propose to deal with those sections in
extenso in the present context.) In case,
an officer in charge of a police station
refuses to exercise the jurisdiction vested
in him and to register a case on the
information of a cognizable offence
reported an thereby violates the statutory
duty cast upon him, the person aggrieved
by such refusal can send the substance of
the information in writing and by post to
the Superintendent of Police concerned
who if satisfied that the information
forwarded to him discloses a cognizable
offence, should either investigate the case
himself or direct an investigation to be
made by any police officer subordinate to
him in the manner provided by subsection (3) of Section 154 of the Code.
32. Be it noted that in Section 154(1)
of the Code, the legislature in its
collective wisdom has carefully and
cautiously
used
the
expression
"information" without qualifying the
same as in Section 41 (1)(a) or (g) of the
Code
wherein
the
expressions,
"reasonable complaint" and "credible
information" are used. Evidently, the
non-qualification
of
the
word
"information" in Section 154 (1) unlike in
Section 41 (1) (a) and (g) of the Code may
be for the reason that the police officer
should
not
refuse
to
record
an
information relating to the commission of
a cognizable offence and to register a
case thereon on the ground that he is not
506 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
satisfied with the reasonableness or
credibility of the information. In other
words 'reasonableness' or 'credibility' of
the said information is not a condition
precedent for registration of a case. A
comparison of the present Section 154
with those of the earlier Codes will
indicate that the legislature had purposely
thought it fit to employ only the word
"information" without qualifying the said
word. Section 139 of the Code of Criminal
Procedure of 1861 (Act 25 of 1861)
passed by the Legislative Council of India
read
that
'every
complaint
or
information' preferred to an officer in
charge of a police station should be
reduced into writing which provision was
subsequently modified by Section 112 of
the Code of 1872 (Act 10 of 1872) which
thereafter read that 'every complaint'
preferred to an officer in charge of a
police station shall be reduced in writing.
The word 'complaint' which occurred in
previous two Codes of 1861 and 1872 was
deleted and in that place the word
'information' was used in the Codes of
1882 and 1898 which word is now used in
Sections 154, 155, 157 and 190 (c) of the
present Code of 1973 (Act 2 of the 1974).
An overall reading of all the Codes makes
it clear that the condition which is sine
qua non for recording a first information
report
is
that
there
must
be
an
information and that information must
disclose a cognizable offence.

33. It is, therefore, manifestly clear
that if any information disclosing a
cognizable offence is laid before an
officer in charge of a police station
satisfying the requirements of Section 154
(1) of the Code, 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."
(emphasis added)

12. The Apex Court has further gone
into the question as to whether mere
registration of the criminal case under
Section 154 (1) of the Code ipso facto
warrants the setting in motion of an
investigation under Chapter XII of the
Code and said that the police officer if,
has reason to suspect the commission of a
cognizable offence, may proceed to
investigate the matter without the order of
the Magistrate but if he finds that the
offence is not of a serious nature or that
there is no sufficient ground for entering
on
an
investigation,
he
shall
not
investigate the same but in case a decision
taken for not investigation, he has to
submit his report to the Magistrate along
with the reasons and shall notify the same
to the informant that he will not
investigate the same or cause it to be
investigated.

13. In fact, in Emperor Vs. Khwaja
Nazir Ahmad, A.I.R. (32) 1945 Privy
Council 18, it was held that receipt and
recording of information is not a
condition precedent to the setting in
motion of a criminal investigation. If the
police is in possession through their own
knowledge or by means of a credible
though
informal
intelligence,
which
genuinely leads them to believe that a
cognizable offence has been committed,
should on their own motion undertake an
investigation into the truth of the matter
alleged. The provisions pertaining to
recording of an information that is
registration of F.I.R. are enacted for other
reasons. Its object is to obtain early
information of alleged criminal activity,
to record the circumstances before there is
2 All] Roop Ram V. State of U.P.
507
time for them to be forgotten or
embellished. Further, the report can also
be put in evidence when the informant is
examined, if it is desired to do so. The
Privy Council on page 22 said-

