# Abhay Kumar Dubey Revisionist v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 420
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-10
- **Case number:** Criminal Revision No. 497 of 2006
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhay-kumar-dubey-revisionist-v-state-of-u-p-ors-43178
- **Pages:** 4

## Headnote

order
by
Magistrate-treating
complaint
caseinstead directing the police to registered
the case-on application under Section
156
(3)
Cr.P.C.-held-finding
by
Magistrate-controversy
being
civil
in
nature-rightly treated it the complaint
case-no
illegality
committed-revision
rejected.
Held: Para-9
In present matter all evidence required
to be proved in the case is within
knowledge of revisionist. Learned Court
1 All] Abhay Kumar Dubey Vs. State of U.P. & Ors.
421
below had rightly mentioned in impugned
order that matter relating to application
u/s 156(3) Cr.P.C. may be a matter
relating to exclusive dispute of civil nature.
Therefore no impropriety or irregularity
appears to have been committed by the
Court
below
by
not
ordering
the
investigation by the police and directing
the case to be registered as complaint
case. Therefore impugned order should not
be interfered with in revision. Revision,
accordingly, is dismissed.
Case Law discussed:
2001 (2) C.Cr.J. 644(All.); 2005 (51)ACC 901;
2007 (59) ACC 739.

## Text

420
 INDIAN LAW REPORTS ALLAHABAD SERIES
The second part is imperative (shall) and
enjoins the court to allow all amendments
which are necessary for the purpose of
determining
the
real
question
in
controversy between the parties."
15. The Supreme Court in Revajeetu
Builders
and
Developers
v.
Narayanaswamy and Sons and others23
has culled out certain factors to be taken
into consideration while dealing with the
application for amendment:
"63. On critically analyzing both the
English and Indian cases, some basic
principles emerge which ought to be taken
into consideration while allowing or
rejecting the application for amendment:
(1) whether the amendment sought is
imperative for proper and effective
adjudication of the case;
(2) whether the application for
amendment is bona fide or mala fide;
(3) the amendment should not cause
such prejudice to the other side which
cannot be compensated adequately in
terms of money;
(4) refusing amendment would in
fact lead to injustice or lead to multiple
litigation;
(5) whether the proposed amendment
constitutionally or fundamentally changes
the nature and character of the case; and
(6) as a general rule, the court should
decline amendments if a fresh suit on the
amended claims would be barred by
limitation on the date of application.
These are some of the important
factors which may be kept in mind while
dealing with application filed under Order
6 Rule 17. These are only illustrative and
not exhaustive."
16.

