Allahabad High Court
Smt. Salini Dixit vs State Of U.P. Thru. Prin. Secy. Home Lko … on 15 January, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:2484 Court No. - 12 Case :- APPLICATION U/S 482 No. - 10875 of 2024 Applicant :- Smt. Salini Dixit Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko And 6 Others Counsel for Applicant :- O.P. Tiwari Counsel for Opposite Party :- G.A.,Aprajita Bansal Hon'ble Saurabh Lavania,J.
1. Heard learned counsel for the applicant, learned AGA for the State and learned counsel for the private-opposite party.
2. Instant application has been preferred by the applicants with the following prayer:-
“To quash the impugned order dated 25.01.2024 passed by the Learned Chief Judicial Magistrate, District Unnao in Misc. case no. 1009 of 2023 (New Case No. 1725 of 2024); tilted as Salini Dixit versus Hemendra Singh and Others, Police Station – Dahi, District – Unnao as well as impugned order dated 16.07.2024 passed by Learned Additional District Judge Court No. 4, District – Unnao in Criminal Revision No. 19 of 2024; titled as Salini Dixit Versus State of UP and others and to direct the court concerned to pass order for lodging the first information report by allowing the application dated 07.10.2023, Under Section 156(3) Cr.P.C. moved by the applicant.”
3. Allegation(s), in nutshell, in the application under Section 156 (3) Cr.P.C. preferred by the applicant on 07.10.2023 are as under:-
(i) An application to increased sanction of electricity load from 3 KW to 4 KW was given by the applicant.
(ii) For above purpose illegal demand of Rs.5,000/- was made.
(iii) The applicant refused to satisfy the illegal demand.
(iv) Being annoyed on 28.08.2023, at about 02.00 PM, the employer of the Electricity Department forcefully entered into the house of the applicant and changed the meter.
(v) The CCTV footage of this incident is available with the applicant.
4. The Chief Judicial Magistrate, concerned (in short ‘Magistrate’) upon consideration of the fact, treated application of the applicant as complaint case, which is permissible under the law, vide impugned order dated 25.01.2024, which is extracted hereinunder:-
“???????? ??? ???? ??????? ?? ??????? ???????? ?? ???? ??? ???????? ?? ?????? ?????
?? ????????????? ??????? ?????? ??????? ?????? ????????? ???? ???? ????, ?????? ??????? ???????? ??????? ????? ???? ???????, ???? ????????? ???? ??????? ????????, ???????? ??????? ????? ???? ???????, ?????? ????????? (????) ???????? ??????? ????? ???? ???????, ?????? ????????? (?????????) ???????? ??????? ????? ???? ??????? ??????? ???? ????? ?????? ???????? ??????? ????? ???? ???????, ??? ???? ????? ??????? (????) ???????? ??????? ????? ???? ??????? ? ???? ?? ??????? ???????? ?????? ??? ?????? ??????? ????? ??????? ???? ???? ?? ??? ?? ???????? ???? ??? ???
????????? ???? ?? ??????? ??? ??? ?? ?????? ?? ?? ?????????? ?? ???? ??-525, ???? ???, ???? ????? ?????? ???? ??? ??? ???? ???? ???? ????? ???? ??????? ????? ???. ???? ?????? ???? ??????? ?? ??? ??????? ??????? ???? ?????? 7572142000 ?? ???- ??? ???? ??? ???. ???? ?????? ???? ??????? ????? ?????? ?????? 22.06.2018 ?? ?? ??? ??, ?? ??? ??????? ??????? ???? ?????? (?????????) 6848026438 ??, ????? ????? ?? ?????? ?? ?????????? ???? ?????? ???? ??????? ?? ?????? ?? ?????? ????? ???? ???? ?????? 