Appeal under Section 14A(1) SC/ST Act against rejection of a Section 156(3) Cr.P.C. application seeking registration of an FIR over dishonoured cheques and alleged casteist abuse. Holding the dispute civil in nature, the Court found no ground to interfere and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Page No. 1
Neutral Citation No. - 2024:AHC-LKO:68211
Court No. - 13
Case :- CRIMINAL APPEAL No. - 3064 of 2024
Appellant :- Sujeet Kumar Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Another Counsel for Appellant :- Karuna Shankar Bajpai,Uma Kant Mishra Counsel for Respondent :- G.A.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the appellant and learned A.G.A. for the State as well as perused the records.
By means of the present appeal under Section 14A(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the appellant has assailed the order dated 29.07.2024 passed by Special Judge, SC-ST Act, Lucknow (in short ‘trial court’) in Criminal Misc Case No. 832 of 2024 (Sujeet Kumar vs Amit Kumar Gupta) whereby the trial Court rejected the application preferred by the appellant under Section 156(3) Cr.P.C.
Brief facts of the case, as appears from the record, are to the effect that the appellant on account of necessity of funds for his business and for solemnising marriage of his two sisters had executed an agreement to sale dated 21.10.2021 and the respondent no. 2 gave three cheques bearing numbers 419475, 419476 and 419477 of Rs. 8 lakhs, Rs. 8 lakhs and Rs 7.5
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lakhs, respectively, as has been indicated in the agreement to sale but the same were not honored and thereafter on demand being made for the amount of cheques the respondent no. 2 on 07.04.2024 came to the place of the applicant and hurled abuses and made castiest remarks.
It also appears from the record that the applicant also filed a civil suit for cancellation of agreement to sale.
Thereafter an application was preferred before the concerned police station but FIR was not lodged and in the compelling circumstances the applicant preferred the application under Section 156 (3) Cr.P.C.
Upon due consideration of the allegations levelled against the opposite party no. 2, the trial court directed the police to make preliminary enquiry and submit its report, as observed in the case of Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1.
In compliance of the order of trial court, the report was submitted. According to the report, the police officer found that the dispute between the parties is of civil nature and no altercation took place between the parties.
Thereafter, learned trial court vide order dated 29.07.2024, impugned herein, rejected the application filed under Section 156(3) Cr.P.C. observing that the allegations
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leveled therein relates to a civil dispute and the appellant was giving it criminal colour. The order impugned, on reproduction, reads as under:
" प्रा�र्थना� पत्र प्रास्तु�तु हु�आ।�
प्रा�र्थ�ना� पत्र अं�तुर्ग�तु धा�रा� 156 (3) दण्ड प्राक्रि�या� सं�क्रिहुतु� क्रिदना��क्रि�तु 24.04 2024 परा सं�ना� र्गया�।
