# Vinod Kumar Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 474
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-24
- **Case number:** Criminal Revision No. 2213 of 2018
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-revisionist-v-state-of-u-p-anr-opp-parties-49982
- **Pages:** 10

## Headnote

Law-
Code
of
Criminal
Procedure,1973-Sections 154,156 & 397-
Application u/s 156 (3) CrPC moved by
the revisionist was rejected by the learned
Court below-Magistrate u/s 156 (3) CrPC
is
legally
authorized
to
order
for
registration of F.I.R. , investigate into the
matter or to treat such application as a
complaint, as the case may be and he is
fully empowered even to reject the
application moved before it-Before taking
recourse of the Court the complainant
ought to move to the police station for
registration of the F.I.R. and if unattended
there,
move
an
application
to
the
Superintendent of Police and this fact also
be deposed clearly in his application u/s
156(3) CrPC moved before the MagistrateIf no affidavit was filed in support of the
application u/s 156(3) CrPC the same
could not have been entertained by the
4 All. Vinod Kumar Vs. State of U.P. & Anr.
475
court concerned. (Para 9-15, 25-28, 3541)

Revision dismissed. (E-15)

List of Cases cited:

## Text

474 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.2,00,000/- to the satisfaction of the
concerned Court.

6. With the aforesaid observations, the
revision is allowed.

7. In view of the above, the finding of
the Court below that since the vehicle is
liable to be confiscated, interim custody
cannot be granted, is liable to be set aside
and accordingly, the impugned order dated
16.12.2019 passed by the Additional
Sessions Judge, Court No.-16, Varanasi is
hereby set aside. Accordingly, by allowing
the application, the vehicle is ordered to be
released on following conditions:-

(i) It is ordered that on furnishing
personal bond of Rs.2,00,000/- (Rupees Two
Lacs Only) with one solvent surety in the like
amount to the satisfaction of the trial Court
by the revisionist, the aforesaid vehicle
(Scorpio bearing registration No. BR-10-PA9743) shall be handed over to the respective
revisionist on Supurdginama on proving
ownership of the same;

(ii) whenever it would be required by
the competent Court the same will be
produced on petitioner's own expenses at the
place as would be directed in this regard;

(iii) at the time of release of the vehicle
on Supurdginama, the aforesaid Authority
shall ensure to take note of chassis number,
engine number and registration number of the
aforesaid vehicle and keep on record;

(iv) the petitioner shall neither alter or
change the condition of the aforesaid vehicle
in any manner whatsoever during pendency
of the litigation;

(v) the petitioner shall not create any
third party rights over the aforesaid vehicle;

(vi) the petitioner shall not fiddle with
or scratch or erase numbers engraved in the
chassis and engine of the vehicle;

(vii) in the event, all or any of the
aforesaid conditions are found to have been
violated, the respondent / State is at liberty
to move this Court to such modification /
variation of the order passed by this Court
today.
----------
(2023) 4 ILRA 474
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.01.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Revision No. 2213 of 2018

Vinod Kumar ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri M.P.S. Chauhan

Counsel for the Opp. Parties:
G.A., Sri S.P.S. Chauhan, Smt. Meenakshi
Chauhan

Criminal
Law-
Code
of
Criminal
Procedure,1973-Sections 154,156 & 397-
Application u/s 156 (3) CrPC moved by
the revisionist was rejected by the learned
Court below-Magistrate u/s 156 (3) CrPC
is
legally
authorized
to
order
for
registration of F.I.R. , investigate into the
matter or to treat such application as a
complaint, as the case may be and he is
fully empowered even to reject the
application moved before it-Before taking
recourse of the Court the complainant
ought to move to the police station for
registration of the F.I.R. and if unattended
there,
move
an
application
to
the
Superintendent of Police and this fact also
be deposed clearly in his application u/s
156(3) CrPC moved before the MagistrateIf no affidavit was filed in support of the
application u/s 156(3) CrPC the same
could not have been entertained by the
4 All. Vinod Kumar Vs. State of U.P. & Anr.
475
court concerned. (Para 9-15, 25-28, 3541)

