# Smt. Kiran Devi v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-10-03
- **Case number:** Criminal Misc. Application No. 23597 of 2007
- **Bench:** M.K. Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kiran-devi-v-state-of-u-p-and-others-41209
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section-2 (d)
"Complaint"-meaning
and
scope
explained-any application made before
the Magistrate u/s 156 (3) also within
the meaning of complaint.

Held: Para 12

Therefore, in case the complainant files
an application under Section 156(3)
Cr.P.C. the same can be treated as
complaint under Section 200 Cr.P.C.
Case law discussed:
2007 ACC-521
2001 (43) ACC-50
2001 (3) Crim.-384

Code of Criminal Procedure-156 (3)-
application before Magistrate-whether
the Magistrate is bound to direct the
Police to register and investigate the
case in each and every cases? Held-"No".

Held: Para 20

Therefore, the Magistrate cannot be held
to be bound to direct for registration of
case on every application filed under
Section 156 (3) Cr.P.C. otherwise this
provision would result in harassment to
innocent persons and become a tool for
shrewd litigants.
Case law discussed:
2006 (1) SCC (Crl.)-678, 2006 (4) SCC-359,
2004 (7) SCC-768, 1996 (11) SCC-582, 2007
(3) SCC (Crl.)-1, 2002 (44) ACC-670

## Text

3 All] Smt. Kiran Devi V. State of U.P. and others
811
as well as to the "High Brass Hierarchy
late father of the petitioner" and as such
inaction regarding adjudication of the
claim of petitioner the respondent no. 1 is
illegal and violates the valuable rights of
the petitioner without any rhyme and
reason.

9. It is admitted fact that (1)
immediately after the death of the
petitioner's father, his mother moved an
application
for
appointment
on
compassionate ground, which later on she
declined and decided to carry on the
family with whatever resources (2) the
petitioner was a minor at the time of death
of his father as he has been educated by
his mother and at present he holds decree
of B. Tec. in Bio Technology (3) mother
able to sustained the family about more
than 5 years and has given education to
the petitioner. The daughter according to
the learned counsel for the petitioner is
major and she has not disclosed her age
appended as annexure no. 10 A to the writ
petition is sufficient to show that the
family of the deceased was not in indigent
circumstances.

10. It might be that in the case of Sri
R. S. Tripathi a vacancy was available for
appointment on the post of Vishesh
Karyadhikari, Manwadhikar Ayog at that
time and was offered. The appointment on
compassionate ground is not a legal right
of any member of the family of the
deceased. If the family is not old penury
and or not in indigent circumstances, the
other needy families of the deceased
employee may be considered. As stated
earlier, his mother offered for a job and
later on decline to accept the job because
she wanted her son to get employment on
compassionate
ground
and
for
this
purpose a request was also made to set
aside
the
post
reserved
for
the
appointment of the petitioner. In my
opinion there is no such reason in the U.
P. Dependent of Government Servant.

11. Rule, 1974 given a legal right to
the family member of the deceased to
request a post to be reserved for minor
son or daughter till attaining the majority.
Normally the application is to be moved
within five-years after the death of the
father, which was done in the instance
case by the mother but decline to accept.
She could not have moved anotherapplication for appointing her son at the
end of five years limitation provided
under the Rules. If she had not applied for
the job then only the second application
could have been moved by the petitioner
within five years.

12. For the reason stated above, this
court is not inclined to interfere in the
matter.

The writ petition is accordingly
dismissed.

No order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.10.2007

BEFORE
THE HON'BLE M.K. MITTAL, J.

Criminal Misc. Application No. 23597 of
2007

Smt. Kiran Devi

...Applicant
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Applicant:
Sri Mithilesh Kumar Gupta
812 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section-2 (d)
"Complaint"-meaning
and
scope
explained-any application made before
the Magistrate u/s 156 (3) also within
the meaning of complaint.

Held: Para 12

Therefore, in case the complainant files
an application under Section 156(3)
Cr.P.C. the same can be treated as
complaint under Section 200 Cr.P.C.
Case law discussed:
2007 ACC-521
2001 (43) ACC-50
2001 (3) Crim.-384

Code of Criminal Procedure-156 (3)-
application before Magistrate-whether
the Magistrate is bound to direct the
Police to register and investigate the
case in each and every cases? Held-"No".

Held: Para 20

Therefore, the Magistrate cannot be held
to be bound to direct for registration of
case on every application filed under
Section 156 (3) Cr.P.C. otherwise this
provision would result in harassment to
innocent persons and become a tool for
shrewd litigants.
Case law discussed:
2006 (1) SCC (Crl.)-678, 2006 (4) SCC-359,
2004 (7) SCC-768, 1996 (11) SCC-582, 2007
(3) SCC (Crl.)-1, 2002 (44) ACC-670

(Delivered by Hon'ble M.K. Mittal, J.)

