# Smt. Seema v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 947
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-10-10
- **Case number:** Criminal Misc. Application No.25035 of 2007
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-seema-v-state-of-u-p-and-others-41205
- **Pages:** 6

## Headnote

Code of Criminal Procedure-Section 154
(1),
156
(3)-cognizable
offencedisclosed-refusal by Magistrate to direct
the Police to register and investigate the
case-On ground-victim has knowledge of
all
facts-No
further
investigation
required-held-contrary to procedure, as
well as various dictum of the Apex CourtMagistrate is under bounded duty to
enforce the law laid down by the Apex
Court-order
impugned
can
not
sustained-accordingly dismissed.

Held: Para 10

From the perusal of the impugned order
it seems that the Magistrate has refused
to direct the police to register the FIR on
the
ground
that
the
victim
is
a
knowledge of all the facts and the matter
does not require any investigation. This
view of the Magistrate is wholly unsanctified and is against the very spirit of
Section
154(1)
in
conjunction
with
156(3) Cr.P .C. and the law laid down by
the Apex Court. Criminal Procedure Code
no where provides that if the facts of a
cognizable offence is known to the
victim then his FIR should not be
registered. From where the Magistrate is
getting this law is not understandable.
On the contrary Criminal Procedure Code
as well as various rulings referred to
above by the Apex Court clearly speaks
that FIR of all cognizable offence must
be registered.
Case law discussed:
2001 (Suppl.) ACC-957
AIR 1992 SC (Crl.)-426
1993 SCC (Crl.)-177

## Text

3 All] Smt. Seema V. State of U.P. and others
947
17. Dr. Abida Syed appointed as
Amicus Curiae on behalf of the appellants
in all the three appeals shall get
Rs.5,000/- as her fees.

18. Let the lower court record be
sent back to District Judge, Siddharth
Nagar without delay along with a copy of
this judgement for compliance and for
making entry in the relevant record.
Compliance report be submitted within
two months.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.10.2007

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No.25035 of
2007

Smt. Seema

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

Counsel for the Applicant:
Ashok Kumar Mishra
Sri Arun Kumar Singh

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

Code of Criminal Procedure-Section 154
(1),
156
(3)-cognizable
offencedisclosed-refusal by Magistrate to direct
the Police to register and investigate the
case-On ground-victim has knowledge of
all
facts-No
further
investigation
required-held-contrary to procedure, as
well as various dictum of the Apex CourtMagistrate is under bounded duty to
enforce the law laid down by the Apex
Court-order
impugned
can
not
sustained-accordingly dismissed.

Held: Para 10

From the perusal of the impugned order
it seems that the Magistrate has refused
to direct the police to register the FIR on
the
ground
that
the
victim
is
a
knowledge of all the facts and the matter
does not require any investigation. This
view of the Magistrate is wholly unsanctified and is against the very spirit of
Section
154(1)
in
conjunction
with
156(3) Cr.P .C. and the law laid down by
the Apex Court. Criminal Procedure Code
no where provides that if the facts of a
cognizable offence is known to the
victim then his FIR should not be
registered. From where the Magistrate is
getting this law is not understandable.
On the contrary Criminal Procedure Code
as well as various rulings referred to
above by the Apex Court clearly speaks
that FIR of all cognizable offence must
be registered.
Case law discussed:
2001 (Suppl.) ACC-957
AIR 1992 SC (Crl.)-426
1993 SCC (Crl.)-177

(Delivered by Hon'ble Vinod Prasad, J.)

1. Smt. Seema Verma a tortured
wife has approached this Court in its
inherent jurisdiction under Section 482
Cr.P.C. praying to quash the order dated
13.9.2007 passed by Additional Chief
Judicial
Magistrate,
Baghpat
in
Application No.440 of 2007, Smt. Seema
Versus Manoj and others, under Section
156(3) Cr.P.C., police station Chhaprauli,
district Baghpat. By the impugned order
learned Magistrate has refused to direct
the police to register the FIR and
investigate the offence of cognizable
nature disclose in the application under
Section 156(3) Cr.P.C. filed by the
present applicant.