प्रा�र्थ�ना� पत्र अंतुर्ग�तु धा�रा� 156 (3) दण्ड प्राक्रि�या� सं�क्रिहुतु� में� वर्णि �तु तुथ्या" सं# स्पष्ट हु%तु� हु& क्रि� आव#द� सं�जी(तु ��में�रा द्वा�रा� प्रा�र्थ�ना� पत्र अंन्तुर्ग�तु धा�रा� 156 (3) द०प्रा०सं�० विवपक्षी( अंमिमेंतु ��में�रा र्ग�प्ता� �# विवरुद्ध में � दमें� प�जी(�2 तु �रा��रा विवव#चना� �रा�या# जी�ना# हु#तु� प्रास्तु�तु क्रि�या� र्गया� हु&। प्रा�र्थ�ना� पत्र में� आव#द� द्वा�रा� में�ख्या रूप सं# याहु �र्थना क्रि�या� र्गया� हु& क्रि� आव#द� अंपना( संर्ग( द% बहुना" रा#खा� एव� मि9खा� �# सं�र्थ एसं-1/122 मिना�ट प(०जी(०आई०, उद्या�ना 2, रा�याबरा#ली( रा%ड परा मिलीपरा� �?तुरा हु&। आव#द� �% अंपना� व्या�प�रा बड�ना# औरा बहुना" �? 9�दB हु#तु� प&सं" �? आवश्या�तु� र्थ(, र्णिजीसं�# मिलीए उसंना# अंपना( बहुना" सं# में�ख्तु�राना�में� �# जीरिराए विवपक्षी( अंमिमेंतु ��में�रा र्ग�प्ता� �# पक्षी में� उक्त भवना �� ब&ना�में� क्रिदना� 21.10.2021 �% क्रिदया�, र्णिजीसं�# एवजी में� विवपक्षी( द्वा�रा� आव#द� �% तु(ना च#� �में9G 419475, 419476 एव� 419477 में�० 8-8 ली�खा व 7.50 ली�खा रूपया# ब&ना�में� �# तु�रा�तु ब�द प्रामितुफली �# रूप में� आव#द� �% द#ना# �� व�द� क्रि�या� र्गया�, र्णिजीसं�� विववरा विव�या विवली#खा में� भ( अं�क्रि�तु क्रि�या� र्गया�, क्रि�न्तु� विवपक्षी( द्वा�रा� उक्त च#� उसं# प्राद�ना नाहुB� क्रि�या# र्गया#। उक्त प&सं" �# भ�र्गतु�ना �# मिलीए आव#द� द्वा�रा� विवपक्षी( सं# संम्प�� क्रि�या� जी�तु� राहु�, परा�तु� वहु ट�ली मेंट%ली �रातु� राहु�, र्णिजीसंसं# क्षी�ब्धा हु%�रा आव#द� द्वा�रा� न्या�या�लीया में� विव�या विवली#खा मिनारास्तु(�रा हु#तु� व�द द�र्णिखाली क्रि�या� र्गया�। विवपक्षी( औरा उसं�# सं�मिर्थया" द्वा�रा� आव#द� ब&ना�में# �? रा�में भKली जी�ना# औरा अं�जी�में भ�र्गतुना# �? धामें�? भ( लीर्ग�तु�रा दB जी� राहुB हु&। क्रिदना� 07.04.2024 �% विवपक्षी( औरा उसं�# सं�मिर्थया" द्वा�रा� आव#द� �# घरा �# ब�हुरा आ�रा आव#द� एव� उसं�? बहुना" �% र्ग�मिलीया�� द#तु# हु�ए जी�मितुसंKच� 9ब्द" �� प्राया%र्ग क्रि�या� र्गया� तुर्थ� जी�ना सं# में�राना# �? धामें�? दB र्गया( तुर्थ� उसं�# सं�र्थ में�राप(ट भ( र्गया(। उक्त घटना� �# ��रा आवद#� �#
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ए०आई०आर० ा 2008 स�०�% ं 0 247 में� याहु �हु� र्गया� हु& क्रि� In the Matter of agreement for sale and sale deeds etc.- it has been held that the dispute between the parties was only that of civil nature only and criminal law was not attracted- श( र ्री �ल ्ग ी �म म�स ें ् त ु फ� बन�म ा ें स ् ट#ट आफ[ �न��ट� ा (2023) एस ं ०स ं (०स ं (० आन ल ी �इन ा स ं �०�#० 603 �# प&र� ा 36 में� में�नाना(या उच्चतुमें न्या�या�लीया द्वा�रा� याहु �हु� हु& क्रि� जीहु�� विवरूद्ध रूप सं# मिसंविवली व�द, अं�संरा भKमिमें औरा धाना सं# सं�ब�मिधातु हु%तु# हु, �% आपरा�मिधा� रा�र्ग क्रिदया� जी�तु� हु&, �# वली सं�ब�मिधातु पक्षी परा न्या�या#तुरा दब�व ड�लीना# �# उद्दे#श्या सं#, जी% हुमें द%हुरा�तु# हु, न्या�या�लीया �? प्राक्रि�या� �� द�रूपया%र्ग �राना# �# अंली�व� औरा ��छ नाहुB� हु&।
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आद#9
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Learned counsel for the appellant, while impeaching the order in issue, stated that in terms of various pronouncement of Hon'ble Apex Court including in the case of Lalita Kumari (supra), if cognizable offense is made out then, the Magistrate is under obligation to direct the police to lodge an FIR and in the instant case, from a bare perusal of the content of the application, it is apparent that cognizable offense is made out as such in rejecting the application, the trial court committed material illegality. He also stated that without the report of the police authority the order has been passed as such also the order impugned is liable to be interfered with. Reliance has been placed on the judgment dated 08.08.2023 passed in the case of Sindhu Janak Nagargoje vs. The State of Maharashtra &
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Others, SLP (Crl.) No. 5883 of 2020. The same is extracted hereinunder:-
"Leave granted.
