IN THE ALLAHABAD HIGH COURT

CRIMINAL MISC. APPLICATION

Smt. MASUMAN W/O SRI MOHD.

(Applicant)

vs.
THE STATE OF UTTAR PRADESH AND ORS.
(Respondent)

CRIMINAL MISC. APPLICATION NO. 6152 OF 2006

 DECIDED BY- Hon’ble Vinod Prasad, J.

 SIZE OF THE BENCH- Single Bench (1-Judge Bench)
 JUDGMENT DELIVERED BY – Hon’ble Vinod Prasad, J.
 CITATION- 2007 ILR 1 ALL 324
 DECIDED ON – 25/09/2006
 COUNSELS:
For Appellant/Petitioner/Plaintiff: Not Mentioned
For Respondents/Defendant: Learned AGA
 AMICUS-NOT APPLICABLE
 INTERVENER- NOT APPLICABLE
 Background And Subject Matter Of The Case
The applicant Smt. Masuman wife of Faiz Mohmmad, a resident of village Rasoolpur police
station Billhor district Kanpur Dehat invoked the power of the Chief Judicial Magistrate, Kanpur
Dehat on 20.9.2005,through an application under Section 156(3) Cr.P.C. with the allegations that
Kallu Pal, Ram Pal, Raju, Munshi Lal, Vipin, Suresh, chunna and Jaggi Lal Kushwaha, alleged
accused persons are her co-villagers. Her family is the sole Muslim family in the village. Her
husband is fragile and old. The family maintain its way of life by labouring. In the election of the
village pradhan, Rajjan Singh had supported by smt. masuman family in the recent held
elections, and he won the election against Sanjai. Alleged offenders Kallu Pal, Raju, Ram Pal,
Munshi Lal, Suresh, Vipin, Chunna, and Jaggi Lal Kushwaha, all of whom are probably close
relatives or friends of the aforementioned Sanjai, felt compelled to take revenge as a result. On
September 7, 2005, around 8 p.m., almost every one of the applicant's family members were
present in the home, with the exception of Iqrar, the applicant's younger son. Nonetheless, the
aforementioned individuals encircled the applicant's home and verbally attacked the family.
While they were protested the insults that were hurled, Faiz Mohd. and Mister, the applicant
Masuman's spouse and older son, were poorly articulated by invaders. Masuman, the applicant,
her daughter Iskiman, and granddaughter Afsana sought to protect them, however Iskiman was
crushed to the ground by the claimed accuser Kallu, Raju and Chunna grabbed hold of her hands,
and Juggi Lai tried to rape her by slipping her garments above her waist. Munshi Lal also
sexually assaulted and molested Iskiman, pressing her breasts and attempting to lift her after
placing his hands on her privates. The locals who had gathered there responded to the victim's
family's cries for help and saved them. Threatening the family with severe repercussions, the
accused fled the scene of the event. Masuman was encircled by the criminals and threatened with
death, making it impossible for her to file a FIR. Her husband and kid were arrested the
following morning and falsely charged of stealing by the alleged accused. Iskiman and Kumari
Afsana, who were injured, went to the Ursala hospital in Kanpur Nagar to have checked out.
 Material Facts Of The Case
Masuman was not able to get her FIR registered. Masuman was encircled by the malefactors and
threatened with death, making it impossible for her to file a FIR. The application to the Senior
Superintendent of Police in Kanpur Nagar on September 13, 2005, by the applicant had no result
and was unsuccessful. As a consequence, the applicant went to the Chief Judicial Magistrate in
Kanpur Dehat to register her FIR under sections 376/511/354/323/504/506 IPC by filing an
application as under the section 156(3) Cr.P.C. and request that the police conduct an
investigation.
The aggrieved parties who attempted to have their FIR registered under Section 156(3) Cr.P.C.
but were denied by the Magistrate and, in certain cases, the lower revisional court, have filed this
group of petitions. All of these applications raise a similar legal issue and claim that the
applicants are all victims of the alleged wrongdoers. The applicants have questioned the
applicability of Section 156(3) Cr.P.C. and the Magistrate's authority thereunder in each of these
petitions. These applications all raise the same legal problem and assert that the applicants of all
the application are survivors of the alleged malefactors. In all these petitions, the applicants
questioned the scope of Section 156(3) Cr.P.C. and the Magistrate's power and authority there
under. The Chief Judicial Magistrate of Kanpur Dehat, however, denied the applicant's
application under Section 156(3) of the Cr.P.C. in the impugned order on date 9/11/2005 ,
making it appear as though the case had reached a definitive resolution. The lower revisional
court also denied the revision requested by Masuman, Criminal Revision No. 145 of 2005, in its
contested ruling dated 24.2.2006. Because of this, the applicant has petitioned this court under
Section 482 of the Criminal Procedure Code to have both of the contested orders set aside and to
request that the Chief Judicial Magistrate of Kanpur Dehat give her application a fresh
consideration direction under Section 156(3) of the Criminal Procedure Code a second look.

