# Saida v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 600
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-09
- **Case number:** Application U/S 482. No. 47176 of 2023
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saida-v-state-of-u-p-ors-52253
- **Pages:** 13

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 201, 202, 203,
204 & 482 - Indian Penal Code, 1860 -
Sections -376-D, 452 & 506: - Application
U/s 482 - FIR - lodged by applicant against
proposed accused - investigation - final report
- accepted by trial court - controversy is in
regard to an affidavit purportedly filed by
applicant herself that she did not want to
oppose final report - order by which the trial
court accepted final report is passed on the
basis of material available and not much being
influenced by an alleged affidavit - against
which a revisional is still pending - present case
is arising out of an application filed by applicant
u/section 156(3) Cr.P.C. that above purported
affidavit of applicant was not sworn by her and
she did not put her thumb impression against
proposed accused - whom were imposted a
woman declaring herself to be applicant who
shorn that affidavit - instead of giving direction
to lodge an FIR the learned CJM considered her
application to be a complaint and directed for
recording of St.ment of the complainant u/
section 202 Cr.P.C. - being aggrieved with the
observation of trial court that all the facts are
within the knowledge of applicant, therefore, no
need to lodge FIR - court finds that, trial court
has not appreciated contents of complaint in its
correct perspective and failed to consider that
contents of complaint and allegation show prima
facie that a serious offence has been committed
by proposed accused persons - as such, bare
facts indicate that it requires police investigation
7 All. Saida Vs. State of U.P. & Ors.
601
and for that learned Magistrate does not
require to wait till stage of 202 Cr.P.C. -
hence, application is allowed - direction
issued to trial court to consider the
application u/section 156(3) Cr.P.C. and
concern SHO & Superintendent of Police are
directed to lodge FIR and proceed further
for investigation in accordance with law.
(Para - 14, 15, 16, 27, 28)

Application u/s 482 Allowed. (E-11)

List of Cases cited:

## Text

600 INDIAN LAW REPORTS ALLAHABAD SERIES
the payee is a proprietary concern, the
complaint can be filed:

(i) by the proprietor of the
proprietary concern, describing himself as
the sole proprietor of the "payee";

(ii)
the
proprietary
concern,
describing itself as a sole proprietary
concern, represented by its sole proprietor;
and

(iii)
the
proprietor
or
the
proprietary concern represented by the
attorney holder under a power of attorney
executed by the sole proprietor."

21. Since in the instant case, the
complaint has been filed by the power of
attorney holder in his own name and not as
the power of attorney holder of the payee
of the cheque and further no offence under
Section 138 of N.I. Act, 1881, is
constituted in view of the failure of the
applicant to make assertion with regard to
service of notice and on the basis of
presumption of service after expiry of 30
days of its sending through registered post,
no cause of action has ever arisen to
opposite party No.2 to maintain the instant
complaint.

22. Therefore, for all the reasons
recorded
herein
above,
the
instant
application under Section 482 Cr.P.C. is
allowed and the entire proceedings of
Criminal Complaint Case No.61 of 2019
(Nurul Bashar vs. Mohd.Mohsin) under
Section 138 of Negotiable Instruments Act,
1881, Police Station-Bhadohi, DistrictBhadohi, pending before the court of Chief
Judicial Magistrate, Bhadohi at Gyanpur,
are hereby quashed.
----------
(2024) 7 ILRA 600
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482. No. 47176 of 2023

Saida ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Arvind Prabodh Dubey, Naushad Alam

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 201, 202, 203,
204 & 482 - Indian Penal Code, 1860 -
Sections -376-D, 452 & 506: - Application
U/s 482 - FIR - lodged by applicant against
proposed accused - investigation - final report
- accepted by trial court - controversy is in
regard to an affidavit purportedly filed by
applicant herself that she did not want to
oppose final report - order by which the trial
court accepted final report is passed on the
basis of material available and not much being
influenced by an alleged affidavit - against
which a revisional is still pending - present case
is arising out of an application filed by applicant
u/section 156(3) Cr.P.C. that above purported
affidavit of applicant was not sworn by her and
she did not put her thumb impression against
proposed accused - whom were imposted a
woman declaring herself to be applicant who
shorn that affidavit - instead of giving direction
to lodge an FIR the learned CJM considered her
application to be a complaint and directed for
recording of St.ment of the complainant u/
section 202 Cr.P.C. - being aggrieved with the
observation of trial court that all the facts are
within the knowledge of applicant, therefore, no
need to lodge FIR - court finds that, trial court
has not appreciated contents of complaint in its
correct perspective and failed to consider that
contents of complaint and allegation show prima
facie that a serious offence has been committed
by proposed accused persons - as such, bare
facts indicate that it requires police investigation
7 All. Saida Vs. State of U.P. & Ors.
601
and for that learned Magistrate does not
require to wait till stage of 202 Cr.P.C. -
hence, application is allowed - direction
issued to trial court to consider the
application u/section 156(3) Cr.P.C. and
concern SHO & Superintendent of Police are
directed to lodge FIR and proceed further
for investigation in accordance with law.
(Para - 14, 15, 16, 27, 28)

Application u/s 482 Allowed. (E-11)

List of Cases cited:

1. Anju Chaudhary Vs St. of UP & anr.- 2013 6
SCC 384,

2. XYZ Vs St. of M. P. & ors.- 2023 9 SCC 705,

3. Mona Panwar Vs High Court of Judicature at
Allahabad through Registrar General, 2011 3
SCC 496,

4. Lalita Kumari Vs Government of UP & ors.-
2013 14 SCR 713,

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Applicant before this Court is a
woman who has filed an FIR bearing
No. 0594 dated 10.10.2021 against
opposite parties no. 2 to 4 for offence
under Sections 452, 376-D, 506 IPC
wherein after investigation, a final
report being no. 01 dated 31.12.2021
was submitted.

