# Vidya Singh v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2014) 2 ILRA 676
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-06-20
- **Case number:** U/S 482/378/407 No. 2433 of 2014
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidya-singh-v-state-of-u-p-anr-opp-parties-42899
- **Pages:** 5

## Headnote

Cr.P.C.-Section 482- on application under
section
156(3)-treating
complaint-by
placing reliance upon smt. Sukhwasi and
Chandrika case-held not proper-without
considering Gulab Chand Upadhyay case
magistrate committed great error-order
not sustainable-set-a-side.

Held: Para-16 & 17

## Text

676 INDIAN LAW REPORTS ALLAHABAD SERIES
exercised at the stage of completion of
examination-in-chief and Court does not
need to wait till the said evidence is tested
on cross-examination.......There is no
scope for the Court acting under Section
319 Cr.P.C. to form any opinion as to the
guilt of the accused...........

Though under Section 319 (4) (b)
Cr.P.C.
the
accused
subsequently
impleaded is to be treated as if he had
been an accused when the Court initially
took cognizance of the offence, the degree
of satisfaction that will be required for
summoning a person under Section 319
Cr.P.C. would be the same as for framing
a charge."

13. In wake of the above cited case
law of five Judges Constitutional Bench
of Hon'ble Apex Court, there appears no
substance in the arguments advanced by
learned counsel for the revisionists that
the revisionists have been summoned
without cross-examination of witness and
without any express view of the court
below that there is likelihood of their
conviction.

14. The second ground challenging
the validity of impugned order also
appears baseless. Learned counsel for the
revisionists has filed a copy of Legal
Remembrancer's
Manual,
which
is
annexed as annexure-3 to the revision.

15. I have gone through these
provisions. There is no such provision in
it
providing
for
that
the
District
Government Counsel (Criminal) cannot
appear or move an application without
having specific written permission in a
particular case by the State Government.
Once the District Government Counsel is
appointed by the State Government to
conduct the legal proceedings on behalf of
the State Government either generally or
specially by the Government, he is free to
move any application necessary in the
interest of justice and expeditious disposal
of the case in discharge of his duty.
Nowhere
it
is
provided
in
Legal
Remembrancer's Manual that the District
Government Counsel is required to seek
permission from the State government
separately every time to move any
application.

16. Considering the aforesaid facts
and circumstances of the case and the
latest legal position, the revision is
dismissed at the admission stage itself.

17. A copy of this order be sent to
registry
forthwith
for
onward
communication to the court concerned.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.06.2014

BEFORE
THE HON'BLE RAJAN ROY, J.

U/S 482/378/407 No. 2433 of 2014

Vidya Singh ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Sanjay Kumar Pandey

Counsel for the Respondents:
Govt.
Advocate
2 All] Vidya Singh Vs. State of U.P. & Anr.
677
Cr.P.C.-Section 482- on application under
section
156(3)-treating
complaint-by
placing reliance upon smt. Sukhwasi and
Chandrika case-held not proper-without
considering Gulab Chand Upadhyay case
magistrate committed great error-order
not sustainable-set-a-side.

Held: Para-16 & 17
16. For the aforesaid reasons, the order
passed by the learned revisional court is
also not sustainable as it has affirmed
the order of the learned Magistrate with
reference to the two judgments in
Sukhwasi case and Chandrika Singh case
without considering the matter in the
light of the judgment in Gulab Chand
Upadhyaya case (supra), which has
already been referred above.

17. Learned courts below have failed to
appreciate
that
while
power
and
discretion was vested in the Magistrate,
the exercise of such powers was to be
guided by the decision in Gulab Chand
Case (Supra). Both the courts below
have ignored this aspect of the matter.

Case Law discussed:
2007(59) ACC 739; 2000(68) ACC 777; 2002
Cri. L.J.;

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard learned counsel for the
applicant
and
learned
Additional
Government Advocate for the State.

2. This is an application under
section 482 Cr.P.C. challenging the order
dated 12.5.2014 passed by the Additional
Chief Judicial Magistrate IV, Court
No.28, Lucknow, whereby the learned
Magistrate has treated the application of
the applicant under section 156(3) Cr.P.C.
as a complaint under section 190 (9)
Cr.P.C. and has fixed the date for
recording of statement of the complainant
under section 200 Cr.P.C. The applicant
has also challenged the revisional order
passed by the District & Sessions Judge,
whereby the revision filed by the
applicant has been rejected.

