# Sabiya Begam @ Malka v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 672
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-18
- **Bench:** Ajai Lamba, Ravindra Nath Mishra-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sabiya-begam-malka-v-state-of-u-p-ors-43906
- **Pages:** 13

## Headnote

Mandamus directing respondents/police agency to register First Information Report in compliance of order
dated 3.9.2015,Passed in exercise of jurisdiction under section 156(3) of the Code of Criminal Procedure,

## Text

672 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Before parting, I would like to mention that it is settled law that the compassionate employment
has to be granted in very rare necessitous circumstances.

21. In the circumstances of the case, I am of the view that there is no infirmity in the impugned order
dated 17.10.2002 passed by opposite party no.4 and the writ petition lacks merit which is hereby dismissed.

22. Costs easy.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2016

BEFORE

THE HON'BLE AJAI LAMBA, J.
THE HON'BLE RAVINDRA NATH MISHRA-II, J.

Misc. Bench No.- 5502 Of 2016

Sabiya Begam @ Malka ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Devki Nandan Srivastava, Satendra Kumar Verma

Counsel for the Respondents:
Govt. Advocate

This petition seeks issuance of a writ in the nature of

Mandamus directing respondents/police agency to register First Information Report in compliance of order
dated 3.9.2015,Passed in exercise of jurisdiction under section 156(3) of the Code of Criminal Procedure,
1973.

Perusal of the application indicates that it has been alleged that the daughter of the petitioner aged about 14
years, was living with the petitioner and was a student of Class IX. Accused Akash is of bad character and
committed the offence of rape upon daughter of the petitioner whereupon she became pregnant.When the
accused was approached, the accused told the petitioner to get the fetus aborted or else the petitioner and
her daughter would be done to death. The petitioner informed the neighbours. It has been alleged that on
account of these happenings, the accused started having enmity.

In the case in hand though order was passed by the Magistrate under Section 156(3) Cr.P.C. on
3.9.2015 yet without Any reason whatsoever, factual or legal, the F.I.R was not registered.
Investigation was not under taken for over six months. The First Information Report has been
registered after intervention of this court by way of seeking an explanation from the Station
House Officer. Considering the totality of the facts and circumstances of the case, we hereby
5 All. Sabiya Begam @ Malka Vs State Of U.P. & Ors.

673
impose costs in the sum of Rs.75,000/- to be collected from all the five police officers mentioned
in the above portion of the judgment, to be paid to the petitioner.The Director General of Police,
U.P., Lucknow, who is required to ensure that F.I.R. is registered at the earliest and investigation
is undertaken, when an order is passed by a Magistrate under Section 156(3) Cr.P.C.

Held: Para-

Case Law discussed:
Mrs. Priyanka Srivastava and another Vs. State of U.P. and others.
Anil Kumar v. M.K. Aiyappa : (2013) 10 SCC 705,
Dilawar Singh v. State of Delhi : (2007) 12
SCC 496, Lalita Kumari v. Govt.of U.P.(2014) 2 SCC 1,

(Delivered by Hon'ble Ajai Lamba, J.
&
Hon'ble Ravindra Nath Mishra-II, J.)

1. This petition seeks issuance of a writ in the nature of mandamus directing
respondents/police agency to register First Information Report in compliance of order dated
3.9.2015, passed in exercise of jurisdiction under section 156(3) of the Code of Criminal
Procedure, 1973(for short 'Cr.P.C.'), by Additional Chief Judicial Magistrate, Bahriach in Criminal
Misc. No.1690 of 2015, Police Station Dargah Shareef, District Bahriach.

2. The facts and circumstances of the case giving rise to the occasion of filing this petition
are required to be noticed.

3. It appears that in an incident of 11.5.2015, the daughter of the petitioner was done to
death. It further appears that the petitioner approached the concerned Police Station for registration
of First Information Report under Section 154 (1) Cr.P.C., and later under Section 154(3) Cr.P.C.,
however the police did not register the crime. Under the circumstances, the petitioner filed an
application under Section 156 (3) Cr.P.C. dated 9.7.2015 (Annexure No.1).