"In India as has been shown there is
a statutory right on the part of the police
to investigate the circumstances of an
alleged
cognizable
crime
without
requiring any authority from the judicial
authorities, and it would, as their
Lordships think, be an unfortunate result
if it should be held possible to interfere
with those statutory rights by an exercise
of the inherent jurisdiction of the Court.
The functions of the judiciary and the
police
are
complementary
not
overlapping and the combination of
individual liberty with a due observance
of law and order is only to be obtained by
leaving each to exercise its own function,
always, of course, subject to the right of
the Court to intervene in an appropriate
case........"

14. In State of Punjab and another
Vs. Gurdial Singh and others 1980 (2)
SCC 471, it has been observed that
obligation to register a case is not to be
confused with the remedy, if the same is
not
registered.
The
obligation
of
registering F.I.R. may be excused if the
Officer-in-Charge of the police station
finds that the information does not
discloses a cognizable offence or that the
dispute is pure and simple of civil nature
from the bare narration of the facts
without going into its truthfulness or that
ex-facie the information appears to be
fictitious.

15. It may also be mentioned at this
stage that no particular procedure of
drafting of information which has to be
registered, that is F.I.R., is prescribed in
the Code. In Superintendent of Police,
CBI and others Vs. Tapan Kumar Singh,
2003 SCC (Crl.) 1305, in Para 20, the
Apex Court said:

20. "It is well settled that a first
information
report
is
not
an
encyclopaedia, which must disclose all
facts and details relating to the offence
reported. An informant may lodged a
report about the commission of an offence
though he may not known the name of the
victim or his assailant. He may not even
know how the occurrence took place. A
first informant need not necessarily be an
eyewitness so as to be able to disclose in
great detail all aspects of the offence
committed. What is of significance is that
the information given must disclose the
commission of a cognizable offence and
the information so lodged must provide a
basis for the police officer to suspect the
commission of a cognizable offence. At
this stage it is enough if the police officer
on the basis of the information given
suspects the commission of a cognizable
offence, and not that he must be
convinced or satisfied that a cognizable
offence has been committed. If he has
reasons to suspect, on the basis of
information received, that a cognizable
offence may have been committed, he is
bound to record the information and
conduct an investigation. At this stage it is
also not necessary for him to satisfy
himself about the truthfulness of the
information. It is only after a complete
investigation that he may be able to
report on the truthfulness or otherwise of
the information. Similarly, even if the
information does not furnish all the
details he must find out those details in
the course of investigation and collect all
the necessary evidence. The information
508 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
given disclosing the commission of a
cognizable offence only sets in motion the
investigative machinery, with a view to
collect all necessary evidence, and
thereafter to take action in accordance
with law. The true test is whether the
information furnished provides a reason
to suspect the commission of an offence,
which the police officer concerned is
empowered under Section 156 of the Code
to investigate. If it does, he has no option
but to record the information and proceed
to investigate the case either himself or
depute any other competent officer to
conduct the investigation. The question as
to whether the report is true, whether it
discloses full details regarding the
manner of occurrence, whether the
accused is named, and whether there is
sufficient
evidence
to
support
the
allegations are all matters which are
alien to the consideration of the question
whether
the
report
discloses
the
commission of a cognizable offence. Even
if the information does not give full
details regarding these matters, the
investigating officer is not absolved of his
duty to investigate the case and discover
the true facts, if he can.