2. It is alleged by applicant that no
notice was issued to her on final report
and opposite parties no. 2 to 4 put an
imposter of applicant and filed an
affidavit putting her forged thumb
impression
along
with
forged
photograph that she does not want to
file any protest petition and final report
may be accepted. A scanned copy of
same is pasted hereinafter :-

3. It is further case of applicant that
trial Court on basis of above referred
forged affidavit has accepted the final
report dated 18.11.2022. For reference, said
order is quoted below :-

"18.11.2022-

पत्रािली पेश हुई। िाददनी मुकदमा
श्रीमर्ी सईदा उपस्थिर्। िाददनी मुकदमा
द्िारा प्रािाना पत्र प्रथर्ुर् कर किन ककया
र्या है कक प्रािानी उक्र् िाद में िाददनी है
र्िा उक्र् बाद में िाना प्रेवषर् एि०आर०
पर कोई आपवत्त नहीिं है र्िा न ही उक्र्
िाद में कोई अचग्रम कायािाही नहीिं िाहर्ी
है। अर्ः प्रथर्ुर् अस्न्द्र्म आख्या को
थिीकार ककये िाने की प्रािाना की र्यी है।

सुना एििं पत्रािली का अिलोकन
ककया।

प्रािानी/िाददनी
सईदा
द्िारा
पररिाद यासीन आदद के विरुद्ि, िाना
ठाकुरद्िारा, स्िला मुरादाबाद में पिंिीकृर्
कराया र्या है। विपक्षीर्ण ि िाददनी
602 INDIAN LAW REPORTS ALLAHABAD SERIES
मुकदमा में मोबाइल की िोरी को लेकर
वििाद हुआ िा, स्िसके सिंबिंि में 107/116
दिं०प्र०सिं० की कायािाही की र्यी िी। पत्रािली
में सिंलग्न साक्षीर्ण/ शपिकर्ााओिं के शपि
पत्र में िाददनी की पुत्री शबीना द्िारा भी
िारा 156 (3) दिं०प्र०सिं० के माध्यम से घटना
ददनािंक 19.08.2022 में प्रािसमकी दिा कराने
हेर्ु प्रािाना पत्र प्रेवषर् ककया, स्िसका उल्लेख
िाददनी ने अपनी र्हरीर में नहीिं सलखा,
इससलए िाददनी द्िारा झूठी प्रािसमकी
सलखायी है। थिर्िंत्र साक्षी ि पीडडर्ा के
बयान 161 ि 164 दिं०प्र०सिं० में विरोिाभास
है। साि ही डॉ० ननमाला ओझा की मेडडकल
ररपोटा में पीडडर्ा/िाददनी के शरीर पर कोई
मृर्
या
िीविर्
थपमा
नहीिं
समला।
वििेिक/उपननरीक्षक के द्िारा वििेिनोपरान्द्र्
अस्न्द्र्म
आख्या
सिं0-198/2021,
दद०
31.12.2021 न्द्यायालय में थिीकृर् ककये िाने
हेर्ु प्रेवषर् की र्यी है। िाददनी द्िारा अिंनर्म
आख्या थिीकृर् ककये िाने की प्रािाना की
र्ई है। वििेिक द्िारा की र्ई वििेिना में
कोई त्रुदट नहीिं है। र्दनुसार प्रािाना पत्र भय
शपि पत्र के प्रकाश में अस्न्द्र्म आख्या सिं0198/2021, दद० 31.12.2021 थिीकार ककये
िाने योग्य है।"

4. Sri Arvind Prabodh Dubey, learned
counsel for applicant has submitted that
aforesaid order has been challenged by way
of filing a criminal revision bearing No.
402/2022 which is pending before Chief
Judicial
Magistrate,
Moradabad
and
grounds taken therein are quoted below :-

"1. यह कक ननर्रानीकर्ाा उपरोक्र्
मुकदमें की िादनी है।

2. यह कक ननर्रानीकर्ाा ने
उपरोक्र् मुकदमें की प्रिम सूिना ररपोटा
सही र्थ्यों पर सलखायी िी, ि सही
मुस्ल्िमानो के विरूद्ि सलखायी िी, परन्द्र्ु
वििेिक ने त्रुदटपूणा वििेिना करर्े हुए
पारदशी र्रीके से अपनी डयूटी को अन्द्िाम
नहीिं ददया है, और विरूद्ि कानून एि०
आर० प्रेवषर् कर दी है।