Revision dismissed. (E-15)

List of Cases cited:

1. Jagannath Verma & Others Vs St. of U.P. &
anr., AIR 2014 Allahabad 214 (Lucknow Bench)
(F.B.)

2. Father Thomas Vs St. of U.P. & anr. 2011
Criminal Law Journal 2278 (Allahabad) (F.B.)

3. Lalita Kumari Vs St. of U.P., (2014) 2 SCC 1

4. Priyanka Srivastava Vs St. of U.P., (2015) 6
Supreme Court Cases 287

5. Sukhwasi Vs St. of U.P., 2008 Cri LJ 472
(Allahabad) (D.B.)

6. Suresh Chandra Jain Vs St. of M.P., A.I.R.
2001 Supreme Court 571,

7. Gopal Das Sindhi Vs St. of Assam, A.I.R. 1961
Supreme Court 986,

8. Madhu Bala Vs Suresh Kumar, A.I.R. 1997
Supreme Court 3104,

9. Ramesh Kumari Vs St. (N.C.T. of Delhi),
A.I.R. 2006 Supreme Court 1322

10. Babu Venkatesh & ors. Vs St. of Karn. &
anr., (2022) 5 Supreme Court Cases 639

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard learned counsel for the
revisionist, learned A.G.A. for the State and
learned counsel for the opposite party no.2.

2. An application under Section 156
(3) Cr.P.C. moved by the revisionist /
applicant registered as Misc. Case No.136
of 2018, Vinod Kumar Vs. Aidal Singh,
P.S. Gabhana, Aligarh was rejected by the
Court of Additional Sessions Judge, Court
No.5, Aligarh vide order dated 26.05.2018,
feeling aggrieved of which, the present
revision has been filed.

3. The submissions of learned counsel for
the revisionist, in brief, are that the
impugned order has been passed without
considering the facts of the case and
evidence on record. It is against the
provisions of law and suffers from the
jurisdictional error as the jurisdiction
vested in the Court has not been exercised
properly. The observations made by the
learned Sessions Court are perverse and
arbitrary in nature. From a bare perusal of
the application moved by the revisionist
under Section 156 (3) Cr.P.C., a cognizable
offence was clearly made out and the Court
ought to have ordered for the registration of
F.I.R. and investigation into the matter, but
the same was rejected in an illegal manner.
Hence, a prayer has been made to set-aside
the impugned order by allowing the present
revision.

4. The learned A.G.A. appearing on
behalf of the State as well as learned
counsel for the opposite party no.2 have
vehemently opposed the present revision
and it has been submitted that the
impugned order has been passed in
accordance
with
the
legal
principles
governing the matter. The application under
Section 156 (3) Cr.P.C. moved by the
revisionist was not sustainable in law and
the learned Sessions Court committed no
legal or jurisdictional error in passing the
impugned order. Hence, the revision is
liable to be dismissed.

5. The factual scenario, as reveals
from the perusal of the application under
Section 156 (3) Cr.P.C. is that on
09.03.2018, the victim, daughter of the
applicant, aged about 14 years, had gone to
476 INDIAN LAW REPORTS ALLAHABAD SERIES
some outer place alongwith other women
of the village. In the night at 11:00 P.M.,
the accused seduced her minor daughter and
taking her into a Car, committed rape upon
her and pressed her mouth so that she could
not make any shriek. She was also threatened
for her life. The incident was informed by the
victim to her mother and when the informant,
who was not present in the village, came
back, his wife told him the incident. He
searched for the accused, but could not find.
Subsequently, on 27.03.2018, the accused
again made an attempt to drag the victim
when she was coming with her mother and
when the wife of the informant and other
witnesses tried to hold him, he fled away.
Several applications were moved by the
informant to the S.S.P. and other Police
Officers and Human Rights Commission and
he also went to P.S. Gabhana, but no report
was lodged. Hence, application under Section
156 (3) Cr.P.C. was moved before the
concerned Magistrate.