The appeal is directed against the impugned order dated 05.10.2020 passed in Criminal Writ Petition No. 817 of 2020 by the High Court at Bombay, Appellate Side, Bench at Aurangabad, whereby the High Court has dismissed the writ petition filed by the appellant – Sindhu Janak Nagargoje seeking directions to register the offence as per the complaints submitted by the appellant.
It is submitted by the learned counsel for the appellant that the deceased Shivaji Bangar, brother of the appellant was severely beaten and brutally assaulted by the accused on 02.04.2020 and he succumbed to injuries on 03.04.2020. Thereafter on 05.04.2020, the appellant and others had gone to the concerned police station to register the crime, however the same was not registered. The appellant thereafter submitted the complaints on 06.05.2020 and 12.06.2020 to the concerned respondents however no action was taken to register the complaint. The appellant - Sindhu Janak Nagargoje, therefore, approached the High Court by way of the Writ Petition, which has been dismissed by the impugned order.
In view of the decision rendered by the Constitution Bench in the case of “Lalita Kumari vs. State of Uttar Pradesh & Ors.,” reported in (2014) 2 SCC 1, we are of the opinion that the registration of FIR is mandatory under Section 154 of CrPC, if the information discloses commission of cognizable offence. We may reiterate summary of law stated therein: -
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an
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inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and exhaustive of all preliminary inquiry. not conditions which may warrant preliminary inquiry.
120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry
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should be made time bound and, in any case, it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
In the instant case, the complaints submitted by the appellant to the concerned respondents did disclose the commission of cognizable offence and also the names of the alleged offenders.
In that view of the matter, we allow the present appeal and direct that the concerned respondents shall proceed further with the complaints filed by the appellant in accordance with law.
The impugned order is set aside and appeal is allowed in the above terms.
Pending application(s), if any, shall stand disposed of."
Learned A.G.A. opposed the application. He stated that the order passed by the trial court is just and proper in the facts and circumstances of the case and accordingly, no interference in the matter is required.
Considered the submissions advanced by the learned counsel for the parties and perused the record.
Law dealing with an application under Section 156(3) Cr.P.C. has already been settled in various pronouncements including the following judgments:-
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Relevant paras of the judgment passed in the case of Sukhwasi vs. State of U.P., reported in 2007 SCC OnLine All 1088; wherein this Court answered the question referred on account of difference of opinion on the issue of exercise of power under Section 156(3) Cr.P.C., are as under:-
"“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”?
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18. It is hardly possible to infer from the aforesaid observations that the Magistrate cannot treat an application under Section 156(3) Cr.P.C. as a ‘complaint’. Even a nebulous of far fetched interpretation will not lead to that inference. The inference drawn by Hon'ble Vinod Prasad, J. is not logical.
“At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon any enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer-in-charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 157 of the Code to investigate, subject to the proviso to Section 157 (as
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we have proposed to make a detailed discussion about the power of a police officer to the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the issuing part of this judgment, we do not propose to deal with those sections in extenso in the present context).
In case an offence incharge of a police station refuses to exercise the jurisdiction in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the superintendent of police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “reasonable complaint”, and “credible information” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word “information” without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that ‘every complaint or information’ preferred to an officer-incharge of a police station should be reduced into writing which provision was subsequently modified by
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Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that ‘every complaint’ preferred to an officer-in-charge of a police station shall be reduced in writing. The word ‘complaint’ which occurred in previous two codes of 1861 and 1872 was deleted and in that place the word ‘information’ was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 189(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.”
“It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid therefore, officer-in-charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer had no other option except to enter the substance thereof in the prescribed from, that is to say, to register a case on the basis of such information.”