1. This application has been filed for
quashing the orders dated 20.8.2007 and
28.5.2007 passed by Sessions Judge
Gazipur,
in
Criminal
Revision
No.
385/07, Smt. Kiran Vs. State of U.P. and
Judicial Magistrate, Saidpur, District
Ghazipur in Criminal Misc. Case No.
134/IX/07 respectively.
2. Heard Sri Mithilesh Kumar Gupta
learned counsel for the applicant, learned
AGA and perused the material on record.

3. The brief facts of the case are that
the applicant filed an application under
Section 156(3) Cr.P.C. against 7 accused
persons. The learned Magistrate by order
dated 28th May 2007 directed that the
application be treated as complaint and
accordingly fixed 3rd July 2007 for the
statement of the complainant under
Section 200 Cr.P.C. Against that order the
applicant filed a criminal revision in the
Court of the Sessions Judge which has
been dismissed by order dated 20.8.2007.
Feeling aggrieved the present application
has been filed.

4. The contention of the learned
counsel for the applicant is that the
learned Magistrate has erred in directing
that the application under Section 156(3)
Cr.P.C. be treated as a complaint case.
According to him the accused persons had
caused injuries to the applicant and in the
circumstances the learned Magistrate
should have directed for registration and
investigation as prima facie case was
made out from the allegations made in the
application under Section 156(3) Cr.P.C.
He has further contended that learned
Sessions Judge has erred in rejecting the
revision. In support of his contention he
also referred the case of Om Singh Vs.
State of U.P. 2007(57) ACC 521.

5. Learned counsel for the State has
contended that the learned Magistrate was
perfectly justified in directing that the
application under Section 156(3) Cr.P.C.
be treated as complaint and there is
nothing illegal in the impugned orders and
the application is liable to be dismissed.
3 All] Smt. Kiran Devi V. State of U.P. and others
813
He also contended that the case cited by
the applicant does not help her.

6. If any application is filed under
Section 156(3) Cr.P.C. and a cognizable
offence is made out from the allegations
made therein the Magistrate empowered
under Section 190 Cr.P.C. can direct for
investigation of the case as is done under
Section 156(1) Cr.P.C. But in case he
finds that there is nothing particular which
requires investigation by the police, he
can certainly direct that application be
treated as complaint and can proceed
under chapter
15
of the Criminal
Procedure Code.

7. Section 2(d) of the Criminal
Procedure Code defines complaint as
under-

Complaint means any allegation
made orally or in, writing to a Magistrate,
with a view to his taking action under this
Code, that some person, whether known
or unknown has committed an offence but
does not include a police report.

Explanation- A report made by a
police officer in a case which discloses,
after investigation, the commission of a
non-cognizable offence shall be deemed
to be a complaint; and the police officer
by whom such report is made shall be
deemed to be the complainant;

8. Therefore, if any allegations are
made in writing to the Magistrate with a
view to his taking action under this Code
it can be treated as a complaint. The
application under Section 156(3) Cr.P.C.
is
filed
before
a
Magistrate
with
allegations and he can certainly treat it as
a complaint.

9. In the case of Rambabu Gupta
and another Vs. State of Uttar Pradesh
and others 2001(43) ACC 50, a full bench
of this Court has held that an application
filed under Section 156(3) Cr.P.C. for all
practical purposes would be a complaint.

10. In the case of Yogendra Singh
Vs. State of U.P. and another 2005
Criminal Law General 2762 it has been
held that an application filed under
Section 156(3) Cr.P.C. can be treated as
complaint under Section 200 Cr.P.C. and
no separate complaint is required to be
filed.

11. Again in the case of Joseph
Mathuri
@
Vishveshwaranand
and
another
Vs.
Swami
Sachidanand
Harisakshi and another 2001(3) Crime
384(SC) an order passed by this Court
was challenged and the Hon'ble Apex
Court held, that the High Court was
wrong to hold that the application moved
by the complainant under Section 156(3)
Cr.P.C. before the Magistrate for directing
the police to register the case against the
appellants, could not be treated as
complaint.

12.

Therefore,
in
case
the
complainant files an application under
Section 156(3) Cr.P.C. the same can be
treated as complaint under Section 200
Cr.P.C.