3. The contention of the learned counsel
for the applicant is that the applicant is an old
lady aged about 65 years. She had purchased
House No.SS 83, Sector D near Akilapur,
Secretariat Colony, Jankipuram, Lucknow
from the respondent no.2 way back in the year
1998. As the value of the house increased
manifold with the passage of time, the
respondent no.2 wanted to take back the
possession of the house and to grab the same.
The incident is said to have occurred on
30.3.2014 wherein the respondent no.2, his son
along with other criminal associates are alleged
to have visited the house of the applicant and
tried to oust her. Another incident is said to
have taken place on 13.4.2014 involving the
respondent no.2 and certain criminal elements
wherein they are said to have unauthorisedly
entered into her premises and after breaking
open the lock had taken away household
goods, ornaments and cash etc. The police
reached the place of incident on the call of the
applicant to the police control room,
whereupon the miscreants ran away along with
aforesaid valuables.

4. Based on the aforesaid incident,
she tried to lodge a first information
report which was not registered by the
concerned police. Her complaint to the
Senior Superintendent of Police on
30.3.2014 was also not taken cognizance
of.

5. Being aggrieved, the applicant
filed an application under section 156(3)
Cr.P.C. on 2.5.2014 before the learned
678 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate,
whereupon,
the
learned
Magistrate has passed the impugned order
on 12.5.2014 treating it as a complaint
and proceeded with the same accordingly.

6. Being aggrieved, the applicant
filed a revision before the learned District
& Sessions Judge, Lucknow, which has
been
rejected
by
the
order
dated
14.5.2014.

7. The contention of the learned
counsel for the applicant is that in view of
the allegations made by the applicant
regarding the household goods and other
valuable ornaments and cash having been
taken away by the respondent no.2 and his
criminal associates, an investigation by
the police is a must, especially for the
recovery of said valuables, therefore, the
learned Magistrate has erred in treating
the aforesaid application under section
156(3) Cr.P.C. as a complaint.

8. Learned A.G.A. appearing for the
State did make an effort to defend the
order passed by the courts below, but
ultimately he very fairly stated that an
investigation by the police would have
been the proper course of action.

9. On a perusal of the summoning
order dated 12.5.2014 passed by the
learned Magistrate, it is revealed that the
learned Magistrate has taken note of the
allegations contained in the application,
wherein
it
has
been
specifically
mentioned that the respondent no.2 and
his criminal associates had taken away her
valuables from her house in a tempo and
they ran away on seeing the police.

10. Learned Magistrate has treated
the application under section 156(3) as a
complaint on the ground that as the
applicant is aware of all the facts, she can
prove the incident on her own and no
investigation is required in this regard.

11. Learned Magistrate has relied
upon the judgments of this Court in the
case of Sukhwasi vs. State, 2007(59)
ACC 739 and in the case of Chandrika
Singh 2000(68) ACC 777.

12. Having heard the learned
counsel for the applicant and having
perused the record, I am of the view that
the learned Magistrate has erred in law in
passing
the
impugned
order
dated
12.5.2014. In view of the pronouncement
of the Court in Sukhwasi case (supra),
there can be no dispute about the legal
position that the learned Magistrate has
the power to treat the application under
section 156(3) Cr.P.C. as a complaint and
to this extent the learned Magistrate
cannot be faulted. However, the relevant
question in this case is as to whether the
learned Magistrate has exercised the said
powers and the discretion bestowed on
him judiciously or not.

13. This Court in the case of Gulab
Chand Upadhyaya vs. State of U.P. and
others, 2002 Cri.L.J. 2907 has already
observed that the powers and the
discretion available to a Magistrate to
treat an application under section 156(3)
Cr.P.C. as a complaint and to proceed
under Chapter XV of Code of Criminal
Procedure
cannot
be
unguided
or
arbitrary. This Court laid down the
guidelines for exercise of such power and
2 All] Vidya Singh Vs. State of U.P. & Anr.
679
discretion in the said case which are
extracted as under:

"21. In these circumstances, the
question arises that when a Magistrate is
approached by a complainant with an
application praying for a direction to the
police under Section 156(3) to register
and investigate an alleged cognizable
offence, why should he-

(A) grant the relief of registration of
a case and its investigation by the police
under Section 156(3) Cr.P.C, and when
should he

(B) treat the application as a
complaint and follow the procedure of
Chapter XV of Cr.P.C.

