# Bhonu Patel v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 5 ILRA 1627
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-07
- **Case number:** Crl. Misc. Application U/S 482 No. 9715 of 2022
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhonu-patel-v-state-of-u-p-ors-opp-parties-48460
- **Pages:** 5

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973
- Section 156(3)
-
Property dispute-litigation ongoing-one of
the parties has executed sale deed-it has
also been executed by the purchasersApplication
u/s
156
(3)
treated
as
complaint case by the Magistrate-just and
reasonable.

Application dismissed. (E-9)

List of Cases cited:

## Text

5 All. Bhonu Patel Vs. State of U.P. & Ors.
1627
the High Court. Therefore, if an application
under section 24, C.P.C. has been rejected,
the party aggrieved may move a fresh
application before the High Court under
section 24, C.P.C. itself as has also been
laid down by the aforesaid decision.

13. While the decision in Jaikaran
Singh did not notice the earlier decisions in
Smt.
Sunita
Devi
and
Indian
Oil
Corporation Ltd., taking a contrary view,
it is equally true that in Smt. Sunita Devi
and Indian Oil Corporation Ltd. the very
well reasoned decision in Jagdish Kumar
was not brought to their Lordships' notice.

14. For the reasons I have already
indicated, I am inclined to the view taken in
Jagdish Kumar and Jaikaran Singh, but,
bearing in mind the requirements of
judicial discipline and the fact that there are
contradictory views expressed by learned
Judges of this Court sitting singly, I am of
opinion that the question involved ought to
be authoritatively decided by a larger
Bench.

15. In the circumstances, the
following
question
is
referred
for
consideration by a larger Bench :

Whether against an order made
by the District Court, refusing a transfer
application under Section 24 of the Code of
Civil Procedure, 1908 an application for
transfer on the same grounds by the same
party is maintainable before the High Court
under Section 24 CPC?

16. Until decision of the case by
larger Bench, further proceedings in Civil
Appeal No. 40 of 2016, pending before the
Ist Additional Civil Judge, Mainpuri shall
remain stayed.

17. Let papers of this case be laid by
the Registry before His Lordship the
Hon'ble the Chief Justice for appropriate
orders, at the earliest.
----------
(2022)05ILR A1627
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.05.2022

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Crl. Misc. Application U/S 482 No. 9715 of 2022

Bhonu Patel ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Arvind Kumar Kushwaha, Pooja

Counsel for the Opp. Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973
- Section 156(3)
-
Property dispute-litigation ongoing-one of
the parties has executed sale deed-it has
also been executed by the purchasersApplication
u/s
156
(3)
treated
as
complaint case by the Magistrate-just and
reasonable.

Application dismissed. (E-9)

List of Cases cited:

1. Lalita Kumari Vs Govt. of U.P. & ors. AIR
2014 SC 187

2. Anmol Singh Vs St. of U.P. & ors. 2021 0
Supreme(All) 10 2021 1 ADJ 400

3. Ramdev Food Products Pvt. Ltd. Vs St. of Guj.
AIR 2015 Supreme Court 1742

4. Sukhwasi Vs St. of U.P. (2007) 59 SCC page
739
1628 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard earned counsel for the
applicant, learned A.G.A. for the State and
perused the material on record.

2. This application U/s 482
Cr.P.C. has been filed to quash the order
dated 2.2.2022 passed by Chief Judicial
Magistrate, Varanasi in Case No. 1982 of
2021 (Bhonu Patel Vs. Ramnagina Yadav
and others). By the impugned order the
learned
Magistrate
has
treated
the
application U/s 156(3) Cr.P.C. moved by
the applicant as a complaint case.