“All the Criminal Misc. Applications, in this cluster of petitions, under Section 482 Cr.P.C, filed
by various applicants being Criminal Misc. Application No. 6152 of 2006 Smt. Masuman v. State
of UP and Ors.; Criminal Miscellaneous Application No. 1442 of 2006 Uma Dutta Diwedi v.
State of U.P.; Criminal Miscellaneous Application No. 3420 of 2006 Indra Mohan Gautam v.
State of U.P. and Ors.; Criminal Miscellaneous Application No. 3313 of 2006 Pradeep Kumar v.
State of U.P. and Ors.; Criminal Miscellaneous Application No. 3207 of 2006 Dimi v. State of
Uttar-Pradesh; Criminal Miscellaneous Application No. 3275 of 2006 Mahakar Singh v. State of
U.P.; Criminal Miscellaneous Application No. 3184 of 2006 Smt. Suman Kumari v. State of U.P.
and Ors.; Criminal Miscellaneous Application No. 3617 of 2006 Asraf Ali v. State of U.P. and
Ors.; Criminal Miscellaneous Application No. 3611 of 2006 Bobby Khan v. State of U.P. and
Anr.; Criminal Miscellaneous Application No. 3637 of 2006 Om Prakash v. State of U.P. and
Ors.; Smt. Masuman W/O Sri Faiz Mohd. vs State Of Uttar Pradesh And Ors.; Criminal
Miscellaneous Application No. 3725 of 2006 Gaya Prasad v. State of U.P. and Ors.; Criminal
Miscellaneous Application No. 3106 of 2006 Radhey Shyam V. State of U.P. and Ors.; Criminal
Miscellaneous Application No. 2290 of 2006 Mahendra Singh v. State of U.P.; Criminal
Miscellaneous Application No. 2298 of 2006 Naresh Kumar Taneja v. State of U.P.; Criminal
Miscellaneous Application No. 2199 of 2006 Badshah v. State of U.P. and Ors.; Criminal
Miscellaneous Application No. 2093 of 2006 Anil V. State Of U.P.; Criminal Miscellaneous
Application No. 2301 of 2006 Rajendra Singh v. State of U.P. and Ors.; Criminal Miscellaneous
Application No. 2385 of 2006 Brij Kishore Diwedi v. State of U.P. and Ors.; Criminal
Miscellaneous Application No. 2773 of 2006 Ram Prasad Tiwari v. State of U.P. and Ors.”