6. Applications given to Station Officer,
P.S. Gabhana, Aligarh dated 27.03.2018 and
to S.S.P., Aligarh dated 28.03.2018 with
Registry receipts were made annexures to the
application. The learned Sessions Judge
considering the allegations made therein
false, frivolous and unnatural and also finding
that no medical examination of the victim
was performed, rejected the said application
vide impugned order dated 26.05.2018.

7. From the rival contentions of both
the
sides,
some
relevant
points
for
determination emerge out.

Point for determination no.1

8. At the very outset, it is desirable to
elucidate whether the present revision is
maintainable as such or not.

9. The learned State counsel and
learned counsel for opposite party no.2
have made it a point of assailment that
since the order rejecting an application
under Section 156 (3) Cr.P.C. falls into the
category of interlocutory order, criminal
revision
against
the
same
is
not
maintainable.

10. Further, the prospective accused
persons were necessary parties before the
revisional court and since they were not
afforded with an opportunity of hearing,
their valuable rights were going to be
affected by the order, which was eventually
passed by the revisional court, is the second
ground of contention taken by the learned
counsel for the State and the opposite party
no.2.

11. The question raised by the learned
State counsel has already found its answer
in a Full Bench case of this Court,
Jagannath Verma & Others Vs. State of
U.P. & another, AIR 2014 Allahabad 214
(Lucknow Bench) (F.B.). In this Full
Bench case, another Full Bench case of this
Court Father Thomas Vs. State of U.P. &
Another 2011 Criminal Law Journal
2278
(Allahabad)
(F.B.)
was
also
discussed. In that matter, the Court of Chief
Judicial
Magistrate,
Ambedkar
Nagar
rejected an application under Section 156 (3)
Cr.P.C. considering the contents of the
complaint and coming to the conclusion that
there was no ground for directing the police
to register and investigate the case. The
aggrieved party preferred a revision before
the Session Judge, which was allowed and
the order of the Chief Judicial Magistrate was
set-aside and the latter was directed to decide
the said application afresh. It was against that
revisional order aggrieved by which the
petitioners moved to the High Court.
4 All. Vinod Kumar Vs. State of U.P. & Anr.
477

12. The Hon'ble Full Bench in
Jagannath Verma case (supra) held like this
-

"The power of the magistrate under
Section 202 to postpone the issuance of
process and to direct an investigation to be
made by a police officer for the purpose of
deciding whether or not there is sufficient
ground for proceeding, is distinct from an
order under Section 156 (3). Hence, where
an order is passed by the magistrate
declining to order an investigation under
Section 156 (3), such an order affects the
valuable rights of the complainant and is a
matter of moment. Access to the remedy of
a revision under Section 397 (1) is not
barred since such an order is not an
interlocutory order under sub-section (2)
nor can access to the statutory remedy of a
revision under Section 397 (1) be defeated
on the ground that the complainant may
avail of the procedure prescribed in
Chapter XV of the Code."

13. Hon'ble Full Bench specifically
laid down that in a revision petition against
the order of the Magistrate rejecting the
application under Section 156 (3) Cr.P.C.
for registration of F.I.R. and investigation
of case, the prospective accused has right to
be heard. It was also said that - "But a right
to be heard in revision is not excluded
because a person who claims such a right
was not entitled to be heard before the
original order, which is assailed, was
passed in the first instance or merely
because a right of a hearing will not be
available in the original proceedings on
remand..............".

It was further explained that -

"Natural justice in our jurisprudence is
not merely a matter of statutory entitlement
but is an emanation or recognition of the
constitutional right to fair procedure, fair
treatment and objective decision making.
Hence, a prospective accused is entitled to
be heard in revision under Section 397
when an order rejecting an application
under Section 156 (3) is assailed."

