# Arun Kumar Singh @ Pappu Singh & Ors v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 226
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-02
- **Case number:** Misc. Single No. 2173 of 2016
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-singh-pappu-singh-ors-v-state-of-u-p-ors-43411
- **Pages:** 6

## Headnote

Constitution of India, Art.-227-petition
against
direction
by
Magistrate
to
register
and
investigate
the
casewhether can prospective accused be
allowed to challenge such order? held-
'No'-in view of Full Bench decision of
Shushma Thomus case-only remedy to
file writ petition under Art. 226.
Held: Para-13
In the instant matter on the application
moved by opposite party no.3 under Section
156(3) Cr.P.C. order has been passed by
Additional Chief Judicial Magistrate, Kunda,
Pratapgarh for registering and investigating
the case against the petitioners so they are
prospective accused have no right to say
that Magistrate does not have any power to
direct the police authorities to lodge F.I.R.
for cognizable offence. Further if the F.I.R.
is registered in compliance of the order
passed under Section 156(3) Cr.P.C. against
1 All. Arun Kumar Singh @ Pappu Singh & Ors. Vs. State of U.P. & Ors.
227
the petitioners, the proper remedy available
to them to invoke the jurisdiction under
Article 226 of the Constitution of India for
quashing of the F.I.R. as well as for staying
the arrest. In view of the said facts at this
stage, petitioners cannot derive any benefit
from the law as cited on their behalf as laid
down in cases of Shambu Das @ Bijoy Das (
Supra) as well as Priyanka Srivastava
(Supra) in order to challenge the order
dated 23.1.2016, thus I do not find any
illegality or infirmity in the order dated
23.1.2016
passed
by
Additional
Chief
Judicial Magistrate, Kunda, Pratapgarh.
Case Law discussed:
2010 (71) ACC 367; 2015 Supreme Court
Cases 287; 2008 (2) ACR 1950; 2011 (72) ACC

## Text

226
 INDIAN LAW REPORTS ALLAHABAD SERIES
1397, ''vested' is defined as Law held by a
tenure subject to no contingency; complete;
established by law as a permanent right;
vested interest. (Vide: Bibi Sayeeda v State
of Bihar AIR 1996 SC 516; and J.S. Yadav v
State of Uttar Pradesh (2011) 6 SCC 570)
Thus, vested right is a right independent of
any contingency and it cannot be taken away
without consent of the person concerned.
Vested right can arise from contract, statute
or by operation of law. Unless an accrued or
vested right has been derived by a party, the
policy decision/ scheme could be changed.
(Vide: Kuldip Singh v Government, NCT
Delhi AIR 2006 SC 2652)
29.
Hon'ble Apex Court considered
various aspects of service jurisprudence and
came to the conclusion that as the
appointment on compassionate ground may
not be claimed as a matter of right nor an
applicant becomes entitled automatically for
appointment, rather it depends on various
other circumstances i.e. eligibility and
financial conditions of the family, etc., the
application has to be considered in
accordance with the scheme. In case the
Scheme does not create any legal right, a
candidate cannot claim that his case is to be
considered as per the Scheme existing on
the date the cause of action had arisen i.e.
death of the incumbent on the post. In State
Bank of India & Anr. (supra), this Court
held that in such a situation, the case under
the new Scheme has to be considered.
30. In view of the above position, the
reasoning given by the learned Single
Judge is not sustainable in the eyes of law.
The Special Appeal is allowed and the
impugned judgment passed by learned
Single Judge of this Court is set aside.
Consequently, the writ petition filed by the
petitioner-respondent
shall
stand
dismissed.
31. The respondent-petitioner may
apply for consideration of her case under
the new Scheme and the appellants shall
consider her case strictly in accordance
with Clause 13 of the said new Scheme
within a period of three months from the
date of receiving of application.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.02.2016
BEFORE
THE HON'BLE ANIL KUMAR, J.
Misc. Single No. 2173 of 2016
Arun Kumar Singh @ Pappu Singh & Ors.
Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Rajesh Bahadur Singh Rath
Counsel for the Respondents:
Govt. Advocate
Constitution of India, Art.-227-petition
against
direction
by
Magistrate
to
register
and
investigate
the
casewhether can prospective accused be
allowed to challenge such order? held-
'No'-in view of Full Bench decision of
Shushma Thomus case-only remedy to
file writ petition under Art. 226.
Held: Para-13
In the instant matter on the application
moved by opposite party no.3 under Section
156(3) Cr.P.C. order has been passed by
Additional Chief Judicial Magistrate, Kunda,
Pratapgarh for registering and investigating
the case against the petitioners so they are
prospective accused have no right to say
that Magistrate does not have any power to
direct the police authorities to lodge F.I.R.
for cognizable offence. Further if the F.I.R.
is registered in compliance of the order
passed under Section 156(3) Cr.P.C. against
1 All. Arun Kumar Singh @ Pappu Singh & Ors. Vs. State of U.P. & Ors.
227
the petitioners, the proper remedy available
to them to invoke the jurisdiction under
Article 226 of the Constitution of India for
quashing of the F.I.R. as well as for staying
the arrest. In view of the said facts at this
stage, petitioners cannot derive any benefit
from the law as cited on their behalf as laid
down in cases of Shambu Das @ Bijoy Das (
Supra) as well as Priyanka Srivastava
(Supra) in order to challenge the order
dated 23.1.2016, thus I do not find any
illegality or infirmity in the order dated
23.1.2016
passed
by
Additional
Chief
Judicial Magistrate, Kunda, Pratapgarh.
Case Law discussed:
2010 (71) ACC 367; 2015 Supreme Court
Cases 287; 2008 (2) ACR 1950; 2011 (72) ACC
564.
(Delivered by Hon'ble Anil Kumar, J.)
1. Heard Sri R.B.S. Rathaur, learned
counsel for the petitioners, Sri Anurag
Verma, learned Additional Government
Advocate for opposite parties no. 1 and 2
and perused the record.
2. Facts, in brief, of the present case
are that on 9.12.2015 an election for the
post of Gram Pradhan in Gram Panchayat
Rai Askaranpur, Block Babaganj, District
Pratahpgarh was held in which 'Bhabhi' of
petitioner no.1, namely, Smt. Pushpa
Singh contested for the said post . In the
said matter certain controversy has taken
place so opposite party no.3 moved an
application under Section 156(3) Cr.P.C.
in the Court of Additional Chief Judicial
Magistrate, Kunda, Pratapgarh, registered
as Criminal Case no.6 of 2016 ( Ajai
Pratap Singh Vs. Pappu and others),
allowed by order dated 23.1.2016 under
challenge in the present writ petition.
3. Sri Anuraj Verma , learned
Additional
Government
Advocate
appearing on behalf of opposite parties
no.1 and 2 raised a preliminary objection
that as in the present case by an order
dated
23.1.2016
Additional
Chief
Magistrate Kunda Pratapgarh on the
application under Section 156(3) Cr.P.C.
has directed the police authorities to
register and investigate the case, so
keeping in view of the law laid down by
this Court in the case of Gurbachan Singh
and others Vs. State of U.P. and others,
2008(2) ACR 1950 petitioners being
prospective accused have no right to
challenge the said order as such the
present
writ
petition
liable
to
be
dismissed.
4. Sri R.B.S Rathaur, learned
counsel for the petitioners, while rebutting
the said contention, submits that against
the order dated 23.1.2016 passed under
Section 156(3) Cr.P.C. it is not open for
petitioners to raised their grievance by
filing revision hence the writ petition is
maintainable.
5. In support of his contention, he
placed reliance on a Full Bench decision
of this Court in the case of Father Thomas
Vs. State of U.P. and others, 2011 (72)
ACC 564 the relevant paragraph is quoted
as under:-
"65.A. The order of the Magistrate
made in exercise of powers under Section
156(3) Cr.P.C directing the police to
register and investigate is not open to
revision at the instance of a person
against whom neither cognizance has
been taken nor any process issued.
B. An order made under Section
156(3) Cr.P.C is an interlocutory order
and remedy of revision against such order
is barred under sub-section (2) of Section
397 of the Code of Criminal Procedure,
1973.
