# Smt. Rajani Revisionist v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-28
- **Case number:** Criminal Revision No. 2247 of 2021
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajani-revisionist-v-state-of-u-p-ors-46556
- **Pages:** 12

## Headnote

A. Criminal Law - Code of Ciminal Procedure,
1973 - Sections 154, 156(3), 397 & 401 -First
Information Report - Two opportunities has been
provided under Section 154 of the Cr.P.C., at first
instance before the concerned police authorities at
the concerned police station and secondly before the
Senior Superintendent of Police. If the police
authorities and the Senior Superintendent of Police
does not register the FIR, only then the Magistrate
may direct for lodging of the FIR under Section
156(3) of Cr.P.C. Since the applicant-revisionist has
not complied with the mandatory requirements of
approaching the Senior Superintendent of Police
before the Magistrate therefore the court below has
rejected the application. (Para 33,36,39)

The Court cannot go into the factual issues and
implant its own views as it is a revisional
jurisdiction and not appellate jurisdiction.
(Para 38)

Criminal Revision Rejected. (E-10)

List of Cases cited:-

## Text

_Characters 0–39,973 of 44,542. This is a partial read: ask again with offset=39973 for what follows._

11 All. Smt. Rajani Vs. State of U.P. & Ors.
141
behalf of applicant/revisionist, the submissions
urged by learned A.G.A. and Mr. S.N. Singh,
learned counsel representing opposite party 2
will all have to be considered to decide the
correctness of order dated 04.09.2021. This
exercise will itself amount to mini trial, which is
not permissible, while deciding the correctness
of an order passed in terms of Section 228 Cr. P.
C.

34. For the facts and reasons noted above,
this Court does not find any good ground to
interfere.
As
a
result,
Criminal
Misc.
Application as well as Criminal Revision filed
by
applicant/revisionist
are
liable
to
be
dismissed.

35. They are, accordingly, dismissed.

36. Cost made easy.
----------
(2021)11ILR A141
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.10.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 2247 of 2021

Smt. Rajani ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Bhaskar Bhadra, Sri Dinesh Singh

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

A. Criminal Law - Code of Ciminal Procedure,
1973 - Sections 154, 156(3), 397 & 401 -First
Information Report - Two opportunities has been
provided under Section 154 of the Cr.P.C., at first
instance before the concerned police authorities at
the concerned police station and secondly before the
Senior Superintendent of Police. If the police
authorities and the Senior Superintendent of Police
does not register the FIR, only then the Magistrate
may direct for lodging of the FIR under Section
156(3) of Cr.P.C. Since the applicant-revisionist has
not complied with the mandatory requirements of
approaching the Senior Superintendent of Police
before the Magistrate therefore the court below has
rejected the application. (Para 33,36,39)

The Court cannot go into the factual issues and
implant its own views as it is a revisional
jurisdiction and not appellate jurisdiction.
(Para 38)

Criminal Revision Rejected. (E-10)

List of Cases cited:-

1. K. Chinnaswamy Reddy Vs St. ofA.P. & anr. AIR
1962 S.C. 1788

2. Mahendra Pratap Singh Vs Sarju Singh & anr. AIR
(55) 1968 S.C. 707

3. Johar & ors. Vs Mangal Prasad & Ors. 2008 Cr. L.J.
1627

4. St. of Kerala Vs Puttumanna Illath Jathavedan
Namboodiri 1999 (2) SCC 452

5. Sanjaysinh Ramarao Chavan Vs Dattatray Gulabrao
Phalke (2015) 3 SCC 123

6. Kishan Rao Vs Shankargouda (2018) 8 SCC 165

7. Lalita kumari Vs Govt. of U.P. & ors. (2014) 2 SCC 1
(followed)

8. Priyanaka Srivastava & ors. Vs St. of U.P. & ors. AIR
2015 SC 1758 (followed)

9. Rambabu Gupta Vs St. of U.P. Criminal Misc. Writ
Petition No. 3672 of 2000 (followed)

10. Sukhbali Vs St. of U.P. 2007 (59) ACC 739
(followed)
(Delivered by Hon'ble Vikas Budhwar, J.)

1. This is a revision purported to be under
Section 397/401 of Code of Criminal Procedure,
142 INDIAN LAW REPORTS ALLAHABAD SERIES
1973 assailing the validity and the correctness of
the order dated 4.8.2021 passed by Special
Judge SC/ST Act, Bareilly in Criminal Case
No.1117 of 2021, under Section 156(3) Cr.P.C.,
Police Station Fatehganj West, District Bareilly
(Smt. Rajni Vs. Jameel Ahamad and others).

