Bramha Chaturvedi v. State of U.P. and Others) which was also dismissed vide order dated

Hon'ble Saurabh Srivastava,J.

1. Heard Shri Anshu Chaudhary, learned counsel appearing on behalf of the petitioner and learned A.G.A for the State.

2. As per the direction issued by learned concerned court for treating application preferred under Section 156(3) Cr.P.C., as a complaint case wherein the statement has not been recorded till today, there is hardly any prejudice to respondent Nos. 2 to 7 and as such process to issue notices to respondent Nos. 2 to 7 is hereby dispensed with.

3. Order dated 03.09.2024 passed by learned Additional Chief Judicial Magistrate, Court No.1, Mathura along with order dated 03.12.2024 passed by learned Additional Sessions Judge Court No.1, Mathura has been put under challenge in the instant petition through which an application preferred by the petitioner under Section 156(3) Cr.P.C. has been directed to be treated to be a complaint case rather the prayer of the petitioner was to seek direction for lodging the FIR against respondent Nos. 2 to 7.

4. Being aggrieved with the order dated 03.09.2024 petitioner preferred Criminal Revision No.488 of 2024 (Bramha Chaturvedi Vs. State of U.P. and Others) which was also dismissed vide order dated 03.12.2024 by way of upholding order dated 03.09.2024 which impugned the present petition. Learned counsel for the petitioner submitted that since the allegation put forward against respondent Nos. 2 to 7 is specifically for stealing certain articles in shape of valuable jewellery along with cash and the same can only be recovered during investigation if conducted after lodging the FIR, if directed by learned Additional Chief Judicial Magistrate, Court No.1, Mathura but without considering the vital aspects of the allegations application preferred under Section 156(3) has been treated as complaint case and as such the recovery of the stolen article for amputation of the specific charges against the respondent Nos. 2 to 7 will not be possible during proceedings under Section 200 Cr.P.C. and 202 Cr.P.C. While substantiating the arguments raised, learned counsel for the petitioner relied upon the judgment of Hon'ble Apex Court in the case of Gulab Chand Upadhyaya Vs. State of U.P. and others, 2002 44 Allahabad Criminal Cases 670 and ratio of the same has been relied upon in the case of Jafar Abbas Zaidi Vs. State of U.P. and 4 others decided on 25.01.2023 by co-ordinate bench of this Court. In case of Gulab Chand Upadhyaya (Supra) the Hon'ble Apex Court held that the scheme of Cr.P.C. and the prevailing circumstances required that the option to direct the registration of the case and its investigation by the police should be exercised where some investigation is required, which is of a nature i.e. not possible for the private-complainant and which can only be done by the police upon whom statute has conferred the powers essential for investigation.

5. For simplifying the procedure which ought to be adopted by learned concerned court while adjudication of the application if preferred under Section 156 (3) Cr.P.C. for enabling the learned concerned court to decide all competent whether a complaint has been instituted, registered or the direction for FIR has to be passed, certain criteria has to be kept in mind by learned concerned court such as:- (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. To illustrate by example cases may be visualized where for production before Court at the trial (a) sample of blood soaked soil is to be taen 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 nown and have to be found out or discovered through the process of investigation."

6. Per contra, learned A.G.A. rebutted the stand taken by learned counsel for the petitioner and supported the order passed by learned Additional Chief Judicial Magistrate as well as learned revisional court and submitted that entire facts is well known to the petitioner and apart from the same the petitioner is having the video footage over his mobile which can be led as evidence at proper stage and as such there is no need for investigating the matter through FIR by proper investigating officer.

7. After hearing rival submissions extended by learned counsel for the parties and after having due regard to the judgment rendered by Hon'ble Apex Court wherein the doubts if occurred in the minds of the learned court concerned that whether the case has to be treated as complaint case or the direction has to be issued for lodging of the FIR the same has been simplified in a very crystal manner as mentioned above. The instant case falls under the category of recovery of all stolen property as required to be made by conducting raids or searches of suspected places or persons which needs to be conducted by proper investigating officer but the same is not possible during proceedings as directed in pursuance to Section 200 Cr.P.C. and 202 Cr.P.C. The case relied upon by learned counsel for the petitioner is fully applicable in the instant matter and covers all occurrences of the factum as described in the petition. Unfortunately the grounds taken up at the time of preferring revision has not been considered by learned revisional court which culminated into order dated 03.12.2024 and as such the same is bad in the eye of law. Order dated 03.12.2024 is hereby set aside. Matter is remitted back to the learned revisional court for deciding Criminal Revision No.488 of 2024 (Bramha Chaturvedi Vs. State of U.P. and others) as a fresh, in light of the judgment rendered by Hon'ble Apex Court as discussed above.

8. The writ petition stands allowed accordingly.

9. The above fresh decision be passed by learned revisional court within the stipulated period of four months from the date of production of a certified copy of this order after affording due opportunity of hearing to all concerned parties. Order Date :- 20.2.2025 A Gautam ADITYA GAUTAM ADITYA GAUTAM High Court of Judicature at Allahabad High Court of Judicature at Allahabad

Hon'ble Saurabh Srivastava,J.