3. The averments made in the
application are that the plot no. 125, 175,
176, 179, 180, 183, 257 total area 1.94 acre
situated
in village
Shahpur, Pargana
Katehar, Tehsil & District Varanasi are the
ancestral property of the applicant and his
uncle Shyamlal son of late Sitaram. Both
applicant and his uncle were cultivating on
the aforesaid land for about 35 years. After
the death of his uncle applicant was
continuously cultivating the aforesaid plots
up till now. After the death of Sitaram
name of the both daughters namely Smt.
Sajni and Smt. Mankeshri were mutated on
the aforesaid land without any order of the
competent authority with the collusion of
the Lekhpal concern and name of late
Shyamlal was not mutated in respect of the
aforesaid land. When this fact came into
the knowledge of Shyamlal, uncle of the
applicant then he filed a suit under section
229-B U.P.Z.A. & L.R. Act in the year
1987 before the concerned Sub Divisional
Officer but the same was dismissed against
which the appeal was filed before the
Commissioner,
Varanasi
Division,
Varanasi the same was also dismissed then
against the same second appeal was filed
before the Board of Revenue which is still
pending and interim stay order has been
granted. During the continuance of the stay
order granted in the aforesaid second
appeal Smt. Sajni and Smt. Mankeshri
executed a registered sale deed in the year
1993 in favour of Ramlal, Shyamlal,
Rajendra, Mahendra all sons of Khaderan
Shahu, resident of Panihari. Uncle of the
applicant namely late Shyamlal executed a
registered will deed on 3.4.1998 in favour
of the applicant in respect of the aforesaid
land. During the pendency of the aforesaid
case O.P. No. 7 got a registered sale deed
dated 25.5.2012 executed by Ramlal,
Shyamlal, Rajendra, Mahendra all sons of
Khaderan Shahu in favour of his wife Smt.
Ranjita Yadav O.P. No.8 and his mother
late Kalawati Devi and O.P. No. 9 got the
sale deed executed in the name of his wife
Suman Singh O.P. No. 10 in respect of the
aforesaid plots in collusion with O.P. Nos.
11 and 12 and their names had also been
mutated in the aforesaid plots. Thereafter
by order dated 30.7.2015 passed by
additional Sub divisional Officer Sadar,
Varanasi name of the wife of O.P. No. 7
Smt. Ranita Yadav and his mother namely
Kalawati Devi and O.P. No. 8 and wife of
O.P. No. 9 Smt. Suman Singh and O.P. No.
10 were deleted from the revenue record in
respect of the aforesaid plots. O.P. No. 7
namely Guru Prasad Yadav filed a
Revision No. 2097 of 2015 (Smt. Kalawati
Devi and others Vs. Shyam Lal and others)
against the order dated 30.7.2015 in the
Hon'be
Board
of
Revenue
U.P.
at
Lucknow, which is still pending. The uncle
of the applicant namely Shyamlal died on
23.12.2016. The O.P. No. 2 namely
Ramnagina Yadav is retired police officer.
Despite knowing the fact that the name of
Smt. Ranjita Yadav O.P. No. 8 and his
mother-in-law namely Kalawati Devi have
been deleted from the revenue record in
5 All. Bhonu Patel Vs. State of U.P. & Ors.
1629
respect of the aforesaid land and case is
pending in Board of Revenue, O.P. No. 2 to
10 got a registered sale deed executed on
28.10.2015 in the name of Smt. Asrafi Devi
wife of O.P. No. 2 with intention to cause
unlawful loss to the applicant. On the basis
of the aforesaid registered sale deed dated
28.10.2015 O.P. No. 2 to 6 filed a mutation
proceedings in the competent court but the
same was rejected on 19.5.2016 ex-parte
against which a restoration application was
filed but the same was also dismissed on
5.3.2020. The aforesaid order has already
been recorded in the Khatauni of the
aforesaid plots. O.P. Nos. 2 to 11 by
playing fraud got the registered sale deed
dated 28.10.2015 the same is clear from the
aforesaid facts. On 23.7.2021 at about 4:00
p.m. O.P. No. 2 taking the advantage of his
being related to the police department, in
collusion with some peoples of P.S.
Chaubepur came along with O.P. Nos. 3 to
12 and 10-15 unknown persons at plot nos.
179, 180, 183, 257 with intention to take
possession of the land and to cultivate the
same and on making of the objection by the
applicant O.P. Nos. 2 to 12 and 10-15
unknown persons started abusing the
applicant by using filthy words and also
started beating him then on hearing the
alarm of the applicant, his son and other
people came on the spot and save the
applicant and thereafter opposite parties run
away from there saying the applicant not to
come near the land otherwise they will kill
him and buried him in the land in dispute
and his dead body could not be traced.

4. Learned counsel for the
applicant contended that there are clear
allegations in the application from which a
cognizable offence is made out. Some of
the accused are known but some of the
accused
are
unknown.
Without
investigation their identity can not come
into picture. Hence, in the circumstances
the investigation is necessary. The learned
Magistrate has failed to consider it and has
passed the order for treating the application
as a complaint case instead of registration
of
FIR
and
investigation.
In
the
circumstances of the case the learned
Magistrate
was
bound
to
order
for
registration of the case and investigation.
Learned counsel further contended that
learned Magistrate has relied upon the case
law of Sukhwasi Vs. State of U.P. (2007)
59 SCC page 739 but ignored the ruling
cited on behalf of applicant which are as
follows:

1. Lalita Kumari Vs. Govt. of U.P.
and others AIR 2014 SC 187
 2. Anmol Singh Vs. State of U.P.
and others 2021 0 Supreme(All) 10 2021 1
ADJ 400
 3. Ramdev Food Products Pvt.
Ltd. Vs. State of Gujarat AIR 2015 Supreme
Court 1742

5.

Learned
counsel
further
contended that the aforesaid rulings also
support the applicant's case. The impugned
order is arbitrary and illegal.

6. Learned A.G.A. contended that
there is no illegality in the impugned order.
It is also contended that the impugned order
is revisable, hence, application U/s 482
Cr.P.C. is not maintainable. There is no
averment in the application U/s 482 Cr.P.C.
that the impugned order is abuse of process
of court. In absence of such specific
averment the application U/s 482 Cr.P.C.
can not be entertained.

7. It is settled principle of law that
on an application U/s 156(3) Cr.P.C. the
learned Magistrate has following three
options:
1630 INDIAN LAW REPORTS ALLAHABAD SERIES
 1. He may out rightly reject the
application if he comes to the conclusion
that no cognizable offence is made out.
 2. If he comes to the conclusion
that cognizable offence is made out and
investigation is also required, he may pass
the order for registration of the FIR and
investigation in the matter.
 3. If he comes to the conclusion
that although a prima facie cognizable
offence
is
made
out
but
in
the
circumstances of the case no investigation
is required, he may treat it as complaint
case.