22. The scheme of Cr.P.C. and the
prevailing circumstances require that the
option to direct the registration of the case
and its investigation by the police should
be exercised where some "investigation"
is required, which is of a nature that is not
possible for the private complainant, and
which can only be done by the police
upon whom statute has conferred the
powers essential for investigation, for
example

(1) where the full details of the
accused are not known to the complainant
and the same can be determined only as a
result of investigation, or

(2) where recovery of abducted
person or stolen property is required to be
made by conducting raids or searches of
suspected places or persons, or

(3) where for the purpose of
launching a successful prosecution of the
accused evidence is required to be
collected and preserved. To illustrate by
example cases may be visualised where
for production before Court at the trial (a)
sample of blood soaked soil is to be taken
and kept sealed for fixing the place of
incident; or (b) recovery of case property
is to be made and kept sealed; or (c)
recovery under Section 27 of the
Evidence Act; or (d) preparation of
inquest report; or (e) witnesses are not
known and have to be found out or
discovered
through
the
process
of
investigation.

23. But where the complainant is in
possession of the complete details of all
the accused as well as the witnesses who
have to be examined and neither recovery
is needed nor any such material evidence
is required to be collected which can be
done
only
by
the
police,
no
"investigation"
would
normally
be
required and the procedure of complaint
case should be adopted. The facts of the
present case given below serve as an
example. It must be kept in mind that
adding unnecessary cases to the diary of
the police would impair their efficiency in
respect of cases genuinely requiring
investigation. Besides even after taking
cognizance and proceeding under Chapter
XV the Magistrate can still under Section
202(1) Cr.P.C. order investigation, even
though of a limited nature {see para 7 of
JT (2001)2 (SC) 81:(AIR 2001 SC 571)"

14. It is pertinent to mention that the
aforesaid judgment in Gulab Chand
Upadhyaya case (supra) has been noticed
by the Division Bench in Sukhwasi case
in paragraph 19 while quoting the relevant
extract of the judgment in Chandrika
Singh case, which has been relied upon by
the learned Magistrate.
680 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Tested on the anvil of the aforesaid
guidelines, the conclusion is irresistible that
as recovery of stolen property is required to
be made and unknown criminal associates of
Respondent no.2 are required to be traced by
conducting raids or searches at suspected
places or persons and evidence is required to
be collected for the purpose of launching a
successful prosecution of the accused, the
appropriate course to be adopted in this
regard was to order an investigation by the
police in exercise of power under section
156(3) Cr.P.C. The learned Magistrate has
erred in treating the application as a
complaint case under misconception that the
applicant was already aware of all the facts
ignoring her specific allegations about the
valuables stolen and taken away by the
suspected persons including some criminal
associates of respondent no.2. The learned
Magistrate has erred in not considering the
judgment in Gulab Chand Upadhyaya case
(supra), which has been taken note of in
Chandrika Singh case referred by the learned
counsel for the applicant and also in
Sukhwasi case (supra).

16. For the aforesaid reasons, the
order passed by the learned revisional
court is also not sustainable as it has
affirmed the order of the learned
Magistrate with reference to the two
judgments
in
Sukhwasi
case
and
Chandrika Singh case without considering
the matter in the light of the judgment in
Gulab Chand Upadhyaya case (supra),
which has already been referred above.

17. Learned courts below have
failed to appreciate that while power and
discretion was vested in the Magistrate,
the exercise of such powers was to be
guided by the decision in Gulab Chand
Case (Supra). Both the courts below have
ignored this aspect of the matter.

18. As the matter is at a preinvestigation stage, the respondent no.2 is
at best a proforma party, accordingly, no
notice is being issued to him.

19. In view of the above discussion
and considering the facts and circumstances
of the case and the law, as referred above, the
impugned order dated 12.5.2014 passed by
the learned Magistrate is set aside. Learned
Magistrate is directed to reconsider the
matter in the light of the observations made
above and pass a fresh order on the
application of the applicant under section
156(3) Cr.P.C.

20. The application is, accordingly,
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.06.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIJAY LAKSHMI, J.

Civil Misc. Writ Petition No.10332 of 2014

Ram Kumar Maurya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dr. S.B. Singh

Counsel for the Respondents:
A.G.A.

Constitution of India, Art.-226-quashing
FIR/stay of arrest offence under section