3. यह कक वििेिक द्िारा 'प्रेवषर्
अस्न्द्र्म
ररपोटा
ककसी
कानूनी
रूपसे
पोषणीय नहीिं है।

4. यह कक अिर न्द्यायालयका
दानयत्क्ि िा कक न्द्यायालय में अस्न्द्र्म
ररपोटा प्राप्र् होने के पचिार् िादी को
नोदटस देना िादहये िा, क्योकक कानून के
प्राििान के अनुसार यह आिचयक है।

5. यह कक अिर न्द्यायालय ने
िादनी / ननर्रानीकर्ाा को कोई नोदटस
अस्न्द्र्म ररपोटा प्राप्र् होने के पचिार् िारी
नही ककया।

6. यह कक अिर न्द्यायालय का
दानयत्क्ि िा कक िादी की ओर से यदद,
अस्न्द्र्म ररपोटा थिीकार हेर्ु आया िा, र्ो
उसका भली भािंनर् प्रकार से सत्क्यापन
आिचयक िा।

7. यह कक प्रथर्ुर् मामले में
मुस्ल्िमान
द्िारा
असल
(िाथर्विक
िादनी)/ ननर्रानीकर्ाा की िर्ह थििंय
अपनी र्रि से ििी िादनी श्रीमर्ी सईदा
7 All. Saida Vs. State of U.P. & Ors.
603
को बनाकर अदालर् में प्रािानापत्र ि
शपिपत्रिं देकर अस्न्द्र्म ररपोटा थिीकार
करने की प्रािाना की र्यी।

8. यह कक अस्न्द्र्म ररपोटा थिीकार
करने के प्रािानापत्र के साि सिंलग्न
शपिपत्र पर िो िोटो लर्ा है, िो िादनी /
ननर्रानीकर्ाा का नही है, और ना ही उन
पर िादनी/ननर्रानीकर्ाा के अिंर्ूठे है।

9. यह कक अिर न्द्यायालय ने इन
ििी प्रपत्रो की कोई िािंि / सत्क्यापन नही
कराया और नाही मौखखक साक्ष्य प्राप्र्
ककया।

10. यह कक मुकदमें के मुस्ल्िमान
ने िानबूझकर षडयिंत्र रिकर, कूटरचिर्
दथर्ािेि र्ैयार करके सोिी समझी थकीम
के र्हर् न्द्यायालय को िोखा देकर ििी
र्रीके से अस्न्द्र्म ररपोटा र्ैयार करा ली है,
िो कक एक बहुर् अत्क्यन्द्र् र्म्भीर विषय
है, और ककसी भी कानूनी के र्हर् िैि नही
है।

11. यह कक मुस्ल्िमान के इस
कृत्क्य से ि अिर न्द्यायालय के आदेश से
प्रािानी / ननर्रानीकर्ाा की सख्र् हकर्ल्िी
हुयी है, स्िससे मुस्ल्िमान को अनुचिर् लाभ
समला है।

12. यह न्द्यायदहर् मे ि कानून की
दृस्ष्ट से अिर न्द्यायालय का आदेश
ददनािंक-18/11/2022 हर सूरर् में खाररि
ककये िाने योग्य है।"

5. Learned counsel has further
submitted that since opposite parties no. 2
to 4 have prepared a forged document i.e.
an
affidavit
putting
forged
thumb
impression and a photograph of applicant
and submitted before trial Court, as such,
they have committed an offence and
therefore, she filed an application under
Section 156(3) Cr.P.C. against present
opposite parties no. 2 to 4 and 1 other
named as well as an unknown women with
a prayer that an FIR be lodged and
investigation be conducted against them for
committing offence of cheating, forgery,
etc. For reference, said application is
quoted below :-

"प्रािाना पत्र अन्द्र्र्ार् िारा 156
(3) सी० आर० पी० सी०

सिंबिंचिर् िाना ससविल लाइन्द्स
मुरादाबाद

श्रीमान िी,

ननिेदन है कक प्राचिानी शाम
शरीि
नर्र,
िाना
ठाकुरद्िारा,
स्िला
मुरादाबाद की ननिासी है। प्राचिानी के र्ााँि
के ही इफ्र्ेखार पुत्र ननसार, कलीम पुत्र
अिीि, यासीन पुत्र शकूर ने ददनािंक 18-082021 की रार् को प्रािानी के घर में घुसकर
र्मिंिे की नोक पर र्ैंर्रेप ककया और
इफ्र्ेखार के भाई इल्यास ने ररपोटा दिा न
कराने के सलए िमकाया िा। स्िसके
सम्बिंि में उच्िाचिकारी के आदेश पर
प्राचिानी की ररपोटा ददनािंक 10-10-2021 को
अ०स० 594/2021 िारा 376डी, 452, 506
िाना
ठाकुरद्िारा
में
दिा
हुई
िी।
मुस्ल्िमानो ने अपने प्रभाि का इथर्ेमाल
कर प्राचिानी के मुकदमे में िाईनल ररपोटा
604 INDIAN LAW REPORTS ALLAHABAD SERIES
लर्िा दी िी। वििेिक महोदय ने प्रािानी
के मुकदमे 310स0-594/2021 में िाईनल
ररपोटा सिं० 198/2021 माननीय न्द्यायालय
ए० सी० िे० एम० प्रिम मुरादाबाद में
दाखखल कर दी िी।