19.01.2023 ?? ?????????? ?? ????????? ????? ??? ?? ???. ?????? ???? ??????? ?? ???? ??????? ?? ?????? ???????? ??????? ???? ??????? ?? ?????? ???????? ???? ?? ?????? ??????? ???????? ?????? ????? ?? ???? ?? ?? ??? ??, ???? ?????????? ?? ???? ?? ??? ?? ????? ??????? ???????? ?????? ??? ?? ??? ?? ?? ??????? ??????? ???? ? ??. ??.?. ???? ?? ???? ?? ?? ????? ??? ???? ????, ?????? ?????? ?????? ????? ?????????? ?? ????? ??? ? ???? ?? ???? ???? ??? ???????????? ??????????????? ?? ??? ?? ???? ??????? ?? ??? ?????????? ?? ???? ?? ???? ???? ?? ??? ?? ????? ?????? 05.08.2023 ?? ?????????? ?? ???? ???? ?? ??????? ??????? ???? ?????? 7572142000 ?? ??????? ??? ?? 3 ??????? ?? ?????? 4 ??????? ???? ???? ???? ????????? ????? 118 ????? ??? ????? ?? ??? ?????????? ?? ???? ?? ?? ??.?. ? ???? ??? ?? ???? ???????????? ???? ?? ???? ???? ???, ?? ?????????? ?? 4 ??????? ?? ??? ??????? ????? ???? 5000 ????? ?? ???? ???? ???? ???? ?????????? ?? ???? ?? ??? ?? ????? ??? ?? 4 ??????? ?? ??????? ?? ???? ??? ?????? ??????? ????? ?? ????????? ? ?????????? ??????????????? ?? ???? ???? ?????? 26.08.2023 ??? ???? 2 ??? ????? ?? ??? ?????????? ?? ???? ???? ?? ????? ???? ???? ?????? ???????, ??. ?. (????), ??????? ???? ???? 8-9 ??? ??? ?? ????? ??? ??? ?? ??? ?? ??????? ???????? ???? ????????? ???? ?? ???? ?? ?? ???????? ???? ??? ???? ????? ?? ?? ?????????? ?? ??? ?? ??? ??? ??? ????? ?? ?? ??? ?????? ???? ?? ????? ?? ???? ??? ???? ??, ??? ?? ?? ??? ???? ????? ????? ???, ?? ??? ??? ???? ??? ???? ???? ???? ??????? ?? ??? ??, ?? ???? ????? ???? ??? ???? ???? ????? ??????? ???, ??? ??? ?? ??? ???? ???? ???, ?? ?? ???? ?????????????? ?? ???? ?? ?? ???? ????? ???? ??, ???? ?? ?????????? ???? ???? ?? ??? ???? ???? ???, ??? ??? ???? ?????????????? ???? ?????????? ?? ????? ? ??????? ?? ???? ????? ???? ?? ?????????? ?? 84 ?????? ????? ???? ???? ????? ???? ??????? ?? ????????? ?????? ?????????? ?? ? ?? ??? ?????????? ?? ?? ????????? ?????? ???? ???? ?? ?? ????? ???? ??? ????? ???? ???? ???? ??.??.??.??. ????? ??? ??? ??? ???? ???? ?? ??????? ?????? 27.08.2023 ?? ?? ????? ????? ?? ?????? ?? ?????????? ?? ???? ??? ????? ?? ???? ??, ?????? ??? ????????? ???? ???? ??? ??? ??? ?????????? ? ???? ??? ???? ???? ???? ??????? ?? ??????? ???????? ???? ????????? ???? ?? ??????? ?? ??????? ????, ?? ???????? ??? ?? ???????? ???? ???? ???? ?? ??????? ???. ???????? (????) ???? ??? ???? ?? ????? ???? ?? ??? ??, ?? ?? ???????? ????? ?? ?? ?? ???? ??? ??? ???????, ?????? ??????? ????? 75000 ????? ?? ?? ???? ??????? ??? ? ???? ?? ???????? ??? ???? ??? ????? ?? ???????? ??? ?????? ??? ?? ??? ??? ?? ?? ??? ?? ??????? ???????? ??? ??????? ???? ???? ?? ???? ????
????????????? ??? ?????? ?????? ?? ?????? ?? ?? ??????? ?? ????????? ?? ??? ? ??? ????? ?? ??? ???? ?? ????? ??? ?? ?????? ??????? ?????? ??? ?????? ?? ?????? ???? ??? ?? ?? ??? ???? ????? ??? ?? ????? ?? ??????? ??? ???? ??? ?? ???? ????? ???? ??????? ?? ????? ?? ???? ???
??????? ?? ??????? ??? ?????? ???? ???????? ? ?????? ???? ???????? ?? ???? ???????? ??????? ???? ????? ?????? ????? ???????? 2007 (6) ?.??.??. ??? 424, ???? ???? ???? ????? ?????? ????? 2011 (72) ?.??.??. 564 ????? ???, ????? ????? ???? ????? ?????? ????? 2018 (1) ?.??.??. 649, ??? ?????? ?????? ???????? ?? ???? ???????? ????? ??? ???? ???? ????? ?????? ????? 2021 (2) ?.??.??. 670 ??????? ????? ???? ???? ??????????? ??? ?????? ?????? ?????? ???????? ? ?????? ???? ???????? ?? ?? ???????????? ???? ?? ?? ????????????? 156 (3) ??. ???.??. ?????? ?? ??? ??? ???? ??? ????
