..1.. MCC.No.

1254/2022
Sham Varma Vs. PSO City Kotwali

ORDER BELOW EXH.1 IN MCC NO.1254/2022.

1. This is an application under Section 156 (3) of Code of

Criminal Procedure seeking direction to the police to register First
Information Report of offences punishable under Sections 377, 354,
341, 343, 348, 357, 358, 362, 368, 294, 324, 326, 330, 331, 447,
452, 352, 201, 504, 506, 509 read with 34 and 120-B of the Indian
Penal Code, 1860.

Brief facts of application are as under: -

2. The applicant has stated that, he is permanent resident of
Shegaon Tq. Shegaon, Dist. Buldhana. Applicant’s father is running
Jwellery shop namely Gurukrupa Jewelers at Gandhi Chowk,
Shegaon. The applicant has no connection with the said shop.

3. The applicant has stated that, non-applicant no.1 is Police

Sub Inspector of Local Crime Investigation Branch, Akola. Non
applicant no.2 and 3 are Police Naik of Local Crime Investigation
Branch, Akola (hereinafter referred as to “LCB Akola” for the sake of
brevity). Non applicant no.4 is Doctor, who issued false and bogus
Medical Certificate of the applicant. Other non-applicants are
unknown persons.

4. The applicant has stated that, on 09/01/2022, at 2.00

am to 3.00 am non applicant nos.1 to 3 along with other persons
came to house of the applicant. They knocked the door of the
applicant’s house. The applicant opened the door. Suddenly, non -
applicant nos.1 to 3 slapped the applicant and asked him to give
stolen property. Non applicant nos.1 to 3 hurled abuses to the
 ..2.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

applicant. Applicant’s father, mother and wife try to give

understanding to the non -applicant nos.1 to 3, however, they did not
pay any heed to their requests. On the contrary, they hurled abuses
to them in very filthy language. Thereafter, non-applicant nos.1 to 3
beaten the applicant. They dragged him out of his house and taken
him in the police car. Non applicant nos.1 to 3 arrested the applicant
without any warrant by forcefully entering into applicant’s house.
They had not complied with Sections 41-A and 50 of Code of
Criminal Procedure, 1973. They not informed any details of the
offence to the applicant or his family members. Non applicant nos. 1
to 3 illegally arrested the applicant.

5. The applicant has stated that, non-applicant nos. 1 to 3

illegally arrested the applicant and brought to Akola. During
travelling period, non-applicant no.1 was beating the applicant and
non-applicant no.2 was spitting on the face and body of the
applicant. Non applicant nos. 1 to 3 hurled abuses and threatened
the applicant in the traveling period. On 09/01/2022 at 5.00 AM,
non-applicant nos. 1 to 3 shifted the applicant in one room at LCB,
Akola and illegally detained him without showing arrest of the
applicant.

6. The applicant has stated that, non-applicant nos. 1 to 3

tied hands and foots of the applicant by way of rope. They hurled
abused to the applicant and beaten him by Bajirao Belt. They
threatened him that unless and until he admits the crime, they will
continue to beat him. Non applicant nos. 1 to 3 beaten the applicant
 ..3.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

for two to three hours, however, the applicant not admitted the guilt,
as he has not committed any offence.

7. The applicant has further stated that, two unknown

persons were already present in the room at LCB, Akola. Non
applicant no.1 ordered non applicant no.2 that, Penis of one person
namely Yogesh Sawale be put in the mouth of the applicant. Said
Yogesh refused to do so. However, non-applicant nos. 1 to 3
threatened him and compelled him to un-zip his pant and forcefully
insert his penis in the mouth of the applicant. Due to said un-natural
act, the applicant vomited. Thereafter, non-applicant nos. 1 to 3
laughed on the applicant’s condition and enjoyed the same.