2. Sri Dinesh Singh, AOR No.A-1-180439/2012 had made a statement that he is
holding brief of Sri Bhaskar Bhadndra, AOR
No.A/B-0142/2012, who has filed the present
revision and he has been authorised by Sri
Bhaskar Bhadndra, AOR No.A/B-0142/2012 to
argue the present revision.

3. Heard Sri Dinesh Singh, AOR No.A-118-0439/2012 holding brief of Sri Bhaskar
Bhadndra, AOR No.A/B-0142/2012, learned
counsel for the revisionist and Sri Pankaj
Saksena, learned AGA for opposite party no.1.

4. In view of the order so passed in the
present revision, there is no need to issue notices
to opposite parties no.2 and 3.

5. Brief facts of the case as recapitulated in
the present revision are as under:-

6. As per the pleading set forth in the
application purported to be under Section 156
Cr.P.C. 1973 before the Court of Special Judge,
SC/ST Act, Bareilly dated 4.8.2021 which is
annexure-1 at page 25 of the paper book, it will
reveal that the applicant-revisionist is the
daughter of Sri Kasturi Lal r/o Mohalla Mali,
Police Station Fatehganj West, District Bareilly
and belongs to Other Backward Classes (OBC
category). She has further pleaded that she is
poor and about 14 years ago from the date of the
filing of the present application under Section
156(3) Cr.P.C. before the court below on
4.8.2021, she came in touch for the opposite
party no.2 being Sri Jameel Ahmad, s/o Nawab
Dulla, r/o Mohalla-Thather, Bawasi wali gali,
P.S. Ganj, District Rampur.

7. The opposite party no.1 Sri Jameel
Ahmad did not disclose his religion and
portrayed himself to be a Hindu by religion and
introduced himself as Sri Rajesh. The opposite
party no.1 thereafter became quiet cordial with
the applicant-revisionist and he trapped the
applicant-revisionist on account whereof the
applicant-revisionist proceeded to have live in
relationship with the opposite party no.2. So
much so they also entered into physical
relationship and which resulted into birth of two
sons in one of the private hospitals in Bareilly.

8. It was further alleged in the application
under Section 156(3) Cr.P.C. so preferred by
applicant-revisionist that after a long span of
time the applicant-revisionist could know about
the religion and the name of the opposite party
no.2. The applicant-revisionist has also come
with a case that the opposite party no.2 used to
molest and have physical relationship without
the consent of the applicant-revisionist and when
she repeatedly requested for solemnisation of the
marriage then the opposite party no.2 on one
pretext or other he used to exhibit his difficulties
with relation to the marriage of his sisters and
assured that he will marry later. About five
months ago from the date of the lodging of
complaint under Section 156(3) Cr.P.C. dated
4.8.2021,
when
the
applicant-revisionist
pressurised
the
opposite
party
no.2
for
solemnisation of marriage then abuses in Hindi
vernacular were used by the opposite party no.2
and thereafter the opposite party no.2 left the
applicant-revisionist and went to Rampur and
after waiting for about 4-5 days, the applicantrevisionist made mobile calls which were not
attended as the mobile was switched off. The
applicant-revisionist along with her mother Smt.
Sagar Devi, went to Rampur at the shop of the
opposite party no.2 where at the opposite party
no.2 was not present. However, his younger
brother Waseem and uncle Firasat were present.
On being asked about whereabouts of the
opposite party no.2, they took the applicant-
11 All. Smt. Rajani Vs. State of U.P. & Ors.
143
revisionist and her mother to the nearby shop of
one Sri Akhater. When the revisionist asked the
whereabouts the opposite party no.2 then again
abuses in Hindi vernacular were used and threats
were administered for murdering the applicantrevisionist.

9. The applicant-revisionist has further
come up with a case that Sri Waseem along with
Firasat and Akhtar assured the applicantrevisionist that a settlement will be prepared and
they induced the applicant-revisionist to come
inside the house stopped the mother of the
applicant-revisionist being Sagar Devi, from
coming in the house and she was told to remain
outside the house.

