Allahabad High Court
Vinay Kumar Saroj vs State Of U.P. And 6 Others on 9 July, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:109547 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (Sl. No.16) Court No. - 78 Case :- APPLICATION U/S 482 No. - 38880 of 2024 Applicant :- Vinay Kumar Saroj Opposite Party :- State Of U.P. And 6 Others Counsel for Applicant :- Rajnish Shukla Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Rajnish Shukla, learned counsel for the applicant and Sri Rajesh Kumar Gupta, learned AGA for the State.
2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the impugned order dated 27.09.2024 and the entire proceeding of Criminal Misc. Application No. 454 of 2023 (Vinay Kumar Saroj vs. Indra Mani and others), P.S. Tharvai, District Allahabad, pending before the court of Additional Session Judge, Court No. 15, Allahabad.
3. The brief facts of the case are that an application under Section 156(3) Cr.P.C. was filed by the applicant herein on 21.12.2023 alleging therein that the applicant herein belongs to the scheduled caste. The opposite parties were trying to lay down the pipeline in the bhoomidhari land of the applicant. the subject land was of the applicant and then the opposite parties abused and threatened him, upon which the applicant has called the PCR No. 112 whereupon the police came and restrained the opposite parties from laying the pipes on the bhoomidhari land of the applicant. Being annoyed by the aforesaid call to police on the same date the opposite parties on 02.12.2023 at about 6:00 P.M. armed with lathis and illegal arms came to the house of the applicant, abused and threatened him. When the applicant asked them not to abuse then they started assaulting him. The applicant went inside the house. They also entered the house and broke the household articles, beaten up the applicant and took away Rs. 7,000/- from his pocket. When they brought him out from the house, the applicant ran away towards the village and then the opposite party no.3 made a fire from the country made pistol. The applicant escaped from such shot from firearm. When the people intervened the opposite parties, they ran away from the spot. On 03.12.2023, the applicant has informed the police in writing and he was to get the medical examination of his injuries. Thereupon the applicant got examined himself at Community Health Centre, Baharia, wherein five injuries were found on the body of the applicant and X-ray was advised. However, no grievous injury was found in the X-ray. Since the police did not register the FIR, an application under Section 156(3) Cr.P.C. was filed by the applicant.
4. Vide impugned order dated 27.09.2024, the trial court relying upon the judgment of this Court in Sukhwasi vs. State of U.P., 2007 (6) ALJ 424, Vishwanath vs. State of U.P. (Criminal Revision No. 1689 of 2007) and Rambabu Gupta vs. State of U.P., 2001(43) ACC 50, found that in the instant case, all the witnesses and the accused are known to the applicant. There is nothing, which is to be investigated and recovered by the police. In view thereof, learned Magistrate has directed the said application under Section 156(3) Cr.P.C. to be treated as a complaint case, against which the instant application has been filed by the applicant.
5. The submission of learned counsel for the applicant is that whenever a cognizable offence is alleged, it is the mandatory duty of the court to direct the registration of the FIR. Further merely the facts are within the knowledge of the complainant, the application under Section 156 (3) Cr.P.C. cannot be directed to be treated as a complaint case. In support of his submission, he has relied upon the judgment of of Co-ordinate Bench of this Court dated 02.09.2024 passed in Application under Section 482 No. 24716 of 2024 (Mukesh Kharwar vs. State of U.P. and 3 others).
6. Per contra, the learned AGA submits that on each and every application under Section 156 (3) Cr.P.C., which discloses a cognizable offence, it is not mandatory to direct the registration of FIR. In support of his submission, he has relied upon the judgment of this Court dated 18.12.2020 passed in Lala Ram vs. State of U.P. and 13 others, AHC (119) 365. Learned AGA further submits that it is only when the accused and witnesses are not known to the complainant or the facts of the case require recovery of abducted person or the stolen property by conducting the raids and searches or some evidence is required to be collected or some inquest report is required to be prepared or the witnesses are to be discovered by the investigation, the direction for registration of FIR and the police investigation is mandatory. However, it would depend upon the facts and circumstances of each and every case. In the instant case, since all the facts of the incident are well within the knowledge of the applicant and also the name of the accused and the witnesses are known to the applicant, no recovery is required to be made in the instant case. Thus, the trial court has rightly directed the said application under Section 156(3) to be treated as a complaint case under Section 200 Cr.P.C.