(Emphasis mine)
“The true test is whether the information furnished provides a reason to suspect the commission of an offence which the concerned police officer is empowered under Section 156 of the code to
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investigate. If it does he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolve of his duty to investigate the case and discover the true facts, if he can.”
“In view of this judgment of Full Bench, the Magistrate is fully competent to pass an order to register a case and investigate on an application under Section 156(3) Cr.P.C., all the application under Section 156(3) Cr.P.C. may be treated as complaint and in the circumstance, the Magistrate shall follow the procedure as provided in Chapter XV Cr.P.C. This, judgment of Full Bench has not been set aside. Hence, in view of the Apex Court and Full Bench of this Court the Magistrate is fully competent to treat an application under Section 156 Cr.P.C. as a complaint and in the present case the Magistrate passed an order in the circumstances of the case that it may be registered as a complaint case and proceed to record the statement under Sections 200 and 202 Cr.P.C. There appears no illegality and impropriety in the order of the Magistrate.
This controversy must come to an end that an application under Section 156(3) Cr.P.C. can only be treated as an application for passing an order for
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registration of the case and investigation cannot be treated as a complaint case. The Magistrate is not bound in each and every case to pass an order to register a case and investigate if cognizable offence is made out. The Magistrate is fully competent to use this judicial direction in the matter. This is wrong notion that if an application has been moved under Section 156(3) Cr.P.C. that the only order can be passed for registration in the matter. The magistrate has got direction under Section 190 Cr.P.C. to take the cognizance directly or to pass an order that the police to investigate and then take cognizance on submissions of a report under Section 173 Cr.P.C. The Magistrate is also expected to act under some guidelines and it should not be left at the arbitrary discretion of the Magistrate to pass an order or not to pass an order to register the case and investigation under Section 156(3) Cr.P.C. In Gulab Chandra Upadhaya v. State of U.P. (2002 All LJ 1225). Hon'ble Single Judge of this Court laid down the guidelines for the guidance of Magistrate while deciding the application under Section 156(3) Cr.P.C. and the guidelines cannot be said against any provision of law or check on the judicial direction of the Magistrate. Even Hon'ble Apex Court also held that the Magistrate has got a direction to pass an order to register the case and investigation under Section 156(3) Cr.P.C. or to treat an application as a complaint case.
In the law laid down by Hon'ble the Apex Court and various judgments of this Court clearly laid down that the Magistrate is not always bound to pass an order to register a case and investigation when application under Section 156(3) Cr.P.C. is moved. 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.
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
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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.”
“Coming to the second question noted above, it is to be at once stated that a provision empowering a Court to Act in a particular manner and a provision creating a right for an aggrieved person to approach a Court or authority, must be understood distinctly and should not be mixed up. While Sections 154, 155 sub-section (1) and (2) of 156, Cr.P.C. confer right on an aggrieved person to reach the police, 156(3) empowers a Magistrate to act in a particular manner in a given situation. Therefore, it is not possible to hold that where a bare application is moved before Court only praying for exercise of powers under Section 156(3) Cr.P.C., it will remain an application only and would not be in the nature of a complaint. It has been noted above that the Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers under Section 156(3) 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
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seeking trial of the known or unknown accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all practical purposes even such an application would be a complaint. This Court can do no better than refer to the following observations in Suresh Chand Jain: ((2001) 2 SCC 628 : AIR 2001 SC 571) (supra) (Para 10):—
“The position is thus clear. Any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code…………… could take further steps contemplated in Chapter XII of the Code only thereafter."
In the case of Lalita Kumari vs. State of U.P. (supra), the
Hon'ble Apex Court concluded as under:-
"120. In view of the aforesaid discussion, we hold: -
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information
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received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7 . While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed fifteen days generally and in exceptional cases, by giving adequate reasons, six weeks' time is provided. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
In the case of Ramdev Food Products Private Limited vs.
