Smt. Rajani vs State Of U.P. And 2 Others
2021 Latest Caselaw 11270 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											A.F.R.
 

 
Court No. - 82
 

 
Case :- CRIMINAL REVISION No. - 2247 of 2021
 

 
Revisionist :- Smt. Rajani
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- Bhaskar Bhadra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.

1. This is a revision purported to be under Section 397/401 of Code of Criminal Procedure, 1973 assailing the validity and the correctness of the order dated 4.8.2021 passed by Special Judge SC/ST Act, Bareilly in Criminal Case No.1117 of 2021, under Section 156(3) Cr.P.C., Police Station Fatehganj West, District Bareilly (Smt. Rajni Vs. Jameel Ahamad and others).

2. Sri Dinesh Singh, AOR No.A-1-18-0439/2012 had made a statement that he is holding brief of Sri Bhaskar Bhadndra, AOR No.A/B-0142/2012, who has filed the present revision and he has been authorised by Sri Bhaskar Bhadndra, AOR No.A/B-0142/2012 to argue the present revision.

3. Heard Sri Dinesh Singh, AOR No.A-1-18-0439/2012 holding brief of Sri Bhaskar Bhadndra, AOR No.A/B-0142/2012, learned counsel for the revisionist and Sri Pankaj Saksena, learned AGA for opposite party no.1.

4. In view of the order so passed in the present revision, there is no need to issue notices to opposite parties no.2 and 3.

5. Brief facts of the case as recapitulated in the present revision are as under:-

6. As per the pleading set forth in the application purported to be under Section 156 Cr.P.C. 1973 before the Court of Special Judge, SC/ST Act, Bareilly dated 4.8.2021 which is annexure-1 at page 25 of the paper book, it will reveal that the applicant-revisionist is the daughter of Sri Kasturi Lal r/o Mohalla Mali, Police Station Fatehganj West, District Bareilly and belongs to Other Backward Classes (OBC category). She has further pleaded that she is poor and about 14 years ago from the date of the filing of the present application under Section 156(3) Cr.P.C. before the court below on 4.8.2021, she came in touch for the opposite party no.2 being Sri Jameel Ahmad, s/o Nawab Dulla, r/o Mohalla-Thather, Bawasi wali gali, P.S. Ganj, District Rampur.

7. The opposite party no.1 Sri Jameel Ahmad did not disclose his religion and portrayed himself to be a Hindu by religion and introduced himself as Sri Rajesh. The opposite party no.1 thereafter became quiet cordial with the applicant-revisionist and he trapped the applicant-revisionist on account whereof the applicant-revisionist proceeded to have live in relationship with the opposite party no.2. So much so they also entered into physical relationship and which resulted into birth of two sons in one of the private hospitals in Bareilly.

8. It was further alleged in the application under Section 156(3) Cr.P.C. so preferred by applicant-revisionist that after a long span of time the applicant-revisionist could know about the religion and the name of the opposite party no.2. The applicant-revisionist has also come with a case that the opposite party no.2 used to molest and have physical relationship without the consent of the applicant-revisionist and when she repeatedly requested for solemnisation of the marriage then the opposite party no.2 on one pretext or other he used to exhibit his difficulties with relation to the marriage of his sisters and assured that he will marry later. About five months ago from the date of the lodging of complaint under Section 156(3) Cr.P.C. dated 4.8.2021, when the applicant-revisionist pressurised the opposite party no.2 for solemnisation of marriage then abuses in Hindi vernacular were used by the opposite party no.2 and thereafter the opposite party no.2 left the applicant-revisionist and went to Rampur and after waiting for about 4-5 days, the applicant-revisionist made mobile calls which were not attended as the mobile was switched off. The applicant-revisionist along with her mother Smt. Sagar Devi, went to Rampur at the shop of the opposite party no.2 where at the opposite party no.2 was not present. However, his younger brother Waseem and uncle Firasat were present. On being asked about whereabouts of the opposite party no.2, they took the applicant-revisionist and her mother to the nearby shop of one Sri Akhater. When the revisionist asked the whereabouts the opposite party no.2 then again abuses in Hindi vernacular were used and threats were administered for murdering the applicant-revisionist.

9. The applicant-revisionist has further come up with a case that Sri Waseem along with Firasat and Akhtar assured the applicant-revisionist that a settlement will be prepared and they induced the applicant-revisionist to come inside the house stopped the mother of the applicant-revisionist being Sagar Devi, from coming in the house and she was told to remain outside the house.

