# Sahab Lal v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 1317
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-27
- **Case number:** Criminal Appeal No. 2184 of 2023
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sahab-lal-v-state-of-u-p-anr-50534
- **Pages:** 5

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 154 (1) &
156(3) - Against rejection of application -
Maintainability - As per FIR, son of
informant was beaten cruelly by opposite
party no.2 - He refused to go to school -
When
he
again
attended
school
on
21.9.2022,
he
was
again
beaten
-
Thereafter, he fell ill, became incapable of
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
movement and performing his normal life
- Referred to Medical College by district
hospital where he expired after four days -
Appellant filed application u/s 156(3)
CrPC, report was called - As per report he
did not attend school on 20.9.2022 - The
injured
was
medically
examined
in
Hospital on 19.10.2022, wherein three
injuries of simple nature found - The
injured was suffering from kidney disease,
advised
for
dialysis
and
during
his
treatment, died on 28.10.2022 - Held, all
injuries are simple in nature, does not
disclose
any
cognizable
offence
-
Regarding SC/ST Act, should be read in
light of substantive offence - Informant
has equally efficacious remedy to file
complaint
before
magistrate
having
jurisdiction - Hence, impugned order
suffers with no illegality and to file appeal
without adopting due procedure is misuse
of process of law. (Para 5, 11, 15)

Appeal dismissed. (E-14)

List of Cases cited:

## Text

8 All. Sahab Lal Vs. State of U.P. & Anr.
1317
humiliation to the victim but at the same
time a false allegation of rape can cause
equal distress, humiliation and damage to
the accused as well. The accused must also
be protected against the possibility of false
implication..... there is no presumption or
any basis for assuming that the statement of
such a witness is always correct or without
any embellishment or exaggeration."

Similar view has been taken by
Hon'ble Supreme Court in Tameezuddin
versus State (NCT of Delhi (2009)15 SCC
566."

27. There are latches in the prosecution
case. First, the prosecutrix on her own accord
went away with the appellant in absence of
her parents leaving minor children. Secondly,
she traveled with the appellant to Chennai
through public transport and at no point of
time, she raised any alarm which shows that
she was a consenting party. Even in Chennai
she stayed for a period of 30 days, however,
she never made any effort to raise alarm
which shows that she went with the appellant
with her consent.

28. So far as the photocopy of the high
school marksheet which has been produced
before the trial court is concerned, it has not
been proved by the prosecution, thus, no
reliance could be placed upon it by the trial
court
while
convicting
the
appellant.
Certificate of CMO according to which the
prosecutrix is major has been proved by PW4. No corroborative material has been found
by PW-4 while examining the prosecutrix.
The testimony of PW-1 and PW-2 are
contradictory to that of the prosecutrix so far
as her age is concerned.

29. Thus, it appears to be a case of
false implication. The prosecutrix was
more than 17 years at the time of the
offence and prior to the amendment by
virtue of Act 13 of 2013 with effect from
03.02.2013, age of consent for the purposes
of Section 375 IPC was 16 years, hence, no
offence under Section 376 IPC could have
been said to be made out.

30. In view of the above, the
judgment
impugned dated
19.09.2006
(supra) is set aside. The appeal is allowed.
The accused-appellant is acquitted. If he is
on bail, his bail bonds are cancelled and the
sureties discharged.

31. Let the lower court record be sent
back to the trial court along with a copy of
this judgment.
----------
(2023) 8 ILRA 1317
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 2184 of 2023

Sahab Lal ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Vineet Kumar Mishra, Malti Mishra

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 154 (1) &
156(3) - Against rejection of application -
Maintainability - As per FIR, son of
informant was beaten cruelly by opposite
party no.2 - He refused to go to school -
When
he
again
attended
school
on
21.9.2022,
he
was
again
beaten
-
Thereafter, he fell ill, became incapable of
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
movement and performing his normal life
- Referred to Medical College by district
hospital where he expired after four days -
Appellant filed application u/s 156(3)
CrPC, report was called - As per report he
did not attend school on 20.9.2022 - The
injured
was
medically
examined
in
Hospital on 19.10.2022, wherein three
injuries of simple nature found - The
injured was suffering from kidney disease,
advised
for
dialysis
and
during
his
treatment, died on 28.10.2022 - Held, all
injuries are simple in nature, does not
disclose
any
cognizable
offence
-
Regarding SC/ST Act, should be read in
light of substantive offence - Informant
has equally efficacious remedy to file
complaint
before
magistrate
having
jurisdiction - Hence, impugned order
suffers with no illegality and to file appeal
without adopting due procedure is misuse
of process of law. (Para 5, 11, 15)

Appeal dismissed. (E-14)

List of Cases cited:

1. Lalita Kumari Vs St. of U.P. & ors., AIR 2014
SC 187

2. Hari Singh Vs St. of U.P., (2006) 5 SCC 733

3. Mohd Yousuf Vs Smt. Afaq Jahan & anr.2006
(1) SCC 10

4. Dilawar Singh Vs St. of Delhi, 2007 (10) SCC 585

5. M. Subramaniam & ors. Vs S. Janaki & ors.,
AIR 2020 SC 387

6. Sudhir Bhaskarrao Tambe Vs Hemant
Yashwant Dhage & ors., 2016 (6) SCC 277
(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

1. Heard learned counsel for the
appellant, learned AGA for the State and
perused the record.

2. The present criminal appeal U/s
14(A)-1 of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 has been filed with the prayer to
set aside the order dated 20.4.2023 passed
by learned Special Judge, SC/ST (P.A.)
Act, Hardoi arising out of Misc. Case No.
721 of 2022 U/s 156(3) CrPC by which the
application of the appellant was rejected.