8. The applicant has further stated that, non-applicant nos.

1 to 3 again beaten the applicant and compelled him to admit the
crime of receiving stolen property. Again, the applicant refused to
confess the crime. Thereafter, non-applicant no.2 compelled the
second person namely Ashish Karale in the said room to un-zip his
pant and put his penis in the applicant’s mouth forcefully for longer
period. Said Ashish also tried to resist said act. However, non-
applicants threatened to him also.

9. The applicant has further stated that, due to ill-treatment

and atrocities committed by non-applicant nos.1 to 3 applicants’ both
legs swollen. Then, non-applicant no.1 ordered non applicant no.3 to
pour hot boiling water on the left leg of the applicant. Resultantly,
applicant’s left leg severely burnt. The applicant repeatedly requested
non applicant nos. 1 to 3 to release him, however, they did not pay
 ..4.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

any heed to his requests. Due to severe pain in leg, the applicant was
continuously crying then, non-applicant nos. 1 to 3 called non
applicant no.4 Doctor for the treatment. Non applicant nos. 1 to 3
threatened the applicant not to disclose anything about atrocities
committed by them to non-applicant no.4 Doctor. They threatened
the applicant that if he disclosed anything to the doctor, they will
falsely implicate the applicant in other 30 to 35 crimes. Subsequently,
the applicant learnt that said Doctor issued false medical certificate
to non-applicant nos. 1 to 3 stating that, burn injuries on the
applicant’s left leg are suffered by the applicant before arrest.

10. The applicant has further stated that, non applicants

shown arrest of the applicant on 10.01.2022 at 11.30 PM in C. R.
No.03/2022 of Dabaki Road Police Station, Akola. During said
period, non-applicants threatened the applicant to sign on some
blank and printed documents. Firstly, the applicant refused to sign on
the said documents. However, subsequently, due to threat and
atrocities of the non-applicant nos.1 to 3, he signed on the said
papers. The applicant was having serious pain in his leg. He
repeatedly requested for medical treatment, however, same was not
provided to him.

11. The applicant has further stated that, on 11/01/2022 at

3.20 PM, the applicant produced before Judicial Magistrate First
Class, Court No. 3, Akola. At that time, non-applicant nos. 1 to 3
threatened to the applicant not to disclose anything about atrocities
committed by Police else they will falsely implicate in other crime or
 ..5.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

they will throw him from the moving van or they will commit his
encounter. Therefore, the applicant not made any complaint of ill-
treatment against police before the Judicial Magistrate First Class,
Akola. Thereafter, police custody was granted till 14/01/2022. In the
said case, as per First information report only gold of Seven gram
stolen, however, non- applicant no.1 illegally shown recovery of 20-
gram gold ingot from the applicant. During the period of police
custody, non-applicant nos. 1 to 3 committed various atrocities on
the applicant. They have not provided any medical aid and treatment
to the applicant.

12. The applicant has further stated that, during said period,
other unknown police persons also hurled abuses to the applicant,
insulted him and also beaten him. After expiry of period of police
custody, they produced the applicant before Judicial Magistrate First
Class on 14/01/2022. On 15/01/2022, the applicant was released on
bail. However, again on 15/02/2022, at 9.00 PM non applicants
arrested the applicant in relation to C. R. No.4/2022 of Dabaki Road
Police Station, Akola in order to prevent his release from jail. On
16/01/2022, the investigating officer demanded Magistrate Custody.
Thereafter, on 17/01/2022, the applicant was released on bail.

13. The applicant has further stated that on 18/01/2022, the

applicant made written complaint to the Superintendent of Police,
Akola and requested to take action against non-applicants, however,
he has not taken any action against non-applicants. As police not
referred the applicant to hospital for medical treatment of his left leg,
 ..6.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

