Allahabad High Court
Umesh Pandey vs State Of U.P. 5 Others on 23 July, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:121199
Court No. - 78
Case :- APPLICATION U/S 482 No. - 40220 of 2024
Applicant :- Umesh Pandey
Opposite Party :- State Of U.P. 5 Others
Counsel for Applicant :- Udai Prakash Deo Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Udai Prakash Deo Pandey, learned counsel for the applicant and Sri Vinay Prakash Sahu, learned AGA for the State.
2. The instant application under Section 482 Cr.P.C. has been filed by the applicant seeking direction to the Chief Judicial Magistrate, Bijnor for registering the first information report and setting aside the impugned order dated 08.08.2024, passed in Criminal Misc. Application No.1095 of 2024(Umesh Pandey Vs. Anoop Kumar and others), under section 156(3) Cr.P.C.
3. Learned counsel for the applicant submits that the son of the applicant herein was an employee at M.V.K. Private Limited Company, Police Station Noorpur, District Bijnor. On 16.07.2023 at around 8.00 O'clock when he called at the mobile number of his son the same was picked up by some unknown person, who informed that his son Alok Pandey has died in some accident and the said persons further inform that he was working with his son. However, the said person has not disclosed his name. He further informed that the dead body of the son of the applicant is kept in Community Health Centre for postmortem. The applicant asked him that till he reaches there the postmortem of his son should not be conducted. However, before the applicant could reached at Bijnor the postmortem of his son was got conducted and the dead body was sealed in a plastic bag and send to his village. When the applicant reached his house and seen the dead body of his son, he found that there were various injuries on the dead body of his son and he has apprehended that his son has been murdered and he has been informed wrongly that his son had died in some road accident. The inquest and postmortem of the son of applicant was conducted without his presence. The applicant informed the concerned police about the said incident but no action was taken by the police. Thereafter the applicant has given a written report on 17.07.2023 to the Police Station Noorpur, however, when no action was taken, the applicant has given information to the Superintendent of Police, Bijnor and thereafter filed a Writ Petition No.16734 of 2023(Umesh Pandey Vs. State of U.P. and 3 others), whereby the co-ordinate Bench of this Court vide order dated 01.12.2023 directed the applicant to approach the Magistrate concerned by filing an application under section 156(3) Cr.P.C., which was field by the applicant herein. However, by impugned order dated 08.08.2024, the learned Chief Judicial Magistrate, Bijnor has treated the said application under section 156(3) Cr.P.C. as a complaint case.
4. Learned counsel for the applicant further submits that while directing the instant application to be treated as a complaint case the learned Chief Judicial Magistrate, Bijnor has observed that the nature of charges are such, which can be proved by the applicant herein by leading the evidence in this regard. Learned counsel for the applicant also submits that the entire incident has taken place at a far away place, where the applicant was not present on the spot and he is neither known to any of the accused person nor the manner in which the incident has taken place, therefore, he is unable to lead the evidence. Therefore, the proper course in the instant case ought to have been to issue direction for registration of the FIR of the said incident and proper investigation is required to be done by the investigating agency.
5. In support of his submission learned counsel for the applicant has relied upon the judgment of the co-ordinate Bench of this Court in Lalaram Vs. State of U.P. and 13 Others, passed in Criminal Revision No.1611 of 2020, decided on 18.12.2020 (Neutral Citation No.2020:AHC:119365 and specifically the paragraph no.40.08 of the said judgment, which categorically states that where the full details of the accused or the witness are not known, then it is mandatory for the Magistrate to direct for registration of the FIR in the case, so that proper investigation can be done in the matter. He submits that in the instant case the applicant herein is neither aware about the person, who are the accused nor about the persons, who are the witnesses of such incident. Therefore, learned counsel for the applicant submits that it is mandatory for learned Magistrate to direct for the registration of FIR in the matter.
6. Per contra, learned AGA for the State submits that in the instant case after the incident on the information received from the co-employee of the son of applicant the inquest was prepared and in the inquest it was the opinion of the panch witnesses that the cause of death is by hitting by some animal, therefore, it was a case of accident and thereafter the postmortem was also conducted and nothing has come in the postmortem to suggest that it was a case of homicide. Since it was a case of accident, therefore, no FIR was registered at the concerned police station. However, learned AGA for the State could not dispute the circumstances, which are taken note of by the co-ordinate Bench of this Court in the case of Lalaram(supra), wherein specific instances have been given when the accused or witness are not know, it is mandatory for direction of registration of the FIR. It would be relevant to take note of the observation of the co-ordinate Bench of this Court in Lalaram(supra), which reads 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."
7. From the perusal of the aforesaid judgment and in the considered opinion of this Court, the allegations which are leveled in the instant case are not within the knowledge of the applicant herein and the true facts could be brought to the knowledge only by a proper investigation in the instant case.
8. In view thereof and in the considered opinion of this Court the impugned order date 08.08.2024 passed by the learned Chief Judicial Magistrate, Bijnor, is not sustainable in eye of law and, accordingly, the same is hereby set-aside and the instant application is allowed.
9. The application under section 156(3) Cr.P.C. filed by the applicant herein in the court of learned Chief Judicial Magistrate, Bijnor is hereby allowed and it is directed to the authority concerned that the FIR be registered in the instant case and thereafter a proper investigation be also done in the instant case.
Order Date :- 23.7.2025
VKG
(Anish Kumar Gupta,J.)