प्राचिानी
के
पास
माननीय
न्द्यायालय ए० सी० िे० एम० प्रिम
मुरादाबाद से मुकदमे के सम्बिंि में कभी
भी कोई सम्मन सूिना या नोदटस प्राप्र्
नही हुआ है। प्राचिानी को अचििक्र्ा के
माध्यम से मुकदमे की नकल प्राप्र् करने
पर ज्ञार् हुआ कक मुस्ल्िमान इफ्र्ेखार,
कलीम, यासीन, इल्यास ने सोिी समझी
थकीम ि षडयिंत्र के र्हर् प्राचिानी के थिान
पर ककसी अन्द्य मदहला को न्द्यायालय
श्रीमान ए० सी० िे० एम० प्रिन मुरादाबाद
में पेश करके और कुट रचिर् प्रािाना पत्र
और शपिपत्र दाखखल कर न्द्यायालय को
िोखा देकर प्रािानी के मुकदमे की िाइनल
ररपोटा सिं0 198/2021 को थिीकार करा सलया
है। मुस्ल्िमानो द्िारा न्द्यायालय में प्रथर्ुर्
शपिपत्र एििं प्रािाना पत्र पर प्रािानी के
अिंर्ूठा ननशान नहीिं है और न ही प्रािानी
का िोटो है और प्रािानी कभी न्द्यायालय में
हास्िर नहीिं हुई है। मुस्ल्िमानो के द्िारा
षड् यन्द्त्र के र्हर् कूट रचिर् दथर्ािेिो के
आिार पर ििी र्रीके से प्राचिानी के
मुकदमे की िाइनल ररपोटा थिीकार करा
सलए िाने से प्रािानी को असीम हानन हुई है
और प्रािानी बहुर् अचिक परेशान है।

प्रािानी के साि मुस्ल्िमानो के
द्िारा ििीिाडा करने पर प्रािानी ने अपनी
ररपोटा दिा कराने के सलए ददनािंकः 02-022022 को िाना ससविल लाईन्द्स मुरादाबाद
में प्रािाना पत्र ददया। िाना ससविल लाईन्द्स
मुरादाबाद द्िारा ररपोटा दिा नही करने पर
प्रािानी ने ददनािंक 27.02.2023 को एक
प्रािाना पत्र रस्ि० डाक द्िारा श्रीमान
एस०एस०पी० महोदय मुरादाबाद ि एक
प्रािाना पत्र डी० आई० िी० महोदय पररक्षेत्र
मुरादाबाद को ददया परन्द्र्ु प्रािानी की आि
र्क ररपोटा दिा नही हुई है। प्रािानी अब
श्रीमान िी के न्द्यायालय की शरण में
आयी। प्रािानी के साि घोर अन्द्याय और
अपराि हुआ है। िोकक सिंज्ञेय अपराि की
श्रेणी में आर्ा है। मुस्ल्िमानो के विरूध्द
प्रािानी
की
ररपोटा
दिा
ककया
िाना
न्द्यायदहर् में आिचयक है।

अर्ः श्रीमान िी से प्रािानी है कक
िाना प्रभारी ससविल लाईन्द्स मुरादाबाद को
प्रािानी की ररपोटा दिा कर वििेिना कराने
के आदेश पाररर् करने की कृपा करें।
श्रीमान िी की अनर् कृपा होर्ी।"

6.

Aforesaid
application
was
considered by Chief Judicial Magistrate,
Moradabad and it was disposed of by an
order impugned dated 31.03.2023 whereby
instead of giving a direction to lodge an
FIR, the application was considered to be a
complaint and matter was put for recording
statement of the complainant under Section
200 Cr.P.C. Relevant part of impugned
order is quoted below :-
7 All. Saida Vs. State of U.P. & Ors.
605

"6. प्रािाना पत्र के िखणार् किनों
से थपष्ट है कक प्राचिानी को सिंदसभार् घटना
के समथर् र्थ्यों की िानकारी है एििं उसने
अपने प्रािाना पत्र में कचिर् घटना के
समथर् र्थ्यों एििं र्िाहों का विथर्ृर्
उल्लेख ककया है। असभलेख न्द्यायालय से
सम्बस्न्द्िर् है। अर्ः इस थर्र पर पुसलस
द्िारा वििेिना कराये िाने की आिचयकर्ा
प्रर्ीर् नहीिं होर्ी है।"

7. Learned counsel has submitted that
applicant is aggrieved by aforesaid order
wherein observations of trial Court are that
all
facts
are
within
knowledge
of
applicant/complainant, therefore, there is
no need to lodge FIR.

8. Learned counsel has further
submitted that said observation is contrary
to contents of application as it is a case
where opposite parties no. 2 to 4 along with
other persons have put an imposter of
applicant and prepared a forged affidavit
that she does not want to protest final
report. Applicant always wanted to lodge
an FIR against proposed accused persons
and contents of application was for same
cause.

9. Learned counsel has next submitted
that an offence has been committed in
pleadings before Court and all original
documents are seized of with trial Court,
therefore, applicant could not submit any
evidence to it rather it was a fit case where
FIR ought to have been lodged and
investigation ought to have been carried
out.