14. The connotative pronouncement
of the Full Bench of this Court makes the
legal position discernible and clarifies all
the doubts regarding the maintainability of
the present revision and accordingly it is
held to be maintainable.

15. It is also apparent from the perusal
of the record that the prospective accused
has been impleaded as opposite party no.2
in the present revision by the revisionist
and he has participated in the proceedings
of the present revision.

Point for determination no.2.

This point relates to the extent of
power of a Magistrate while dealing with
an application under Section 156 (3) of
Cr.P.C.

16. Before going into the discussion,
a perusal of the relevant provisions of law
appears to be necessary.

The provisions of Section 154 of the
Criminal Procedure Code read like this -

"Sec. 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
478 INDIAN LAW REPORTS ALLAHABAD SERIES
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 sub-section (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."

17. The provision given under Section
154 (1) Cr.P.C. clearly indicates that if a
cognizable offence is made out from the
very perusal of the information given to an
officer in charge of a police station, the
police is thereby apprised about the alleged
criminal activity and then it is the duty of
the police to take suitable steps and to set
the criminal law into motion and first step
in this regard is the lodging of the F.I.R.
and at that stage, as held in Lalita Kumari
Vs. State of U.P., (2014) 2 SCC 1,
"'reasonableness' or 'credibility' of the
information is not a condition precedent for
the registration of a case under Section 154
Cr.P.C."

18. Having an exhaustive account of
incident or containing every minute details
of the occurrence is never supposed to be a
pre-requisite of an F.I.R. Thus, we find that
it is unequivocally clear that in case of
information of any cognizable offence, the
registration
of
F.I.R.
is
mandatory.
Although, in some cases, it may be required
to have a preliminary inquiry and the
requirement of preliminary inquiry was
emphasized by the Apex Court in Priyanka
Srivastava Vs. State of U.P., (2015) 6
Supreme Court Cases 287, wherein the
Constitutional Bench of Lalita Kumari case
(supra) has been referred like this -

"115. Although, we, in unequivocal
terms, hold that Section 154 of the Code
postulates the mandatory registration of
FIRs on receipt of all cognizable offences,
yet,
there
may
be
instances
where
preliminary inquiry may be required owing
to the change in genesis and novelty of
crimes with the passage of time. One such
instance is in the case of allegations
relating to medical negligence on the part
of doctors. It will be unfair and inequitable
to prosecute a medical professional only on
the basis of the allegations in the
complaint."

19. Further, the Constitutional Bench
proceeded to hold that where a preliminary
enquiry is necessary, it is not for the
purpose for verification or otherwise of the
information received but only to ascertain
whether the information reveals any
cognizable offence.

20. The question arises as to the
remedy of the person who is victim or
aggrieved, if the police denies to fulfill its
constitutional and legal duty and F.I.R. is
not
lodged
ignoring
the
mandatory
provisions of law. Section 154 (3) is
provisioned by the legislature in its wisdom
and farsightness to provide a remedy to
such an aggrieved person and that is why
under the aforesaid provision the S.P.
4 All. Vinod Kumar Vs. State of U.P. & Anr.
479
concerned
was
made
empowered
to
proceed into the matter as referred
hereinabove.

21. Situation arises when the crime on
a
victim
remains
unheard
despite
approaching the Superintendent of Police
and this leaves him in a state of disgust and
distress. This takes the victim / informant to
the Magistrate, who may order for
registration of F.I.R. and investigation into
the
matter
under
Section
156
(3)
Cr.P.C.,which provides as under.

"Sec. 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."

22. Since investigation in a criminal
matter may be initiated after lodging of the
F.I.R., hence needless to say that the power
of the Magistrate to order for investigation
implies his power to order for registration
of the F.I.R. in any cognizable case.

