Court No. - 87

Case :- MATTERS UNDER ARTICLE 227 No. - 1399 of 2022

Petitioner :- Abdul Aziz

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Mohammad Waseem

Counsel for Respondent :- G.A.

Hon'ble Shekhar Kumar Yadav,J.

Heard learned counsel for the petitioner and learned AGA for

the State and perused the material available on record.

The instant writ petition has been filed, inter-alia, praying for

following relief:

"Issue a writ, order or direction in the nature of certiorari quashing the

impugned orders dated 10.09.2021 passed by learned VIIth Additional

Civil Judge (JD)/ JM, Varanasi as well as order dated 16.12.2021 passed

by Additional Sessions Judge, Court No.6, Varanasi in Criminal Revision

No.219 of 2021 (Abdul Azis Vs. State of U.P. and others) arising out of

application under Section 156 (3) Cr.P.C."

Petitioner moved an application before the Additional Chief

Judicial Magistrate VII, Varanasi under Section 156(3) Cr.P.C.

seeking registration of the Criminal Case against the opposite

party nos.2 to 4, which was heard and thereafter dismissed vide

order dated 10.09.2021 passed by learned Additional Civil

Judge (JD)/JM, Varanasi. Aggrieved against the said order,

petitioner preferred Criminal Revision, which was also

dismissed by the Addl. Sessions Judge, Court No.6, Varanasi

vide order dated 16.12.2021. It is this order which is subject

matter of challenge before this Court.

Hon'ble Apex Count in Aleeque Padamsee Vs Union of India

and another (2007) 6 ACC 171 has held that if any person is

aggrieved by inaction of police official in registering the FIR

the modalities contained in Section 190 read with Section 200

Cr.P.C. should be adopted and it has further held that writ

petition in such cases should not be entertained. The relevant

extract of the judgement are reproduced as under:-

"When the information is laid with the police, but no action in that behalf

is taken, the complainant can under Section 190 read with Section 200 of

the Code lay the complainant before the Magistrate having jurisdiction to

take cognizance of the offence and the Magistrate is required to enquire

into the complaint as provided in Chapter XV of the Code. In case the

Magistrate, after recording evidence, finds a prima facie case, instead of

issuing process to the accused, he is empowered to direct the police

concerned to investigate into offence under Chapter XII of the Code and to

submit a report. If he finds that the complaint does not disclose any

offence to take further action, he is empowered to dismiss the complaint

under Section 203 of the Code. In case he finds that the

complaint/evidence recorded prima facie discloses an offence, he is

empowered to take cognizance of the offence and could issue process to

the accused."

Similarly in case of Minu Kumar and another Vs State of

Bihar and others, (2006) 4 SCC 359, the Hon'ble Apex Court

observed as under:-

"When the information is laid with the Police, but no action in that behalf

is taken, the complainant is given power under Section 190 read with

Section 200 of the Code to lay the complaint before the Magistrate having

jurisdiction to take cognizance of the offence and the Magistrate is

required to enquire into the complaint as provided in Chapter XV of the

Code. In case the Magistrate after recording evidence finds a prima facie

case, instead of issuing process to the accused, he is empowered to direct

the police concerned to investigate into offence under Chapter XII of the

Code and to submit a report. If he finds that the complaint does not

disclose any offence to take further action, he is empowered to dismiss the

complaint under Section 203 of the Code. In case he finds that the

complaint/evidence recorded prima facie discloses an offence, he is

empowered to take cognizance of the offence and would issue process to

the accused. These aspects have been highlighted by this Court in All India

Insti