10. Learned counsel has referred a
judgment passed by Supreme Court in case
of Anju Chaudhary vs. State of U.P. and
another (2013) 6 SCC 384 and relevant
paragraphs 13 and 14 are quoted below :-

"13. A copy of the information so
recorded under Section 154(1) has to be
given to the informant free of cost. In the
event of refusal to record such information,
the complainant can take recourse to the
remedy available to him under Section
154(3). Thus, there is an obligation on the
part of a police officer to register the
information received by him of commission
of a cognizable offence. The two-fold
obligation upon such officer is that (a) he
should receive such information and (b)
record the same as prescribed. The
language of the section imposes such
imperative obligation upon the officer. An
investigating officer, an officer-in-charge
of a police station can be directed to
conduct an investigation in the area under
his jurisdiction by the order of a Magistrate
under Section 156(3) of the Code who is
competent to take cognizance under Section
190. Upon such order, the investigating
officer shall conduct investigation in
accordance with the provisions of Section
156 of the Code. The specified Magistrate,
in terms of Section 190 of the Code, is
entitled to take cognizance upon receiving
a complaint of facts which constitute such
offence; upon a police report of such facts;
upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been
committed.

14. On the plain construction of
the language and scheme of Sections 154,
156 and 190 of the Code, it cannot be
construed or suggested that there can be
more than one FIR about an occurrence.
However, the opening words of Section 154
suggest that every information relating to
commission of a cognizable offence shall
606 INDIAN LAW REPORTS ALLAHABAD SERIES
be reduced to writing by the officer incharge of a Police Station. This implies
that there has to be the first information
report about an incident which constitutes
a cognizable offence. The purpose of
registering an FIR is to set the machinery
of criminal investigation into motion, which
culminates with filing of the police report
in terms of Section 173(2) of the Code. It
will, thus, be appropriate to follow the
settled principle that there cannot be two
FIRs registered for the same offence.
However, where the incident is separate;
offences are similar or different, or even
where the subsequent crime is of such
magnitude that it does not fall within the
ambit and scope of the FIR recorded first,
then a second FIR could be registered. The
most important aspect is to examine the
inbuilt
safeguards
provided
by
the
legislature in the very language of Section
154 of the Code. These safeguards can be
safely deduced from the principle akin to
double jeopardy, rule of fair investigation
and further to prevent abuse of power by
the investigating authority of the police.
Therefore, second FIR for the same
incident cannot be registered. Of course,
the
Investigating
Agency
has
no
determinative right. It is only a right to
investigate
in
accordance
with
the
provisions of the Code. The filing of report
upon completion of investigation, either for
cancellation or alleging commission of an
offence, is a matter which once filed before
the court of competent jurisdiction attains a
kind of finality as far as police is
concerned, may be in a given case, subject
to the right of further investigation but
wherever
the
investigation
has
been
completed and a person is found to be
prima facie guilty of committing an offence
or
otherwise,
reexamination
by
the
investigating agency on its own should not
be permitted merely by registering another
FIR with regard to the same offence. If
such protection is not given to a suspect,
then possibility of abuse of investigating
powers by the Police cannot be ruled out. It
is with this intention in mind that such
interpretation should be given to Section
154 of the Code, as it would not only
further the object of law but even that of
just and fair investigation. More so, in the
backdrop of the settled canons of criminal
jurisprudence, re-investigation or de novo
investigation is beyond the competence of
not only the investigating agency but even
that of the learned Magistrate. The courts
have taken this view primarily for the
reason that it would be opposed to the
scheme of the Code and more particularly
Section 167(2) of the Code. [Ref. Rita Nag
v. State of West Bengal [(2009) 9 SCC 129]
and Vinay Tyagi v. Irshad Ali @ Deepak &
Ors. (SLP (Crl) No.9185-9186 of 2009 of
the same date)."

11.

Aforesaid
submissions
are
opposed by Sri Mithilesh Kumar, learned
AGA for State, S/Sri Sheshadri Trivedi,
Mukesh Tiwari and Chandra Pal Singh,
learned Advocates appearing for opposite
parties no. 2 to 4 and they have submitted
that reasons assigned in impugned order
that present case does not require any
lodgement of FIR are legally sustainable
and there is no illegality in considering the
applicant filed under Section 156(3) as a
complaint.

12. Learned counsel for opposite
parties have further submitted that still
learned Magistrate still has power under
Section
201
Cr.P.C.
to
direct
for
investigation if facts so warrant. Applicant
is not being prejudiced by impugned order.
By referring the order whereby final report
was
accepted,
learned
counsel
have
submitted that order was passed on merit
7 All. Saida Vs. State of U.P. & Ors.
607
and not only on basis of contents of
affidavit.

13. Heard learned counsel for parties
and perused the record.

14. In above factual and legal
background, few facts which are not much
under dispute are that an FIR lodged by
applicant against proposed accused was
investigated, however, final report was
submitted which was accepted by an order
dated 16.11.2022. Controversy is in regard
to an affidavit purportedly filed by
applicant herself that she did not want to
oppose final report.

