# Anil v. The State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 605
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-25
- **Case number:** Application U/S 482 No. 20815 of 2021
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-v-the-state-of-u-p-ors-46657
- **Pages:** 6

## Headnote

A. Criminal Law - ode of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860Sections 419,420, 466, 471, 120B, 34, 406challenge
to-dismissal
of
revision-opposite
parties illegally encroached the pokhar and
constructed
Panchayat
Bhawan
over
itapplicant moved application u/s 156(3) in this
regard which was rejected and revision of the
same also rejected-it is not a case wherein the
land is being alienated or transferred in favour
of any private person but it is for a public
purpose-certain resolution was passed for the
purpose of construction which implies that they
are the subject-matter of the civil proceedingslearned court below committed no illegality in
passing the order.(Para 1 to 28)

B. Power u/s 156(3) warrants application of
judicial mind. A court of law is involved. it is
606 INDIAN LAW REPORTS ALLAHABAD SERIES
not the police taking steps at the stage of
Section 154 of the Code. A litigant at his own
whim cannot invoke the authority of the
Magistrate. A Principled and really grieved
citizen with clean hands must have free access
to invoke the said power. it protects the
citizens but when pervert litigations takes this
route to harass their fellows citizens, efforts
are to be made to scuttle and curb the same.
(Para 13 to 15)

The application is dismissed. (E-6)

List of Cases cited:

## Text

11 All. Anil Vs. The State of U.P. & Ors.
605

17& foi{kh la0 2 ds fo}ku vf/koDrkx.k dk dFku
gS fd ifjoknh ds gksVy esa yxk, x, ,0lh0 xkjUVh
le; esa [kjkc gks x,] ftldh lwpuk Msfdu dEiuh ds
;w0ih0 izeq[k eksfgr JhokLro ,oa Msfdu dEiuh ds
vf/kd`r lfoZl izksokbMj ,oa Mhyj bysDVzks oYMZ ds jkgqy
flag dks nsuk LokHkkfod Fkk rFkk muds }kjk mDr ,0lh0
'kh/kz Bhd u djkus ij ifjoknh }kjk viuh O;olkf;d
{kfr dks ns[krs gq, ckj ckj mUgsa muds bZ&esy vkbZ0Mh0
ij esy djuk ,oa muds eksckby ij okrkZ djuk Hkh
vko';d Fkk] fdUrq bl ij vfHk;qDrx.k }kjk ukjkt
gksdj ifjoknh dks /kedh nh x;h fd tYnhckth djksxs rks
,0lh0 dks ,slk Bhd dj nwWxk fd fQj gksVy pykus
yk;d Hkh ugha jgh tkvksxs] blls gh Li"V gks tkrk gS
fd mUgksaus }s"ko'k ifjoknh ds gksVy esa ,0lh0 ds ek/;e
ls vkxtuh dh ?kVuk dks vatke fn;k gSA

18& foi{kh la0 2 ds fo}ku vf/koDrkx.k aus ;g Hkh
rdZ izLrqr fd;k fd ?kVuk ds iwoZ foi{kh la0 2 ls
vkosnx.k dk fookn ,oa >xM+k gqvk Fkk ftlds }s"ko'k
gksVy esa yxs ,0lh0 esas ukbVzkstu dh txg vkDlhtu
Hkj nh x;h] bl dkj.k vkx yxhA mudk ;g Hkh rdZ gS
fd tSlk fd vkosndx.k ds fo}ku vf/koDrk us rdZ
izLrqr fd;k gS] bl ckjs esa mudk dFku gS fd 'kkVZ
lfdZV dh ckr lkVhZfQdsV esa ugha dgh x;h] cfYd voj
U;k;ky; esa /kkjk 202 na0iz0la0 ds c;ku esa dgh x;h gS]
blfy, mudk ;g dFku ugha ekuk tkuk pkfg,A a

19& eSaus mHk; i{k ds fo}ku vf/koDrkvksa ds rdksZ
ds ifjizs{; esa i=koyh ij miyC/k lk{; ,oa muds }kjk]
ekuuh; mPpre U;k;ky; ikfjr fu.kZ;ksa ,oa fof/k
O;oLFkkvksa dk voyksdu fd;kA