4. Perusal of the application indicates that it has been alleged that the daughter of the
petitioner aged about 14 years, was living with the petitioner and was a student of Class IX.
Accused Akash is of bad character and committed the offence of rape upon daughter of the
petitioner whereupon she became pregnant. When the accused was approached, the accused told
the petitioner to get the fetus aborted or else the petitioner and her daughter would be done to death.
 The petitioner informed the neighbours.It has been alleged that on account of these happenings, the
accused started having enmity.

5. Further allegation is that on 10.5.2015, when the petitioner was posted on security duty
in Dargah Shareef 'Mela', both the accused entered the house of the petitioner forcibly and
coercively administered a drug on the daughter of the petitioner for causing abortion, which was
resisted by the daughter. The daughter was given beatings, and with an intention to cause her death
674 INDIAN LAW REPORTS ALLAHABAD SERIES
threw her from the roof. Injuries have been received by the daughter.Neighbours gathered and one
neighbour took the daughter to his house. The petitioner got free from security duty at 5.00 a.m. on
11.5.2015 and reached the house whereupon she found her daughter in supine condition.The
petitioner brought her daughter home and thereafter took her to District Hospital. When the
daughter regained consciousness, she informed the petitioner about the entire incident.

6. It has further been alleged in the complaint that thereafter the daughter died. The
petitioner went in a shock. Benefit of mental condition of the petitioner/complainant was taken and
body of the daughter of the complainant was buried. The petitioner was threatened and was kept
confined therefore information could not be given to the police immediately. It has further been
prayed that in case the body is exhumed, the post mortem examination can be conducted so as to
unravel the truth. When the police authorities did not register a criminal case on application given
by the petitioner under Sections 154(1) Cr.P.C. and later under Section 154(3) Cr.P.C., the petitioner
filed an application under Section 156 (3) Cr.P.C. whereupon order was passed by the Magistrate
on 3.9.2015 directing registration of the crime and investigation, however, no action has been taken
by the police.Hence, this petition for issuance of a direction for registration of the crime and
effective investigation. The complaint made by the petitioner is available on record as Annexure
No.1 and order dated 3.9.2015 passed by the Magistrate is Annexure No.2.

7. It appears that the petitioner approached Additional Chief Judicial Magistrate, Bahriach
vide application dated 5.11.2015 placed on record as Annexure 2 (colly.) praying for initiation of
contempt proceedings against the police officials for not complying with order dated 3.9.2015
passed by the Magistrate.

8. Learned counsel for the petitioner contends that contempt petition might not be the
appropriate remedy, however, the petitioner being an illiterate lady who only affixes thumb
impression, and with limited means approached the nearest forum available by way of filing an
application dated 5.11.2015.

9. Despite repeated efforts, when criminal proceedings were not initiated in accordance
with law, the petitioner has approached this court. This court issued order dated 15.3.2016 in the
following terms :-

"1. The petition seeks issuance of a writ of mandamus directing Station House
Officer, Police Station Dargah Shareef, district Bahraich to register First Information Report in
deference to order passed by concerned Magistrate dated 3.09.2015.

2. Perusal of order dated 03.09.2015 (Annexure-1) passed by Addl. Chief Judicial
Magistrate, Bahraich indicates that a direction has been issued under Section 156(3) CrPC to the
Station House Officer to register First Information Report. The needful, however, has not been
done.
5 All. Sabiya Begam @ Malka Vs State Of U.P. & Ors.

675
3. We have taken note of the fact that the alleged crime was committed on
10.5.2015. By virtue of delay in investigation, evidence is likely to be lost or manipulated.

4. Station House Officer, Police Station Dargah Shareef, district Bahraich is
directed to remain present in Court on 31.3.2016 with an explanation as to under what
circumstances, an order passed by the Magistrate has been ignored. The said officer would also
show cause why cost in the sum of Rs.20,000/- be not imposed for not obeying an order passed in
due process of law.

5. It is, however, made clear that in case criminal case has already been registered
before filing of the petition, the petitioner would be liable to pay the cost.

6. List on 31.3.2016."

10. It appears that the criminal proceedings have been initiated on 30.3.2016 by way of
registering crime No.278 of 2016 under Sections 376 and 304 I.P.C., Police Station Dargah Shareef,
District Bahriach, after this court passed above extracted order.