Issues/Questions Raised Before The Court

1. What is the scope of section 156(3) of Cr.P.C.?
2. What are the powers does the magistrate has under section156(3) Cr.P.C.?
3. Whether the Magistrate can order the applicant to use a specific litigation forum on his
own, without the petition of the harmed parties, and whether he can reject the applicant's
request to use a different forum by starting a lis?
4. whether the ruling in the case of Gulab Chand Upadhyay violates Sections 2(d) and
156(3) of the Criminal Procedure Code and is per incurium A glance at the many relevant
provisions of the Code seems to be a necessary requirement for an in-depth study and for
determining the competing submissions.
 Arguments On Behalf Of Petitioner(s)/Appellant(s)
 Without authority and in violation of the law, the Magistrate's order is totally illegal.
 Because the application under Section 156(3) of the Criminal Procedure Code revealed
the commission of cognizable offences, the Magistrate lacked the authority to deny
granting an order for the FIR's filing and investigation.
 The Magistrate must follow the law and is not allowed to go outside the parameters of the
authority granted to him by Section 156(3) Cr.P.C. They argued that the applicants had
used the magistrate's administrative jurisdiction to request a directive to the police to
register the FIR under Chapter XII of the code and that the magistrate acted illegally by
refusing to grant the said remedy once a cognizable offence was disclosed in the
application filed under Section 156(3) Cr.P.C.
 The Magistrate, who is unable to handle the cases presently before him, further burdened
himself by deciding to look into the situation under chapter XV of the Criminal
Procedure Code, even though the applicants never requested it of him under chapter XII
of the code.
 The Magistrate initiated the lis by taking cognizance under Chapter XV, that was never
requested by the applicants and is illegal in accordance with the law. By passing the
contested orders, the Magistrate acted independently.
 According to their argument, the police, not the magistrate, have the authority to conduct
investigations; as a result, the magistrate lacks the authority to determine whether a
cognizable offence is investigable or not. This decision is made by the police in
accordance with Sections 157(1) and (2) of the Criminal Procedure Code, and if the
police decide not to investigate the FIR, they are required to document their reasoning
and inform the informant.
 By assuming the authority of the police, the magistrate violated the law and was acting
outside of his or her authority.
 It was up to the applicants to choose which forum they wanted to file their lawsuit in
order to have their complaints heard.
 The victim has the right to choose the forum for the lawsuit, and the magistrate is not
permitted to choose either.
 The Magistrate lacks the advisory authority to order them to submit the complaint they
harrassed.
 In some instances, the counsel even went so far as to claim that by ordering the applicants
to file a complaint, the Magistrate had taken the side of the accused because they would
never be detained for committing the cognizable offences. As a result, the attorneys
claimed, the Magistrate had subverted the police's authority under Section 41 of the code.
As a result, the applicants could only bring the offenders before the court after a long
period of time once a summoning order was issued against.
 The attorneys further argued that by issuing the contested orders, the Magistrates did not
act in accordance with the law and had only served to further harm the victim, the
injured, and the aggrieved. The attorneys further argued that by initiating the action under
Chapter XV against the dictates of law and ignoring the definition clause of the
"complaint" under Section 2(d) of the Cr.P.C., the Magistrate had in reality made himself
a party to the litigation. In all of these cases, the attorneys in unison finished their
arguments by arguing that the contested orders issued by the relevant Magistrate are
unlawful and should be overturned.
 The Magistrate in each of these situations is deserving of a directive from this court to
reconsider the applicants' Section 156(3) Cr.P.C. application again in conformity with the
law and make a decision on it within a set amount of time. They asserted that the law
established in Gulab Chand Upadhyay v. State of U.P. 2002(44) ACC page 670 is per-
incurium and should be recognised as such. They gravely questioned its correctness.
They further argued that the Magistrate can suo moto transform an application under
Section 156(3) Cr.P.C. into one as "complaint" and that this is not stated anywhere in the
full Bench decision of this Court reported in Ram Babu Gupta v. State of U.P. 2001(43)
ACC 50. If a cognizable offence is disclosed, the Magistrate can still refuse to direct
registration of a FIR and follow-up investigation. The learned Counsels cited numerous
judgements from both this Court and the Supreme Court in support of their arguments,
and these judgements will be referenced at the proper point in this judgement in the
future.
 Arguments On Behalf Of Respondent(s)
The learned AGA argued that since the Magistrate in each case felt it was important to refrain
from ordering an investigation, the order cannot be criticised. He argued that the application
under Section 156(3) Cr.P.C. can be treated as a "Complaint" by the Magistrate. According to his
argument, the Magistrate issued the contested orders because he believed that, in light of the law
established by Ram Babu Gupta and Gulab Chand Upadhyay (Supra), no investigation was
necessary. He further argued that the Magistrate has the authority to order the registration of an
application under Section 156(3) of the Code as a "complaint" on his own and that this authority
belongs to him.