Applying
the
aforesaid
parameters to the present case, it is
evident that the Tribunal has taken a
hypertechnical view and has rejected the
amendment
application
on
wrong
premise.
17. In view of the above, the
impugned order dated 22nd August, 2013
passed by the Tribunal is set aside. The
matter is remitted to the Tribunal to
decide the amendment application afresh
within three months from the date of
communication of this order.
18. The revision is, accordingly,
allowed. No order as to costs.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2015
BEFORE
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
Criminal Revision No. 497 of 2006
Abhay Kumar Dubey
 ...Revisionist
Versus
State of U.P. & Ors.
...Opp. Parties
Counsel for the Revisionist:
Arvind Kumar Tewari
Counsel for the Respondents:
Govt. Advocate
Criminal
Revision-Against
order
by
Magistrate-treating
complaint
caseinstead directing the police to registered
the case-on application under Section
156
(3)
Cr.P.C.-held-finding
by
Magistrate-controversy
being
civil
in
nature-rightly treated it the complaint
case-no
illegality
committed-revision
rejected.
Held: Para-9
In present matter all evidence required
to be proved in the case is within
knowledge of revisionist. Learned Court
1 All] Abhay Kumar Dubey Vs. State of U.P. & Ors.
421
below had rightly mentioned in impugned
order that matter relating to application
u/s 156(3) Cr.P.C. may be a matter
relating to exclusive dispute of civil nature.
Therefore no impropriety or irregularity
appears to have been committed by the
Court
below
by
not
ordering
the
investigation by the police and directing
the case to be registered as complaint
case. Therefore impugned order should not
be interfered with in revision. Revision,
accordingly, is dismissed.
Case Law discussed:
2001 (2) C.Cr.J. 644(All.); 2005 (51)ACC 901;
2007 (59) ACC 739.
(Delivered by Hon'ble Pramod Kumar
Srivastava, J.)
1. This revision has been filed
against the order dated 12.01.2006 passed
by Chief Judicial Magistrate, Etawah in
Criminal Misc. Case No. 133/2005,
Abhay Kumar Dubey Vs. Netram &
others by which application under section
156(3)
Cr.P.C.
was
registered
as
complaint case.
2. Present revisionist had moved an
application dated 09-12-2005 in Court
below u/s 156 (3) Cr.P.C. After hearing
the counsel for applicant/revisionist the
Court below had passed its impugned
order 12-01-2006 by which application
u/s 156 (3) Cr.P.C of applicant was
registered as complaint case. Aggrieved
by this order present revision had been
preferred.
3. None appeared on behalf of
revisionist. Heard learned AGA and
perused memo of revision.
4. Code of Criminal Procedure had
given different type of powers to deal
with such matters relating to commission
of cognizable offences when brought
before it. Code and various case laws had
set guidelines for Courts to deals with
such matters. In ruling 2001 (2) C.Cr.J.
644 (All); Ram Babu Gupta vs. State of
U.P. & others full bench of this Court
held that:
"On receiving of such complaint,
different courses
are open
to the
Magistrate he may with the aid of power
conferred by Section 156 (3) direct the
police to register a case and investigate in
the matter as provided in Chapter XII or
he may treat the same as complaint and
proceed in the manner as provided in
Chapter XV of the Code. While resorting
to the first mode in as much as directing
the police for investigation he should not
pass order in a routine manner. He
should apply his judicial mind and on
glimpse of the complaint, if he is prima
facie of the view that the allegations made
therein constituted commission of a
cognizable offence requiring thorough
investigation, he may direct the police to
perform
their
statutory
duties
as
envisaged in law. " - - - - - - - - "Where
the Magistrate receives a complaint or an
application which otherwise fulfills the
requirement of a complaint envisaged by
section 2 (d) of Cr.P.C. and the facts
alleged therein disclose commission of an
offence, he is not always bound to take
cognizance. This is clear from the use of
the words "may take cognizance" which in
the context in which they occur in section
190 of the Code cannot be equated with
'must take cognizance '. The word 'may'
gives discretion to the Magistrate in the
matter. Two courses are open to him. He
may either take cognizance under section
190 or may forward the complaint to
police under section 156 (3) Cr. P.C. for
investigation."
422
 INDIAN LAW REPORTS ALLAHABAD SERIES
5. In ruling 2005 (51) ACC 901,
Dharmendra @ Pappu vs. State of U.P. &
others this Court held that:
"From the perusal of the allegations
made in the application under section
156(3) Cr.P.C. it appears that on the
basis of the allegations made therein a
prima facie cognizable offence is made
out
against
the
accused
and
the
allegations are of such nature which
require investigation by the police. In
such circumstances the Magistrate was
under obligation to direct the S.O. of
police station concerned to register the
case and investigate them."
6. Section 156(3) CrPC reads "Any
Magistrate empowered under section 190
may order such an investigation as abovementioned." It is noteworthy that there is
word "may" and not "shall" in this