State of Gujarat reported in (2015) 6 SCC 439, the appellant making allegations of preparing forged partnership deed, sought directions for investigation under Section 156(3) Cr.P.C. and the
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Magistrate instead of directing investigation as prayed for, thought it fit to conduct further inquiry under Section 202 and sought report of the Police Sub-Inspector within thirty days and being aggrieved by the order of Magistrate the appellant approached the High Court and the High Court declined to interfere in the order of Magistrate and thereafter the appellant approached the Hon'ble Apex Court and after considering the facts and issue involved the Hon'ble Apex Court framed three questions and while dealing with question as to "(i) Whether the discretion of the Magistrate to call for a report under Section 202 instead of directing investigation under Section 156(3) is controlled by any defined parameters?" the Hon'ble Apex Court observed as under:-
" 15. Cognizance is taken by a Magistrate under Section 190 (in Chapter XIV) either on “receiving a complaint”, on “a police report” or “information received” from any person other than a police officer or upon his own knowledge.
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an officer in charge of a police station except the power to arrest.
“30.1. (i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and
30.2. (ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused.”
These questions were answered as follows : (Lalita Kumari case [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , SCC pp. 35-36, 41, 51-52, 57-59 & 61, paras 49, 72-73, 94, 107-108, 111, 114-15 & 120)
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thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning.
‘ Shall’
“ Information”
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information’. The expression under Section 154(1) of the Code is not qualified by the prefix ‘reasonable’ or ‘credible’. The non-qualification of the word ‘information’ in Section 154(1) unlike in Sections 41(1) (a) [ Ed. : Vide Act 5 of 2009, w.e.f. 1-1-2010 Sections 41(1)(a) and (b) of the principal Act were substituted with differently worded Sections 41(1)(a) and (b) : the new clause (b) being substantially in pari materia with the old clause (a). A new clause (ba) was also added. The old clause (a) mentioned in most of the judgments cited hereinbelow stood as follows:“ 41. (1)(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or”The new Sections 41(1)(a), (b) and (ba) are as follows:“ 41. (1)(a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received … (ba) against whom credible information has been received that he has committed a cognizable offence …”Clause (g) of Section 41(1) remains unaltered.] and (g) of the Code is for the reason that the police officer should not refuse to record any information relating to the commission of a cognizable offence on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, reasonableness or credibility of the said information is not a condition precedent for the registration of a case.
Accordingly, under the Code, actions of the police, etc. are provided to be written and documented. For example, in case of arrest under Section 41(1)(b) of the Code, the arrest memo along with the grounds has to be in writing mandatorily; under Section 55 of the Code, if an officer is deputed to make an arrest, then the superior officer has to write down and record the offence, etc. for which the person is to be arrested;
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under Section 91 of the Code, a written order has to be passed by the officer concerned to seek documents; under Section 160 of the Code, a written notice has to be issued to the witness so that he can be called for recording of his/her statement, seizure memo/panchnama has to be drawn for every article seized, etc.
‘20. … No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and
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justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.’
(emphasis in original)
Exceptions
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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.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(c) Medical negligence cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.”
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The above observations apply to category of cases mentioned in para 120.6 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] .
21. On the other hand, power under Section 202 is of different nature. Report sought under the said provision has limited purpose of deciding “whether or not there is sufficient ground for proceeding”. If this be the object, the procedure under Section 157 or Section 173 is not intended to be followed. Section 157 requires sending of report by the police that the police officer suspected commission of offence from information received by the police and thereafter the police is required to proceed to the spot, investigate the facts and take measures for discovery and arrest. Thereafter, the police has to record statements and report on which the Magistrate may proceed under Section 190. This procedure is applicable when the police receives information of a cognizable offence,
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registers a case and forms the requisite opinion and not every case registered by the police.
22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine “existence of sufficient ground to proceed”. Category of cases falling under para 120.6 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] may fall under Section 202."