he went to Om Multispecialty Hospital, Akola. Doctor asked him the

cause of injury, then, the he narrated to doctor that he sustained said
injuries in the police custody due to ill-treatment given by police.
Then, Doctor registered MLC and forwarded same to Ramdas Peth
Police Station, Akola. Thereafter, Police recorded his statement.
Police ought to have registered offence against non-applicants on the
basis of MLC, however, they avoided to register F.I.R. to protect non
applicants as they belong to police department. Non applicants have
committed cognizable offence. It is duty of police to register crime
against non-applicants. However, they have failed to perform their
duty. Therefore, on 20/01/2022, the applicant has made written
complaint to Deputy Inspector General of Police, Amaravati.
However, crime is not registered against non-applicants. Hence, he
filed present application. Lastly, the applicant has prayed that
direction under Section 156(3) of Code of Criminal Procedure may
kindly be issued to officer in-charge of City Kotwali Police Station,
Akola to register the crime against non-applicants and investigate the
same. He further prayed that for independent and impartial
investigation of crime, matter be transferred to C.I.D. for
investigation.

14. Perused application and record. Heard learned counsel

for the applicant.

Requirement of Sanction to order investigation against public

servant.
15. Record shows that non applicant nos. 1 to 3 are police
persons. Non applicant no.4 is doctor. Other unknown non applicants
 ..7.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

are police persons. Amended proviso of Section 156 (3) provides that
no Magistrate shall order an investigation under said section against
the person who is or was a public servant as defined under any other
law for the time being in force, in respect of the act done by such
public servant while acting or purporting to act in discharge of
official duties, except with previous sanction under section 197 of the
Code of Criminal Procedure,1973 or any other law for the time being
in force.

16. The learned advocate for the applicant has argued that
non applicants have committed mischievous and illegal acts under
the guise of lawful discharge of official duties. Therefore, sanction is
not necessary to pass order under Section 156(3) of the Code of
Criminal Procedure. In support of his argument, he has placed
reliance on decision of Hon’ble Kerala High Court in the case of D.
Rajagopal V. Ayyappan and other decided on 23/06/2021, Wherein it
is held that sanction from state Government is not required for
prosecuting police officers engaging in police brutality.

No Sanction required for prosecution of police officers, if accused

was illegally detained prior to formal arrest.
17. In the present case, as per case of applicant, police arrested the
applicant from his house on 9.01.2022 at 2.30 am to 3 am. Non
applicant nos.1 to 3 arrested the applicant without any warrant by
forcefully entering into applicant’s house at midnight. They not
complied with Sections 41-A and 50 of Code of Criminal Procedure,
1973. They not informed any details of the offence to the applicant
or his family members. It is submitted that non applicant nos. 1 to 3
 ..8.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

illegally arrested the applicant. Non applicants shown arrest of the

applicant on 10.01.2022 at 11.30 pm in C. R. No.03/2022 of Dabaki
Road Police Station, Akola. In order word, as per applicant’s case non
applicant Nos. 1 to 3 illegally detained the applicant and committed
atrocities and ill-treatment on him.

18. That any arrest or detention prior to11.50 pm on

10.01.2022, if true, was obviously without following the mandatory
conditions of arrest and detention, contemplated under the
provisions of Code of Criminal Procedure and therefore, would not
fall within the realm of “acting or purporting to act in the discharge
of their official duties”. Therefore, no sanction is required to
prosecute non applicants for the alleged offences.

19. My view is fortified by decision of Hon’ble Supreme

Court in the case of Surinderjit Singh Mand and anr v. State of
Punjab reported in 20216(3) ALL MR 82, wherein by placing reliance
on decision of Apex Court in the case of P.P. Unnikrishnan vs.
Puttiyottil Alikutty, reported in (2000) 8 SCC 131 Hon’ble Supreme
Court has held that sanction for prosecution of police in relation to
illegal detention of victim/ complainant would not require.