3. It is submitted by learned counsel
for the appellant that learned trial court did
not consider the statement of the witnesses
available on record. Learned trial court has
wrongly appreciated the evidence available
on record ignoring the material of the case.
Hence, the impugned order is erroneous
and suffers from manifest error of law and
and is liable to be set aside.

4. At the very outset, learned AGA
submitted that the present appeal is not
maintainable as the appellant has equally
efficacious remedy available with him to
file complaint on the basis of the facts and
circumstances of the case. The injuries are
simple in nature. It is also submitted that
the report was called for by the magistrate
on the application U/s 156(3) CrPC and on
inquiry, the incident was found false.
Hence the application U/s 156(3) CrPC has
been rightly rejected and the appeal is
liable to be dismissed.

5. Briefly the contents of the FIR are
that
the
complainant belong
to
the
scheduled caste and opposite party is
Brahmin by caste. The son of the informant
namely, Anoop Kumar was studying in
Class VII in Shail Kumari Bateshwar Dayal
Public Inter College, Sahijna, Hardoi.
Opposite party no.2, Pradeep Kumar
Dwivedi has beaten the son of the
informant cruelly and traumatised him.
Therefore his son refused to go to school.
When the son of the informant again
attended to school on 21.9.2022, he was
8 All. Sahab Lal Vs. State of U.P. & Anr.
1319
again beaten by fist, kicks and danda.
Thereafter his son fell ill and he became
incapable of movement and performing his
normal life. He was referred to King
George Medical College, Lucknow by
district hospital where his son expired after
four days. On the basis of the application
moved U/s 156(3) CrPC, a report was
called from the police station concerned.
As per report sent by the police station
concerned, the son of the informant did not
attend the school on 20.9.2022. The injured
was medically examined in Balrampur
Hospital
at
Lucknow on 19.10.2022
wherein three injuries of simple nature
were found. The injured was suffering from
kidney disease, therefore he was advised
for dialysis and during his treatment, he
died on 28.10.2022. According to the post
mortem report, the cause of death was
shown septicemia due to illness. As per
medical report, the cause of death is
septicemia and shock. The appellant had
stated in application that he applied for post
mortem of his son by Panel, but the same is
not disposed off.

6. According to the facts and
circumstances of the application U/s 156(3)
CrPC, the date of incident is shown as
20.9.2022 and 21.9.2022. However, as per
primary inquiry conducted by the police
station,
the
injured
was
medically
examined
in
KGMC,
Lucknow
on
19.10.2022 and three minor injuries were
found on his body which was found 2-4
days prior to the medical examination.
Thereafter, the injured was medically
treated in Rajdhani Hospital, Dubagga
Road, Lucknow where he was advised for
dialysis and during the course of treatment,
the injured expired.

7. Learned counsel for the appellant
further submitted that police report is not
reliable to the intent that the injured did not
attend the school on 20.9.2022. However,
as per Annxure-4 annexed with the appeal,
he was given home work in his diary.
Prima facie, it appears that the injured
attended the school on 20.9.2022 and
21.9.2022 both.

Section 156 CrPC reads 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."

8. A magistrate may use his authority
U/s 156(3) CrPC on pre and post
cognizance. The power may include the
police officers incharge on recording the
case and concluding an investigation.
Anyone can begin the legal procedure by
reporting a cognizable offence to the
police. The police are required by law to
open an investigation and record a case
after receiving such information.

9. According to the section 154(1) of
the CrPC, any information relating to the
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
commission of cognizable offence provided
to an in-charge of the police station
whether verbally or in writing must be
reduced to writing and signed by them. FIR
is an essential document in our nations
criminal justice system.

10. The Hon'ble Apex Court has
already made it clear that the police
authorities must register an FIR upon
receiving complaint in Lalita Kumari vs.
State of U.P. and others. The police
authorities are required to carry out such
application moved U/s 156(3) CrPC. The
magistrate is not merely a simple office just
to register the case without applying his
judicial mind. He must believe that there is
justification for the police to register the
case and conduct an investigation. The
police as well as magistrate is permitted to
look into the offence without FIR whether
any cognizable offence is made out or not.
Before passing an order for registering the
FIR, the court has to see at the very outset
whether a cognizable offence is made out.