11. The matter cannot however be allowed to rest, simply because the prayer of the
petitioner has been allowed.We are coming across a large number of cases in which the police does
not register F.I.R. even though a complaint might prima facie disclose commission of cognizable
offence. We have also noticed that the police takes weeks and months in registering F.I.R. even
after order is passed by a Magistrate under Section 156(3) Cr.P.C. The present is one such case.
Such conduct of the police results in interference in administration of criminal justice.

12. Shri Devanand Rajak, Sub Inspector, Police Station Kotwali Nagar, has filed
 affidavit dated 7.4.2016. The following are the contents of para 6 of the affidavit :-

"6. That the Superintendent of Police, thereafter directed Circle Officer-City District
Bahriach to conduct an enquiry about the carelessness for not registering the First Information
Report in compliance to the order passed by the learned Additional Chief Judicial Magistrate
Bahriach. The Circle Officer has conducted the enquiry and held following Station House Officers
namely Sri Akhilesh Kumar Mishra, Jitendra Kumar Singh, Sri Subh Suchit, Shri Sarfraj Ahmad
and Ajeet Kumar Verma were responsible for not complying with the order passed by the learned
court below. The Circle Officer has furnished the preliminary enquiry report to the Superintendent
of Police Bahriach on 05.04.2016."

13. The above extracted paragraph from the counter affidavit filed on behalf of the police
agency indicates that Circle Officer conducted inquiry and held five Station House Officers posted
in the Police Station in the interregnum period responsible for not complying with order of the
court. Preliminary inquiry report has been furnished to Superintendent of Police, Bahriach.
Superintendent of Police, Bahriach has initiated departmental proceedings. Â Names of the
delinquent employees are as under :-
676 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Shri Akhilesh Kumar Mishra,
2. Shri Jitendra Kumar Singh,
3. Shri Subh Suchit,
4. Shri Sarfraj Ahmad
5. Shri Ajeet Kumar Verma

14. All the above named officers have filed short affidavits in this Court which are to the
effect that non compliance of order passed by Additional Chief Judicial Magistrate, Bahriach under
Section 156(3) Cr.P.C. cannot be justified in any manner. The officers have assured that same
mistake will not be repeated. Essentially, the explanation given by the officers is that the order
passed by the Magistrate was not brought to the notice of the Station House Officer by Head
Moharrir and therefore the order could not be complied with.

15. Station House Officer of a police station has supervisory and superintending control
over the Police Station and has to take responsibility for the action/inaction of the officials serving
under his control. The procedure for giving information to the Station House Officer, by a
subordinate employee in the police station is also required to be prescribed by the Station House
Officer and it is required to be ensured that the procedure is followed.

16. It is evident that the superintending control of the respondents was lacking to an extent
that an order passed by a court of law was left unattended and non-compliance thereof has caused
interference in the administration of criminal justice. The crime that was required to be registered
on 3.9.2015 or immediately thereafter, has been registered on 30.3.2016, i.e. after approximately
six months. In the interregnum period,evidently, evidence would have been lost insomuch as the
body of the deceased could have been exhumed for postmortem examination, however, after this
length of time, exhumation of the body might not bring any qualitative result. Substantial injustice
has been caused to the rights of the petitioner, a lady who was supporting her daughter aged about
14 years, who was allegedly not only sexually violated but also done to death in a criminal action.

17. The law on the issue of registration of F.I.R. is required to be considered. The Hon'ble
Supreme Court of India has dealt with the issue in some detail in Criminal Appeal No.781 of 2012
decided on 19.3.2015 while dealing with Mrs. Priyanka Srivastava and another Vs. State of U.P.
and others. Following has been held (relevant portion from paragraphs 19, 20, 23, 24, 25, 26 and
27) in context of duties of the police officers to register F.I.R., under what circumstances
preliminary enquiry as regards, whether cognizable offence has been committed, can be conducted
; and duty of the Magistrate concerned when adjudicating on an application received under Section
156 (3) Cr.P.C. :-

19. In Anil Kumar v. M.K. Aiyappa : (2013) 10 SCC 705, the two-Judge Bench
had to say this:
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677

"The scope of Section 156(3) CrPC came up for consideration before this Court
in several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668] examined the requirement of
the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and
 held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or
Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a
 valid sanction order. The application of mind by the Magistrate should be reflected in the order.
The mere statement that he has gone through the complaint, documents and heard
the complainant, as such, as reflected in the order, will not be sufficient. After going through the
complaint,documents and hearing the complainant, what weighed with the Magistrate to order
investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed
expression of his views is neither required nor warranted. We have already extracted the order
passed by the learned Special Judge which, in our view, has stated no reasons for ordering
investigation."