16. A cumulative reading of
Sections 154 to 157 of the Code shows
that so far as the registration of an
information about commission of a
cognizable offence is concerned, the only
thing which is to be seen is whether the
information
constitute
a
cognizable
offence and then it has to be registered but
so far as the investigation part is
concerned, there is some scope of
discretion vested with the Police Officerin-Charge of the concerned police station
but that is also subject to scrutiny by the
Magistrate having jurisdiction in such
matter and since he has also to record
reasons for not making investigation and
to inform the informant, the informant can
also have the remedy of challenging the
same before the appropriate forum. It is in
this way, the Apex Court in Bhajan Lal
(supra) has dealt with the aforesaid
provisions in para 36 to 40.

17. In the case, this Court is not
concerned about the decision of the police
authorities to investigate the matter but
the
basic
question
is
about
the
registration of an information regarding
commission of a cognizable offence and
the scope of discretion of Magistrate in
directing for investigation.

18. It is no doubt true that it has
been held that the power under Section
156 (3) of the Code is a discretionary one
vested in the Magistrate but at the same
time, it is also a well settled proposition
of law that a discretion vested in a judicial
authority has to be exercised judiciously
and not arbitrarily. This Court in Ram Pal
Singh (supra) has said that-

"At the stage of Section 156 (3)
Cr.P.C. which is a pre-cognizance stage,
once cognizable offence is disclosed
through that 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."

19. The Apex Court also in S.K.
Sinha,
Chief
Enforcement
Officer
Versus Videocon International Ltd. and
others JT 2008 (2) SC 8 said that when
the Magistrate applies his mind for taking
action i.e. ordering investigation under
Section 156 (3) of the Code, he cannot be
said to have taken cognizance of the
2 All] Roop Ram V. State of U.P.
509
offence, meaning thereby, the stage is
earlier. There, since the stage of directing
for investigation under Section 156 (3) of
the Code is a pre-cognizance stage, the
truth
or
correctness
of
the
allegation/information is not supposed to
be undergone by the Magistrate.

20. Registration of an F.I.R. in a
case like present one involves only the
process of entering the substance of the
information relating to the commission of
cognizable offence in a book kept by
Officer-in-Charge of the police station as
indicated in Section 154 of the Code. It is
for this reason that the Magistrate under
Section 156 (3) of the Code is not
required to examine the complainant on
oath since he has not taken cognizance of
any offence therein. The investigation in a
matter
of
a
crime
is
the
prime
responsibility of the police, the Magistrate
therefore, instead of wasting his time can
order investigation by the Police and for
the said purposes the F.I.R. has to be
registered by the Police.

21. In Mohammad Yusuf Vs. Smt.
Asfaq Jaha and another JT 2006 (1) SC
10 it was held that for the purpose of
enabling the police to start investigation,
it is open for the Magistrate to direct the
Police to register F.I.R. and there is no
illegality therein even though Magistrate
does not say in so many words by
directing investigation under Section 156
(3) of the Code that an F.I.R. should be
registered. It is the duty of the Officer-inCharge of the police station to register
F.I.R. regarding the cognizable offence
disclosed by the complainant and that
police officer should take further steps
contemplated under Chapter XII of the
Code only thereafter. It also held that
Section 156 (3) is wide enough to include
all such powers in a Magistrate which are
necessary
for
ensuring
a
proper
investigation and it includes the power for
order of registration of an F.I.R. and of
ordering a proper investigation, if the
Magistrate is satisfied that the proper
investigation has not been done or not
being done by the police.