provision. From the perusal of the
allegations made in the application under
section 156(3) Cr.P.C. it appears that on
the basis of the allegations made therein a
prima facie cognizable offence is made
out against the accused and the allegations
are of such nature which requires
investigation by the police, in such
circumstances the Magistrate may direct
the S.O. of police station concerned to
register the case and investigate them.
7. The jurisdiction of a Magistrate to
dispose of application u/s 156 (3) Cr.P.C.
cannot be exercised arbitrarily, but there
are certain specific norms for it. For
ordering the investigation on application
u/s 156(3) Cr.P.C. there must be prima
facie commission of cognizable offence
and must be the allegations are of such
nature which require investigation by the
police. Even if there appears commission
of cognizable offence in
application
containing complaint, Magistrate is not
always obliged to order the police for
investigation, if there is actually nothing
to be investigated. In such case applicant
can take recourse of procedure of
complaint case. Order for investigation is
to be made only when allegations are of
such
nature
that
actually
requires
investigation.
8. In ruling 2007 (59) ACC 739;
Sukhwasi vs. State of U.P. division bench
of this Court had held as under:
"Applications under section 156(3)
Cr.P.C.
are
coming
in
torrents.
Provisions under section 156(3) Cr.P.C.
should be used sparingly. They should not
be used unless there is something unusual
and extra ordinary like miscarriage of
justice which warrants a direction to the
Police to register a case. Such application
should not be allowed because the law
provides them with an alternative remedy
of filing a complaint, therefore, recourse
should not normally be permitted for
availing the provisions of section 156(3)
Cr.P.C.
The reference is, therefore, answered
in the manner that it is not incumbent
upon a Magistrate to allow an application
section 156(3) Cr.P.C. and there is no
such legal mandate. He may or may not
allow the application in his discretion.
The second leg of the reference is also
answered
in
the
manner
that
the
Magistrate has discretion to treat an
application section 156(3) Cr.P.C. as a
complaint."
9. In present matter all evidence
required to be proved in the case is within
knowledge of revisionist. Learned Court
below had rightly mentioned in impugned
1 All] Neeraj Kumar Mishra Vs. State of U.P. & Ors.
423
order that matter relating to application u/s
156(3) Cr.P.C. may be a matter relating to
exclusive dispute of civil nature. Therefore
no impropriety or irregularity appears to
have been committed by the Court below by
not ordering the investigation by the police
and directing the case to be registered as
complaint case. Therefore impugned order
should not be interfered with in revision.
Revision, accordingly, is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.04.2015
BEFORE
THE HON'BLE SATYENDRA SINGH CHAUHAN, J.
Misc. Single No. 1138 of 2015
Neeraj Kumar Mishra
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sushil Kumar, Akshat Srivastava
Counsel for the Respondents:
C.S.C., Yogendra Nath Yadav
Constitution
of
India,
Art.-226-Locus
standie-petitioner being member of Gaon
Sabha-challenging order by which notice
under
Rule
49-A-withdrawn-against
private
respondent-unless
resolution
passed by Gaon Sabha-empowering to file
writ petition-individual capacity-petition -
held-not maintainable.
Held: Para-6
Be that as it may, the question before this
Court is as to whether the petitioner, in
individual capacity, being a member of the
Gram Panchayat can challenge the order
passed by the Collector. There is no
resolution passed by the Gaon Sabha,
authorizing the petitioner to challenge the
order passed by the Collector.
Case Law discussed:
1982 ALJ 76
(Delivered by Hon'ble Satyendra Singh
Chauhan, J.)
1.
Heard learned counsel for the
petitioner, learned Standing Counsel as
well as learned counsel for the Gaon
Sabha.
2. The order in this case was
reserved on 17.3.2015. Learned counsel
for the petitioner wanted to place certain
case laws for perusal of the Court, but no
case law has been filed by the counsel for
the petitioner, which may lend support to
the argument advanced on behalf of the
petitioner.
3. The petitioner, who happens to be a
member of the Gaon Sabha, has come
forward to challenge the order dated
30.9.1993 passed by the Tehsildar (Nyayik),
the order dated 16.7.2010 passed by the
Tehsildar Sadar and the order dated
03.9.2014 passed by the Collector, Raebareli
as contained in Annexure Nos.1, 2 and 3
respectively to the writ petition..
4.
The earlier proceedings were
initiated against the petitioner on the report
submitted by the Lekhpal in 1983 under Rule
115(C) of U.P. Z.A. and L.R. Rules. The
Nayab Tehsildar submitted a report on
24.3.1990 and after considering that report,
notice issued under Rule 49-A of the U.P.
Z.A. And L.R. Rules was taken back.
5. The present report, which has
been filed against the petitioner, has been
filed at the instance of village rivalry and
that the private respondent has established
in the earlier round of litigation that patta
was executed in his favour and he is in
possession since long.