10. After closing the door Sri Firasat and
Sri Akhlak told Sri Waseem to commit rape and
when force was being sought to be exerted than
the applicant-revisionist screamed and thereafter
and the mother of the applicant-revisionist Smt.
Sagar Devi, slammed the door and on account of
said development, the applicant-revisionist ran
away.

11. The applicant-revisionist have also set
up a case that on 14.6.2021, she approached the
concerned police station, Meerganj, Bareilly,
wherein at 14.6.2021 a settlement has been made
between the parties.

12. The applicant-revisionist had also
stated in her application under Section 156 of
the Code of Criminal Procedure that she had
approached concerned police station for lodging
an FIR and when the FIR was not lodged then
she approached Senior Superintendent of Police
for lodging of FIR. However, FIR has not been
lodged, thus, request was made before court
below for issuing the appropriate direction for
lodging an FIR.

13. The application so preferred by the
applicant-revisionist
under
Section
156(3)
Cr.P.C. before the court below was registered as
Criminal Case No.1117 of 2021, CNR No.UPB
ROI-008167-21 (Smt. Rajni Vs. Jameel Ahamad
and others).

14. The court below by virtue of the order
dated 27.8.2021 has rejected the application so
preferred by the applicant-revisionist under
Section 156(3) of the Cr.P.C. holding that the
applicant-revisionist had not complied with the
conditions so enshrined in Section 154 of the
Cr.P.C., as there is no document available on
record that after non-lodging of an FIR by the
concerned police and she has approached the
S.S.P.,Bareilly for lodging the same. However,
court below has also recorded a categorical
finding of fact that the present case did not
warrant passing of an order for lodging of the
FIR.

15. Before proceeding further it is apt to
discuss and analyse the statutory provisions
purported to be under Section 397/401 Cr.P.C.,
1973 as applicable in the State of U.P.

"397. Calling for records to exercise
powers of revision.

(1) The High Court or any Sessions
Judge may call for and examine the record of
any proceeding before any inferior Criminal
Court situate within its or his local jurisdiction
for the purpose of satisfying itself or himself as
to the correctness, legality or propriety of any
finding, sentence or order,- recorded or passed,
and as to the regularity of any proceedings of
such inferior Court, and may, when calling for
such record, direct that the execution of any
sentence or order be suspended, and if the
accused is in confinement, that he be released on
bail or on his own bond pending the
examination of the record.

Explanation.- All Magistrates whether
Executive or Judicial, and whether exercising
original or appellate jurisdiction, shall be
deemed to be inferior to the Sessions Judge for
144 INDIAN LAW REPORTS ALLAHABAD SERIES
the purposes of this sub- section and of section
398.

(2) The powers of revision conferred
by sub- section (1) shall not be exercised in
relation to any interlocutory order passed in any
appeal, inquiry, trial or other proceeding.

(3) If an application under this section
has been made by any person either to the High
Court or to the Sessions Judge, no further
application by the same person shall be
entertained by the other of them.

401. High Court' s Powers of
revisions.

(1) In the case of any proceeding the
record of which has been called for by itself or
Which otherwise comes to its knowledge, the
High Court may, in its discretion, exercise any
of the powers conferred on a Court of Appeal by
sections 386, 389, 390 and 391 or on a Court of
Session by section 307 and, when the Judges
composing the Court of revision are equally
divided in opinion, the case shall be disposed of
in the manner provided by section 392.

(2) No order under this section shall
be made to the prejudice of the accused or other
person unless he has had an opportunity of
being heard either personally or by pleader in
his own defence.

(3) Nothing in this section shall be
deemed to authorise a High Court to convert a
finding of acquittal into one of conviction.

(4) Where under this Code an appeal
lies and no appeal is brought, no proceeding by
way of revision shall be entertained at the
instance of the party who could have appealed.

(5) Where under this Code tan appeal
lies but an application for revision has been
made to the High Court by any person and the
High Court Is satisfied that such application
was made under the erroneous belief that no
appeal lies thereto and that it is necessary in the
interests of justice

so to do, the High Court may treat the
application for revision as a petition of appeal
and deal with the same accordingly."