22. Sometimes in a given case,
application containing information of a
cognizable offence when presented before
the Magistrate under Section 156 (3) of
the Code, from a bare reading of the
allegations may show an improbability or
falsity in the allegations or lack of
genuinty or exaggerated facts. In such
circumstances, though the Magistrate,
may not be required to go into the truth of
the information but what appears to it
from a bare reading of the complaint,
improbability or falsity in the allegations
may justify an order of refusal but such
cases would be rare and exceptional.
Normally when an information in an
application discloses commission of a
cognizable offence, instead of going into
the veracity of the matter, the Magistrate
should direct the police to investigate into
the matter for which the police would be
under an obligation, thereafter, to register
a report and proceed for investigation.
However, this would not deprive the
Magistrate
his
power
to
treat
an
application or information as a complaint
under Section 190 of the Code, even
though there may not be any prayer
seeking trial and to proceed accordingly.
This is the procedure and the course
which can be adopted by the Magistrate
as held by a Full Bench of this Court in
Ram Babu Gupta and another Versus
State of U.P. and others 2001 (3) Cr.L.J.
3363.
510 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
23. It is thus clear that power of the
Magistrate under Section 156 (3) of the
Code for directing investigation may be
discretionary, but the same is to be
exercised judiciously. The discretion,
therefore, has to be exercised by the
Magistrate on his own, from the facts
stated in the complaint and not upon the
view of the police and that too, not
arbitrarily. So far as the police is
concerned, it is under a statutory mandate
of registering report under Section 154 of
the Code as when the information is given
regarding commission of a cognizable
offence and dereliction of police officer in
discharge of the above statutory duty
cannot be taken lightly but deserves to be
taken in a more stricter manner.

24. In the case in hand, the
Magistrate though has held that a civil
dispute between the parties, was pending
in the Court of Civil Judge, Farrukhabad
but simultaneously he has permitted the
revisionist to file a complaint, meaning
thereby, he has not found that the
information is incorrect or appears to be
false or that the information does not
constitute a cognizable offence but
impressed with the fact that the police
does not believe the information of the
revisionist,
and
that
it
has
taken
proceedings under Sections 107 and 116
of the Code, he has rejected the
application though has made it open to the
applicant to file complaint. In view of
Ram Babu Gupta, (Supra) he could
have treated the application as complaint
under Section 190 of the Code and
proceeded accordingly.

25. I therefore, while having no
doubt on the exposition of law that power
of Magistrate under Section 156 (3) of the
Code is discretionary but is clearly of the
view that it has not been correctly
exercised by the court below in the case in
hand
and
the
order
impugned
is
erroneous and is liable to be set-aside.

26. However, this matter does not
end here. It is true that for an orderly
society, the importance of an effective
and efficient police force dedicated to the
public service is of utmost importance and
is the necessity of the time. It is a matter
of common knowledge that the people run
from pillar to post after occurrence of a
serious crime for mere registration of the
report but the concerned police authorities
failed to realise trauma and harassment of
such people and simply ignore the
observance of their statutory duty despite
of the same being declared mandatory and
is the law of the land settled by the Apex
Court. Crime detection and adjudication
are two separate though inseparable wings
of justice delivery system. The former is
the basic obligation of the police and
latter is in the hands of judiciary. Though
the Code provides for an alternative
remedy
of
approaching
the
Superintendent of Police and thereafter to
the Magistrate concerned under Section
156 (3) but such remedy instead of
providing any solace and relief to the
harried lot, on the contrary is adding to
their
sufferance
due
to
persistent
lacklustre attitude of Police compelling a
common man to run from one authority to
another for a simple cause of registration
of
an
information
constituting
commission of a cognizable offence, so
that the police may make investigation
according to the procedure prescribed in
the Code.

27. The Subordinate Courts are
already heavily burdened with the huge
number of such cases where the people
2 All] Roop Ram V. State of U.P.
511
having approached the Police authorities
in
vain,
then
had
approached
the
Magistrate concerned under Section 156
(3). Even this Court is now being
burdened for the only reason that the
information has not been registered by the
Police under Section 154 of the Code.
What normally ought to have been an
exception has turned out to be a routine
exercise. A very large number of
applications are being filed under Section
156
(3)
of
the
Code
before
the
Magistrates concerned and consequential
proceedings are coming frequently to this
Court also. Huge time is consumed only
in such matters though it could have been
utilized for other matters of substance and
that too only for the reason that the police
has shown blatant slackness in observance
of its statutory obligations. It appears that
the police is conveniently omitting to
remind itself that its fundamental and
basic duty is to prevent occurrence of any
crime and if it has already occurred, to
investigate and detect the crime so as to
bring the accused to justice. The first step
in this regard is as soon as the information
of a cognizable offence is received, it
must register the same and thereafter to
proceed to investigate the matter in
accordance with law.