228
 INDIAN LAW REPORTS ALLAHABAD SERIES
C. The view expressed by a Division
Bench of this Court in the case of Ajay
Malviya Vs. State of U.P and others
reported in 2000(41) ACC 435 that as an
order made under Section 156(3) of the
Code of Criminal Procedure is amenable
to revision, and no writ petition for
quashing an F.I.R registered on the basis
of the order will be maintainable, is not
correct."
6. Next arguments raised by learned
counsel for the petitioners are that from
the bare perusal of the material on record,
the position which emerge out is that no
allegation has been made out against the
petitioners, so there is no justification or
reason to pass an order dated 23.1.2016
directing the police authorities to register
and investigate the case against the
petitioners on an application moved under
Section 156(3) Cr.P.C. and also placed
reliance on the decision given by Hon'ble
teh Apex Court in the case of Shambu
Das @ Bijoy Das and another Vs. State of
Assam, 2010(71) ACC 367 in which it
has been held as under:-
" Section 157 of the Code says that if,
from the information received or otherwise
an officer incharge of a police station has
reason to suspect the commission of an
offence
which
he
is
empowered
to
investigate, he shall forthwith send a report
of the same to the Magistrate concerned and
proceed in person to the spot to investigate
the facts and circumstances of the case, if he
does not send a report to the Magistrate, that
does not mean that his proceedings to the
spot, is not for investigation. In order to
bring such proceedings within the ambit of
investigation, it is not necessary that a
formal registration of the case should have
been made before proceeding to the spot. It
is enough that he has some information to
afford him reason even to suspect the
commission of a cognizable offence. Any step
taken by him pursuant to such information,
towards detention etc., of the said offence,
would be part of investigation under the
Code.
The principles now well settled is that
when information regarding a cognizable
offence is furnished to the police that
information will be regarded as the FIR and
all enquiries held by the police subsequent
thereto would be treated as investigation,
even though the formal registration of the
FIR takes place only later."
7. Last arguments raised by learned
counsel for the petitioners are that in view
of the law laid by Hon'ble the Apex Court
in the case of Priyanka Srivastava and
another Vs. State of U.P. And others,
(2015 6 Supreme Court Cases 287 an
application under Section 156(3) Cr.P.C.
seeking directions for registering the First
Information
Report
should
be
accompanied by an affidavit. The said
position does not exits in the present case
so the order dated 23.1.2016 passed by
Additional Chief Judicial Magistrate
Kunda, Pratapgarh, liable to be set aside.
8. After hearing learned counsel for
the parties and going through the record,
the first and foremost question which to
be considered is that if an application has
been moved under Section 156(3) Cr.P.C.
and the order has been passed for
registering the case and investigate the
matter in that circumstances petitioners,
who are prospective accused have any
right to challenge the same.
9. Answer to the said question find
place in the case of Gurbachan Singh and
others( Supra) wherein it has been held as
under :-
1 All. Arun Kumar Singh @ Pappu Singh & Ors. Vs. State of U.P. & Ors.
229
"If
information
regarding
the
cognizable offence is not registered by the
concerned police, the application should
have been made regarding the alleged
incident to the Superintendent of Police or
higher authorities of the police according
to the provision of Section 154(3) Cr.P.C.
and even then the case is not registered,
in such circumstances remedy is also
available under Section 156(3) Cr.P.C.
wherein the Magistrate concerned may
pass orders upon the said application for
registering and investigating the case
regarding the cognizable offence. The
same view has been reiterated in Sakiri
Vasu Vs. State of U.P. (Crl. Appeal
No.1685 of 2007) decided on 7.12.2007
by Hon'ble Markandey Katju, J. In the
present case, it has been alleged in the
said application that deceased was
subjected to cruelty due to non-fulfillment
of dowry of Rs.50,000/- and she died at
the house of the petitioners. The post
mortem was conducted and viscera was
preserved therefore, there is no dispute
that she died within seven years of her
marriage. Unless the until the viscera
report is received in negative, the
presumption would be that it is a case of
unnatural death within seven years of the
marriage. The information was also given
regarding her death by her 'Devar' but the
same
was
not
registered.