20& esjs fopkj ls vkosndx.k ds fo}ku
vf/koDrkx.k ds rdksa ds izdk'k esa lacaf/kr fo}ku eq[;
U;kf;d eftLVzsV dks vfer dqekj ,oa edlwn vkfn dk
c;ku ysus rFkk lHkh ijhf{kr xokgksa dk muds }kjk fn,
x, lkVhZfQdsV@i=ksa ,oa U;k;ky; esa fn, x, c;ku esa
fojks/kkHkk"k vkfn dh leqfpr tkWp djkuh pkfg, rFkk
lacaf/kr eftLVzsV dks bl ckr ls larq"V gksdj iz'uxr
vkns'k ikfjr djuk pkfg, fd izFke n`"V;k vkosndx.k ds
fo:) ekeyk cu jgk gS vFkok ugha] mijksDr lkf{k;ksa
}kjk fuxZr lkVhZfQdsV@i= ,oa muds c;kuksa ls ;g
Li"V ugha gks ik;k gS fd gksVy ds ,0lh0 esa vkx yxus
dk dkj.k] muesa xyr xSl Mkyuk FkkA bl izdkj fo}ku
eftLVzsV dks izdj.k ij leqfpr fopkjksjkUr rych vkns'k
ikfjr djuk pkfg, Fkk] fo}ku eftLVzsV us rych vkns'k
ikfjr djrs le; lqlaxr lk{;ksa ,oa izkfo/kkuksa dk
leqfpr vuqikyu ugha fd;kA bl izdkj iz'uxr rych
vkns'k =qfViw.kZ gSA

21& rn~uqlkj /kkjk 482 na0iz0la0 ds vUrxZr nk;j
;g vkosnu i= Lohdkj fd, tkrs gSa rFkk ifjokn okn la0
2264 lu 2019] vUrxZr /kkjk 120] 427] 436 Hkk0na0fo0]
Fkkuk QsQuk] ftyk cfy;k esa eq[; U;kf;d eftLVzsV] cfy;k
}kjk ikfjr rych vkns'k fn0 18&8&2021 dh dk;Zokgh rFkk
ifjokn okn dh laiw.kZ dk;Zokgh vikLr dh tkrh gSA

22& dk;kZy; dks funsZ'k fn;k tkrk gS fd bl vkns'k
dh ,d izfrfyfi lacaf/kr voj U;k;ky; dks vfoyEc Hkstuk
lqfuf'pr fd;k tk;A
----------
(2021)12ILR A605
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Application U/S 482 No. 20815 of 2021

Anil ...Applicant
Versus
The State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Arvind Nath Agarwal

Counsel for the Opposite Parties:
A.G.A., Sri K.K. Rajbhar

A. Criminal Law - ode of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860Sections 419,420, 466, 471, 120B, 34, 406challenge
to-dismissal
of
revision-opposite
parties illegally encroached the pokhar and
constructed
Panchayat
Bhawan
over
itapplicant moved application u/s 156(3) in this
regard which was rejected and revision of the
same also rejected-it is not a case wherein the
land is being alienated or transferred in favour
of any private person but it is for a public
purpose-certain resolution was passed for the
purpose of construction which implies that they
are the subject-matter of the civil proceedingslearned court below committed no illegality in
passing the order.(Para 1 to 28)

B. Power u/s 156(3) warrants application of
judicial mind. A court of law is involved. it is
606 INDIAN LAW REPORTS ALLAHABAD SERIES
not the police taking steps at the stage of
Section 154 of the Code. A litigant at his own
whim cannot invoke the authority of the
Magistrate. A Principled and really grieved
citizen with clean hands must have free access
to invoke the said power. it protects the
citizens but when pervert litigations takes this
route to harass their fellows citizens, efforts
are to be made to scuttle and curb the same.
(Para 13 to 15)

The application is dismissed. (E-6)

List of Cases cited:

1. Priyanka Srivastava & ors.. Vs St. of U.P. & ors..
(2015) AIR SC 1758

2. Rambabu Gupta Vs St. of U.P., Cr.MWP NO.3672
Of 2000

3. Sukhbali Vs St. of U.P. (2007) 59 ACC 739

4. Rajendra Singh Gurjer & ors. Vs St. of U.P. & anr,
CRLR No. 4787 of 2005

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Sri Arvind Nath Agrawal, learned
counsel for the applicant and Sri K.K. Rajbhar,
learned counsel, who appears for the opposite
party No.1.