7. In rejoinder affidavit, learned counsel for the applicant has heavily relied upon para 40.11 of the aforesaid judgment in Lala Ram vs. State of U.P. (supra).
8. Having heard the rival submissions made by learned counsel for the parties, this Court has gone through the record of the case. The facts of the case have already been noted. The sole question, which involves in the instant case is whether looking at the facts and circumstances of the case, is it mandatory for the Magistrate to direct the registration of FIR and direct the police investigation in the matter, instead of treating the application under Section 156(3) Cr.P.C. as a complaint case under Section 200 Cr.P.C. Provisions of Sections 154 and 156 Cr.P.C. which are relevant to be taken note are being reproduced herein as under:
“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 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.
Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section2 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer;
Provided further that–
1. in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section2 376AB, section 376B, section 376C, section 376D,
section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;
2. the recording of such information shall be video graphed;
3. the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.1
• A copy of the information as recorded under Sub-Section (1) shall be given forthwith, free of cost, to the informant.
• 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.
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.”
9. From perusal of the aforesaid provision of Section 154 Cr.P.C., it is apparent that the police has power to investigate into the matters relating to commission of cognizable offence brought into notice under Section 154 Cr.P.C. The In-charge police station have power to investigate the matter. The Magistrate has power to take cognizance of the matter on receiving the complaint under Section 156(3) Cr.P.C.
10. In Sukhwasi vs. State of U.P. (supra), the Division Bench of this Court has held as under
“5. It will further become clear from the following observations made in para- 40 of the Judgement:
“While resorting to the first mode in as much as directing the police for investigation he should not pass order in a routine manner. He should apply his judicial mind and on a glimpse of the complaint, if he is prima facie of the view that allegations made therein constituted commission of a cognizable offence requiring thorough investigation, he may direct the police to perform their statutory duties as envisaged in law”.
11. In Lala Ram vs. State of U.P. (supra) as relied upon by both sides, it is relevant to take note of the following observations made by this Court:
“40. From the aforesaid judgments, some of the following proposition of law, well settled, may be summarized as under :-
(40.01). Under Section 154 of the Code, if the information discloses commission of a cognizable offence it is the mandatory duty of the police officer in charge to register the FIR. He cannot avoid his duty of registering offence, if cognizable offence is made out.
(40.02). If FIR is not registered, the person aggrieved by a refusal to record the information has remedy to approach the Superintendent of Police by submitting an application in writing and by post to enable him to satisfy if such information discloses the commission of a cognizable offence and in case of such satisfaction, either to investigate himself or direct an investigation to be made by any police officer subordinate to him.
(40.03). If the person still feels aggrieved from inaction of the police authorities he has the remedy to approach the Magistrate by way of application under Section 156(3) Cr.P.C.,
(40.04). On such an application having been made, if, the Magistrate finds that a cognizable offence is made out, the Magistrate may direct the police to register the FIR and investigate the matter, without taking cognizance.
(40.05). The other option open to the Magistrate is to take cognizance on the complaint, register it as a complaint case and proceed as per the procedure prescribed under Chapter XV Cr.P.C. The Magistrate would record the statement of the complainant and the witnesses if any present, under Section 200 Cr.P.C. He may, if he thinks fit and shall in cases where accused resides outside the area of exercise of jurisdiction of the Magistrate concerned, either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, under Section 202(1) Cr.P.C. Thereafter, he shall pass order, either under Section 203 dismissing the complaint, for brief reasons to be recorded, or he shall issue process under Section 204 Cr.P.C.
(40.06). In either case, i.e. issuing direction for investigation by the police officer under Section 156(3) Cr.P.C. or taking cognizance and registering it as a complaint case, the Magistrate has to apply judicial mind. There cannot be mechanical exercise of jurisdiction or exercise in a routine manner. Mere statement in the order that he has gone through the complaint, documents and heard the complainant will not be sufficient. What weighed with the Magistrate to order investigation or to take cognizance should be reflected in the order, although a detailed expression of his view is neither required nor warranted.
(40.07). The exercise of discretion by the Magistrate is basically guided by interest of justice, from case to case.
(40.08). However, where some investigation is required which is of a nature that is not possible for the private complainant and which can only be done by the police officer upon whom statute has conferred the powers essential for investigation, the option to direct the registration of the FIR and its investigation by the police officer should be exercised, for example:-
(i) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or
(ii) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or
(iii) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved, and to illustrate this, by few example cases may be visualised where for production before Court at the trial
(a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or
(b) recovery of case property is to be made and kept sealed; or
(c) recovery under Section 27 of the Evidence Act; or
(d) preparation of inquest report; or
(e) witnesses are not known and have to be found out or discovered through the process of investigation.