Then
a
complaint
was
also
made
to
the
concerned
Superintendent
of
Police.
Thereafter, the application 156(3) Cr.P.C.
was moved by the opposite party.
Therefore, the concerned Magistrate has
not committed any illegality in passing the
impugned order and the same has been
passed according to law.
It is worthwhile to mention here that
the application moved under Section
156(3) Cr.P.C. has been allowed and the
order for registering and investigating the
case has been passed against the
petitioners. In such circumstances, the
prospective accused, who are petitioners,
do not have any right to say that the
Magistrate does not have any power to
direct the police to lodge the F.I.R. for
cognizable offence as has been held in the
case of Ram Kishore Purohit vs. State of
U.P. and Ors. Reported in 2007(2) JIC194(Allahabad H.C.). and in the case of
Rakesh Kumar and Ors. vs. State of U.P.
and Ors. reported in 2007(2) 191 (Alld.),
The same view has also been taken by me
in my judgment dated Sept.10, 2007
passed in Criminal Revision No. 2549 of
2007 Smt. Gulistan and others vs. State of
U.P. and others.
10. So far as the arguments
advanced by learned counsel for the
petitioners that the present writ petition
has been filed because of the fact that in
view of the Full Bench decision rendered
by this Court in the case of Father
Thomos (supra), in the said matter it has
been held that revision against the order
passed on the application under Section
156(3) Cr.P.C. is not maintainable as the
order is interlocutory in nature which is
barred under Section 397 (2) Cr.P.C.,
even the application under Section 482
Cr.P.C. against the order passed on the
application under Section 156(3) Cr.P.C.
is not maintainable, so no alternative,
equally efficacious remedy is available to
them except to invoke the jurisdiction of
this Court under Article 227 of the
Constitution of India, has got no force
because the stage of the disposal of
application under Section 156(3) Cr.P.C.
is a pre-cognizance stage.
11. And by directing the police to
register and investigate, the Magistrate
230
 INDIAN LAW REPORTS ALLAHABAD SERIES
does not take cognizance of the offence.
He simply sets the machinery into motion
so that the police may perform his duty, in
case, the police has refused to register
First Information Report on the written
application of the complainant. It has also
been held in several decisions that a
prospective accused has no right to be
heard before the any court unless the
court takes cognizance. The prospective
accused at the most can watch the
proceeding going on against him but he
can not have a right to either oppose or
say anything unless the court takes
cognizance and issue process against the
accused person. Since by the impugned
order, the Additional Chief Judicial
Magistrate, Kunda Pratapgarh has only
directed the police to register and
investigate,
the
petitioners
being
prospective accused have no locus standi
to challenge the said order passed on the
application of the opposite party no.3.
12. Further, a perusal of the Full
Bench decision of this Court in the case of
Father Thomas (supra) reveals that three
questions for consideration were framed.
The question no.2 was framed as to
whether whether an order made under
Section 156(3) Cr.P.C. is an interlocutory
order and remedy of revision against such
order is barred under Sub-Section (2) of
Section 397 of the Code of Criminal
Procedure. This question was answered
by the Full Bench in negative and it was
held that the order under Section 156(3)
Cr.P.C. is not amenable to challenge in a
criminal revision or an application under
Section 482 Cr.P.C. The Full bench has
also gone to observe that the initial order
for registration is not opened to challenge
in a writ petition and it is beyond
controversy
that
the
Province
of
investigation by the police and the
judiciary
are
not
overlapping
but
complimentary. Since in view of the Full
Bench decision the remedy of filing a
revision
or
invoking
the
inherent
jurisdiction of this Court under Section
482 Cr.P.C. is completely barred, I am of
the view that writ jurisdiction also can not
be invoked in such matters where the
matter is still in the pre-cognizance stage
and the prospective accused has no right
to be heard unless the court takes
cognizance or issues process against the
accused person.
13.