23. Hence, sufficient provisions have
been embodied in the Criminal Procedure
Code to safeguard the rights of the victims /
informants. On the one hand, it is
incumbent upon the police to lodge an
F.I.R. on receiving information regarding a
cognizable case and at the same time the
duty has been cast upon the Superintendent
of Police that in case there is a refusal on
the part of the officer in charge of the
police station to record the information of a
cognizable offence as an F.I.R., to either
investigate such case himself or through
any other subordinate police officer.

24.

Inspite
of
such
requisite
safeguards for the victim / informant and
obligatory provisions for the police, there
may be several instances when F.I.R. is not
lodged despite invocation of provisions of
Section 154 Cr.P.C. and that is why the
Magistrate was equipped with the power to
make an order for lodging of the F.I.R. and
to investigate the matter.

25. Now the point to be tackled at this
juncture is that whether the Magistrate after
receiving an application under Section 156
(3) Cr.P.C. for registration of F.I.R. is
bound to accept it or any other course is
available to him.

26. The answer to it we find in
Sukhwasi Vs. State of U.P., 2008 Cri LJ
472 (Allahabad) (D.B.), wherein the
Division Bench firstly quoted the question
referred before it as - "The, following
question,
has
been
referred,
for
consideration;

Whether the Magistrate is bound to
pass an order on each and every application
under Section 156 (3) Cr.P.C. containing
allegations of commission of a cognizable
offence for registration of the F.I.R. and its
investigation by the police even if those
allegations, prima-facie, do not appear to
be genuine and do not appeal to reason, or
he can exercise judicial discretion in the
matter and can pass order for treating it as
'complaint' or to reject it in suitable cases?"
480 INDIAN LAW REPORTS ALLAHABAD SERIES

Answering to the question, it was held
that - "For the reasons mentioned above, I
am of the opinion that the Magistrate is not
always bound to pass an order for register
of the case and investigation after receipt of
the application under Section 156 (3)
Cr.P.C. disclosing a cognizable offence.
The Magistrate may use his discretion
judiciously and if he is of the opinion that
in the circumstances of the case, it will be
proper to treat the application as a
complaint case then he may proceed
according to the procedure provided under
Chapter XV of Cr.P.C. I am also of the
opinion that it is not always mandatory in
each and every case for the Magistrate to
pass an order to register and investigate on
receipt of the application under Section 156
(3) Cr.P.C. In the present case, the
Magistrate is perfectly within the judicial
power to treat the application under Section
156 (3) Cr.P.C. as a complaint case. There
is no illegality or impropriety in the order.
The revision is devoid of merit and is liable
to be dismissed."

It was also held that - "It will not be
proper to deal with this hypothetical
position that if the Magistrate is of opinion
that false and frivolous allegation has been
made in application then he may reject the
application or it is for the investigating
officer to decide the truthfulness of the
story and if found false then launch
prosecution against the applicant But it is
discretion of the Magistrate to be used
judiciously
while
disposing
of
the
application."

27. It will be apposite to note here
that in Sukhwasi (supra), the cases of
Suresh Chandra Jain Vs. State of M.P.,
A.I.R. 2001 Supreme Court 571, Gopal
Das Sindhi Vs. State of Assam, A.I.R.
1961 Supreme Court 986, Madhu Bala
Vs. Suresh Kumar, A.I.R. 1997 Supreme
Court 3104, Ramesh Kumari Vs. State
(N.C.T. of Delhi), A.I.R. 2006 Supreme
Court 1322 have been discussed and
followed in its true spirit.

28. From the above, it is clear that the
Magistrate dealing with an application
under Section 156 (3) Cr.P.C., is legally
authorized to make an order for registration
of F.I.R. and investigate into the matter or
to treat such application as a complaint, as
the case may be and he is fully empowered
even to reject the application moved before
it under Section 156 (3) Cr.P.C.

Point for determination no.3.