20. In Om Prakash and others vs. State of Jharkhand and

Anr. Reported in (2012) 12 SCC 72, Hon’ble Supreme Court, after
referring to various decisions, pertaining to the police excess,
explained the scope of protection under Section 197 of the Code of
Criminal Procedure as follows:
 ..9.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

32. The true test as to whether a public servant was

acting or purporting to act in discharge of his duties
would be whether the act complained of was directly
connected with his official duties or it was done in the
discharge of his official duties or it was so integrally
connected with or attached to his office as to be
inseparable from it (K. Satwant Singh [AIR 1960 SC
266]). The protection given under Section 197 of the
Code has certain limits and is available only when the
alleged act done by the public servant is reasonably
connected with the discharge of his official duty and is
not merely a cloak for doing the objectionable act. If in
doing his official duty, he acted in excess of his duty, but
there is a reasonable connection between the act and the
performance of the official duty, the excess will not be a
sufficient ground to deprive the public servant of the
protection (Ganesh Chandra Jew [(2004) 8 SCC 40]). If
the above tests are applied to the facts of the present
case, the police must get protection given under Section
197 of the Code because the acts complained of are so
integrally connected with or attached to their office as to
be inseparable from it. It is not possible for us to come to
a conclusion that the protection granted under
Section 197 of the Code is used by the police personnel
in this case as a cloak for killing the deceased in cold
blood.(emphasis supplied)
 ..10.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

21. In order to get protective shield of sanction, the act

allegedly committed by non-applicants must have some reasonable
nexus with the discharge of their official duty and must not merely
cloak for doing an objectionable act. The applicant has alleged that
non applicants illegally detained him and committed above
mentioned atrocities and ill-treatment. He has alleged that non
applicant nos. 1 to 3 forcefully inserted penis of other persons in his
mouth twice. Alleged mischievous acts committed by non- applicants
are barbarous in nature and same have no reasonable nexus with the
discharge of their official duty. By any stretch of imagination, making
illegal detention of person and subjecting him to ill-treatment and
inserting penis of another person in his mouth do not fall within
purview of official duty of non applicants. It is not case that non-
applicants are exceeded in their official duty but they have done
mischievous acts which do not have any nexus with their official
duty. Therefore, on this count also, I have come to conclusion that
there is no need of sanction to decide present application or to direct
investigation against non-applicants as prayed.

22. Even, for moment it is presumed that sanction is

necessary to proceed further to direct investigation, then also it is
pertinent to note that the applicant has establish that there is
deemed sanction as per proviso of section 156(3) of Code of Criminal
Procedure. The applicant has submitted that he had applied for
sanction to Deputy Inspector General of Police, Amaravati. However,
by letter dated 28/05/2022, he informed that he has no power to
grant sanction and directed to apply to State Government. Further,
 ..11.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

the applicant has applied to Chief Minister of Maharashtra State and

Chief Secretary of State and Director General of police on
17/05/2022. However, he has not received any reply from said
Offices till this date. Amendment to Section 156(3) of Code of
Criminal Procedure further provides that the Sanctioning Authority
shall take decision within period of 90 (ninety) days from the date of
receipt of the proposal for sanction and in the case the Sanctioning
Authority fails to take decision within said stipulated period of ninety
days, the sanction shall be deemed to have been accorded by the
Sanctioning Authority.

23. In the present case, the applicant has applied for sanction
on 17/05/2022. Said proposal reached on 20/05/2022. On
18/8/2022, 90 days completed from date of receipt of proposal.
However, the applicant has not received any reply from the
Sanctioning Authority, Therefore, I hold that deemed sanction have
been accorded to proceed further against non -applicants.

24. In view of above discussion, I have come to conclusion

that firstly, there is no need of sanction to pass order under Section
156(3) of Code of Criminal Procedure and secondly, there is deemed
sanction to pass said order. Therefore, I proceed further to decide
application.

Duty of Police under Section 154 of the Code of Criminal Procedure.

25. Section 154 of the Code of Criminal Procedure, ensures
that the information related to cognizable offences shall be registered
and to be investigated by the Police, in a manner known to Law.
 ..12.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

Subsection (1) of Section 156 empowers the officer in-charge of a

Police Station to investigate any cognizable offence. If the Station
House Officer under Section 154 (1) & 156 (1) Code of Criminal
Procedure refuses to register the information related to a cognizable
offence, the aggrieved can approach the Superintendent of Police in
writing and by post. Even then, if he felt aggrieved, he can very well
approach the jurisdiction Magistrate for a direction relating to an
investigation by Police under Section 156(3) Code of Criminal
Procedure.