2. The applicant has filed present
application purported to be under Section 482
Cr.P.C. challenging the order dated 7.6.2019
passed in Complaint Case No.519 of 2019, Anil
Kumar Vs. Akram Guddu Mistri and others,
under Sections 419, 420, 466, 467, 471, 120(B),
34, 406 I.P.C. against opposite parties no. 2, 3 &
4 as well as the order dated 20.8.2019 passed in
Criminal Revision No.115 of 2019, Anil Kumar
Vs. Akram Guddu Mistri and others, under
Section 397 Cr.P.C. passed by Additional
District and Sessions Judge, Court No.8, Jhansi.

3. According to the applicant Gata No.313
Rakba 0.24 hectare situate in Village Mau,
Tehsil Mauranipur, which is recorded as Pokhar
in the revenue records. However, the opposite
parties have illegally encroached the said Pokhar
and have constructed Panchyat Bhawan over it.

4. In the nutshell, according to the
applicant, opposite party no.2 is a Gram Prdhan,
opposite party no.3 is a Lekhpal and opposite
party no.4 is a Gram Panchayat Adhikari, who
convinced each-other, have illegally encroached
the said piece of land which has been recorded
as Pokhar for the purposes of construction of
Panchayat Bhawan after passing illegal and
unwarranted resolution in this regard.

5. As per the case set forth by the
applicant, the applicant preferred an application
under Section 156(3) Cr.P.C. before the C.J.M.
Jhansi for issuance of an appropriate direction
for lodging an FIR under Sections 419, 420,
466, 467, 471, 120(B), 34, 406 I.P.C. which was
numbered as Case No.519 of 2013, Anil Kumar
Vs. Akram Guddu Mistri and others. The
application so preferred by the applicant before
C.J.M. Jhansi came to be rejected by virtue of
passing an order dated 7.6.2019.

6. The applicant being aggrieved against
the order dated 7.6.2019 preferred a revision
which was numbered as Criminal Revision
No.115 of 2019, Anil Kumar Vs. Akram Guddu
Mistri and others. A copy of memo of revision
has been annexed as annexure-5 to the
application. That the court of Additional District
and Sessions Judge, Court No.8, Jhansi has now
passed an order dated 20.8.2019 rejecting the
revision so preferred by the applicant upholding
and affirming the order dated 7.6.2019.

7. The applicant now is before this Court
challenging the aforesaid both orders.

8. Before proceeding further this Court
finds necessary to quote provisions contained
under Section 154 and Section 156 of the Code
of Criminal Procedure which reads as under:
11 All. Anil Vs. The State of U.P. & Ors.
607

"154. Information in cognizable
cases.

(1) 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.

(2) A copy of the information as
recorded under sub- section (1) shall be given
forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal
on the part of an officer in charge of a police
station to record the information referred to in
subsection (1) may send the substance of such
information, in writing and by post, to the
Superintendent of Police concerned who, if
satisfied that such information discloses the
commission of a cognizable offence, shall
either investigate the case himself or direct an
investigation to be made by any police officer
subordinate to him, in the manner provided by
this Code, and such officer shall have all the
powers of an officer in charge of the police
station in relation to that offence."

"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."

9 Sub-section (1) of Section 154 Cr.P.C.
itself provides that every information relating to
commission of 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 to read over to the informant and
every such information whether given in writing
or reduced to writing shall be signed by a person
giving it and the substance thereof shall be
entered in the book to be kept by the officer.