16. A conjoint reading of the provisions
contained under Section 397 as well as 401 of
the Code of Criminal Procedure, it will clearly
reveal that High Court of any Sessions Judge
may call for and examine the record of any
proceedings before any inferior criminal court
situate within its or its local jurisdiction for the
purposes of satisfying itself or himself as to the
correctness, legality or probability of any
finding, sentence or order recorded or passed
and as to the regularity of any proceedings of
such inferior court.

17. The issue with regard to the scope and
the extent of revisional jurisdiction under
Section 391 read with Section 401 of the Code
of Criminal Procedure, 1973 is no more res
integra as the Hon'ble Supreme Court and this
Court in catena of decisions interpreted the same
which is being recapitulated hereunder:-

18. The Apex Court in the case of K.
Chinnaswamy Reddy Vs. State of Andhra
Pradesh and another reported in AIR 1962,
S.C. 1788 in para 7 observed as under :-

"7. It is true that it is open to a High
Court in revision to set aside an order of
acquittal even at the instance of private parties,
though the State may not have though fit to
appeal; but this jurisdiction should in our
opinion be exercised by the High Court only in
exceptional cases, when there is some glaring
defect in the procedure or there is a manifest
error on a point of law and consequently there
has been a flagrant miscarriage of justice. Subsection (4) of s. 439 forbids a High Court from
converting a finding of acquittal into one of
conviction and that makes it all the more
incumbent on the High Court to see that it does
not convert the finding of acquittal into one of
conviction by the indirect method of ordering
retrial, when it cannot itself directly convert a
finding of acquittal into a finding of conviction.
This places limitations on the power of the High
11 All. Smt. Rajani Vs. State of U.P. & Ors.
145
Court to set aside a finding of acquittal in
revision and it is only in exceptional cases that
this power should be exercised. It is not possible
to lay down the criteria for determining such
exceptional cases which would cover all
contingencies. We may however indicate some
cases of this kind, which would in our opinion
justify the High Court in interfering with a
finding of acquittal in revision. These cases may
be : where the trial court has no jurisdiction to
try the case but has still acquitted the accused,
or where the trial court has wrongly shut out
evidence which the prosecution wished of
produce, or where the appeal court has wrongly
held evidence which was admitted by the trial
court to be inadmissible, or where material
evidence has been overlooked either by the trial
court or by the appeal court, or where the
acquittal is based on a compounding of the
offence, which is invalid under the law.

These and other cases of similar
nature can properly be held to be cases of
exceptional nature, where the High Court can
justifiably interfere with an order of acquittal;
and in such a case it is obvious that it cannot be
said that the High Court was doing indirectly
what it could not do directly in view of the
provisions of s. 439.

(4) We have therefore to see whether
the order of the High Court setting aside the
order of acquittal in this case can be upheld on
these principles."

19. The Apex Court in the case of
Mahendra Pratap Singh Vs. Sarju Singh and
another reported in AIR (55) 1968, S.C. 707 in
para 7 observed as under:-

"7. In revision, the learned Judge in
the High Court went into the evidence very
minutely. He questioned every single finding of
the learned Sessions Judge and gave his own
interpretation of the evidence and the inferences
to be drawn from it. He discounted the theory
that the weapon of attack was a revolver and
suggested that it might have been a shot gun or
country made pistol which the villagers in the
position of Kuldip and Sarju could not
distinguish from a revolver. He then took up
each single circumstance on which the learned
Sessions Judge had found some doubt and
interpreting the evidence de novo held, contrary
to the opinion of the Sessions Judge that they
were acceptable. All the time he appeared to
give the benefit of the doubt to the prosecution.
The only error of law which the learned Judge
found in the Sessions Judge's judgment was a
remark by the Sessions Judge that the defence
witnesses who were examined by the police
before they were brought as defence witnesses
ought to have been cross-examined with
reference to their previous statements recorded
by the police, which obviously is against the
provisions of the Code. Except for this error, no
defect of procedure or of law was discovered by
the learned Judge of the High Court in his
appraisal of the judgment of the Sessions Judge.
As stated already by us, he seems to have gone
into the matter as if an appeal against acquittal
was before him making no distinction between
the appellate and the revisional powers
exercisable by the High Court in matters of
acquittal except to the extent that instead of
convicting the appellant he only ordered his
retrial. In our opinion the learned Judge was
clearly in error in proceeding as he did in a
revision filed by a private party against the
acquittal reached in the Court of Session."