13. In view of the above legal
position the judgement relied on by the
applicant does not help her. In this case it
has been held by the Hon'ble Court that
the complainant in the present case never
wanted to file a complaint. The Court
cannot convert suo motu application
under Section 156(3) Cr.P.C. into one of
complaint and take cognizance under
814 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
chapter 15. But in view of the above legal
position as enunciated by the Hon'ble
Apex Court as well as this Court, with
due respect, the above observation cannot
be accepted and it does not lay down
correct law. In a law Court the wish or
desire of the complainant that is whether
the complainant ever wanted to file a
complaint or not is not material. What is
material is the legal right of the
complainant and how to enforce the same.
If a person is aggrieved and sets into
motion the machinery for prosecuting the
wrong doers, he can file a report at the
police
station
or
can
present
an
application (complaint before the Court).
If his report is not written at the police
station he has again an option to file a
complaint in the Court. Simply on the
ground that application under Section
156(3)
Cr.P.C.
discloses
cognizable
offence the Magistrate is not required to
direct for registration of the case.
Normally an application under Section
156(3) Cr.P.C. is presented with the legal
assistance and in the circumstances the
allegations
disclosing
a
cognizable
offence are bound to be there. Therefore,
merely on this ground the Magistrate
cannot be directed to direct the police to
register the case. The Magistrate has also
to consider if any investigation is required
by the police as is done under Section
156(1) Cr.P.C. The words used in Section
156(3) Cr.P.C. are as under:-

"Any Magistrate empowered under
Section 190 Cr.P.C. may order such an
investigation as above mentioned"

14. The word used is may and not
shall. The Magistrate is expected to
exercise his judicial discretion as in all the
cases police investigation may not be
required even where the allegations made
disclose a cognizable offence as there
may be nothing to be investigated by the
police.
[reference
Gulab
Chandra
Upadhyay Vs. State of U.P. 2002 (44)
ACC 670 (Allahabad HC)]. However if
cognizable offence is disclosed, the case
cannot be thrown out at the initial stage.

15. Under the Criminal Procedure
Code two procedures have been providedthat of State case and the Complaint case.
But the net result is same that is
conviction
or
acquittal
including
discharge.

16. Therefore the contention of the
learned counsel for the applicant that if
cognizable offence is made out from the
allegations a Magistrate is bound to direct
for registration of the case is not correct
and cannot be accepted.

17. The right of the complainant to
get the case registered for investigation
can be considered from another angle
also. According to the complainant as
alleged in the application under Section
156(3) Cr.P.C. she had gone to the police
station to lodge the report but it was not
written. She also gave an application to
Superintendent of Police by registered
post but no action was taken and then she
filed this application. In such a situation
the right course for the complainant to
adopt was to file a complaint under
Section 200 Cr.P.C.

18. While considering the right of a
person aggrieved by the police inaction in
lodging the report, even in cognizable
case, the full bench of the Hon'ble Apex
Court in the case of Aleque Padamsee and
others Vs. Union of India and others
(2007) 3 SCC (Crl) 1, has reiterated the
legal position as was earlier stated in the
3 All] Bhagwati Prasad Verma V. State of U.P. and others
815
cases of All India Institute of Medical
Sciences Employees' Union (Regd.) Vs.
Union of India (1996) (11) SCC 582,
Gangadhar Janardan Mhatre Vs. State of
Maharastra (2004) 7 SCC 768, Minu
Kumari Vs. State of Bihar 2006(4) SCC
359 and Hari Singh Vs. State of U.P.
(2006) 5 SCC 733.

The Apex Court has held as under:-

6. "4. When the information is laid
down with the police but no action in that
behalf is taken, the complainant [can
under Section 190 read with Section 200
of the Code lay] the complaint before the
Magistrate having jurisdiction to take
cognizance of the offence and the
Magistrate is required to enquire into
complaint as provided in Chapter XV of
the Code. In case the Magistrate after
recording evidence finds a prima facie
case, instead of issuing process to the
accused, he is empowered to direct the
police concerned to investigate into the
offence under Chapter XII of the Code
and to submit a report. If he finds that the
complaint does not disclose any offence
to take further action, he is empowered to
dismiss the complaint under Section 203
of the Code. In case he finds that the
complaint/evidence recorded prima facie
discloses an offence, he is empowered to
taken cognizance of the offence and
[could] issue process to the accused."

19. In the case of Ramesh Kumari
Vs. State (NCT of Delhi) and others
(2006) 1 SCC (Criminal) 678, the division
bench of the Hon'ble Apex Court held that
it was the duty of the police to register a
case under Section 154 Cr.P.C. and the
genuineness
or
credibility
of
the
allegations could not be considered at this
stage. But in the case of Aleque Padamsee
(supra), this ruling has been distinguished
and explained and it has been held that the
correct position in law, therefore, is that
the police officials ought to register the
FIR whenever facts brought to their notice
show that cognizable offence has been
made out. In case the police officials fail
to do so the modalities to be adopted are
as set out in Section 190 read with Section
200 of the Code.

20. Therefore, the Magistrate cannot
be held to be bound to direct for
registration of case on every application
filed under Section 156 (3) Cr.P.C.
otherwise this provision would result in
harassment to innocent persons and
become a tool for shrewd litigants.

21. Thus I come to the conclusion
that there is nothing illegal in the
impugned order and the application under
Section 482 Cr.P.C. is devoid of merits
and is liable to be dismissed and is hereby
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.09.2007

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 52482 of 2003

Bhagwati Prasad Verma
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. H.M.B. Sinha

Counsel for the Respondents:
Sri. R.K. Saxena