In the case of Priyanka Srivastava vs. State of U.P ., reported in (2015) 6 SCC 287; subject matter of which relates to preferring an application under Section 156(3) Cr.P.C. by the borrower against the Officer of the financial institution after initiation of proceedings under SARFAESI Act, 2002, the Hon'ble Apex Court, after considering the judgment(s) passed in the case of Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [(1976) 3 SCC 252 : 1976 SCC (Cri) 380] (Para 17); Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] (Para 11); Dilawar Singh v. State of Delhi [(2007) 12 SCC 641 : (2008) 3 SCC (Cri) 330] (Para 18); Mohd. Yousuf v. Afaq Jahan, (2006) 1 SCC 627, SCC p. 631, Para 11 : (2006) 1
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SCC (Cri) 460.]; CREF Finance Ltd.v. Shree Shanthi Homes (P) Ltd. [(2005) 7 SCC 467 : 2005 SCC (Cri) 1697]; Madhao v. State of Maharashtra [Madhao v. State of Maharashtra, (2013) 5 SCC 615 : (2013) 4 SCC (Cri) 141] (Para 18); Ramdev Food Products (P) Ltd. v. State of Gujarat [(2015) 6 SCC 439] (Para 22); Lalita Kumari v. State of U.P. [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] (Para 30), observed as under:-
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In the judgment passed in Criminal Revision No. 4629 of 2019 (Vishwanath Vs. State of U.P. and 4 Ors.) dated 09.12.2019, wherein this Court while dealing with similar issue, after considering the relevant previsions of Cr.P.C. and various pronouncements, concluded as under:-
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criminal complaint under Section 200, Cr.P.C. On receipt of the complaint, however, several courses are open to the Magistrate:
(i) He may take cognizance of the offence at once and proceed to record statements of the complaints and the witnesses present under Section 200, and proceed under Chapter XV and Chapter XVI, accordingly.
(ii) If, he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other process as he may thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground of proceeding; or dismiss the complaint if there is no sufficient ground for proceeding.
(iii) Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order investigation to be made by the police under Section 156(3).
(iv) On receiving the police report, the Magistrate may take cognizance of the offence under Section 190(1)(b) and issue process straightway to the accused. The Magistrate may exercise his power in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not.
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the allegations of commission of a criminal offence made therein.
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an appropriate conclusion in consonance with the principles of law." It would not be out of place to note para '17' of the report in Vinubhai, at this stage:
"17. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not/are not arraigned to stand trial That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the Cr.P.C. that must needs inform the interpretation of all the provisions of the Cr.P.C., so as to ensure that Article 21 is followed both in letter and in spirit."
(Emphasis added) 61. Applying the above legal principles, in the facts of the present case, this Court finds that the application under Section 156(3), Cr.P.C. was filed after a period of two months of the alleged incident and it was noted by the court concerned that nothing could be traced in favour of the prosecution by medical examination etc. In the circumstances before it, the court deemed it fair, just and proper to search the evidence(s) which is/are well known to the applicant and in his possession so as to find out the truth of the allegations in the application.
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The Hon'ble Apex Court in the case of XYZ vs. State of Madhya Pradesh and Others reported in (2023) 9 SCC 705; observed as under:-
"14. First, we find it appropriate to reiterate the duty of police to register an FIR whenever a cognizable offence is made out in a complaint. A Constitution Bench of this Court in Lalita Kumari v. State of U.P. [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] has laid out the position of law as summarised in the following extract of the decision : (SCC p. 60, para 119)
“119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.”
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point of contact for a victim of a crime or a complainant. They must abide by the law and enable the smooth registration of an FIR. Needless to say, they must treat all members of the public in a fair and impartial manner. This is all the more essential in cases of sexual harassment or violence, where victims (who are usually women) face great societal stigma when they attempt to file a complaint. It is no secret that women's families often do not approve of initiating criminal proceedings in cases of sexual harassment. Various quarters of society attempt to persuade the survivor not to register a complaint or initiate other formal proceedings, and they often succeed. Finally, visiting the police station and interacting with police officers can be an intimidating experience for many. This discomfort is often compounded if the reason for visiting the police station is to complain of a sexual offence.
18. Second, we deal with the issue of the discretion granted to a Magistrate vis-à-vis the exercise of powers under Section 156(3)CrPC. On this issue, the High Court has held that the JMFC was not under an obligation to direct the police to register the FIR and the use of the expression “may” in Section 156(3)CrPC indicated that the JMFC had the discretion to direct the complainant to examine witnesses under
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Sections 200 and 202CrPC, instead of directing an investigation under Section 156(3).