Provisions Of The Constitution, Statutes, Rules, Regulations, Notifications, Or

Orders Related To The Case
THE CODE OF CRIMINAL PROCEDURE, 1973: Section 156(3), 2(d), 482
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.”

Section 2(d) in The Code Of Criminal Procedure, 1973

“(d) " complaint" means any allegation made orally or in writing to a Magistrate, with a view to
his taking action under this Code, that some person, whether known or unknown, has committed
an offence, but does not include a police report. Explanation.- A report made by a police officer
in a case which discloses, after investigation, the commission of a non- cognizable offence shall
be deemed to be a complaint; and the police officer by whom such report is made shall be
deemed to be the complainant.”
Section 482 in The Code Of Criminal Procedure, 1973

“482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise
to secure the ends of justice.”

Precedents Relied Upon By The Court

1. MAHBOOB ALI v STATE OF U.P. AND ORS .- In this case it has been held that,
“The scope and procedure of application under Section 156(3) Cr.P.C. and the complaint
are totally different. The provisions of 156(3) Cr.P.C. are contained in Chapter XI1 of
Code of Criminal Procedure which deals with (he information to the police officers and
their powers to investigate. Sub-section (1) of Section 156 Cr.P.C. empowers Officer In-
Charge of a police station to investigate any cognizable case without the order of the
Magistrate. Section 156(3) empowers a Magistrate to order investigation of a cognizance
offence. Therefore, the provisions of Section 156 are concerned with the investigation of
a case and since there can be no investigation without registering of a case, it may be
said that the above provisions of Section 156(3) relate to the registration and
investigation of a case. In case, any order is passed under Section 156(3) Cr.P.C, the
police will follow the procedure contained under Section 156(1) Cr.P.C. and after
investigation submit a report under Section 173 Cr.P.C. The procedure for taking
cognizance on the report submitted under Section 173 Cr.P.C. shall be separated i.e.
cognizance on a police report under Section 190(b) Cr.P.C. Separate procedure for trial
of such cases is also provided in the Cr P.C. While on a filing a complaint the Magistrate
had to adopt a procedure under Chapter XIV of Cr.P.C. If the Magistrate takes
cognizance on a complaint, it would be under Seclior 190(a) Cr.P.C. and separate

___________________
1
MAHBOOB ALI v STATE OF U.P. AND ORS, APPLICATION U/S 482 No. - 32324 of 2015
procedure is alsc provided for trial of a complaint case. Thus, the legislature had
intentionally made to separate procedures to be followed and therefore, the Magistrate
 cannot convert one procedure into other. It has also been held in several cases of this
Court that Magistrate has no power to register an application under Section 156(3)
Cr.P.C. as complaint. Moreover, the definition of complaint given in Section 2(d) says
that 'complaint' means any allegation made orally or in writing to a Magistrate, with a
view to his taking action under this Code, that some person, whether known or unknown,
has committed an offence, but does not include a police report. Thus, the scope of
application under Section 156(3) Cr.P.C. and that of a complaint are also different.”