15. From bare perusal of above
referred order dated 18.11.2022, it would
be clearly evident that trial Court has
passed the order accepting the final report
on basis of material available and not much
being influenced by affidavit purportedly
filed by applicant. Said order dated
18.11.2022 is now being challenged by
complainant/applicant before Revisional
Court which is still pending.

16. Present case is arising out of an
application filed by applicant under Section
156(3)
Cr.P.C.
that
above
referred
purported affidavit of applicant was not
sworn by her. She did not put her thumb
impression.
Proposed
accused
have
imposted a woman declaring herself to be
applicant who sworn the affidavit and as
such an offence have committed by
proposed accused persons.

17. As referred above, application was
considered, however, instead of directing
for lodgement of FIR, learned Magistrate
opined that it could be considered as a
complaint case. It is argument of learned
counsel
for
applicant
that
aforesaid
approach was incorrect and it was a fit case
where lodgement of FIR was necessary as a
thorough police investigation is required.

18. However, said submission is
opposed by learned counsel for opposite
parties that no prejudice is caused to
applicant by impugned order and she could
still record her statement and witnesses and
trial Court will pass an appropriate order
either under Section 203 or 204 Cr.P.C., as
the case may be. Trial Court could direct
investigation at the stage of Section 201
Cr.P.C.

19. Before further considering the
rival submissions, few paragraphs of
judgment passed by Supreme Court in
XYZ vs. State of Madhya Pradesh and
others, (2023) 9 SCC 705 are quoted
below :-

"18. Second, we deal with the
issue of the discretion granted to a
Magistrate vis-à-vis the exercise of powers
under Section 156(3)CrPC. On this issue,
the High Court has held that the JMFC was
not under an obligation to direct the police
to register the FIR and the use of the
expression "may" in Section 156(3)CrPC
indicated that the JMFC had the discretion
to direct the complainant to examine
witnesses
under
Sections
200
and
202CrPC,
instead
of
directing
an
investigation under Section 156(3).

19. A Division Bench of this
Court in Sakiri Vasu v. State of U.P. [Sakiri
Vasu v. State of U.P., (2008) 2 SCC 409 :
(2008) 1 SCC (Cri) 440] expounded upon
the Magistrate's powers under Section
156(3)CrPC. In this decision, the Court
noted : (SCC pp. 412-15, paras 11, 13, 15
17 & 26)

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

13. The same view was taken by
this Court in Dilawar Singh v. State (NCT
of Delhi) [Dilawar Singh v. State (NCT of
Delhi), (2007) 12 SCC 641 : (2008) 3 SCC
(Cri) 330] . We would further clarify that
even if an FIR has been registered and
even
if
the
police
has
made
the
investigation, or is actually making the
investigation, which the aggrieved person
feels is not proper, such a person can
approach the Magistrate under Section
156(3)CrPC, and if the Magistrate is
satisfied
he
can
order
a
proper
investigation and take other suitable steps
and pass such order(s) as he thinks
necessary
for
ensuring
a
proper
investigation.
All
these
powers
a
Magistrate
enjoys
under
Section
156(3)CrPC.
***

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

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

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

20. It is clear from the above
extract that the Magistrate has wide
7 All. Saida Vs. State of U.P. & Ors.
609
powers under Section 156(3) which ought
to be exercised towards meeting the ends of
justice. A two-Judge Bench of this Court in
Srinivas Gundluri v. Sepco Electric Power
Construction Corpn. [Srinivas Gundluri v.
Sepco Electric Power Construction Corpn.,
(2010) 8 SCC 206 : (2010) 3 SCC (Cri)
652] , further clarified the powers of a
Magistrate and held that whenever a
cognizable offence is made out on the bare
reading of complaint, the Magistrate may
direct police to investigate : (SCC pp. 21819, para 23)

"23. To make it clear and in
respect of doubt raised by Mr Singhvi to
proceed under Section 156(3) of the Code,
what is required is a bare reading of the
complaint and if it discloses a cognizable
offence, then the Magistrate instead of
applying his mind to the complaint for
deciding whether or not there is sufficient
ground for proceeding, may direct the
police for investigation. In the case on
hand, the learned Single Judge [Srinivas
Gundluri
v.
Sepco
Electric
Power
Construction Corpn., 2009 SCC OnLine
Chh 308] and the Division Bench [Srinivas
Gundhuri
v.
Sepco
Electric
Power
Construction Corpn., WA No. 281 of 2009,
order dated 1-4-2010 (Chh)] of the High
Court
rightly
pointed
out
that
the
Magistrate did not apply his mind to the
complaint for deciding whether or not there
is sufficient ground for proceeding and,
therefore, we are of the view that the
Magistrate has not committed any illegality
in directing the police for investigation. In
the facts and circumstances, it cannot be
said that while directing the police to
register FIR, the Magistrate has committed
any illegality. As a matter of fact, even
after receipt of such report, the Magistrate
under Section 190(1)(b) may or may not
take cognizance of offence. In other words,
he is not bound to take cognizance upon
submission of the police report by the
investigating officer, hence, by directing
the police to file charge-sheet or final
report and to hold investigation with a
particular result cannot be construed that
the Magistrate has exceeded his power as
provided in sub-section (3) of Section
156.""