10. After closing the door Sri Firasat and Sri Akhlak told Sri Waseem to commit rape and when force was being sought to be exerted than the applicant-revisionist screamed and thereafter and the mother of the applicant-revisionist Smt. Sagar Devi, slammed the door and on account of said development, the applicant-revisionist ran away.

11. The applicant-revisionist have also set up a case that on 14.6.2021, she approached the concerned police station, Meerganj, Bareilly, wherein at 14.6.2021 a settlement has been made between the parties.

12. The applicant-revisionist had also stated in her application under Section 156 of the Code of Criminal Procedure that she had approached concerned police station for lodging an FIR and when the FIR was not lodged then she approached Senior Superintendent of Police for lodging of FIR. However, FIR has not been lodged, thus, request was made before court below for issuing the appropriate direction for lodging an FIR.

13. The application so preferred by the applicant-revisionist under Section 156(3) Cr.P.C. before the court below was registered as Criminal Case No.1117 of 2021, CNR No.UPB ROI-008167-21 (Smt. Rajni Vs. Jameel Ahamad and others).

14. The court below by virtue of the order dated 27.8.2021 has rejected the application so preferred by the applicant-revisionist under Section 156(3) of the Cr.P.C. holding that the applicant-revisionist had not complied with the conditions so enshrined in Section 154 of the Cr.P.C., as there is no document available on record that after non-lodging of an FIR by the concerned police and she has approached the S.S.P.,Bareilly for lodging the same. However, court below has also recorded a categorical finding of fact that the present case did not warrant passing of an order for lodging of the FIR.

15. Before proceeding further it is apt to discuss and analyse the statutory provisions purported to be under Section 397/401 Cr.P.C., 1973 as applicable in the State of U.P.

"397. Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.

(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

401. High Court' s Powers of revisions.

(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice

so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

16. A conjoint reading of the provisions contained under Section 397 as well as 401 of the Code of Criminal Procedure, it will clearly reveal that High Court of any Sessions Judge may call for and examine the record of any proceedings before any inferior criminal court situate within its or its local jurisdiction for the purposes of satisfying itself or himself as to the correctness, legality or probability of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court.

17. The issue with regard to the scope and the extent of revisional jurisdiction under Section 391 read with Section 401 of the Code of Criminal Procedure, 1973 is no more res integra as the Hon'ble Supreme Court and this Court in catena of decisions interpreted the same which is being recapitulated hereunder:-

18. The Apex Court in the case of K. Chinnaswamy Reddy Vs. State of Andhra Pradesh and another reported in AIR 1962, S.C. 1788 in para 7 observed as under :-

"7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have though fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of s. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be : where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished of produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law.

These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of s. 439.

(4) We have therefore to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles."

19. The Apex Court in the case of Mahendra Pratap Singh Vs. Sarju Singh and another reported in AIR (55) 1968, S.C. 707 in para 7 observed as under:-

"7. In revision, the learned Judge in the High Court went into the evidence very minutely. He questioned every single finding of the learned Sessions Judge and gave his own interpretation of the evidence and the inferences to be drawn from it. He discounted the theory that the weapon of attack was a revolver and suggested that it might have been a shot gun or country made pistol which the villagers in the position of Kuldip and Sarju could not distinguish from a revolver. He then took up each single circumstance on which the learned Sessions Judge had found some doubt and interpreting the evidence de novo held, contrary to the opinion of the Sessions Judge that they were acceptable. All the time he appeared to give the benefit of the doubt to the prosecution. The only error of law which the learned Judge found in the Sessions Judge's judgment was a remark by the Sessions Judge that the defence witnesses who were examined by the police before they were brought as defence witnesses ought to have been cross-examined with reference to their previous statements recorded by the police, which obviously is against the provisions of the Code. Except for this error, no defect of procedure or of law was discovered by the learned Judge of the High Court in his appraisal of the judgment of the Sessions Judge. As stated already by us, he seems to have gone into the matter as if an appeal against acquittal was before him making no distinction between the appellate and the revisional powers exercisable by the High Court in matters of acquittal except to the extent that instead of convicting the appellant he only ordered his retrial. In our opinion the learned Judge was clearly in error in proceeding as he did in a revision filed by a private party against the acquittal reached in the Court of Session."