1. Heard Shri Anshu Chaudhary, learned counsel appearing on behalf of the petitioner and learned A.G.A for the State.

2. As per the direction issued by learned concerned court for treating application preferred under Section 156(3) Cr.P.C., as a complaint case wherein the statement has not been recorded till today, there is hardly any prejudice to respondent Nos. 2 to 7 and as such process to issue notices to respondent Nos. 2 to 7 is hereby dispensed with.

3. Order dated 03.09.2024 passed by learned Additional Chief Judicial Magistrate, Court No.1, Mathura along with order dated 03.12.2024 passed by learned Additional Sessions Judge Court No.1, Mathura has been put under challenge in the instant petition through which an application preferred by the petitioner under Section 156(3) Cr.P.C. has been directed to be treated to be a complaint case rather the prayer of the petitioner was to seek direction for lodging the FIR against respondent Nos. 2 to 7.

4. Being aggrieved with the order dated 03.09.2024 petitioner preferred Criminal Revision No.488 of 2024 (Bramha Chaturvedi Vs. State of U.P. and Others) which was also dismissed vide order dated 03.12.2024 by way of upholding order dated 03.09.2024 which impugned the present petition. Learned counsel for the petitioner submitted that since the allegation put forward against respondent Nos. 2 to 7 is specifically for stealing certain articles in shape of valuable jewellery along with cash and the same can only be recovered during investigation if conducted after lodging the FIR, if directed by learned Additional Chief Judicial Magistrate, Court No.1, Mathura but without considering the vital aspects of the allegations application preferred under Section 156(3) has been treated as complaint case and as such the recovery of the stolen article for amputation of the specific charges against the respondent Nos. 2 to 7 will not be possible during proceedings under Section 200 Cr.P.C. and 202 Cr.P.C. While substantiating the arguments raised, learned counsel for the petitioner relied upon the judgment of Hon'ble Apex Court in the case of Gulab Chand Upadhyaya Vs. State of U.P. and others, 2002 44 Allahabad Criminal Cases 670 and ratio of the same has been relied upon in the case of Jafar Abbas Zaidi Vs. State of U.P. and 4 others decided on 25.01.2023 by co-ordinate bench of this Court. In case of Gulab Chand Upadhyaya (Supra) the Hon'ble Apex Court held that the scheme of Cr.P.C. and the prevailing circumstances required that the option to direct the registration of the case and its investigation by the police should be exercised where some investigation is required, which is of a nature i.e. not possible for the private-complainant and which can only be done by the police upon whom statute has conferred the powers essential for investigation.

5. For simplifying the procedure which ought to be adopted by learned concerned court while adjudication of the application if preferred under Section 156 (3) Cr.P.C. for enabling the learned concerned court to decide all competent whether a complaint has been instituted, registered or the direction for FIR has to be passed, certain criteria has to be kept in mind by learned concerned court such as:- (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. To illustrate by example cases may be visualized where for production before Court at the trial (a) sample of blood soaked soil is to be taen 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 nown and have to be found out or discovered through the process of investigation."

6. Per contra, learned A.G.A. rebutted the stand taken by learned counsel for the petitioner and supported the order passed by learned Additional Chief Judicial Magistrate as well as learned revisional court and submitted that entire facts is well known to the petitioner and apart from the same the petitioner is having the video footage over his mobile which can be led as evidence at proper stage and as such there is no need for investigating the matter through FIR by proper investigating officer.

7. After hearing rival submissions extended by learned counsel for the parties and after having due regard to the judgment rendered by Hon'ble Apex Court wherein the doubts if occurred in the minds of the learned court concerned that whether the case has to be treated as complaint case or the direction has to be issued for lodging of the FIR the same has been simplified in a very crystal manner as mentioned above. The instant case falls under the category of recovery of all stolen property as required to be made by conducting raids or searches of suspected places or persons which needs to be conducted by proper investigating officer but the same is not possible during proceedings as directed in pursuance to Section 200 Cr.P.C. and 202 Cr.P.C. The case relied upon by learned counsel for the petitioner is fully applicable in the instant matter and covers all occurrences of the factum as described in the petition. Unfortunately the grounds taken up at the time of preferring revision has not been considered by learned revisional court which culminated into order dated 03.12.2024 and as such the same is bad in the eye of law. Order dated 03.12.2024 is hereby set aside. Matter is remitted back to the learned revisional court for deciding Criminal Revision No.488 of 2024 (Bramha Chaturvedi Vs. State of U.P. and others) as a fresh, in light of the judgment rendered by Hon'ble Apex Court as discussed above.

8. The writ petition stands allowed accordingly.

9. The above fresh decision be passed by learned revisional court within the stipulated period of four months from the date of production of a certified copy of this order after affording due opportunity of hearing to all concerned parties. Order Date :- 20.2.2025 A Gautam ADITYA GAUTAM ADITYA GAUTAM High Court of Judicature at Allahabad High Court of Judicature at Allahabad