10. Further Sub-section (3) of Section 154
itself mandates that any person aggrieved by a
refusal on the part of an officer-in-charge of
police station to record the information referred
to in Sub-section (1) may send the substance of
the information in writing and by post to Senior
Superintendent of Police concerned, who have
satisfied that such information discloses the
commission of cognizable offence shall either
investigate
case
himself
and
direct
an
investigation to be done by a police officer
subordinate to it.

11. Thus two opportunities have been
provided under Section 154 of the Cr.P.C. at
first instance before the concerned police
authorities at the concerned police station and
secondly before the Senior Superintendent of
Police.

12. In case the officer-in-charge of the
police station and also the Senior Superintendent
of Police does not register the FIR on the basis
of the information of the informant regarding
608 INDIAN LAW REPORTS ALLAHABAD SERIES
commission of cognizable offence then under
Section 156(3) of the Cr.P.C. Magistrate may
direct for lodging of the FIR.

13. The issue with respect to exercise of
powers under Section 156(3) of the Code of
Criminal Procedure has also been taken note in
the case of Priyanka Srivastava and Ors. vs.
State of U.P. and Ors. reported in AIR 2015
SC 1758 wherein para 26 and 27 following has
observed:-

"26. At this stage it is seemly to state
that power Under Section 156(3) warrants
application of judicial mind. A court of law is
involved. It is not the police taking steps at the
stage of Section 154 of the code. A litigant at his
own whim cannot invoke the authority of the
Magistrate. A principled and really grieved
citizen with clean hands must have free access to
invoke the said power. It protects the citizens but
when pervert litigations takes this route to
harass their fellows citizens, efforts are to be
made to scuttle and curb the same.

27. In our considered opinion, a stage
has come in this country where Section 156(3)
Code of Criminal Procedure applications are to
be supported by an affidavit duly sworn by the
applicant who seeks the invocation of the
jurisdiction of the Magistrate. 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
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 an the
application Under Section 156(3) be supported
by an affidavit so that the person making the
application should be conscious and also
endeavour 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 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."

14. The Full Bench of this Hon'ble Court
in Criminal Misc. Writ Petition No.3672 of
2000 decided on 27.4.2001, Rambabu Gupta
Vs. State of U.P. in para 17 observed as under:-

"17.
In
view
of
the
aforesaid
discussion on the legal provisions and decisions
of the Supreme Court as on date, it is hereby
held that on receiving a complaint, the
Magistrate has to apply his mind to the
allegations in the complaint upon which he may
not at once proceed to take cognizance and may
order it to go to the police station for being
registered and investigated. The Magistrate's
11 All. Anil Vs. The State of U.P. & Ors.
609
order must indicate application of mind. If the
Magistrate takes cognizance, he proceeds to
follow the procedure provided in Chapter XV of
Cr P.C. The first question stands answered
thus."

15. Yet a Division Bench of this Court in
Criminal Misc. Application No.9297 of 2007
decided on 18.9.2007. A Division Bench of this
Court in the case of Sukhbali Vs. State of Uttar
Pradesh reported in 2007 (59) ACC 739 in para
22 has observed as under:-

"22.
Applications
under
Section
156(3) Cr. P.C. are now 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 applications 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."

16. A judicial notice has been taken by this
Court in the case of Sukhbali (Supra) that
applications under Section 156(3) Cr.P.C. are
now coming in torrent and thus exercise of the
powers under Section 156(3) Cr.P.C. should be
used sparingly and not in routine manner.

17. Admittedly, in the present case, the
applicant had preferred an application under
Section 156(3) Cr.P.C. for the purposes of
issuance of a direction for lodging an FIR
against opposite parties no. 2 to 4. The
application so preferred by the applicant came to
be rejected by virtue of order dated 7.6.2019.
The applicant being aggrieved against the same,
preferred a revision no. 115 of 2019 which
ultimately may be with the same fate.

18. Both the courts below have recorded a
categorically findings of fact that the land in
question which is being sought to be allotted by
the applicant to be a Pokhar and which is being
used by the opposite party nos. 2 to 4 for the
purposes of construction of Panchayat Bhawan
is a matter within realm and purview of civil
proceedings. Even in fact both the courts below
have also taken notice of the provisions
contained under the U.P. Land Revenue Code,
2006 (In short 'Code, 2006') which is containing
the provision with respect to dealing with those
contingencies whereat the public land is being
sought to be encroached or misappropriated by
any person.