20. The Apex Court in the case of Johar and Ors. vs. Mangal Prasad and Ors. reported in 2008 Cr. L.J. 1627 in paras 9, 10, 11, 12, 13 has observed as under:-

"9. Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited. The High Court did not point out any error of law on the part of the learned Trial Judge. It was not opined that any relevant evidence has been left out of its consideration by the court below or irrelevant material has been taken into consideration. The High Court entered into the merit of the matter. It commented upon the credentiality of the Autopsy Surgeon. It sought to re- appreciate the whole evidence. One possible view was sought to be substituted by another possible view.

10. Sub-section (3) of Section 401 reads as under:

401(3). Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.

Technically, although Ms. Makhija may be correct that the High Court has not converted the judgment of acquittal passed by the learned Trial Court to a judgment of conviction, but for arriving at a finding as to whether the High Court has exceeded its jurisdiction or not, the approach of the High Court must be borne in mind. For the said purpose, we may notice a few precedents.

11. In D. Stephens v. Nosibolla [1951] 1 SCR 284 this Court opined:

10. The revisional jurisdiction conferred on the High Court under Section 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record.

12. The same principle was reiterated in Logendra Nath Jha and Ors. v. Polailal Biswas [1951 SCR676] stating:

...Though Sub-section (1) of Section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by Section 423, Sub-section (4) specifically excludes the power to "convert a finding of acquittal into one of conviction". This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterizing the judgment of the trial court as "perverse" and "lacking in perspective", the High Court cannot reverse pure findings of fact based on the trial Court's appreciation of the evidence in the case. That is what the learned Judge in the court below has done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal....

13. In the instant case the High Court not only entered into the merit of the matter but also analysed the depositions of all the witnesses examined on behalf of the prosecution. It, in particular, went to the extent of criticizing the testimony of Autopsy Surgeon. It relied upon the evidence of the so called eye witnesses to hold that although appellants herein had inflicted injuries on the head of the deceased, Dr. Y.K. Malaiya, PW-9, deliberately suppressed the same. He was, for all intent and purport, found guilty of the offence under Section 193 and 196 of the Indian Penal Code. The Autopsy Surgeon was not cross-examined by the State. He was not declared hostile. The State did not even prefer any appeal against the judgment."

21. In the case of State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri reported in 1999(2) SCC 452, the Hon'ble Supreme Court interpreted the scope and the extent jurisdiction to be exercised by High Court under the provisions contained under Section 397/401 of the Code of Criminal Procedure.

"5....... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the Respondent by reappreciating the oral evidence....."

22. Yet in the case of Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke, reported in (2015) 3 SCC 123, Hon'ble Supreme Court observed as under:-

"14...... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court Under Sections 397 to 401 Code of Criminal Procedure is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."

23. The aforesaid two judgments in the case of Kishan Rao vs. Shankargouda (2018) 8 SCC 165 in para 14 observed as under:-

"14. In the above case also conviction of the Accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."

24. From the legal proposition so culled out by the Hon'ble Apex Court in the aforesaid decisions itself goes to show that the power so exercised under Section 397/401 of the Code of Criminal Procedure is limited and until and unless the order so challenged therein passed by the Magistrate is perverse or the view taken by the Court wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of record, the revisional court is not justified in interfering with the order that too merely because also another view is possible.

25. In nutshell, the Hon'ble Apex Court has cautioned the High Court not to act as an appellate court as the whole purpose of revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal procedure.

26. Now, the present case in hand is to be decided in the light of the principles of the law laid down by the Hon'ble Apex Court while exercising the powers under Section 397/401 of the Code of Criminal Procedure, 1973.

27. Sri Dinesh Singh, who is holding the brief of Bhaskar Bhadra has invited the attention of this Court towards annexure-1 at page 25 of the paper book which is the complaint preferred by the applicant-revisionist on 4.8.2021 before the court below so as to contend that cognizable offence was made out and FIR ought to have been lodged by the concerned police.

28. Sri Pankaj Saksena, learned AGA appearing for the opposite party no.1 has supported the order under challenge and has urged that the order under challenge is a reasoned and speaking order taking into consideration each and every aspect of the matter and in particular the fact that the court below was within its jurisdiction/discretion in not passing an order for lodging of an FIR. He has further invited this Court attention towards the pleadings in the application under Section 156 of the Code of Criminal Procedure relating to the fact that though the averment was made in the said application that the applicant-revisionist had approached the officer-in-charge of the concerned police station giving information relating to commission of cognizable offence but the FIR was not registered and thereafter the applicant-revisionist had approached the S.S.P. as per Sub-section (3) of Section 154 of the Cr.P.C. hence in absence of any document or factual details in this regard was the order impugned does not suffer from any infirmity.