***
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***
(emphasis supplied)
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(Cri) 652] , further clarified the powers of a Magistrate and held that whenever a cognizable offence is made out on the bare reading of complaint, the Magistrate may direct police to investigate : (SCC pp. 218-19, para 23)
“23. To make it clear and in respect of doubt raised by Mr Singhvi to proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the case on hand, the learned Single Judge [Srinivas Gundluri v. SEPCO Electric Power Construction Corpn., 2009 SCC OnLine Chh 308] and the Division Bench [Srinivas Gundhuri v. SEPCO Electric Power Construction Corpn., WA No. 281 of 2009, order dated 1-4-2010 (Chh)] of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, we are of the view that the Magistrate has not committed any illegality in directing the police for investigation. In the facts and circumstances, it cannot be said that while directing the police to register FIR, the Magistrate has committed any illegality. As a matter of fact, even after receipt of such report, the Magistrate under Section 190(1)(b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the police report by the investigating officer, hence, by directing the police to file charge-sheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in sub-section (3) of Section 156.”
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police had at an earlier stage reported that the occurrence of an incident or offence was not found, the JMFC opined that, from the facts which were set out by the complainant in the complaint, prima facie, the occurrence of an offence was shown.
22. It is true that the use of the word “may” implies that the Magistrate has discretion in directing the police to investigate or proceeding with the case as a complaint case. But this discretion cannot be exercised arbitrarily and must be guided by judicial reasoning. An important fact to take note of, which ought to have been, but has not been considered by either the trial court or the High Court, is that the appellant had sought the production of DVRs containing the audiovideo recording of the CCTV footage of the then ViceChancellor's (i.e. the second respondent) chamber. As a matter of fact, the Institute itself had addressed communications to the second respondent directing the production of the recordings, noting that these recordings had been handed over on his oral direction by the then Registrar of the Institute as he was the Vice-Chancellor. Due to the lack of response despite multiple attempts, the Institute had even filed a complaint with PS Gole Ka Mandir on 29-10-2021 for registering an FIR against the second respondent for theft of the DVRs.
23. Therefore, in such cases, where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint but also such facts are brought to the Magistrate's notice which clearly indicate the need for police investigation, the discretion granted in Section 156(3) can only be read as it being the Magistrate's duty to order the police to investigate. In cases such as the present, wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation."
Expression "Investigation" has been defined in Section 2(h) of Cr.P.C. which reads as under:-
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""investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf;"
Regarding expression "investigation", it would be appropriate to refer the paras 53 to 55 of the judgment passed in the case of Kailash Vijayvargiya vs. Rajlakshmi Chaudhari and Others; reported in 2023 SCC OnLine SC 569. The Hon'ble Apex Court by this judgment remanded the matter back to the Magistrate to decide the application under Section 156(3) Cr.P.C. preferred by the victim afresh, wherein allegations were levelled to attract the offence indicated under Section 417, 376, 406, 313, 120 IPC, which was initially rejected by the Magistrate, and thereafter the Magistrate in compliance of order of remand of High Court, without recording reasons, directed the Police to lodge an FIR and investigate the matter. The aforesaid paras are reproduced hereinunder:-
" 53. The Code vide Chapter XII, ranging from Section 154 to Section 176, deals with information to the Police and their power to investigate. Section 154 deals with the information relating to the commission of a cognizable offence and fiats the procedure to be adopted when prima facie commission of a cognizable offence is made out. Section 156 authorises a police officer in-charge of a Police station to investigate any cognizable offence without the order of a Magistrate. Sub-section (3) of Section 156 provides for any Magistrate empowered under Section 190 to order an investigation as mentioned in Section 156(1). In cases where a cognizable offence is suspected to have been committed, the officer in-charge of the Police station, after sending a report to the Magistrate empowered to take cognizance of such offence, is entitled under
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Section 157 to investigate the facts and circumstances of the case and also to take steps for discovery and arrest of the offender. Clauses (a) and (b) of the proviso to sub-section (1) to Section 157 give discretion to the officer in-charge not to investigate a case, when information of such offence is given against any person by name and the case is not of serious nature; or when it appears to the officer incharge of the Police station that there is no sufficient ground for entering the investigation. In each of the cases mentioned in clauses (a) and (b) to the proviso to sub-section (1) to Section 157, the officer in-charge of the Police station has to file a report giving reasons for not complying with the requirements of sub-section (1) and in a case covered by clause (b) to the proviso, also notify the informant that he will not investigate the case or cause it to be investigated. Section 159 gives power to a Magistrate, on receiving such report of the officer in-charge, to either direct an investigation or if he thinks fit, proceed to hold a preliminary inquiry himself or through a Magistrate subordinate to him, or otherwise dispose of the case in the manner provided by the Code.