2. IN DEVARAPALLI LAKSHAMINARAVANA REDDY v. V. NARAVANA

REDDY AND ORS. : “Peremptory reminder or intimation to the police to exercise their
plenary powers of investisation under Section 156(1) (Emphasis mine) Thus if an
application is filed by an aggrieved person under Section 156(3) Cr.P.C, his prayer is to
be decided within the ambit of the aforesaid section by the Magistrate as is mentioned
above. Magistrate cannot travel beyond the scope of the said section on his own. The
Magistrate under that section cannot transform an application to one under Section 2(d)
CrP.C. as a "complaint". There is yet another difficulty in allowing the Magistrate take
cognizance suo motu by transforming application under Section 156(3) Cr.P.C to one
under Section 2(d) and 190(1)(a) Cr.P.C. and that is that the Magistrate cannot start the
lis on his own. It is for the aggrieved person to engineer it and that too in the form and
forum he deems fit and proper. I may note a word caution here. It has been noticed by
this Court that in some cases where the cognizable offences are disclosed the Magistrates
does order for registration and investigation but in some cases they refuses it. The
learned A.G.A. has pointed out that this gives a dis-advantage to the accused and fosters
arbitrariness at the hands of the Magistrate. In my view if a cognizable offence is
disclosed through an application under Section 156(3) Cr.P.C. the Magistrate has no
option but to order for registration and investigation of the case.”
__________________
2
DEVARAPALLI LAKSHAMINARAVANA REDDY v. V. NARAVANA REDDY AND ORS 1976 AIR 1672,
1976 SCR 524
 Judgment In Personam
Under the aforementioned Sub-section, the magisterial power is limited to ordering the officer in
charge of a police station to undertake the investigation. All the Criminal Misc. applications are
allowed. The impugned order(s) issued by the concerned Magistrates and, in relevant cases, also
by the lower revisional courts in all of the aforementioned Criminal Miscellaneous Applications
are set aside. Relevant Magistrates are hereby ordered to reopen and rule on the petitions under
Section 156(3) Cr.P.C. submitted by the respective petitioner within one month of receiving a
copy of this judgement. In light of the foregoing, it can be concluded that all of the
aforementioned Criminal Miscellaneous Applications under Section 482 of the Criminal
Procedure Code are valid in light of the aforementioned observations.