20. The Apex Court in the case of Johar
and Ors. vs. Mangal Prasad and Ors. reported
in 2008 Cr. L.J. 1627 in paras 9, 10, 11, 12, 13
has observed as under:-

"9. Revisional jurisdiction of the High
Court in terms of Section 397 read with Section
401 of the Code of Criminal Procedure is
limited. The High Court did not point out any
error of law on the part of the learned Trial
Judge. It was not opined that any relevant
146 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence has been left out of its consideration by
the court below or irrelevant material has been
taken into consideration. The High Court
entered into the merit of the matter. It
commented upon the credentiality of the Autopsy
Surgeon. It sought to re- appreciate the whole
evidence. One possible view was sought to be
substituted by another possible view.

10. Sub-section (3) of Section 401
reads as under:

401(3). Nothing in this section shall be
deemed to authorize a High Court to convert a
finding of acquittal into one of conviction.

Technically, although Ms. Makhija
may be correct that the High Court has not
converted the judgment of acquittal passed by
the learned Trial Court to a judgment of
conviction, but for arriving at a finding as to
whether the High Court has exceeded its
jurisdiction or not, the approach of the High
Court must be borne in mind. For the said
purpose, we may notice a few precedents.

11. In D. Stephens v. Nosibolla [1951]
1 SCR 284 this Court opined:

10.
The
revisional
jurisdiction
conferred on the High Court under Section 439
of the Code of Criminal Procedure is not to be
lightly exercised when it is invoked by a private
complainant against an order of acquittal,
against which the Government has a right of
appeal under Section 417. It could be exercised
only in exceptional cases where the interests of
public justice require interference for the
correction of a manifest illegality, or the
prevention of a gross miscarriage of justice.
This jurisdiction is not ordinarily invoked or
used merely because the lower court has taken a
wrong view of the law or misappreciated the
evidence on record.

12. The same principle was reiterated
in Logendra Nath Jha and Ors. v. Polailal
Biswas [1951 SCR676] stating:

...Though Sub-section (1) of Section
439 authorises the High Court to exercise, in its
discretion, any of the powers conferred on a
court of appeal by Section 423, Sub-section (4)
specifically excludes the power to "convert a
finding of acquittal into one of conviction". This
does not mean that in dealing with a revision
petition by a private party against an order of
acquittal the High Court could in the absence of
any error on a point of law re-appraise the
evidence and reverse the findings of facts on
which the acquittal was based, provided only it
stopped short of finding the accused guilty and
passing
sentence
on
him.
By
merely
characterizing the judgment of the trial court as
"perverse" and "lacking in perspective", the
High Court cannot reverse pure findings of fact
based on the trial Court's appreciation of the
evidence in the case. That is what the learned
Judge in the court below has done, but could
not, in our opinion, properly do on an
application in revision filed by a private party
against acquittal....

13. In the instant case the High
Court not only entered into the merit of the
matter but also analysed the depositions of all
the witnesses examined on behalf of the
prosecution. It, in particular, went to the
extent of criticizing the testimony of Autopsy
Surgeon. It relied upon the evidence of the so
called eye witnesses to hold that although
appellants herein had inflicted injuries on the
head of the deceased, Dr. Y.K. Malaiya, PW-9,
deliberately suppressed the same. He was, for
all intent and purport, found guilty of the
offence under Section 193 and 196 of the
Indian Penal Code. The Autopsy Surgeon was
not cross-examined by the State. He was not
declared hostile. The State did not even prefer
any appeal against the judgment."