11. From the perusal of the
application U/s 156(3) CrPC, however, it
is said that the injured was beaten badly
by opposite party no.2, but the medico
legal examination available on record
reveals that the three injuries were found
on the body of the injured, which are as
follows:

"(i) Contusion swelling of 3.0
cmx2.0 cm on right side of the head 3 cm
above from the right ear;

(ii) Contusion of 4.0 cm x 3.0 cm
on left side of lower abdomen 1 cm away
from umbilicus;

(iii) Scabbed abrasion 3cm x 2cm
on left side of buttock."

12. All the injuries are simple in
nature. It does not disclose any cognizable
offence in the Indian Penal Code. So far as
the provisions of SC/ST Act are concerned,
it is to be read in the light of substantive
offence.

13. In Hari Singh vs. State of U.P.
(2006) SCC, it was decided that the
complainant may move a complaint before
the magistrate having jurisdiction to take
cognizance, if the police fails to investigate
the incident. The law does not allow the
magistrate to order an investigation U/s
156(3) CrPC, magistrate is required to
enquiry in the complaint as provided in
Chapter XIV of the Code before taking
cognizance U/s 190, 200 and 204 CrPC.
During the pre-cognizance phase, if a
person is aggrieved that his FIR is not
registered U/s 154 CrPC and a proper
investigation has not been made by the
officer-in-charge of the concerned police
station,
such
aggrieved
person
can
approach the Superintendent of Police or
other police officer superior in rank to the
officer-in-charge of the police station U/s
154(3) CrPC by an application in writing.
Even if that does not find any satisfactory
result in the same, the FIR is not registered
or even after it registering the FIR, proper
investigation is not made, it is open for
aggrieved person to file an application
under
Section
156(3)
CrPC
before
magistrate. If such application is filed, then
magistrate may order for registration of
FIR and proper investigation. In Mohd
Yousuf vs. Smt. Afaq Jahan and Anr 2006
(1) SCC 10 and Dilawar Singh vs. State of
Delhi 2007 (10) SCC 585, the Hon'ble
Apex Court took similar view.

14. The Hon'ble Apex Court affirmed
the Sakiri Vasu ruling in case of M.
Subramaniam and Others v. S. Janaki
8 All. Surendra Prajapati Vs. State of U.P. & Anr.
1321
and Others (2020) SCC, citing an earlier
decision in Sudhir Bhaskarrao Tambe v.
Hemant Yashwant Dhage and Others
(2010) SCC. The remedy for aggrieved
party is to approach the concerned
Magistrate U/s 156(3) CrPC, if they have
grievance with the police have not
registered the FIR U/s 154 of the CrPC and
envisages that if the police refused to
register the FIR and after registering the
FIR did not conduct the investigation
properly, the informant has a right to move
an application before the S.P.. when the
victim requested U/s 156(3) CrPC, they
must follow all the steps provided in
Section 154(1) and 154(2) of the CrPC.

15. From the above discussion, it is
evident that no cognizance offence is made
out on the basis of the contents disclosed in
application moved U/s 156(3) CrPC and
medical report. The contents regarding
SC/ST Act are to be read in the light of
substantive offence. The informant has
equally efficacious remedy to file a complaint
before the magistrate having jurisdiction to
try the case. The Supreme Court discussed
the above mentioned provisions of law in its
judgements very well. Hence, the order of the
trial
court
suffers
with
no
illegality,
irregularity or perversity. To file an appeal
without adopting due procedure is the misuse
of process of law.

16. In the light of the above
discussions, the appeal is hereby dismissed.
----------
(2023) 8 ILRA 1321
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.
Criminal Revision No. 412 of 2023

Surendra Prajapati ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Anil Kumar Prajapati

Counsel for the Respondents:
G.A.

(A) Criminal Law - Revision - The Code of
Criminal Procedure, 1973 - Section 125 -
maintenance - amount of permanent
alimony awarded to the wife must be
befitting the status of the parties and the
capacity of the spouse to pay maintenance
- Maintenance is always dependent on the
factual situation of the case - court would
be justified in moulding the claim for
maintenance passed on various factors.
(Para -8)

Court awarded Rs. 4,000/- pm for maintenance
- to wife of revisionist - based on reasonable
cause - no evidence of an independent source
of earning of wife - finding of court below based
on record and factual evidence - wife of
revisionist residing separately from her husband
due to reasonable cause - divorce petition filed
by wife (respondent no. 4) against her husband
(revisionist)
-
cannot
be
considered
a
presumption of alleged separation without
sufficient cause.(Para -10)

HELD:- No significant legal or factual error in
the order passed . Due to revisionist's unproven
income as a white washer and painter, and his
responsibility to maintain himself and care for
family members, there is a need to reduce the
maintenance
liable
amount.
Court
placed
revisionist's reliance on daily-wage labor at Rs.
200/- to 250/- per day. Family court's judgment
modified from Rs. 4,000/- to Rs. 3,000/- per
month, with existing maintenance payments
adjusted accordingly. Respondent no. 2 can
apply for modified amount if they can prove
they earn more monthly through private work
than the revisionist's evidence. (Para -11,12)

Revision disposed of. (E-7)