This point relates to the question as to
whether application under section 156 (3)
Cr.P.C. necessitates the filing of an affidavit
in support thereof -

29. As the legal pronouncements
delivered by the Courts in India on several
occasions are the result of the constant
study of developing Society and swiftly
changing socio-economic conditions, they
always stand in conformity with the need of
the hour and requirement of the Society.

30. At one point of time, it was gathered
by the Hon'ble Apex Court that the provisions
of Section 156 (3) Cr.P.C. are being misused
on several occasions by some deviant,
unscrupulous and unprincipled litigants, as the
required sense of responsibility on the part of
the applicants / victims in moving such
applications even on flimsy and false grounds,
is lacking and resulting into the unnecessary
and deceitful hardships and agony caused to
the prospective accused persons.

31. In this backdrop, the legal
principles enumerated by the Hon'ble Apex
4 All. Vinod Kumar Vs. State of U.P. & Anr.
481
Court and directions issued in the case of
Priyanka Srivastava (supra) are relevant
and must be kept into mind.

32. In the factual scenario of the
aforesaid case of Priyanka Srivastava, an
application under Section 156 (3) Cr.P.C.
was moved against the bank authorities of
the Punjab National Bank Housing Finance
Limited with an intent to avoid bank loan
and the order passed on that application
gave rise to an F.I.R. under Sections 465,
467, 468, 471, 386, 506, 34 and 120-B IPC
against the bank authorities. When the
appellants
being
aggrieved
therewith
moved to the High Court, the High Court
declined to interfere with the order passed
by the Magistrate opining that from the
perusal of the F.I.R., it could not be said
that no cognizable offence was made out.

33. The Hon'ble Supreme Court while
quashing the impugned F.I.R. made several
relevant observations and issued specific
directions to the Courts dealing with the
application under Section 156 (3) Cr.P.C. It
was held that -

"30. In our considered opinion, a stage
has come in this country where Section 156
(3) Cr.P.C. 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.

31.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 filed. That apart,
the learned Magistrate would also be aware
of the delay in lodging of the FIR."

Thus we find the answer to this point
in affirmative.

34. Now the question arises whether
the application under Section 156 (3)
Cr.P.C., which is in question before the
482 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, was entertainable by the concerned
court or not.

35. Recently in Babu Venkatesh and
Others Vs. State of Karnataka and
another, (2022) 5 Supreme Court Cases
639, the Hon'ble Apex Court reiterated the
prerequisites for exercise of the power of
Magistrate under Section 156 (3) Cr.P.C.
and the manner in which it is to be
exercised. In that case, order passed by the
Magistrate under Section 156 (3) Cr.P.C.
led to registration of FIRs under Sections
420, 471, 468, 465 and 120-B IPC against
the appellants and petitions filed by
appellants under Section 482 Cr.P.C. before
High Court for quashing aforesaid criminal
proceedings were dismissed on ground that
serious allegations of cheating and forgery
were shown in complaints and as such no
case was made out for quashing FIRs.

36.

Clarifying
the
principles
governing
the
scope
and power
of
Magistrate under Section 156 (3) Cr.P.C.
and reiterating the principles laid down in
Priyanka Srivastava case (supra), it was
observed that -

"This court has clearly held that, a
stage has come where applications under
Section 156 (3) of Cr.P.C. are to be
supported by an affidavit duly sworn by the
complainant who seeks the invocation of
the
jurisdiction
of
the
Magistrate..................."

"This court has further held that prior
to the filing of a petition under Section 156
(3) of the Cr.P.C., there have to be
applications under Section 154 (1) and 154
(3) of the Cr.P.C. This court emphasizes the
necessity to file an affidavit so that the
persons making the application should be
conscious and not make false affidavit.
With such a requirement, the persons would
be
deterred
from
causally
invoking
authority of the Magistrate, under Section
156 (3) of the Cr.P.C. In as much as if the
affidavit is found to be false, the person
would
be
liable
for
prosecution
in
accordance with law."