21. In the case of State of Kerala Vs.
Puttumana Illath Jathavedan Namboodiri
reported in 1999(2) SCC 452, the Hon'ble
Supreme Court interpreted the scope and the
extent jurisdiction to be exercised by High Court
under the provisions contained under Section
397/401 of the Code of Criminal Procedure.
11 All. Smt. Rajani Vs. State of U.P. & Ors.
147

"5....... In its revisional jurisdiction,
the High Court can call for and examine the
record of any proceedings for the purpose of
satisfying itself as to the correctness, legality or
propriety of any finding, sentence or order. In
other words, the jurisdiction is one of
supervisory jurisdiction exercised by the High
Court for correcting miscarriage of justice. But
the said revisional power cannot be equated
with the power of an appellate court nor can it
be treated even as a second appellate
jurisdiction. Ordinarily, therefore, it would not
be
appropriate
for
the
High
Court
to
reappreciate the evidence and come to its own
conclusion on the same when the evidence has
already been appreciated by the Magistrate as
well as the Sessions Judge in appeal, unless any
glaring feature is brought to the notice of the
High Court which would otherwise tantamount
to gross miscarriage of justice. On scrutinizing
the impugned judgment of the High Court from
the aforesaid standpoint, we have no hesitation
to come to the conclusion that the High Court
exceeded its jurisdiction in interfering with the
conviction of the Respondent by reappreciating
the oral evidence....."

22. Yet in the case of Sanjaysinh Ramrao
Chavan Vs. Dattatray Gulabrao Phalke,
reported in (2015) 3 SCC 123, Hon'ble
Supreme Court observed as under:-

"14...... Unless the order passed by the
Magistrate is perverse or the view taken by the
court is wholly unreasonable or there is nonconsideration of any relevant material or there
is
palpable
misreading
of
records,
the
Revisional Court is not justified in setting aside
the order, merely because another view is
possible. The Revisional Court is not meant to
act as an appellate court. The whole purpose of
the revisional jurisdiction is to preserve the
power in the court to do justice in accordance
with the principles of criminal jurisprudence.
The revisional power of the court Under
Sections 397 to 401 Code of Criminal Procedure
is not to be equated with that of an appeal.
Unless the finding of the court, whose decision
is sought to be revised, is shown to be perverse
or untenable in law or is grossly erroneous or
glaringly unreasonable or where the decision is
based on no material or where the material facts
are wholly ignored or where the judicial
discretion
is
exercised
arbitrarily
or
capriciously, the courts may not interfere with
decision
in
exercise
of
their
revisional
jurisdiction."

23. The aforesaid two judgments in the
case of Kishan Rao vs. Shankargouda (2018)
8 SCC 165 in para 14 observed as under:-

"14. In the above case also conviction
of the Accused was recorded, the High Court set
aside the order of conviction by substituting its
own view. This Court set aside the High Court's
order holding that the High Court exceeded its
jurisdiction in substituting its views and that too
without any legal basis."

24. From the legal proposition so culled
out by the Hon'ble Apex Court in the aforesaid
decisions itself goes to show that the power so
exercised under Section 397/401 of the Code of
Criminal Procedure is limited and until and
unless the order so challenged therein passed by
the Magistrate is perverse or the view taken by
the Court wholly unreasonable or there is nonconsideration of any relevant material or there is
palpable misreading of record, the revisional
court is not justified in interfering with the order
that too merely because also another view is
possible.

25. In nutshell, the Hon'ble Apex Court has
cautioned the High Court not to act as an
appellate court as the whole purpose of
revisional jurisdiction is to preserve the power in
the court to do justice in accordance with the
principles of criminal procedure.
148 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Now, the present case in hand is to be
decided in the light of the principles of the law
laid down by the Hon'ble Apex Court while
exercising the powers under Section 397/401 of
the Code of Criminal Procedure, 1973.

27. Sri Dinesh Singh, who is holding the
brief of Bhaskar Bhadra has invited the attention
of this Court towards annexure-1 at page 25 of
the paper book which is the complaint preferred
by the applicant-revisionist on 4.8.2021 before
the court below so as to contend that cognizable
offence was made out and FIR ought to have
been lodged by the concerned police.

28. Sri Pankaj Saksena, learned AGA
appearing for the opposite party no.1 has supported
the order under challenge and has urged that the
order under challenge is a reasoned and speaking
order taking into consideration each and every
aspect of the matter and in particular the fact that
the
court
below
was
within
its
jurisdiction/discretion in not passing an order for
lodging of an FIR. He has further invited this
Court attention towards the pleadings in the
application under Section 156 of the Code of
Criminal Procedure relating to the fact that though
the averment was made in the said application that
the applicant-revisionist had approached the
officer-in-charge of the concerned police station
giving information relating to commission of
cognizable offence but the FIR was not registered
and
thereafter
the
applicant-revisionist
had
approached the S.S.P. as per Sub-section (3) of
Section 154 of the Cr.P.C. hence in absence of any
document or factual details in this regard was the
order impugned does not suffer from any infirmity.