Requirements for invoking power under Section 156(3) of the Code.

26. Section 156 of the Code of Criminal Procedure, 1973
provides provision relating to Police Officer’s power to investigate
cognizable cases. Section 156 (3) specifically provides that any
Magistrate, who can take cognizance of an offence under Section 190
of Code of Criminal Procedure, can order the investigation of such
cognizable offence by a police officer. Before passing any order under
this section, Magistrate has to see, whether the applicant has
complied following conditions:

a. Whether complaint prima facie shows commission

of cognizable offence.
b. Compliance of section 154 (1) of Code of Criminal
Procedure.
c. Compliance of section 154 (3) of Code of Criminal
Procedure.
d. Affidavit in support of complaint.
 ..13.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

27. Now let me see, whether the applicant has complied

above pre-conditions to pass order under Section 156(3) of Code of
Criminal Procedure.

a. Whether complaint prima facie shows commission of

cognizable offence.
28. In the case of Srininas Gundluri Vs. Sepco Electric power
construction corporation, reported in (2010) 8 SCC 206, it is held
that Magistrate to apply his mind to the bare contents of the
application under Section 156(3) Code of Criminal Procedure
regarding disclosure of cognizable offence and not to proceed to
decide whether or not there are sufficient grounds for proceeding
further to satisfy himself regarding commission of cognizable
offence.

29. I have carefully gone through contents of the application,

which prima facie discloses that non applicants have committed
offences punishable under sections 377, 354, 342, 343, 348, 357,
362, 368, 294, 324, 330, 447, 452, 352, 201, 504, 506, 509 r/w.34
and 120-B of the Indian Penal Code. Out of above offences, offences
under sections 377, 354, 342, 343, 348, 357, 362, 368, 294, 324,
330, 447, 452, 509, 201 of the Indian Penal Code are cognizable in
nature.

b. Compliance of Section 154 (1) of Code of Criminal

Procedure.
30. Before filing complaint/ application before the
Magistrate, the applicant shall approach to police station as per
 ..14.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

Section 154(1) of the Code of Criminal Procedure. It is duty of police

that 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.

31. In the present case, the applicant went to Om Multi

speciality Hospital, Akola after getting bail for treatment of his left
brunt leg. Then, doctor asked the informant cause of injury. The
applicant narrated to him about atrocities committed by non-
applicants. Doctor registered Medico Legal Case and forwarded same
to Ramdas Peth police station, Akola. Then, police recorded
statement of the applicant. The applicant has stated about atrocities
and ill-treatment given by non-applicants. However, they have not
registered the crime. In the case of Lalita Kumari V. State of UP,
reported in AIR 2014 SC 187, Hon’ble Supreme Court has held that
registration of First Information Report is mandatory under Section
154 of the Code of Criminal Procedure , if the information discloses
commission of cognizable offence. In the present case, police have
received information about commission of cognizable offences, they
have recorded statement of the applicant, however, they have failed
to perform their legal duty to register crime. Hence, I have come to
conclusion that the applicant has made compliance of Section 154(1)
 ..15.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

of the Code of Criminal Procedure.

c. Compliance of section 154 (3) of Code of Criminal

Procedure.
32. Section 154 (3) of the Code of Criminal Procedure
provides that if police do not register first information report after
giving information about commission of cognizable offences, then,
aggrieved person may send information in writing to Superintendent
of Police. In the present case, the applicant has sent written letter to
Superintendent of Police, Akola on 18/01/2022. He has also sent
letter about above incident to Deputy Inspector General of Police,
Amaravati on 20/01/2022. However, they have also not directed to
register first information report about offences. Hence, the applicant
has made compliance of Section 154(3) of the Code of Criminal
Procedure.

d. Affidavit in support of complaint.