2. Before coming to the contentions
raised by learned counsel for the applicant
a resume of facts is sketched below.
948 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Smt. Seema Verma is the daughter of
Motiram Verma, resident of Village
Shabaga,
police
station
Chhaprauli,
district Baghpat. She was married with
Manoj son of Brajbhan, resident of
Binauli, police station Binauli, district
Baghpat on 6.5.2006 according to the
Hindu customs and rites in her village
Shabaga. The in-laws and other relatives
of the husband were not satisfied with the
dowry
given
in
the
marriage
and
resultantly they started torturing the wife
Seema Verma, the present applicant. The
demand of motorcycle plus Rs.50000/-
(Rs. fifty thousand) was put forth by the
aforesaid persons. On 3rd November 2006
Mukesh and his wife Smt. Babli, who are
jeth and jethani of Seema Verma badly
assaulted her. On 8th December 2006 her
mother-in-law Smt. Roshni wife of
Brajbhan and her husband Manoj also bet
her and locked her inside a room and kept
her starving. On 8th January 2007 her jeth
Mukesh and Rakesh and father-in-law
Brajbhan repeated the assault on her and
on 16.1.2007 her mother-in-law Roshni,
jethani Babli and her husband Manoj even
endeavoured to burnt her alive. Seema
Verma saving herself from the clutches of
in-laws and her husband went to the
police station Binauli to lodge the
complaint. She also informed her mother
Smt. Kunti wife of Motiram and her
brother Krishna. The aforesaid two
persons in the company of other relatives
Narendra,
Yogendra
and
Rakesh
endeavoured to pacify the in-laws and the
husband of Seema Verma but they refuse
to take back the applicant without a
motorcycle and RS.50000/-. They also did
not allow the applicant to remain in their
house and she was turned out along with
her mother and brother. Since 16.1.2007
Seema Verma is residing with her
parental relatives. It is alleged that
repeated applications by the applicant to
police station Binauli, district Baghpat fell
on deaf ears and her report for cognizable
offence was not registered. When the inlaws and other relatives of the husband
came to know of the applications filed by
Seema Verma then on 16.8.2007 at 10.00
a.m. her husband Manoj, jeth Mukesh and
Rakesh and father-in-law Brajbhan came
to the parental house of the applicant and
threatened her to be annihilate if their
demand is not fulfilled. Her brother was
also threatened for life. Police of police
station
Chhaprauli,
district
Baghpat
refused to pen down of her FIR and
therefore, the applicant dispatched an
application on 18.8.2007 to S.P. Baghpat
but of no use. Ultimately on 21.8.2007
she invoked the jurisdiction of the
Magistrate under Section 156(3) Cr.P.C.
praying therein that the police be directed
to register her FIR and investigate the
offence.

3. From the perusal of record of this
criminal miscellaneous application it
transpires that the Magistrate directed her
application to be registered as a complaint
case and fixed 27.9.2007 for recording of
her statement under Section 200 Cr.P.C.
vide impugned order dated 13.9.2007
which application was registered as
Criminal
Miscellaneous
Application
No.404 of 2007, Seema Verma vs. Manoj
and others. The order dated 13.9.2007 is
impugned in the instant application.

4. Learned counsel for the applicant
contended that the application of the
applicant was filed at a pre-cognizance
stage seeking a direction form the
Magistrate to direct the police to follow
the mandate of law and register the FIR of
cognizable offence committed by the
accused and investigate the offence. This
3 All] Smt. Seema V. State of U.P. and others
949
was of pre-cognizance stage and the
Magistrate has refused the prayer to direct
the police to register the FIR by referring
to the decisions of this Court reported in
Ram Babu Gupta vs. State of U.P.
2000(2)
J.I.C.
page
23
and
also
judgement in Josef Mathuri vs. Swami
Sachidanand
Hari
Saakchi
2001
(Suppl.) ACC 957. Learned counsel for
the applicant contended that the full
Bench judgement of the this Court in Ram
Babu
Gupta
is
misinterpreted
and
misutilized.

5. Learned AGA on the other hand
contended that the impugned order does
not suffer from any infirmity.

I have pondered over the contentions
raised by both the counsels.

6. It is the intention of legislature
that FIR of all cognizable offence must be
registered
and
offences
must
be
investigated. It is the duty of police to
register the FIR of all cognizable offence
under
Section
154(1)
Cr.P.C.
and
investigate the same under Section 156(1)
Cr.P.C. subject to exception under Section
157(1) thereof. The apex court in the case
of State of Haryana vs. Bhajan Lal
1992 SC (criminal) page 426 and Union
of India Vs. W.N. Chadha 1993 SCC
(Cr.) 1171 and many other judgements
have categorically held that if the police
does not register the FIR of cognizable
offence, it flouts the mandate of law.
Magistrate
was
approached
by
the
applicant only for this purpose and no
other. The grievance of the applicant was
that the police has not followed the
mandate of law as has been laid down by
the Apex Court and is flouting the same.
ACJM Baghpat was under the boundant
duty to preserve the sanctity of law laid
down by the Apex Court and not to allow
the police to flout: The applicant wanted
the Magistrate to direct the police to
follow the mandate of law. Magistrate
was not approached to start the litigation
of his own. ACJM Baghpat should have
considered the application from the point
of view of the prayer made therein. He
was not accepted to travel beyond the
scope of the prayer made therein. The
applicant never wanted to start litigation.
She wanted her FIR to be registered of
cognizable offence under Section 498A
and 3/4 D.P. Act and she wanted all the
ingredients of the offence to be surfaced.
The Magistrate, who lack the jurisdiction
to investigate into the offence cannot
decide whether the cognizable offence
requires investigation or not? It is for the
police to decide whether the cognizable
offence is to be investigated or not under
Section 157(1) Cr.P.C. When the law
declared by the Apex Court is that all
cognizable offence must be registered it
was the duty of the Magistrate to direct
the police to register the FIR of
cognizable offence. The law laid down by
the Apex Court is above all law laid down
by various High Courts of this country.
No High Court can laid down the law
against the view expressed by the
Supreme Court.