29. Before proceeding further this Court
finds necessary to quote provisions contained
under Section 154 and Section 156 of the Code
of Criminal Procedure which reads as under:

"154. Information in cognizable
cases.

(1) Every information relating to the
commission of a cognizable offence, if given
orally to an officer in charge of a police station,
shall be reduced to writing by him or under his
direction, and be read over to the informant;
and every such information, whether given in
writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the
substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf.

(2) A copy of the information as
recorded under sub- section (1) shall be given
forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal
on the part of an officer in charge of a police
station to record the information referred to in
subsection (1) may send the substance of such
information, in writing and by post, to the
Superintendent of Police concerned who, if
satisfied that such information discloses the
commission of a cognizable offence, shall either
investigate the case himself or direct an
investigation to be made by any police officer
subordinate to him, in the manner provided by
this Code, and such officer shall have all the
powers of an officer in charge of the police
station in relation to that offence."

"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."
11 All. Smt. Rajani Vs. State of U.P. & Ors.
149

30. Sub-section (1) of Section 154 Cr.P.C.
itself provides that every information relating to
commission of cognizable offence, if given
orally to an officer-in-charge of a police station
shall be reduced to writing by him or under his
direction and to read over to the informant and
every such information whether given in writing
or reduced to writing shall be signed by a person
giving it and the substance thereof shall be
entered in the book to be kept by the officer.

31. Further Sub-section (3) of Section 154
itself mandates that any person aggrieved by a
refusal on the part of an officer-in-charge of
police station to record the information referred
to in Sub-section (1) may send the substance of
the information in writing and by post to Senior
Superintendent of Police concerned, who have
satisfied that such information discloses the
commission of cognizable offence shall either
investigate
case
himself
and
direct
an
investigation to be done by a police officer
subordinate to it.

32. Thus two opportunities have been
provided under Section 154 of the Cr.P.C. at
first instance before the concerned police
authorities at the concerned police station and
secondly before the Senior Superintendent of
Police.

33. In case the officer-in-charge of the
police station and also the Senior Superintendent
of Police does not register the FIR on the basis
of the information of the informant regarding
commission of cognizable offence then under
Section 156(3) of the Cr.P.C. Magistrate may
direct for lodging of the FIR.

34. The said is no more res integra as the
Hon'ble Apex Court has had the occasion to
consider the said issue in the case of Lalita
kumari Vs. Government of Uttar Pradesh
and others reported in (2014) 2 SCC 1 reads
as under:-

"82. Mr Naphade, learned Senior
Counsel further pointed out that the provisions
have to be read in the light of the principle of
malicious prosecution and the fundamental
rights guaranteed under Articles 14,19 and 21.
It is the stand of learned senior counsel that
every citizen has a right not to be subjected to
malicious prosecution and every police officer
has an in-built duty under Section 154 to ensure
that an innocent person is not falsely implicated
in a criminal case. If despite the fact that the
police officer is not prima facie satisfied, as
regards commission of a cognizable offence and
proceeds to register an FIR and carries out an
investigation, it would result in putting the
liberty of a citizen in jeopardy. Therefore,
learned senior counsel vehemently pleaded for a
preliminary inquiry before registration of FIR.

83. In terms of the language used in
Section 154 of the Code, the police is duty bound
to proceed to conduct investigation into a
cognizable offence even without receiving
information (i.e. FIR) about commission of such
an offence, if the officer in charge of the police
station otherwise suspects the commission of
such an offence. The legislative intent is
therefore quite clear, i.e., to ensure that every
cognizable offence is promptly investigated in
accordance with law. This being the legal
position, there is no reason that there should be
any discretion or option left with the police to
register or not to register an FIR when
information is given about the commission of a
cognizable offence. Every cognizable offence
must be investigated promptly in accordance
with law and all information provided under
Section 154 of the Code about the commission of
a cognizable offence must be registered as an
FIR so as to initiate an offence. The requirement
of Section 154 of the Code is only that the report
must disclose the commission of a cognizable
offence and that is sufficient to set the
investigating machinery into action.