Judgment In Rem
 After the magistrate has taken action under Chapter XV of the Code and has taken
cognizance of the offence under Section 190(1)(a), a document must be presented to him
in order for it to be considered a "complaint". The difference between a "complaint" and
an application under Section 156(3) Cr.PC is therefore subtle but clearly discernible, and
it has to do with the applicant's intention and request. If the applicant requests that the
Magistrate take action against the offenders, then it is a "complaint." It is not a
"complaint" if the party who feels wronged wants the magistrate to take some other form
of action instead, such as ordering the police to intervene. I don't mean to imply that the
Magistrate can't order an investigation if a "complaint" covered by Section 2(d) is
presented to him. The Magistrate may refer a "complaint" to the police for an inquiry, but
only after being satisfied that the application discloses, at least in part, the commission of
a crime that may be prosecuted under Section 190(1)(a). It is therefore abundantly
evident that the Magistrate cannot register the general directive to regard every
application containing a plea for a direction to register and investigate the FIR as a
"complaint" and that, in the event he does, the conduct would be unsanctified by law. A
"complaint" and an application for an investigation under Section 156(3) of the Criminal
Procedure Code have fundamentally distinct purposes. According to this interpretation of
the situation, the learned Attorney for the applicants' argument that a Section 156(3)
application cannot be handled by the Magistrate as a complaint on its own cannot be
upheld.
 the filing of a FIR and the police's subsequent investigation It should be noted that the
FIR is registered in accordance with Code Sections 154(1), 154(3), or 156(3). Unless the
officer in charge of the police station decides not to investigate it under Section 157(2) of
the code, in which case the officer in charge must specify his reasons for not entering a
such investigation and inform the informant regarding the decision, all information that
discloses the commission of a cognizable offence must be mandatorily registered under
Section 154(1) Cr.P.C. and the same must be investigated under Section 156(1) of the
code. After that, the informant may use the legal remedies that are open to him.
 The concerned police officer cannot inquire as to whether the information provided by
the informant is reliable and genuine or not at the time of registering a crime or a case on
the basis of the information disclosing a cognizable offence in accordance with the
directive of Section 154(1) of the code, and cannot refuse to register a case on the
grounds that the information is not reliable or credible. On the other hand, if the officer in
charge of a police station has reason to suspect the commission of an offence that he is
authorised to investigate under Section 156 of the code, subject to Section 157's proviso,
he is statutorily required to register a case and then to move forward with the
investigation. If a police officer in charge declines to use his authority and register a case
based on information of a reported cognizable offence, he or she is violating the law. The
person who is offended by this refusal can send the specifics of the information in writing
and by mail to the relevant superintendent of police, who, if satisfied that the information
forwarded to him discloses a cognizable offence, should either direct any police officer
who is subordinate to him for investigation to be made which is provided in section
154(3) of the code or investigate the case by himself.
 Therefore, it is abundantly clear that the officer in charge of a police station has no choice
but to enter the substance of any information disclosing a cognizable offence in the
prescribed form, i.e., to register a case based on such information, if it is presented to him
or her and satisfies the requirements of Section 154(1) of the Code.
 ANALYSIS OF THE CASE
This is the case about the power of magistrate under section 156 (3) CrPC and the scope of this
section. In my opinion, the correct instructions to the police should be “to register a case at the
police station treating the complaint as the first information report and investigate into the same”
when an order for an investigation under Section 156(3) of the Code is to be made. The question
of what the Magistrate would examine himself if he believes that a cognizable offence doesn't
need to be investigated is a large one because, barring an exception allowed by Section 157(2) of
the code, all cognizable offences are required to be looked into. The Magistrate has typically
denied the prayer by concluding that the applicant is aware of all the facts and that, as a result, he
would not order an investigation. It is the magistrate's duty to order the police to obey the law,
and it would be an injustice if, in place of giving the police the legal authority to act arbitrarily,
the magistrate instead gave them a long leash to do as they pleased. So, whenever an aggrieved
person comes to the magistrate with a complaint that the police have refused to register his FIR
of a cognizable offence, the magistrate is required to look into his complaint only to see if it
discloses any cognizable offence, and if it does, he is then forced to order the police to file the
FIR and investigate the offence.
 Conclusion AND SUGGESTION
The difference between a "complaint" and an application under Section 156(3) Cr.PC is therefore
subtle but clearly discernible, and it has to do with the applicant's intention and request. If the
applicant requests that the Magistrate take action against the offenders, then it is a "complaint." It
is not a "complaint" if the party who feels wronged wants the magistrate to take some other form
of action instead, such as ordering the police to intervene. I don't mean to imply that the
Magistrate can't order an investigation if a "complaint" covered by Section 2(d) is presented to
him. The Magistrate may refer a "complaint" to the police for an inquiry, but only after being
satisfied that the application discloses, at least in part, the commission of a crime that may be
prosecuted under Section 190(1)(a). It is therefore abundantly evident that the Magistrate cannot
register the general directive to regard every application containing a plea for a direction to
register and investigate the FIR as a "complaint" and that, in the event he does, the conduct
would be unsanctified by law. A "complaint" and an application for an investigation under
Section 156(3) of the Criminal Procedure Code have fundamentally distinct purposes. According
to this interpretation of the situation, the learned Attorney for the applicants' argument that a
Section 156(3) application cannot be handled by the Magistrate as a complaint on its own cannot
be upheld. Any magistrate may order the investigation described above, according to Section
156(3). Together with Judicial Magistrates, the phrase "Any Magistrate" also refers to Executive
Magistrates. There is no differentiation between these two categories of Magistrates in this
subsection. “If any information disclosing a cognizable offence is laid before officer-in-charge of
a police station satisfying the requirements of Section 154(1) of the Code, the said police officer
has no other option except to enter the substance thereof in the prescribed form, that is to say, to
register a case on the basis of such information”