(40.09). Where the complainant is in possession of the complete details of all the accused and the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no “investigation” would normally be required and the procedure of complaint case should be adopted.
(40.10). Category of cases falling under para 120.6 in Lalita Kumari (Supra) i.e.
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases,
(d) Corruption cases
(e) Cases where there is abnormal delay in filling criminal complaint etc. may fall under Section 202 Cr.P.C.
(40.11). The Magistrate should also keep in view that primarily, it is the duty of the State/police to investigate the cases involving cognizable offence. Generally, the burden of proof to bring the guilt of the accused is on the State and this burden is a heavy burden to prove the guilt beyond all reasonable doubts. This burden should not unreasonably be shifted on an individual/complainant from the State by treating the application under Section 156(3) Cr.P.C. as a complaint case.
(40.12). The investigation which the police officer or such other person makes in pursuance of the direction of the Magistrate under Section 202(1) Cr.P.C. is the same kind of investigation as is required to be conducted by police officer, under Chapter XII Cr.P.C. which ends with submission of the report as per Section 173(2) Cr.P.C.
(40.13). The distinction between the investigation by the police officer under Section 156(3) and under Section 202(1) Cr.P.C. is that the former is at the pre-cognizance stage and the latter is at post cognizance stage, when the Magistrate is seisin of the case. The investigation under Section 202(1) Cr.P.C. is for the purpose of ascertaining the truth or false hood of the complaint for helping the Magistrate to decide, whether or not there is sufficient ground, for him to proceed further against the accused by issuing process, whereas, the inquiry report under Section 173(2) Cr.P.C. of the investigation made by the police of its own or under the directions of the Magistrate under Section 156(3) Cr.P.C. is for the purpose of enabling the Magistrate to take cognizance of an offence under Section 190(1)(a) Cr.P.C.
(40.14). Once cognizance is taken on the application under Section 156(3) Cr.P.C. by the Magistrate and he embarks upon the procedure embodied in Chapter XV, he would not be competent to revert to the pre-cognizance stage under Section 156(3) Cr.P.C.
(40.15). If the Magistrate did not order for police investigation under Section 156(3) Cr.P.C. and took cognizance of the case, that would not be bar to the exercise of the power of the Magistrate for directing the police investigation under Section 202(1) Cr.P.C.”
12. In Mukesh Kharwar vs. State of U.P. (supra), a Co-ordiante Bench of this Court has held as under :
” 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.”
13. From Perusal of the aforesaid judgments specifically para 40.08 of the judgment of Lala Ram vs. State of U.P. (supra), wherein this Court has categorically enumerate the circumstances where, on an application under Section 156(3) Cr.P.C., the direction for registration of FIR is mandatory. From perusal of the facts of the instant case, none of the aforesaid conditions as enumerated in para-40.08 of the judgment of Lala Ram vs. State of U.P. (supra) are involved in the instant case.
14. So far as paragraph 40.11 of the judgment of Lala Ram vs. State of U.P. (supra) heavily relied upon by learned counsel for the applicant is concerned, the same records a general statement. Regarding which, there cannot be any quarrel. However, as per the mandate of Sukhwasi vs. State of U.P. (supra) coupled with the judgment of Lala Ram vs. State of U.P. (supra), unless the accused or witnesses are not known to the complainant or names of such accused or witnesses are required to be found by investigation or some recovery is required to be affected from any person or some evidence is required to be collected in future, the direction for registration of FIR on application under Section 156(3) Cr.P.C. is not mandatory.
15. The Magistrate can very well take cognizance in the matter and follow the procedure under Chapter-XV of the Code of Criminal Procedure, if the accused and the witnesses are known to the applicant and no recovery is to be made and no evidence is required to be collected or preserved by the police.
16. Thus, looking at the facts and circumstances of the instant case where everything is well within the knowledge of the applicant, names of the accused and witnesses, injury report etc. , therefore, this Court does not find any illegality in the impugned order passed by the learned Magistrate.
17. Thus, this Court does not find any good reason to entertain the instant application and the same is accordingly, dismissed.
Order Date :- 9.7.2025
Ashish Pd.
(Anish Kumar Gupta,J.)
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