37. The Hon'ble Apex Court found
that no affidavit in support of the
application under Section 156 (3) Cr.P.C.
was filed by the complainant, hence it was
observed that -

"In any case, when the complaint was
not
supported
by
an
affidavit,
the
Magistrate ought not to have entertained
the application under Section 156 (3) of the
Cr.P.C."

38. Principle has been thus laid down
by the Hon'ble Apex Court for the Courts
dealing with the application under section
156 (3) Cr.P.C. that if such an application is
not supported with the affidavit duly sworn
by the complainant, such application
cannot be entertained by Magistrate.

39. From the perusal of record, this
Court finds that nowhere it has been
mentioned in the memo of revision that any
affidavit in support of the aforesaid
application under section 156 (3) Cr.P.C.
duly sworn by the complainant was filed
before the court concerned. Nothing in this
regard can be found in the impugned order
passed by the Additional Sessions Judge,
Court
No.5,
Aligarh.
The
copy
of
application under Section 156 (3) Cr.P.C.
also goes to show that nowhere it has been
asserted therein that any affidavit is being
filed by the applicant in support of the
aforesaid application. As a matter of fact,
the Court finds not even a whisper to this
effect from the perusal of the whole record
that any affidavit in support of the
4 All. Nadeem @ Kalia Vs. State of U.P. & Anr.
483
allegations made in the application under
Section 156 (3) Cr.P.C. has ever been filed
by the applicant.

40. From the above discussion, it is
explicit that before taking recourse of the
Court, the complainant ought to move to
the police station for registration of the
F.I.R. and if unattended there, move an
application to the Superintendent of Police
and this fact also be deposed clearly in his
application under Section 156 (3) Cr.P.C.
moved before the Magistrate. In the matter
in hand, copies of the applications moved
by the applicant to the police station
Gabhana, District Aligarh and to the S.S.P.,
Aligarh have been filed on record, but this
fact has not been deposed anywhere by the
informant by way of affidavit, which was a
necessary compliance of the law governing
the subject. Although the learned Court has
not paid any attention to this legal omission
and the impugned order has been passed on
factual aspect, but this Court can, in no
circumstance,
ignore
legal
principles
governing the present matter. If no affidavit
was filed in support of the application
under Section 156 (3) Cr.P.C., it even,
could not have been entertained by the
court concerned. The application itself
suffers from a serious legal flaw and was
not entertainable as such.

41. It is not required for this Court to
examine the facts of the case and to draw a
conclusion whether the learned Sessions
Court analyzed the factual scenario of the
matter in proper manner or not because it
has been already held that the application in
itself was not entertainable for want of
affidavit and rejection of the same was a
right consequence.

42. On the basis of the aforesaid
discussion, I am of the considered view that
the revision is devoid of merit and deserves
to be dismissed.

43. The revision is accordingly
dismissed.
----------
(2023) 4 ILRA 483
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Criminal Revision No. 2913 of 2019

Nadeem @ Kalia ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Bhavya Sahai, Sri Brijesh Sahai (Sr.
Advocate)

Counsel for the Opp. Parties:
G.A., Sri Avnish Kumar Srivastava, Sri Anoop
Trivedi (Sr. Advocate)

Criminal Law-Juvenile Justice (Care and
Protection of Children) Act, 2000-Sections
7A,
49-Juvenile
Justice
(Care
and
Protection of Children) Rules, 2007-Rule
12)- Revision against the judgment and
order passed in Juvenile Criminal Appeal-A
person can move an application claiming
himself to be juvenile at any stage of the
case and even after the judgment of the
case-The word 'any court in Section 7A(1)'
means the trial court/High Court/Apex
Court and does not mean that any court in
U.P.
wherever
a
person
wants
an
application to be moved-Medical report
does
not
bear
the
thumb
impression/signature
of
the
accused
thereby the presence of the revisionist at
the time of medical examination cannot be
ascertained-St.ment of the revisionist u/s
313 CrPC and license of DBBL gun issued
in the name of revisionist before the date