33. In view of the change in tendency of mind set of the
litigants, the Hon'ble Apex Court mandated the applicant /
complainant, who approaches the Magistrate under Section 156(3)
of Code of Criminal Procedure, shall swear an affidavit related to the
facts. The said legal position was enshrined in Priyanka Srivastava &
Another Vs. State Of U.P. & Others, reported in (2015) 6 SCC 287:
AIR 2015 SC 1758 and the relevant excerpt would runs as:
27. ….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
 ..16.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

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 the application under Section 156(3) be supported
by an affidavit so that the person making the application
should be conscious and also endeavor 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
 ..17.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

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.”

The applicant has filed on record affidavit in support of

the application. Hence, the applicant has made due compliance of
direction of Hon’ble Supreme Court in Priyanka Shrivastava case
(cited supra).

34. In view of above discussion, I have come to conclusion

that averments made in the application, prima facie shows that non
applicants have committed cognizable offences under Indian Penal
Code. The applicant has made compliance of section 154(1) and (3)
of the Code of Criminal procedure. However, police authority has not
taken any action in pursuant to said report. The applicant has also
filed affidavit in support of present application. The applicant has
made compliance of all necessary conditions and requirements to
invoke power under Section 156 (3) of Code of Criminal Procedure.

35. In the case of XYZ V. State of Madhya Pradesh and

Others, Criminal Appeal No. 1184 of 2022 (Arising out of SLP (Crl)
No. 1674 of 2022), decided on August 5, 2022, Hon’ble Supreme
Court has held that,
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Sham Varma Vs. PSO City Kotwali

23. It is true that the use of the word “may” implies

that the Magistrate has discretion in directing the police
to investigate or proceeding with the case as a complaint
case. But this discretion cannot be exercised arbitrarily
and must be guided by judicial reasoning. An important
fact to take note of, which ought to have been, but has
not been considered by either the Trial Court or the High
Court, is that the appellant had sought the production of
DVRs containing the audio-video recording of the CCTV
footage of the then Vice-Chancellor’s (i.e., the second
respondent) chamber. As a matter of fact, the Institute
itself had addressed communications to the second
respondent directing the production of the recordings,
noting that these recordings had been handed over on
his oral direction by the then Registrar of the Institute as
he was the Vice-Chancellor. Due to the lack of response
despite multiple attempts, the Institute had even filed a
complaint with PS Gole Ka Mandir on 29 October 2021
for registering an FIR against the second respondent for
theft of the DVRs.

24. Therefore, in such cases, where not only does the

Magistrate find the commission of a cognizable offence
alleged on a prima facie reading of the complaint but
also such facts are brought to the Magistrate’s notice
which clearly indicate the need for police investigation,
the discretion granted in Section 156(3) can only be read
 ..19.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

as it being the Magistrate’s duty to order the police to

investigate. In cases such as the present, wherein, there
is alleged to be documentary or other evidence in the
physical possession of the accused or other individuals
which the police would be best placed to investigate and
retrieve using its powers under the CrPC, the matter
ought to be sent to the police for investigation.

25. Especially in cases alleging sexual harassment, sexual

assault or any similar criminal allegation wherein the
victim has possibly already been traumatized, the Courts
should not further burden the complainant and should
press upon the police to investigate. Due regard must be
had to the fact that it is not possible for the complainant
to retrieve important evidence regarding her complaint.
It may not be possible to arrive at the truth of the matter
in the absence of such evidence. The complainant would
then be required to prove her case without being able to
bring relevant evidence (which is potentially of great
probative value) on record, which would be unjust.

36. In the present case evidence of CCTV footages in the LCB

Akola and outside of the applicant’s house are very important to
check veracity of allegations in the application or to establish
offence. The applicant is not in position to collect and adduce said
evidence in order to prove his case. However, police are well
equipped with power under Code of Criminal Procedure to collect or
 ..20.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

retrieve said CCTV footages from concern offices. The applicant has
further stated that some unknown police have also beaten, insulted
and hurled abuses to him. In order to ascertain their identity,
investigation at the hands of police is necessary. Further, the
applicant has also made allegation against doctor, however, he failed
to name said doctor. In order to ascertain his identity police
investigation is necessary. In view of ratio laid down in the case of
XYZ v. State of MP, considering serious allegations in the application,
I have come to conclusion that investigation at the hands of police is
necessary to collect necessary evidence of the case. Hence, it is
proper to issue direction to concern police station for registration of
crime against non-applicants and investigate the same.