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Page No. 39 so, taking the necessary steps by filing a chargesheet under Section 173."
As per settled view, the Magistrate/Court of competent of jurisdiction, after verifying the truth and veracity of the allegations made in the application under Section 156(3) Cr.P.C., can (i) pass an order contemplated by Section 156(3) Cr.P.C., (ii) direct examination of complaint and witnesses and proceed further in the manner provided by Section 202 Cr.P.C. and (iii) can also direct the preliminary inquiry by police in terms of law laid down in the judgment passed in the case of Lalita Kumari (supra). The Magistrate/Court of competent jurisdiction is also empowered to reject the application under Section 156(3) Cr.P.C.
In other words, the Magistrate/Court of competent jurisdiction while dealing with an application under Section 156(3) Cr.P.C. is empowered to pass an order for registration of FIR and investigate into the matter or to treat such application as a 'Complaint Case', if Investigation in the matter is not required and he is fully empowered to reject the application under Section 156(3) Cr.P.C.
Having considered the aforesaid facts and circumstances of the case as also the settled principle of law on the issue, this Court is of the view that no interference is required in the impugned order 29.07.2024. It is for the following reasons:-
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(i) In regard to the allegations made in the application under Section 156(3) Cr.P.C., to the view of this Court, no investigation is required.
(ii) It appears that to settle a purely civil dispute the applicant wants to give criminal colour, which shall not be allowed.
(iii) No evidence has been placed on record to establish the fact that the alleged incident happened.
For the reasons aforesaid, this Court finds no force in the present application. It is accordingly dismissed. Costs made easy.
Order Date :- 30.09.2024
J. K. Dinkar/-
CRIMINAL APPEAL No. - 3064 of 2024
Digitally signed by :- JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether a Magistrate is bound to direct registration of an FIR on an application under Section 156(3) Cr.P.C. disclosing a cognizable offence?
Whether the trial court erred in rejecting the application under Section 156(3) Cr.P.C. by treating the dispute as purely civil in nature?
Colour shows how this judgement treated each authority
Lalita Kumari v. State of U.P.Explained¶114
Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1 · Who else cites this
Sindhu Janak Nagargoje v. The State of MaharashtraReferred¶41
Sindhu Janak Nagargoje vs. The State of Maharashtra & Others, SLP (Crl.) No. 5883 of 2020
Sukhwasi v. State of U.P.Relied on¶76
Sukhwasi vs. State of U.P., reported in 2007 SCC OnLine All 1088 · Who else cites this
Ram Babu GuptaReferred¶108
Ram Babu Gupta's case (2001 All LJ 1587)
Ramdev Food Products Private Limited v. State of GujaratReferred¶134
Ramdev Food Products Private Limited vs. State of Gujarat reported in (2015) 6 SCC 439 · Who else cites this
Priyanka Srivastava v. State of U.P.Referred¶204
Priyanka Srivastava vs. State of U.P., reported in (2015) 6 SCC 287 · Who else cites this
Vishwanath v. State of U.P.Referred¶213
Criminal Revision No. 4629 of 2019 (Vishwanath Vs. State of U.P. and 4 Ors.) dated 09.12.2019
XYZ v. State of Madhya PradeshReferred¶238
XYZ vs. State of Madhya Pradesh and Others reported in (2023) 9 SCC 705 · Who else cites this
Kailash Vijayvargiya v. Rajlakshmi ChaudhariReferred¶279
Kailash Vijayvargiya vs. Rajlakshmi Chaudhari and Others; reported in 2023 SCC OnLine SC 569 · Who else cites this
7 provisions across 2 enactments
Sujeet Kumar
State Of U.P. Thru. Addl. Chief Secy. Home Lko.
Amit Kumar Gupta
Saurabh Lavania
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