20. It would also be appropriate to
mention few paragraphs of judgment
passed by Supreme Court in case of Mona
Panwar vs. High Court of Judicature at
Allahabad through Registrar General,
(2011) 3 SCC 496 which has been relied
upon by learned Magistrate in impugned
order.

"18. When the complaint was
presented
before
the
appellant,
the
appellant
had
mainly
two
options
available to her. One was to pass an order
as contemplated by Section 156(3) of the
Code and the second one was to direct
examination of the complainant upon
oath and the witnesses present, if any, as
mentioned in Section 200 and proceed
further with the matter as provided by
Section 202 of the Code. An order made
under sub-section (3) of Section 156 of the
Code is in the nature of a peremptory
reminder or intimation to the police to
exercise its plenary power of investigation
under
Section
156(1).
Such
an
investigation
embraces
the
entire
continuous process which begins with the
collection of evidence under Section 156
and ends with the final report either under
Section 169 or submission of charge-sheet
under Section 173 of the Code. A
Magistrate can under Section 190 of the
Code before taking cognizance ask for
investigation by the police under Section
156(3) of the Code. The Magistrate can
also issue warrant for production, before
610 INDIAN LAW REPORTS ALLAHABAD SERIES
taking cognizance. If after cognizance has
been taken and the Magistrate wants any
investigation, it will be under Section 202
of the Code.

19.
The
phrase
"taking
cognizance of" means cognizance of an
offence and not of the offender. Taking
cognizance does not involve any formal
action or indeed action of any kind but
occurs as soon as a Magistrate applies his
mind to the suspected commission of an
offence. Cognizance, therefore, takes place
at a point when a Magistrate first takes
judicial notice of an offence. This is the
position whether the Magistrate takes
cognizance of an offence on a complaint or
on a police report or upon information of a
person other than a police officer. Before
the Magistrate can be said to have taken
cognizance of an offence under Section
190(1)(b) of the Code, he must have not
only applied his mind to the contents of the
complaint presented before him, but must
have done so for the purpose of proceeding
under Section 200 and the provisions
following that section. However, when the
Magistrate had applied his mind only for
ordering an investigation under Section
156(3) of the Code or issued a warrant for
the purposes of investigation, he cannot be
said to have taken cognizance of an
offence.

20. Taking cognizance is a
different thing from initiation of the
proceedings. One of the objects of
examination of the complainant and his
witnesses as mentioned in Section 200 of
the Code is to ascertain whether there is
prima facie case against the person
accused of the offence in the complaint and
to prevent the issue of process on a
complaint which is either false or vexatious
or intended only to harass such person.
Such examination is provided, therefore, to
find out whether there is or not sufficient
ground for proceeding further."

21. Applicant in application u/s 156
(3) Cr.P.C. has alleged that proposed
accused persons have imposted a woman in
place of applicant and executed an affidavit
that she has no objection to final report.
Complainant
has
also
alleged
that
photograph put on affidavit was not of her
nor she has put her left thumb impression.
Proposed accused have committed a
forgery and prepared a forged document
and placed before learned Magistrate and
as such a serious offence was committed
before Court. As such it is required
thorough
police
investigation.
For
reference, relevant part of application is
quoted below :-

"प्राचिानी
को
अचििक्र्ा
के
माध्यम से मुकदमे की नकल प्राप्र् करने
पर ज्ञार् हुआ कक मुस्ल्िमान इफ्र्ेखार,
कलीम, यासीन, इल्यास ने सोिी समझी
थकीम ि षडयिंत्र के र्हर् प्राचिानी के थिान
पर ककसी अन्द्य मदहला को न्द्यायालय
श्रीमान ए० सी० िे० एम० प्रिन मुरादाबाद
में पेश करके और कुट रचिर् प्रािाना पत्र
और शपिपत्र दाखखल कर न्द्यायालय को
िोखा देकर प्रािानी के मुकदमे की िाइनल
ररपोटा सिं0 198/2021 को थिीकार करा सलया
है। मुस्ल्िमानो द्िारा न्द्यायालय में प्रथर्ुर्
शपिपत्र एििं प्रािाना पत्र पर प्रािानी के
अिंर्ूठा ननशान नहीिं है और न ही प्रािानी
का िोटो है और प्रािानी कभी न्द्यायालय में
हास्िर नहीिं हुई है। मुस्ल्िमानो के द्िारा
षड् यन्द्त्र के र्हर् कूट रचिर् दथर्ािेिो के
7 All. Saida Vs. State of U.P. & Ors.
611
आिार पर ििी र्रीके से प्राचिानी के
मुकदमे की िाइनल ररपोटा थिीकार करा
सलए िाने से प्रािानी को असीम हानन हुई है
और प्रािानी बहुर् अचिक परेशान है।"

22. Attempt of complainant to lodge
FIR by filing an application before
Superintendent of Police was failed though
in view of judgment of Lalita Kumari vs.
Government of U.P. and others, 2013
(14) SCR 713, since it was a cognizable
offence, police ought to have lodged an
FIR.