Can a Magistrate order for Investigation under Section 156(3) of

Code of Criminal Procedure by CID Police?

37. The learned advocate for the applicant has vehemently

argued that non applicants are police, if investigation is handed over
to police, then they will not conduct investigation as per law. They
will favour non-applicants. Hence, matter may kindly be referred to
C.I.D. for impartial investigation. Now, let me see, whether
Magistrate has power to order investigation by C.I.D. As per Chapter
V Para 1 of the CB CID Manual, cases can be registered on the orders
of Hon'ble High Court / Hon'ble Supreme court. The relevant portion
runs thus:

“1. Regular case should be registered under the following

circumstances: -
 ..21.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

a. On the orders of the Supreme Court/High Court;

b. On the request of the State Government
c. On the orders of the DGP/CB CID Headquarters.”

38. Furthermore, Hon'ble High Court in S. Madhiyazhagan

Vs. State, rep. By the Inspector of Police, CBCID, Tirupur District
(2018(1) MWN (cr) 423 held that the Judicial Magistrate is not
empowered under Section 156(3) Code of Criminal Procedure to
direct the Crime Branch CID to investigate an offence.

39. In CBI vs State of Rajasthan [(2001) 3 SCC 333], the

Hon’ble Supreme Court held that the Magistrate cannot direct the
CBI to conduct any investigation. It can issue such order only to an
SHO, that is the office-in-charge of any police station under its
jurisdiction. It was also stated that such order does not direct a
superior officer to conduct necessary steps towards investigation,
though the superior can act by virtue of Section 156.

40. In view of ratios of above cited case laws, it is crystal

clear that Magistrate has jurisdiction to order investigation by the
office-in-charge of police station under its jurisdiction. It has no
power to order investigation by independent agencies like C.I.D. and
C.B.I. etc. Said powers are vested in Hon’ble Supreme Court and
Hon’ble High Court. Furthermore, merely non applicants are police
persons, it will not just and proper to doubt credibility of the entire
police department. Hence, I am not inclined to accept request of the
applicant to order investigation of case at the hands of C.I.D.
 ..22.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

Monitoring of Investigation:
41. The learned advocate for the applicant has argued that
CCTV footage of LCB, Akola dated 09/01/2022 to 18/01/2022 and
CCTV footage outside house of the applicant dated 09/01/2022 are
very important evidence in the case. He has apprehension that police
will destroy said CCTV footages. He requested that direction may
kindly be given to police to preserve said CCTV footages.

42. Hon'ble Apex Court in Sakiri Vasu Vs State Of U.P. and

Others reported in (2008) 2 SCC 409 has noted:

11. In this connection we would like to state that if a

person has a grievance that the police station is not
registering his FIR under Section 154 CrPC, then he can
approach the Superintendent of Police under Section
154(3) CrPC by an application in writing. Even if that
does not yield any satisfactory result in the sense that
either the FIR is still not registered, or that even after
registering it no proper investigation is held, it is open to
the aggrieved person to file an application under Section
156(3) CrPC before the learned Magistrate concerned. If
such an application under Section 156(3) is filed before
the Magistrate, the Magistrate can direct the FIR to be
registered and also can direct a proper investigation to
be made, in a case where, according to the aggrieved
person, no proper investigation was made. The
Magistrate can also under the same provision monitor
the investigation to ensure a proper investigation.
 ..23.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

13. The same view was taken by this Court in Dilawar

Singh v.State of Delhi3(JT vide para 17). We would
further clarify that even if an FIR has been registered and
even if the police has made the investigation, or is
actually making the investigation, which the aggrieved
person feels is not proper, such a person can approach
the Magistrate under Section 156(3) CrPC, and if the
Magistrate is satisfied he can order a proper investigation
and take other suitable steps and pass such order(s) as
he thinks necessary for ensuring a proper investigation.
All these powers a Magistrate enjoys under Section
156(3) CrPC.