In the instant matter on the
application moved by opposite party no.3
under Section 156(3) Cr.P.C. order has been
passed
by
Additional
Chief
Judicial
Magistrate, Kunda, Pratapgarh for registering
and investigating the case against the
petitioners so they are prospective accused
have no right to say that Magistrate does not
have any power to direct the police
authorities to lodge F.I.R. for cognizable
offence. Further if the F.I.R. is registered in
compliance of the order passed under Section
156(3) Cr.P.C. against the petitioners, the
proper remedy available to them to invoke
the jurisdiction under Article 226 of the
Constitution of India for quashing of the
F.I.R. as well as for staying the arrest. In
view of the said facts at this stage, petitioners
cannot derive any benefit from the law as
cited on their behalf as laid down in cases of
Shambu Das @ Bijoy Das ( Supra) as well
as Priyanka Srivastava (Supra) in order to
challenge the order dated 23.1.2016, thus I
do not find any illegality or infirmity in the
order dated 23.1.2016 passed by Additional
Chief
Judicial
Magistrate,
Kunda,
Pratapgarh.
14. For the forgoing reason, the writ
petition lacks merit and is dismissed.
-------
1 All. Uttar Pradesh Bhumi Sudhar Nigam Lko. Vs. Principal Commissioner of Income Tax & Ors.
231
ORIGINAL JURISDICTION
TAXATION SIDE
DATED: LUCKNOW 03.02.2016
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Misc. Bench No. 2238 of 2016
Uttar Pradesh Bhumi Sudhar Nigam Lko.
 ...Petitioner
Versus
Principal Commissioner of Income Tax &
Ors.
 Respondents
Counsel for the Petitioner:
Pradeep Agarwal
Counsel for the Respondents:
Manish Misra
Income Tax Act 1961-Section 220(6)-
Pendency of Appeal-against assessment
order
assessee
to
approach
before
assessment officer-to get interim protection.
Held: Para-12
In the circumstances of the case, we leave
it open to the petitioner to approach the
assessing officer under Section 220 (6) of
the Act within a period of two weeks from
today and in case any application is filed by
the petitioner before the assessing officer,
he
shall
pass
necessary
order
after
affording an opportunity to the petitioner
within three months from the date of filing
of any such application. Until decision on
the application, filed if any, or until decision
of the appeal itself within a period of three
month, the recovery proceedings in relation
to the assessment year 2012-2013 for the
disputed amount shall remain in abeyance
and the same shall abide by to the outcome
of the appeal.
Case Law discussed:
[1994] 208 ITR 461 (All); (2010) 321 ITR 491
(All.); (1969) 71 ITR 815; (1985) 154 ITR 172;
AIR 1956 All. 130; AIR 1957 Andhra Pradesh
114; AIR 1957 Andhra Pradesh 671.
(Delivered by Hon'ble A. R. Masoodi, J.)
1. Heard Sri Pradeep Agarwal,
learned counsel for the petitioner and Sri
Manish Misra, learned counsel who has
accepted
notice
on
behalf
of
the
respondents.
2. By means of this writ petition, the
petitioner has assailed the recovery notice
issued by the assessing officer on
3.11.2015 in respect of the amount due
for the assessment year 2012-13.
3. The contention of the learned
counsel for the petitioner is that the
petitioner has already filed an appeal
against the assessment order passed by the
assessing authority in relation to the
assessment year 2012-13 and has also
filed an application for the grant of
interim stay against the assessment order.
The appeal as well as interim stay
application are pending before the C.I.T.
(Appeals) i.e. respondent no. 2.
4. Referring to Section 220 (6) of
the Income Tax Act, 1961, it is argued
that since the assessee has preferred an
appeal against the assessment order, it is
not open to the authorities to proceed with
the recovery pursuant to the assessment
order once the appeal is pending. This
argument has been raised on the strength
of Section 220 (6) of the Income Tax Act
and the same is extracted below:
"220 (6) Where an assessee has
presented an appeal under section 246,
the Assessing] Officer may, in his
discretion, and subject to such conditions
as he may think fit to impose in the
circumstances of the case, treat the
assessee as not being in default in respect
of the amount in dispute in the appeal,