20. In Dilawar Singh v. State of Delhi : (2007) 12 SCC 496, this Court ruled thus:

"18. ...11. The clear position therefore is that any Judicial Magistrate, before
taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If
he does so, he is not to examine the complainant on oath because he was not taking cognizance of
any offence therein. For the purpose of enabling the police to start investigation it is open to the
Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all
registration
of
an
FIR
involves
only
the process
of
entering the
substance of
the information relating to the commission of the cognizable offence in a book kept by the officer in
charge of the police station as indicated in Section 154 of the  Code. Even if a Magistrate does
not say in so many words while directing investigation under Section 156(3) of the Code that an
FIR should A registered, it is the duty of the officer in charge of the police station to register
the FIR regarding the cognizable offence disclosed by the complainant because that police officer
could take further steps contemplated in Chapter XII of the Code only thereafter.

23. At this stage, we may usefully refer to what the Constitution Bench has to say in
Lalita Kumari v. Govt. of U.P.(2014) 2 SCC 1, in this regard. The larger Bench had posed the
following two questions:-

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

(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:
678 INDIAN LAW REPORTS ALLAHABAD SERIES

"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 [pic]offence. Thus, the plain words of Section 154(1) of the Code have to
be given their literal meaning.

"Shall"
 xxx xxx xxx xxx

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.

"Information"

 xxx xxx xxx xxx

111. The Code gives power to the police to close a matter both before and after
investigation.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.

 xxx xxx xxx xxx

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."
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679
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.

24. 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. Â 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. 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
680 INDIAN LAW REPORTS ALLAHABAD SERIES
and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection
has to be adhered to.

25. 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,
......."

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

27. In our considered opinion, a stage has come in this country where
Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the
applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an
appropriate case, the learned Magistrate would be well advised to verify the truth and also
can verify the veracity of the allegations.This affidavit can make the applicant more
responsible. We are compelled to say so as such kind of applications are being filed in a
routine manner without taking any responsibility whatsoever only to harass certain
persons.That apart, it becomes more disturbing and alarming when one tries to pick up
people who are passing orders under a statutory provision which can be challenged under
the framework of said Act or under Article 226 of the Constitution of India. But it cannot
be done to take undue advantage in a criminal court as if somebody is determined to settle
the scores. We have already indicated that there has to be prior applications under
Section 154(1) Cr.P.C. and 154(3) Cr.P.C. while filing a petition under Section 156(3)
Cr.P.C. Both the aspects should be clearly spelt out in the application and necessary
documents to that effect shall be filed. The warrant for giving a direction that an
the application under Section 156(3) be supported by an affidavit so that the
person making the application should be conscious and also endeavour to see that no false
affidavit is made. It is because once an affidavit is found to be false, he will be liable for
prosecution in accordance with law. This will deter him to casually invoke the authority of
the Magistrate under Section 156(3). That apart, we have already stated that the veracity
 of the same can also be verified by the learned Magistrate, regard being had to the nature
of allegations of the case. We are compelled to say so as a number of cases pertaining to
fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical
negligence cases, corruption cases and the cases where there is abnormal delay/laches in
 initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That
apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
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681
18. To sum up the law as laid down by the Hon'ble Supreme Court of India in Mrs.
Priyanka Srivastava's case (supra) (above extracted portion), we find that the following has
been held :-

(a). Perusal of the above extracted portion from the judgment rendered in
Mrs. Priyanka Srivastava's case(supra) inheres two sets of circumstances. In the first
eventuality, it has been provided that if any information disclosing a cognizable offence is
brought to the notice of the officer incharge of a police station satisfying the requirement
of Section 154(1) Cr.P.C., the said police officer has no other option except to enter the
substance thereof in the prescribed form viz. register case on the basis of such
information.Provision of Section 154(1) Cr.P.C. is mandatory and the officer concerned is
duty bound to register a case on the basis of information disclosing a cognizable offence.