15. Section 156(3) provides for a check by the Magistrate

on the police performing its duties under Chapter XII
CrPC. In cases where the Magistrate finds that the police
has not done its duty of investigating the case at all, or
has not done it satisfactorily, he can issue a direction to
the police to do the investigation properly, and can
monitor the same.

17. In our opinion Section 156(3) CrPC is wide enough

to include all such powers in a Magistrate which are
necessary for ensuring a proper investigation, and it
includes the power to order registration of an FIR and of
ordering a proper investigation if the Magistrate is
satisfied that a proper investigation has not been done,
or is not being done by the police. Section 156(3) CrPC,
 ..24.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

though briefly worded, in our opinion, is very wide and it

will include all such incidental powers as are necessary
for ensuring a proper investigation.

(emphasis supplied)

43. Considering severe allegations in the application, CCTV

footage of LCB, Akola dated 09/01/2022 to 18/01/2022 and CCTV
footage outside house of the applicant dated 09/01/2022 are very
important. It is not possible for the applicant to produce said CCTV
footage before Court. In absence of said CCTV footage it may not be
possible to arrive at the truth. The applicant would then be required
to prove his case without being able to bring relevant evidence
(which is potentially of great probative value) on record, which
would be unjust. As per ratio in Sakiri Vasu (cited supra), the
Magistrate has power to direct investigation and monitor same. I am
of the considered opinion that Magistrate has implied power to give
direction to police to collect and preserve important evidence of case.
In the present case said CCTV footage of LCB, Akola dated
09/01/2022 to 18/01/2022 and CCTV footage outside house of the
applicant dated 09/01/2022 are very important. If said footage is
disposed of then it will cause great prejudice to the applicant. Hence,
I have come to conclusion that direction needs to be issued to police
to collect and preserve said CCTV footage.

44. In view of above discussion, I have come to conclusion

that the applicant has complied all necessary pre-conditions to pass
order under Section 156 (3) of the Code of Criminal Procedure.
 ..25.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

Considering the facts and circumstances of the application, severe

allegations therein and necessity of collection of evidence at the
hands of police, it is necessary to direct police to register the crime
and investigate same. The applicant has made out, fit case to invoke
power under Section 156(3) of the Code of Criminal Procedure.
Hence, I pass following order.-

ORDER

1. Application is allowed.
2. Officer in-charge of City Kotwali Police Station is hereby
directed to register first information report against non-
applicant nos.1 to 5.
3. He is directed to make investigation with regard to
averments made in the application and he shall submit
report as early as possible.
4. He is directed to collect CCTV footage of LCB, Akola
dated 09/01/2022 to 18/01/2022 and CCTV footage
outside applicant’s house dated 09/01/2022 immediately.
5. Verified Copy of application at Exh. 1 be forwarded to
Officer in-charge of City Kotwali Police Station along with
present order.
SAGAR Digitally signed by
SAGAR JAGDISH
JAGDISH BONDRE
Date: 2022.09.15
BONDRE 16:36:10 +0530
( S. J. Bondre)
Date : 13/09/2022 Judicial Magistrate F.C.,
(Court No. 7), Akola
 ..26.. MCC.No.1254/2022
Sham Varma Vs. PSO City Kotwali

CERTIFICATE

I affirm that the contents of this P.D.F. File

Order/Judgment are same, word to word, as per the original
Judgment/Order.

Name of the Stenographer P. J. Yadav

Name of the Court 7th Jt. Civil Judge (J.D.) &

J.M.F.C., Akola.
Date of Order & Judgment 13/09/2022

Order/Judgment Signed by the P.O. On 13/09/2022

Judgment/Order uploaded on 13/09/2022