7. Coming to the ruling of Ram
Babu Gupta's case (supra). It has become
tool in the hands of the Magistrate to get
the law laid down by the Apex Court
flouted at the hand of the police. In the
case of Ram Babu Gupta (supra) full
Bench of this Court has no where said that
the Magistrate can suo moto convert an
application under Section 156(3) Cr.P.C
into a complaint. The ruling and the law
laid down by this Court as well as by
Apex Court has to be read in what it
950 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
actually says and not what it could have
said.
The
cordinal
principle
of
interpretation of statute and the law is that
nothing has to be read in a judgement
what it has not said. By allowing the
police to flout the law laid down by the
Apex Court is to bring ignominy to the
rule of law. No High Court can laid down
a law against the view expressed by the
Apex Court and if such a view has been
laid down then that view and the opinion
of the High Court is per incurrium and I
say no more.

8. In Ram Babu Gupta (supra) full
Bench of the Court has only said that if an
application under Section 156(3) Cr.P.C.
is filed and it is prayed to be treated as a
complaint by the aggrieved person then
merely because the application has been
filed under Section 156(3) Cr.P.C. the
Magistrate cannot refuse to treat the
application under Section 156(3) Cr.P.C
as a complaint. What has been laid down
in Ram Babu Gupta is that if the victim
filed an application under Section 156(3)
Cr.P.C. and prayed the Magistrate to treat
the application as a complaint then the
Magistrate cannot refuse such a prayer
merely because the application under
Section 156(3) Cr.P.C. was filed by the
victim at a pre-cognizance stage. To allow
the Magistrate to take cognizance lies
within the realm of the victim. Magistrate
cannot on his own whimsical and
arbitrarily exercise against the prayer
made by the victim, suo mota start the
litigation. The following observation in
Ram Babu Gupta (supra) completely
interdicts the view as has been often
expressed by the Magistrate that the
aforesaid ruling Ram Babu Gupta (supra)
allows them to suo moto convert the
application under Section 156(3) Cr.P.C.
into one as compliant under Section
190(1) (a) Cr.P.C.:

"In this connection it may be
immediately added that where in an
application, a complainant states facts
which constitute cognizable offence but
makes a defective prayer, such an
application will not cease to be a
complaint nor can the Magistrate refuse
to treat it as a complaint even though
there be no prayer seeking trial of the
known or unknown accused."

In the same judgement Hon'ble R.K.
Dash, J. has been please to held as under:

"However, it is always to be kept in
mind that it is the primary duty of the
police to investigate in cases involving
cognizable offences and aggrieved person
cannot be forced to proceed in the
manner provided by Chapter XV and to
produce his witnesses at his cost to bring
home the charge to the accused. It is the
duty of the State to provide safeguards to
the life and property of a citizen. If any
intrusion is made by an offender, it is for
the State to set the law into motion and
come to the aid of the person aggrieved."

Hon'ble
J.C.
Gupta,
J.
while
answering the question has been pleased
to observe as follows:-

"It is obvious that power to order
investigation under Section 156(3) is
different from the power to direct
investigation conferred by Section 202(1).
The two operate in distinct spheres at
different stages. The power under Section
156(3) is exercisable at a pre-cognizance
stage while the other at post-cognizance
stage. Once the Magistrate has taken
cognizance of the offence, it is not within
3 All] Smt. Seema V. State of U.P. and others
951
his competence to revert back to precognizance stage and invoke Section
156(3) Cr.P.C."

9. The above quoted passage leaves
no room for doubt that the full Bench
decision of this Court has no where said
that Magistrate can start their litigation by
suo moto converting an application under
Section 156(3) Cr.P.C. into a complaint
against the wishes of the victim, who by
suo moto conversion of his application
becomes the complainant. The aforesaid
ruling of Ram Babu Gupta is being
utilized by the lower court Magistrate for
passing illegal orders if not for ulterior
motives. The judgement of Ram Babu
Gupta (supra) is being misinterpreted and
misquoted only to thwart the legitimate
registration of FIR of cognizable offence
as is disclose in the application under
Section 156(3) Cr.P.C. The Magistrate
should have looked into the law laid down
by
the
apex
Court
in
various
pronouncements on the subject and then
pass an order in accordance with law.