(b).In the second category are the cases which might require preliminary
enquiry to ascertain whether the information reveals commission of any cognizable
offence. As to in what type of cases and in which case preliminary enquiry is required will
depend on the facts and circumstances of each case. Some of the types of cases are
mentioned in the above extracted portion of the judgement, viz. Matrimonial
disputes/family disputes; Commercial offences; Medical negligence cases; corruption
cases; 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.

We might add that other than the above noted cases there might be cases filed
in counterblast for malicious prosecution; or on account of on going civil dispute so as to
pressurise the other side by initiating criminal proceedings.The list is not exhaustive and it
would depend on the facts and circumstances of a case whether such enquiry is required. It
has however, been specified in the judgement that such preliminary enquiry is required to
be concluded within seven days of receipt of information/complaint.

(c). It has been held by the Hon'ble Supreme Court of India that where a
Magistrate exercises jurisdiction on a complaint filed in terms of Section 156 (3) Cr.P.C. or
Section 200 Cr.P.C., the Magistrate is required to apply his mind. The application of mind
by the Magistrate should be reflected in the order. The mere statement that he has gone
through the complaint, documents and heard the complainant, as such, will not be
sufficient. After going through the complaint, documents and hearing the complainant what
weighed with the Magistrate to order investigation under Section 156 Cr.P.C., should be
reflected in the order, though a detailed expression of his views is neither required nor
warranted.

It has been clarified in the above extracted judgement that the judicial
Magistrate before taking cognizance of the offence, can order investigation under Section
156(3) Cr.P.C. If he does so, he is not to examine the complainant on oath because he was
682 INDIAN LAW REPORTS ALLAHABAD SERIES
not taking cognizance of any offence. For the purpose of enabling the police to start
investigation, it is open to the Magistrate to direct the police to register an F.I.R. Even if a
Magistrate does not say in so many words while directing investigation under Section
156(3) Cr.P.C. that an F.I.R. should be registered, it is the duty of the officer incharge of
the police station to register the F.I.R. regarding the cognizable offence disclosed by the
complainant.

It has been stressed by the Hon'ble Supreme Court of India that the
Magistrate has to remain vigilant with regard to the allegations made and the nature of the
allegations, and not to issue directions without proper application of mind. He has also to
bear in mind that sending the matter for investigation, would be conducive to justice and
then he may pass the requisite order. The Magistrate should take note of the allegations in
entirety, the date of incident and whether any cognizable case is remotely made out.

It has been specifically held that the power under Section 156(3) Cr.P.C.
warrants application of judicial mind. A court of law is involved. It is not the police taking
steps at the stage of Section 154 Cr.P.C. A litigant at his own whim, cannot invoke
authority of the Magistrate. A principled and really grieved citizen with clean hands, must
have free access to invoke the said power. It protects the citizen, but when pervert litigants
take this route to harass their fellow citizens, efforts are to be made to scuffle and curb the
same.

The Hon'ble Supreme Court of India has held that applications made under
Section 156(3) Cr.P.C. are to be supported by affidavit of the person who seeks the
invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the
Magistrate would be well advised to verify the truth and also can verify the veracity of the
allegations. The affidavit would make the applicant more responsible. The Hon'ble
Supreme of India has taken judicial notice of the fact that such applications under Section
156(3) Cr.P.C. are being filed in a routine manner without any responsibility whatsoever
only to harass certain people. An application under Section 156(3) Cr.P.C. can be filed only
after applications under Section 154(1) Cr.P.C. and 154(3) Cr.P.C. have already been filed.
These aspects should be clearly spelt out in the application and necessary documents to
that effect are required to be filed alongwith the application under Section 156(3) Cr.P.C.