28. This Court also take judicial
notice of the fact that the tendency
developed with the police authorities in
refusing to register F.I.R. is not for any
valid reason, as said above, but perhaps
for administrative reasons namely to show
to the higher authorities improvement of
law and order in the area within their
jurisdiction on the ground that number of
F.I.R.
registration
has
got
down
drastically
comparing
to
the
corresponding past or in respect to the
period when some other police officers
were posted thereat. It appears that the
State
Government
and
the
higher
authorities of the police department, while
assessing the performance of a police
Officer-in-Charge of a police station, take
into consideration whether FIR's have
reduced comparing to the predecessor in
office as a major factor to judge the
position of law and order. The basic data
taken
into
account
by
the
State
Government or the higher authorities of
the police department is the number of
F.I.R. of cognizable offence registered in
the concerned police station. Probably this
has led the tendency in the concerned
police authorities to refuse recording of
F.I.R. and thereby creating artificially
good record showing reduction in crime
rate due to lessor recording of F.I.R. It
totally ignores the fact that due to none
registration of F.I.R. in a large number of
cases, pertaining to cognizable offence,
the people are compelled to approach the
Magistrate by filing applications under
Section 156 (3) of the Code. This
demonstrates that the declaration of law
by the Apex Court as well as this Court
that police is under a statutory obligation
to register F.I.R. has gone down on blind
eyes with the police authorities as well as
the Government. The situation has not
shown any improvement in the method of
functioning of the police authorities in
such
matters
despite
of
repeated
observations by the Court.

29. The Court cannot overlook the
fact that criminal justice system in the
State is already over burdened. A large
number of vacancies of judicial officers in
subordinate courts are lying for one or the
other reason. Mere inaction on the part of
police authorities in observance of their
statutory duty and/or faulty system of
investigation is adding further to the
512 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
already over burdened justice system.
This has gone to an extent that the people
who are arrested in the early younger age
are still awaiting for their trial etc. though
have attained advanced old age. In many
of the matters, large number of accused
have died but the court proceedings could
not have been completed and even not
commenced in some of the cases. In many
others the trial etc. suffers due to death of
material witnesses due to prolonged time
taken in the Courts. At this stage, it would
be prudent to notice some of the
observations/directions of the Apex Court
in Lalita Kumari Vs. Government of
Uttar Pradesh and others 2008 (7) SCC
164. Paras 4 and 5 the Apex Court held :

4. It is a matter of experience of one
of us (B.N. Agrawal,J.) while acting as
Judge of the Patna High Court, Chief
Justice of the Orissa High Court and
Judge of this Court that inspite of law laid
down by this Court, the police authorities
concerned do not register FIRs unless
some direction is given by the Chief
Judicial Magistrate or the High Court or
this Court. Further, experience shows that
even after orders are passed by the
Courts concerned for registration of the
case, the police does not take the
necessary steps and when matters are
brought to the notice of the inspecting
Judges of the High Court during the
course of inspection of the Courts and
Superintendents of Police are taken to
task, then only FIRs are registered. In a
large number of cases investigations do
not commence even after registration of
FIRs and in a case like the present one,
steps are not taken for recovery of the
kidnapped person or apprehending the
accused person with reasonable dispatch.
At times it has been found that when
harsh orders are passed by the members
of the judiciary in a State, the police
becomes hostile to them, for instance, in
Bihar when a bail petition filed by a
police personnel, who was the accused
was rejected by a member of the Bihar
Superior
Judicial
service,
he
was
assaulted in the courtroom for which
contempt proceeding was initiated by the
Patna High Court and the erring police
officials were convicted and sentenced to
suffer imprisonment.

5.