8. It is not mandatory for a
Magistrate to order for registration of FIR
and investigation in on each and every
application moved under section 156(3)
Cr.P.C. which discloses a cognizable
offence. It is the discretion of the
Magistrate which is to be exercised
judicially and not arbitrarily.

9. The allegations made in the
application U/s 156(3) Cr.P.C. clearly
indicates that there is property dispute
between the parties and parties are
litigating the same before the competent
courts and one of the party has executed
sale deed. Subsequent sale deed have also
been
executed
by
the
purchasers.
Considering all the facts and circumstances
of the case the order to treat the application
U/s 156(3) Cr.P.C. as a complaint seems to
be just and reasonable. Learned Magistrate
has also given reasons and cited the case
law in support of his finding. So it can not
be said that impugned order is arbitrary or
unjust.

10. The ruling cited by the learned
counsel for the applicant are not applicable
in the present case. The case of Lalita
Kumari (supra) is on different point. It
relates to the interpretation of Section 154,
Section 41(1)(a), Section 41(1)(g) of
Cr.P.C.

11. The facts of the case of Anmol
Singh Vs. State of U.P. are different. That
case was related to an offence of
molestation and sexual assault. Considering
the gravity and severity of the offence and
the requirement of the evidence for the
purpose
of
launching
successful
prosecution this court interfered in the
matter and set-aside the order of treating
the application as a complaint and directed
the learned Magistrate to pass a fresh order.

12. In Ramdev Food Products Pvt.
Ltd. Vs. State of Gujarat (supra) cited by
the learned counsel for the applicant the
Hon'ble Supreme Court has held that the
"direction under section 156(3) is to be
issued, only after application of mind by
the Magistrate. When the Magistrate does
not take cognizance and does not find it
necessary to postpone issuance of process
and finds a case made out to proceed
forthwith,
direction
under
the
said
provision is issued. In other words, where
on account of credibility of information
available, or weighing the interest of justice
it is considered appropriate to straightway
direct investigation, such a direction is
issued. Cases where Magistrate takes
cognizance and postpones issuance of
process are cases where the Magistrate has
yet to determine 'existence of sufficient
ground to proceed'. Subject to these broad
guidelines available from the scheme of the
Code, exercise of discretion by the
Magistrate is guided by interest of justice
from case to case."

13. Even after registration of the
application as a complaint case the
Magistrate has ample power during inquiry
5 All. Smt. Farmeeda Begum Vs. State of U.P. & Anr.
1631
under section 202 Cr.P.C. to direct the
investigation to be made by a police officer
or by such other person as he thinks fit.

14.

Section
202(1)
Cr.P.C.
provides as follows:

 "Any Magistrate, on receipt of a
complaint of an offence of which he is
authorised to take cognizance or which has
been made over to him under section 192,
may, if he thinks fit, and shall, in a case
where the accused is residing at a place
beyond the area in which he exercises his
jurisdiction postpone the issue of process
against the accused, and either inquire into
the case himself or direct an investigation
to be made by a police officer or by such
other person as he thinks fit, for the
purpose of deciding whether or not there is
sufficient ground for proceeding:

15. Provided that no such direction
for investigation shall be made-

 (a) where it appears to be
Magistrate that the offence complained of
is triable exclusively by the Court of
Sessions; or

(b) where the complaint has not
been made by a Court, unless the
complainant and the witnesses present (if
any) have been examined on oath under
section 200."
----------

(2022)05ILR A1631
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2022

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Application U/S 482 No.14626 of 2021
Smt. Farmeeda Begum ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri S.M. Iqbal Hasan

Counsel for the Opposite Parties:
A.G.A., Sri Girish Chandra Yadav

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 482 - FIR-No
specific allegation- Applicant is fair Price shop
dealer- only allegation-charges more than the
fixed
price-distribute
commodities
in
less
quantity-no reference of any violation of any
control order in the FIR-but section 3/7 of
Essential
commodities
Act
is
imposed-not
sufficient to convict the accused-Applicant-case
instituted with an ulterior motive for wreaking
vengeance-criminal proceeding quashed.

Application allowed. (E-9)

List of Cases cited:

1. Babubhai Vs St. of Guj., 2010 CJ(SC) 1429

2. Jahoor Vs St. of U.P. & anr.

3. St. of Haryana & ors. Vs Ch. Bhajan Lal &
ors., in Civil Appeal No.5412 of 1990

4. Prakash Babu Raghubansi Vs St. of M.P.,
(2004) 7 SCC 482

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri S.M. Iqbal Hasan,
learned counsel for the applicant, Sri Girish
Chandra Yadav, learned counsel for the
opposite party no.2, Sri Arvind Kumar,
learned AGA for the State and perused the
record.

2. This criminal misc. application
under section 482 Cr.P.C. has been filed to
quash the entire criminal proceeding of