84. The insertion of Sub-section (3) of
Section 154, by way of an amendment, reveals
150 INDIAN LAW REPORTS ALLAHABAD SERIES
the intention of the legislature to ensure that no
information of commission of a cognizable
offence must be ignored or not acted upon which
would result in unjustified protection of the
alleged offender/accused.

85. The maxim expression unius est
exclusion alterius (expression of one thing is the
exclusion
of
another)
applies
in
the
interpretation of Section 154 of the Code, where
the mandate of recording the information in
writing excludes the possibility of not recording
an information of commission of a cognizable
crime in the special register.

86. Therefore, conducting an investigation
into an offence after registration of FIR under
Section 154 of the Code is the "procedure established
by law" and, thus, is in conformity with Article 21 of
the Constitution. Accordingly, the right of the
accused under Article 21 of the Constitution is
protected if the FIR is registered first and then the
investigation is conducted in accordance with the
provisions of law."

35. The issue with respect to exercise of
powers under Section 156(3) of the Code of
Criminal Procedure has also been taken note in
the case of Priyanka Srivastava and Ors. vs.
State of U.P. and Ors. reported in AIR 2015
SC 1758 wherein para 26 and 27 following has
observed:-

"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)
Code of Criminal Procedure 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) and 154(3) while filing a
petition Under Section 156(3). 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
11 All. Smt. Rajani Vs. State of U.P. & Ors.
151
filed. That apart, the learned Magistrate would
also be aware of the delay in lodging of the
FIR."

36. The court below in the order under
challenge has recorded a clear cut finding of fact
that the mandatory requirement under Section
154 of the Cr.P.C. has not been followed by the
applicant-revisionist. For kind reference same is
quoted hereunder:-

Þvkosnu esa of.kZr rF;ksa ls Li"V gS fd vkosfndk
14 o"kksaZ ls foi{kh la0&1 tehy vgen ds lkFk jg jgh gS
rFkk mlds nks cPps gSaA vkosfndk us Lo;a vkosnu esa of.kZr
fd;k gS fd fnukad 14.6.2021 dks mldk foi{kh ls
le>kSrk gks x;k gS] ftlesa ,d ekg ls T;knk dk le;
O;rhr gks pqdk gSA vkosfndk dh rjQ ls lEcaf/kr Fkkus ij
fn;s x;s izkFkZuk i= nsus dk mYys[k vius vkosnu esa fd;k
x;k gS] ijurq vkosfndk -kjk lEcaf/kr Fkkus ij fn;s x;s
izkFkZuk i= vUrxZr /kkjk 1541⁄411⁄2 n.M izfdz;k lafgrk dh izfr
Hkh vfHkys[k ij nkf[ky ugha dh x;h gSA

mijksDr lEiw.kZ foospuk mijkUr U;k;ky; bl
fu"d"kZ ij igq¡prh gS fd vkosfndk ds vkosnu ds lEca/k esa
vfHk;ksx iathd`r dj foospuk djk;s tkus dk vkns'k ikfjr
fd;k tkuk U;k;ksfpr o fof/klaxr ugha gS rFkk vkosnu
lkjghu gksus ds dkj.k fujLr fd;s tkus ;ksX; gSAß

37. The said findings have not been
assailed in the grounds of revision also.

38. Though learned counsel for the
revisionist has made argument on factual aspect
of the matter, but this Court under revisional
jurisdiction cannot go into the factual issues and
implant its own view, as this Court is not
exercising the appellate jurisdiction.

39. Be that as it may this Court finds that
the present case is not fit for exercising of
revisional jurisdiction under Section 397/401
Cr.P.C. on account of the following facts:-

a. It is highly inconceivable that the
applicant-revisionist was not knowing about the
name and the religion of opposite party no.2 for
a period of 14 years.

b.
Applicant-revisionist
and
the
opposite party no.2 as admitted by the applicantrevisionist were in live in relation.

c.
Applicant-revisionist
and
the
opposite party no.2 had given birth to two male
child.

d.
Mandatory
requirement
under
Section 154 of the Cr.P.C. have not been
complied with by the applicant-revisionist.

e. Moreover the Magistrate while
exercising powers under Section 156(3) of the
Cr.P.C.