19. The issue in the present case can also
be seen from another point of angle that here the
land is being used for construction of a
Panchayat Bhawan over a public land. It is not a
case wherein the land is being alienated or
transferred in favour of any private person but it
is for a public purpose.

20. Needless to point out that it is admitted
case of the applicant himself that certain
resolutions have been passed for the purposes of
construction of Panchayat Bhawan which
implies that they are the subject matter of civil
proceedings which cannot be given tinch.

21. Nevertheless, it is not a case wherein
the applicant is remedyless as the entire
mechanism as contained under the Code, 2006 is
also available to him.

22. As already observed held by the Apex
Court and this Court that an order under Section
156(3) Cr.P.C. for lodging an FIR cannot be
granted or mere asking as in a given case
whenever an application is filed for lodging an
FIR under Section 156(3) Cr.P.C. then the
Magistrate concerned has to apply his mind and
accord a prima facie satisfaction as to whether
610 INDIAN LAW REPORTS ALLAHABAD SERIES
the case warrants direction that order for lodging
FIR.

23. Learned counsel for the applicant has
relied upon a judgment in Criminal Revision
No.4787 of 2005, Rajendra Singh Gurjer &
others Vs. State of U.P. & another decided on
7.12.2017 so as to contend that in the disputes of
the same nature, criminal proceedings can be
instituted.

24. This Court after going through the
judgement in the case of Rajendra Singh Gurje
(Supra) does not find that the said case is
applicable in the present facts of the case. As the
facts of the said case are entirely different and
no proposition of law so convinced by the
applicant has been laid down.

25. Lastly, learned counsel for the
applicant has drawn the attention of the court
towards order dated 3.8.2021 passed in
Application Under Section 482 No.13414 of
2021, Srikant Vs. State of Uttar Pradesh but the
said judgment emanates from the issuance of
notice, under Section 107/116 Cr.P.C.

26. Looking to the facts of the
circumstances of the case as pleaded and
canvassed by the learned counsel for the
applicant, this Court does not find any legal
infirmity in the orders passed dated 7.6.2019 and
20.8.2019 under challenge and hence the present
application under Section 482 Cr.P.C is liable to
be dismissed.

27. No other point has been raised by
learned counsel for the applicant.

28. Accordingly, the application is
dismissed.
----------
(2021)12ILR A610
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2021
BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Application U/S 482 No. 21881 of 2021

Rajesh & Ors. ...Applicants
Versus
The State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ajay Kumar, Sri Chandrama Singh

Counsel for the Opposite Parties:
A.G.A.

A.
Criminal
Law
-
Code
of
Criminal
Procedure,1973-Section 482 - Indian Penal
Code,1860-Sections 147, 148, 452, 427, 323,
354-Kha, 506-quashing of charge-sheet and
summoning order-opposite party lodged the FIR
against the applicants that the applicants tried to
grab her land-they had torn her clothes and also
started beating her sons-learned court below
committed no illegality-no ground to quash the
chargesheet and summoning order as the
applicants failed to show any jurisdictional errorthe factual issues cannot be gone into and no
roving inquiry can be made at this stage.(Para 1
to 26)

B. The powers so exercised cannot be put in
straitjacket formula as the same has to be
exercised as per facts and circumstances of
individual cases in hand. the purpose for insertion
of section 482 Cr.P.C. is to secure justice and
eliminate the chances of any accused being
allowed to walk away.the inherent power is alos
engrafted just in order to wriggle out an innocent
person, who has been falsely implicated in a
criminal cases.(Para 8 to 14)

The application is dismissed. (E-6)

List of Cases cited:

1. R.P. Kapoor Vs St. of Punj. (1960) AIR SC 866

2. St. of Har. Vs Bhajan Lal (1992) Supp (1) SCC 335

3. St. of A. P. Vs Golconda Linga Swami (2004) 6 SCC
522