10. From the perusal of the
impugned
order
it
seems
that the
Magistrate has refused to direct the police
to register the FIR on the ground that the
victim is a knowledge of all the facts and
the
matter
does
not
require
any
investigation. This view of the Magistrate
is wholly un-sanctified and is against the
very
spirit
of
Section
154(1)
in
conjunction with 156(3) Cr.P .C. and the
law laid down by the Apex Court.
Criminal Procedure Code no where
provides that if the facts of a cognizable
offence is known to the victim then his
FIR should not be registered. From where
the Magistrate is getting this law is not
understandable. On the contrary Criminal
Procedure Code as well as various rulings
referred to above by the Apex Court
clearly speaks that FIR of all cognizable
offence must be registered. This naturally
follows from the aforesaid judgement of
the apex court that if the police fails to
follow the mandate of law and the
Magistrate is approached to directed the
police to obey the law laid down by the
Supreme Court the Magistrate is under
boundant duty to see that the law laid
down by the Apex Court is observed.

11. In view of the what I have stated
above I find force in the contentions
raised by the learned counsel for the
applicant and the impugned order is
wholly unsustainable in law.

12. This Criminal Miscellaneous
Application is allowed. The impugned
order
dated
13.9.2007
passed
by
Additional Chief Judicial Magistrate,
Baghpat in Application No.440 of 2007,
Smt. Seema Versus Manoj and others,
under Section 156(3) Cr.P.C., police
station Chhaprauli, district Baghpat is
hereby quashed. The matter is remanded
back to ACJM, Baghpat to rehear and
decide the application of the applicant
strictly in accordance with law keeping
the law laid down the by Apex Court and
pass order thereon.
---------
952 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2007

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 8510 of 2002
Connected With
Civil Misc. Writ Petition No. 36028 of 2000

Kripa Shankar Tiwari

...Petitioner
Versus
District Inspector of School, Fatehpur
and another

...Respondents

Counsel for the Petitioner:
Sri S.N. Singh
Sri Piyush Mishra
Sri manoj Kumar Pandey

Counsel for the Respondents:
Sri R.K. Tripathi
Sri Suresh singh
S.C.

Constitution of India, Art. 226-Service
law-Cancellation
of
appointmentpetitioner's father died on 04.07.1989working as Head Master in Junior High
School retired on 30.10.88-keeping view
of the interest of students-in the eye of
law deemed to be retired on 30.10.88petitioner
cannot
be
appointed
on
compassionate ground-held-cancellation
order warrant no interference.

Held: Para 10

According to law, the father of the
petitioner stood retired on 30.10.1988,
but keeping in view the interest of the
students, extension of service till the end
of the academic session was granted to
him under the Rules so that the teaching
in the institution is not affected. This
session extension could only be treated
as an extension of service till the end of
the
academic
session.
It
would,
therefore, be akin to a fixed term
appointment, automatically terminating
the contract of service at the end of the
academic session. Such fixed tenured
employees cannot be treated as regular
employees
whose
Dependants
could
seek compassionate appointment, at
best, they could claim the salary up to
the period of expiry of the aforesaid
contract. It has already come on record
that the entire salary uptil 30.6.1989 has
already been paid to the petitioner's
mother and, therefore, on this ground
also the petitioner is not entitled to
compassionate appointment.
Case law discussed:
1994(4) SCC-138, 1997 (8) J T 332
2000(7) SCC 192, 2002 (2) PWC - 144

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard learned counsel for the
petitioner and Shri Suresh Singh, learned
Standing counsel for the respondents.

2. It is pleaded that the father of the
petitioner Late Shri Shiv Shankar Prasad
was working as a Headmaster in Junior
High School, Dev Goan in district
Fatehpur when he died in harness on
4.6.1989 and thereafter petitioner was
granted compassionate appointment vide
order dated 3.10.1997. However, without
any notice or opportunity, the said order
was cancelled vide order dated 8.10.1997
which is impugned in the connected
petition no. 36028 of 2000. In pursuance
of an order dated 18.8.2000 passed in the
aforesaid
connected
petition,
the
respondents have passed a fresh order
dated
28.8.2001
rejecting
his
representation and affirming the order
dated 8.10.1997 which is challenged in
the present petition.

3. Learned counsel for the petitioner
has firstly urged that the order dated
8.10.1997 was passed without notice or