23. Trial Court has placed reliance on
Mona Panwar (supra) and has referred
the same, however, it has been observed
therein that on an application filed under
Section 156(3) Cr.P.C., Magistrate could
either direct to lodge FIR or could direct to
register as a complaint mainly to ascertain
that whether there is a prima facie case
against accused persons on basis of
contents of complaint or not.

24. Aforesaid observations were made
since appellant before Supreme Court was
a Judicial Magistrate and she has passed an
order to treat application filed before her as
a complaint case and this Court in a
judgment wherein the order was under
challenge passed some remarks.

25. There is no dispute that
Magistrate has discretion to pass direction
for lodgement of FIR on an application
under Section 156 (3) Cr.P.C. or treated as
a complaint as well as Magistrate has also a
discretion
while
proceeding
to
call
investigation report from police.

26. Facts in present case are different
since the applicant has made specific
allegation of forgery committed by accused
persons. They have imposted a woman
declaring her to be the applicant and not
only put a forged photograph but her thumb
impression also and such an affidavit was
filed before Court. Therefore, from the
facts as narrated in complaint, it is
indicated that proposed accused have
committed serious offence that they have
allegedly tried to mislead the Court by
putting forged documents.

27. In this regard, observations of
Supreme Court in XYZ (supra) would be
relevant that in such cases where contents
of application filed under Section 156(3)
Cr.P.C. not only disclosed that a cognizable
offence was committed but bare facts of
complaint clearly indicate that there is a
need for thorough police investigation, then
the discretion granted in Section 156 (3)
Cr.P.C. can only be read as it being the
Magistrate duty to order the police to
investigate. Further, trial Court has not
appreciated contents of complaint in its
correct perspective and failed to consider
that contents of complaint and allegation
show prima facie that a serious offence has
been committed by proposed accused
persons that they have allegedly committed
a forgery and prepared a forged affidavit
which was filed before the Court. As such,
bare facts indicate that it requires police
investigation
and
for
that
learned
Magistrate does not require to wait till
stage of 202 Cr.P.C. and it ought to have
been exercised his discretion to direct for
police investigation.

28. Outcome of above discussion is
that this application is allowed and
impugned order dated 31.03.2023 passed
by Chief Judicial Magistrate in Criminal
Misc. Case No. 522/2023 (Saida vs. Iftekar
and others), Police Station- Thakurdwara,
612 INDIAN LAW REPORTS ALLAHABAD SERIES
District- Moradabad is set aside and it is
directed that application under Section
156(3) Cr.P.C. filed by applicant be
considered
and
concerned
SHO
and
Superintendent of Police, Moradabad are
directed to lodge FIR on basis of contents
made in application and proceed further for
investigation in accordance with law.

29. A copy of this order be sent to
concerned Magistrate as well as concerned
Superintendent of Police for compliance.

30. Registrar (Compliance) to take
steps.
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(2024) 7 ILRA 612
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2024

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ C No. 3791 of 2020

M/s Lotus Boulevard Espacia Apartment
Owners Association & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Nikhil Kumar, Prashant Kanha

Counsel for the Respondents:
Anshul
Kumar
Singhal,
C.S.C.,
Kaushalendra Nath Singh, Raghav Dev
Garg

Civil Law-(The Societies Registration
Act, 1860-Section 12-D(c)) (The Uttar
Pradesh
Apartment
(Promotion
of
Construction,
Ownership
and
Maintenance) (Amendment) Act, 2016Section-14(2)) (The U.P. Apartment
(Promotion of Construction, Ownership
and Maintenance) Act, 2010-Section14(2))- The sole ground for cancellation of
the registration of Respondent No. 1 is that
the occupancy of the flats of the building
was less than 60% therefore, in view of the
provisions made in the Act, 2016, the
registration of Petitioner No. 1 could not
have
been
done-The
registration
of
Petitioner No. 1 has been done as per
Section 14(2) of the Act of 2010 but the
said registration has been cancelled relying
on the amended Section 14(2) in terms of
the Act, 2016 whereas the Act, 2016 itself
has not come into force till date, as till date
notification contemplated under Section
1(2) of the Act, 2016 has not been issued.
Result impugned order quashed. (Para 12,
13, 14 & 16)

Writ petition allowed. (E-15)

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard learned counsel appearing for
the petitioners, learned Standing Counsel
appearing for Respondents No. 1, 3 & 4 and
Mr. Kaushlendra Nath Singh, learned counsel
appearing for Respondent No. 2.

2. This Court vide order dated
23.04.2024 issued fresh notice to Respondent
No. 6 and direction was given to serve the
notice on Respondent No. 6 through 'dasti'.
The affidavit of service has been filed by the
petitioners indicating therein that notice of the
writ petition has been served on Respondent
No. 6, but none has appeared on its behalf.

3. Petitioners through this writ petition
have assailed the order dated 15.01.2020 passed
by the Deputy Registrar, Firms, Societies and
Chits, Moradabad whereby, he in exercise of
his powers under Section 12-D(c) of the
Societies Registration Act, 1860, has cancelled
the registration of M/s Lotus Boulevard Espacia
Apartment Owners Association (Registration
No. GBN/00836/2019-2020).

4. Facts of the case, in brief, are that
the residents of Towers No. 31 to 38