19. In the considered opinion of the court, the police has no discretion not to
register F.I.R. in a case in which direction has been issued by a Magistrate under Section
156(3) Cr.P.C. In such cases, as held in the above noted judgment, the Magistrate has
already applied his mind in regard to prima facie commission of a cognizable offence,
before issuing a direction under Section 156(3) Cr.P.C.It therefore follows that once a
direction is issued by the Magistrate under Section 156(3) Cr.P.C. to register a case and
investigate, law mandates that substance of the information is entered in the prescribed
form and start investigation. The police in such cases has no discretion to delay registration
5 All. Sabiya Begam @ Malka Vs State Of U.P. & Ors.

683
of the case so as to verify facts, or even to consider whether cognizable offence has been
committed.

20. We have taken notice of the fact that the Magistrate, while issuing directions to
the Station House Officer of the concerned police station vide order dated 3.9.2015
(Annexure No.2), applied his mind on the facts and circumstances emanating from the
complaint. The prima facie satisfaction as regards the ingredients of the offence allegedly
committed has been recorded, and it has been opined that apparently offence of rape and
murder has been committed.

21. In the case in hand though order was passed by the Magistrate under Section
156(3) Cr.P.C. on 3.9.2015 yet without any reason whatsoever, factual or legal, the F.I.R
was not registered. Investigation was not under taken for over six months. The First
Information Report has been registered after intervention of this court by way of seeking
an explanation from the Station House Officer vide order dated 15.3.2016. The inaction of
the concerned officers has interfered in administration of criminal justice delivery system.

22. As has been held in the inquiry report submitted by the Circle Officer
concerned, the five Station House Officers named hereinabove, ignored the order passed by
the Magistrate rendered under Section 156 Cr.P.C. and have also failed in discharging their
statutory duty under Section 154 Cr.P.C. The petitioner, had to approach the Magistrate
again. When no action was taken, the petitioner had to approach this Court with the
grievance.

23. Considering the totality of the facts and circumstances of the case, we hereby
impose costs in the sum of Rs.75,000/- to be collected from all the five police officers
mentioned in the above portion of the judgment, to be paid to the petitioner.

24. The cost amount has been paid to the petitioner in court in cash today.

25. Learned counsel for the respondent State, has pointed out that effective
investigation is being conducted. Body of the deceased has been exhumed. It is being
verified whether daughter of the petitioner was pregnant at the relevant time and whether
the other offences have been committed or not.

26. This Court trusts that the scientific investigation would be conducted with the
assistance and aid of the best possible medical and forensic facility available in the State.

27. Shri S.P. Singh, learned A.G.A. appearing for the prosecution has assured the
court that needful would be done.

28. In view of the above, this petition is disposed of.
684 INDIAN LAW REPORTS ALLAHABAD SERIES
29. Let a copy of this order be forwarded to the Director General of Police, U.P.,
Lucknow, who is required to ensure that F.I.R. is registered at the earliest and investigation
is undertaken, when an order is passed by a Magistrate under section 156(3) Cr.P.C.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2016

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ C No.- 5520 Of 2016

C/M Shahid Akshayvar Mall Mahila Mahavidyalay & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sanjeev Singh, Ashok Khare, Awadhesh Kumar Malviya

Counsel for the Respondents:
C.S.C., Vivek Verma

The challenge in this batch of writ petitions is to the enhancement of the examination fees of different
courses in Veer Bahadur Singh Purvanchal University, Jaunpur.

In most of the writ petitions, the educational institutions affiliated to the University are before this Court,
barring few writ petitions in which students are also parties. The relief claimed in the writ petitions is for
quashing the decision of the University enhancing the fee and to permit the students to appear in the
examination without depositing the enhanced amount of fees. During the pendency of the writ petitions, the
examinations had been held and the students who are before this Court must have deposited the enhanced
fees to enable them to appear in the examinations. However, in view of the declaration made above, these
petitioners are entitled to refund of the enhanced amount.

Held: Para-

Case Law discussed:
U.P. Avas Evam Vikas Parishad and another Vs. Friends Cooperative Housing Society Ltd. And another;
M.J.P. Rohilkhand University Vs. Self Financed Colleges Welfare Association;

(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. The challenge in this batch of writ petitions is to the enhancement of the examination
fees of different courses in Veer Bahadur Singh Purvanchal University, Jaunpur. Since common
questions of fact and law are involved and therefore, with consent of learned counsel for the
parties, these writ petitions were heard together and are being decided by this common judgment.