????
?????????????. 156(3) ??.???.??.. ?????? ?? ??? ??? ???? ??? ?????? ???? ??????? ???? 200 ??.???.??. ?????? 05.03.2024 ?? ??? ???”
5. The order of Magistrate dated 25.01.2024 was challenged by the applicant by means of criminal revision No.19 of 2024. The Additional District Judge, Court No.4, Unnao (in short ‘Revisional Court’) vide impugned order dated 16.07.2024 dismissed the revision. The relevant portion of the order dated 16.07.2024 reads as under:-
“???????? ?? ?????? ?? ????? ?? ?? ???????????? / ?????????? ?? ???? ?????? ??????? ??? ???????? ?? ????? ???????? ????????? ???? ???????? ????-156(3) ?????????? ??? ???-??? ???? ????????? ???? ??? ??????? ????? ?????? ???? ?? ?? ???? ???? ???? ??? ??, ?????? ????? ??? ???? ?? ??????? ??? ??? ????????? ?? ??, ??? ??? ??????? ???????? ?? ?????? ???? ??? ???? ???????? ?????? 26.08.2023 ?? ??????? ????? ?? ??????????? ?????? ???????????? ?? ?? ?? ???????? ???? ?? ????? ????? ???? ????? ?? ??? ??? ???? ? ???? ???? ?? ????????? ?? ?????? ????????? ?????? ???? ??? ??? ???????????? ?????? ???? ?? ??????? ??? ??? ????? ???? ?? ?? ???? ???? ?? ????? ?? ??????? ?? ?????? ??, ??? ??? ???????? ?? ?????? ??????? ?? ????????? ???? ????? ???????????? ?????? ???? ????????? ???? ???????? ???? -156 (3) ?????????? ??? ??????? ???????? ?????? ?? ???? ???? ?? ?? ???? ???? ???? ?? ??? ???? ?? ??? ???? ??????? ??? ???? ?????? ??? ????????? ? ???? ???? ??? ??, ?????? ???? ?? ??????? ??? ????? ??????? ?? ????? ??? ????????? ?? ??? ??, ??? ??? ???????? ?? ?????? ?? ?????? ???? ????? ??? ?????? ???? ?? ?? ?????? ?? ???? ?????? ???????? ???? ??? ??? ?????? ??????? ??? ???????? ?? ???????????? ?? ????????? ???? ???????? ???? 156 (3) ?????????? ?? ?????? ?? ??? ??? ???? ???? ??? ??? ??? ???? ??? ???? ??????? ??? ???? ??? ??? ??? ???????? ????-156 (3) ?????????? ?? ????????? ???? ??? ???? ??? ??? ?? ?????? ??? ???? ???, ????? ??????? ??? ??????? ????? ???? ?????? ??? ?????? ?? ?????? ????????? ?? ????? ?????????? ?? ?? ?????? ?????? ?? ?? ??? ???????? ?????? ????? ?? ???????????? ?? ???????? ???? ??? ??? ??????? ?????? ???? ??, ?? ?? ????-202 (1) ?????????? ?????? ??????? ????? ?? ?????? ???? ??? ????? ??????? ?? ??????? ????? ????? ???? ?? ???? ???
?? ??????? ??? ????????? ?? ??, – ?????? ?????? ???????? ?????? ???? ???? ???? ???? ???????? ???????? (2011) 1 ??.??.??. ???????? ??? ??0-1181 ??? ??????? ???? ?? ?? “Magistrate while dealing with the application under section 156(3) of Cr.P.C. has two options one is to pass order as contemplated under section 156(3) of Cr.P.C. and second is to register it as complaint case directing the examination of complaint and witness under section 200 of Cr.P.C.”
?????? ???? ???????? ???????? ?????? ????????? ???? ???? ?????? ????? ? ????, 2007 ??.??.??.??. 3169 ??? ??????? ???? ?? ?? “Magistrate is not always bound to pass an order for register of the case and investigation after receipt of the application under 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 complaint case then he may proceed accordingly to the procedure provided under Chapter XV of Cr.P.C.
??????? ????? ??????? ??? ??????? ?????? ???? ?????????? ?? ???? ??? ???????? ???? ????? ???? ??? ??????? ??? ???????? ?????? ???? ?? ?????? ?? ?????????? ???? ?? ?? ?? ??? ??????? ??? ???????? ?????? ????? ???????? ???? ??? ????????? ???? ???? ?? ??? ???? ???? ??? ???? ?????? ?? ??????? ?????? ???? ???? ????? ???
????