29. Before proceeding further this Court finds necessary to quote provisions contained under Section 154 and Section 156 of the Code of Criminal Procedure which reads 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.

(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (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."

30. Sub-section (1) of Section 154 Cr.P.C. itself provides that every information relating to commission of 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 to read over to the informant and every such information whether given in writing or reduced to writing shall be signed by a person giving it and the substance thereof shall be entered in the book to be kept by the officer.

31. Further Sub-section (3) of Section 154 itself mandates that any person aggrieved by a refusal on the part of an officer-in-charge of police station to record the information referred to in Sub-section (1) may send the substance of the information in writing and by post to Senior Superintendent of Police concerned, who have satisfied that such information discloses the commission of cognizable offence shall either investigate case himself and direct an investigation to be done by a police officer subordinate to it.

32. Thus two opportunities have been provided under Section 154 of the Cr.P.C. at first instance before the concerned police authorities at the concerned police station and secondly before the Senior Superintendent of Police.

33. In case the officer-in-charge of the police station and also the Senior Superintendent of Police does not register the FIR on the basis of the information of the informant regarding commission of cognizable offence then under Section 156(3) of the Cr.P.C. Magistrate may direct for lodging of the FIR.

34. The said is no more res integra as the Hon'ble Apex Court has had the occasion to consider the said issue in the case of Lalita kumari Vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1 reads as under:-

"82. Mr Naphade, learned Senior Counsel further pointed out that the provisions have to be read in the light of the principle of malicious prosecution and the fundamental rights guaranteed under Articles 14,19 and 21. It is the stand of learned senior counsel that every citizen has a right not to be subjected to malicious prosecution and every police officer has an in-built duty under Section 154 to ensure that an innocent person is not falsely implicated in a criminal case. If despite the fact that the police officer is not prima facie satisfied, as regards commission of a cognizable offence and proceeds to register an FIR and carries out an investigation, it would result in putting the liberty of a citizen in jeopardy. Therefore, learned senior counsel vehemently pleaded for a preliminary inquiry before registration of FIR.

83. In terms of the language used in Section 154 of the Code, the police is duty bound to proceed to conduct investigation into a cognizable offence even without receiving information (i.e. FIR) about commission of such an offence, if the officer in charge of the police station otherwise suspects the commission of such an offence. The legislative intent is therefore quite clear, i.e., to ensure that every cognizable offence is promptly investigated in accordance with law. This being the legal position, there is no reason that there should be any discretion or option left with the police to register or not to register an FIR when information is given about the commission of a cognizable offence. Every cognizable offence must be investigated promptly in accordance with law and all information provided under Section 154 of the Code about the commission of a cognizable offence must be registered as an FIR so as to initiate an offence. The requirement of Section 154 of the Code is only that the report must disclose the commission of a cognizable offence and that is sufficient to set the investigating machinery into action.

84. The insertion of Sub-section (3) of Section 154, by way of an amendment, reveals the intention of the legislature to ensure that no information of commission of a cognizable offence must be ignored or not acted upon which would result in unjustified protection of the alleged offender/accused.

85. The maxim expression unius est exclusion alterius (expression of one thing is the exclusion of another) applies in the interpretation of Section 154 of the Code, where the mandate of recording the information in writing excludes the possibility of not recording an information of commission of a cognizable crime in the special register.

86. Therefore, conducting an investigation into an offence after registration of FIR under Section 154 of the Code is the "procedure established by law" and, thus, is in conformity with Article 21 of the Constitution. Accordingly, the right of the accused under Article 21 of the Constitution is protected if the FIR is registered first and then the investigation is conducted in accordance with the provisions of law."

35. The issue with respect to exercise of powers under Section 156(3) of the Code of Criminal Procedure has also been taken note in the case of Priyanka Srivastava and Ors. vs. State of U.P. and Ors. reported in AIR 2015 SC 1758 wherein para 26 and 27 following has observed:-

"26. At this stage it is seemly to state that power Under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.