???????? ??????? ??????? ??????-19/2024 ?????? ?? ???? ??? ??????? ??? ???????? ?????? ??????? ???????? ??? ??0-1009/2023, ?????? ??????? ???? ???? ???? ??? ??? ????? ?????? ???? ????????-25.01.2024 ????? ???? ???? ??? ?? ???????? ?? ???? ?? ????? ?? ??? ??????? ??? ???????? ?? ????????, ??????? ??? ???????? ?? ??????? ??????? ??? ??????? ?? ???????? ?????????? ??? ?????? ????????? ????? ????? ???”
6. Learned counsel for the applicant in support of his case has placed reliance upon a judgment of this Court passed in Mukesh Kharwar vs. State of U.P. and Others 2024:AHC:149752. Relevant paras are quoted hereinunder:-
“5. Learned counsel for the applicant submits that the application under Section 156(3) Cr.P.C. discloses commission of cognizable offence and as such the Magistrate must have directed for registration of first information report and investigation by the police, instead of treating the application as a complaint case. He further submits that the order impugned has been passed mechanically and in a routine manner, which does not manifest the application of judicious mind to the facts of the case and law applicable therein. In support of his submission, he has placed reliance upon the judgment passed by this Court in the case of Anmol Singh vs. State of U.P. and Others reported in 2021 (1) ADJ 400.
14. The Apex Court in the case of Lalita Kumari Vs Goverment of Uttar Pradesh and another, reported in 2014 (2) SCC 1 has discussed as follows :-
“i) 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.
ii) 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.
iii) 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.
iv) 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.
v) 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.
vi) 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
d) Corruption 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 not exhaustive of all conditions which may warrant preliminary inquiry.
vii) 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 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) 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.”
17. The position has been clarified in the judgement passed by the Apex Court in the case of Suresh Chand Jain vs. State of M.P. and Another reported in (2001) 2 SCC 628 which while dealing with the issue has held as follows :-
“Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.”
19. Perusal of the impugned order shows that no sufficient reason has been disclosed, on the basis of which, the Magistrate has proceeded to treat the application under section 156(3) Cr.P.C. as a complaint. Merely because the facts are in the knowledge of the applicant, direction to lodge FIR cannot be refused. The gravity/seriousness of the offence; the requirement of the evidence for the purpose of launching a successful prosecution, and basically the interest of justice depending on the facts of each case, need be considered in passing the order under Section 156(3) Cr.P.C. The impugned order does not assign any valid reason nor reflects application of judicious mind and has been passed in a mechanical manner only on the ground that the facts of the case were within the knowledge of the applicant, thus, the same is liable to be set-aside.”
7. Expression “Investigation” is defined under Section 2(h) Cr.P.C. (now repealed) and 2 (1) (l) of B.N.S.S., which reads as under:-
“(j) “investigation” includes all the proceedings under this Sanhita for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.”
8. Regarding expression “investigation”, it would be appropriate to refer para(s) 53 to 55 of the judgment passed in the case of Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 SCC OnLine SC 569, which are extracted hereinunder:-
“53. The CodevideChapter 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 whenprima faciecommission 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 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 in-charge 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.
54.Sections 160 to 164 deal with the power of the Police to require attendance of witnesses, examination of witnesses, use of such statements in evidence, inducement for recording statement and recording of statements. Section 165 deals with the power of a Police officer to conduct search during investigation in the circumstances mentioned therein.
55. The power under the Code to investigate generally consists of following steps : (a) proceeding to the spot; (b) ascertainment of facts and circumstances of the case; (c) discovery and arrest of the suspected offender; (d) collection of evidence relating to commission of offence, which may consist of examination of various persons, including the person accused, and reduction of the statement into writing if the officer thinks fit; (e) the search of places of seizure of things considered necessary for investigation and to be produced for trial; and (f) formation of opinion as to whether on the material collected there is a case to place the accused before the Magistrate for trial and if so, taking the necessary steps by filing a chargesheet under Section 173.”
9. Upon due consideration of the facts of the instant case, indicated above, as also the observations made by the Hon’ble Apex Court in the case, referred above, this Court finds that in the instant case, “investigation” by the police is not required and Magistrate rightly treated the application under Section 173(4) BNSS preferred by the applicant as complaint case. It is for the following reason(s) that all the facts pleaded in the application under Section 156 (3) Cr.P.C. can be proved by the applicant by producing evidence before the concerned Court including C.C.T.V. footage available with the applicant.
10. For the reasons aforesaid, this Court finds no force in the present application. It is accordingly dismissed.
Order Date :- 15.1.2025
G. Singh/ Anand/-
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