27. In our considered opinion, a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or Under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications Under Section 154(1) and 154(3) while filing a petition Under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application Under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate Under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

36. The court below in the order under challenge has recorded a clear cut finding of fact that the mandatory requirement under Section 154 of the Cr.P.C. has not been followed by the applicant-revisionist. For kind reference same is quoted hereunder:-

Þvkosnu esa of.kZr rF;ksa ls Li"V gS fd vkosfndk 14 o"kksaZ ls foi{kh la0&1 tehy vgen ds lkFk jg jgh gS rFkk mlds nks cPps gSaA vkosfndk us Lo;a vkosnu esa of.kZr fd;k gS fd fnukad 14.6.2021 dks mldk foi{kh ls le>kSrk gks x;k gS] ftlessa ,d ekg ls T;knk dk le; O;rhr gks pqdk gSA vkosfndk dh rjQ ls lEcaf/kr Fkkus ij fn;s x;s izkFkZuk i= nsus dk mYys[k vius vkosnu esa fd;k x;k gS] ijurq vkosfndk -kjk lEcaf/kr Fkkus ij fn;s x;s izkFkZuk i= vUrxZr /kkjk 154¼1½ n.M izfdz;k lafgrk dh izfr Hkh vfHkys[k ij nkf[ky ugha dh x;h gSA

mijksDr lEiw.kZ foospuk mijkUr U;k;ky; bl fu"d"kZ ij igq¡prh gS fd vkosfndk ds vkosnu ds lEca/k esa vfHk;ksx iathd`r dj foospuk djk;s tkus dk vkns'k ikfjr fd;k tkuk U;k;ksfpr o fof/klaxr ugha gS rFkk vkosnu lkjghu gksus ds dkj.k fujLr fd;s tkus ;ksX; gSAß

37. The said findings have not been assailed in the grounds of revision also.

38. Though learned counsel for the revisionist has made argument on factual aspect of the matter, but this Court under revisional jurisdiction cannot go into the factual issues and implant its own view, as this Court is not exercising the appellate jurisdiction.

39. Be that as it may this Court finds that the present case is not fit for exercising of revisional jurisdiction under Section 397/401 Cr.P.C. on account of the following facts:-

a. It is highly inconceivable that the applicant-revisionist was not knowing about the name and the religion of opposite party no.2 for a period of 14 years.

b. Applicant-revisionist and the opposite party no.2 as admitted by the applicant-revisionist were in live in relation.

c. Applicant-revisionist and the opposite party no.2 had given birth to two male child.

d. Mandatory requirement under Section 154 of the Cr.P.C. have not been complied with by the applicant-revisionist.

e. Moreover the Magistrate while exercising powers under Section 156(3) of the Cr.P.C. cannot act as a post office as the Magistrate has to apply his mind with regard to the fact as to whether the case before it warrant passing of an order for lodging of an FIR on the basis of the information so submitted by the complainant regarding commissioning of cognizable offence.

40. In other words, on mere asking, without anything on record, Magistrate cannot proceed to pass orders thereon.

41. As discussed above, the information of the applicant-revisionist informant did not comply with the mandatory conditions as discussed hereinabove and on account whereof this Court does not find any manifest illegality or procedural irregularity committed by the court below.

42. The Full Bench of this Hon'ble Court in Criminal Misc. Writ Petition No.3672 of 2000 decided on 27.4.2001, Rambabu Gupta Vs. State of U.P. in para 17 observed as under:-

"17. In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate's order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter XV of Cr P.C. The first question stands answered thus."

43. Yet a Division Bench of this Court in Criminal Misc. Application No.9297 of 2007 decided on 18.9.2007. A Division Bench of this Court in the case of Sukhbali Vs. State of Uttar Pradesh reported in 2007 (59) ACC 739 in para 22 has observed as under:-

"22. Applications under Section 156(3) Cr. P.C. are now coming in torrents. Provisions under Section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is something unusual and extra ordinary like miscarriage of justice, which warrants a direction to the Police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) Cr.P.C."

A judicial notice has been taken by this Court in the case of Sukhbali (Supra) that applications under Section 156(3) Cr.P.C. are now coming in torrent and thus exercise of the powers under Section 156(3) Cr.P.C. should be used sparingly and not in routine manner.

44. Looking into the facts and circumstances of the present case in relation to the statutory provisions as contained under Cr.P.C. as well as the scope under Section 397/401 of the Cr.P.C. this Court does not find any infirmity in the order dated 27.8.2021 passed by passed by Special Judge SC/ST Act, Bareilly in Criminal Case No.1117 of 2021, under Section 156(3) Cr.P.C., Police Station Fatehganj West, District Bareilly (Smt. Rajni Vs. Jameel Ahamad and others), hence the present criminal revision is wholly misconceived and is liable to be dismissed.

45. No other points raised by counsel for the applicant-revisionist.

46. Accordingly, criminal revision is dismissed. No order as to costs.

Order Date :- 28.10.2021

piyush