# Bhupendra Singh v. State of U.P. and another

- **Citation:** (2013) 1 ILRA 11
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-24
- **Case number:** Criminal Misc. Case No. 232 of 2011
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhupendra-singh-v-state-of-u-p-and-another-42460
- **Pages:** 4

## Text

1 All] Bhupendra Singh V. State of U.P. and another
11
petitioner,hence the order dated 3.10.2012
cannot be sustained.

9. In view of the aforesaid
considerations this petition is allowed. The
order dated 3.10.2012 is hereby set aside.
The learned Magistrate is directed to
reconsider the charge sheet in the light of
the relevant material and observations made
above and pass appropriate order afresh on
the charge sheet in accordance with law.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.01.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Criminal Misc. Case No. 232 of 2011

Bhupendra Singh

 ...Petitioner
Versus
State of U.P. and another

 ...Opposite Parties

Criminal Procedure Code-Section 401(2)-
Right of hearing-against rejection of
petition under section 156(3)-Criminal
Revision allowed without opportunity of
hearing
taking
view
that
as
accused/applicants not summoned-he
has no right to heard-held-the view
taken by revisional court is contrary to
mandate
of
Section
401(2)-order
without jurisdiction-even in case of
dismissal of complaint-proposed accused
is necessary party-order set-a-side-with
direction to decide the matter as fresh
after hearing the proposed accused.

Held: Para-11

The Apex Court held that even at pre
cognizance
stage
when
learned
Magistrate declined to take any action
under
section
156
(3)
Cr.P.C.
and
proceeded to treat the petition as
complaint case and directed examination
of the complainant and his witness, it
will
amount
to
closing
of
police
investigation and if set aside in revision
and the Magistrate was directed to
reconsider the matter in light of section
156
(3)
Cr.P.C.
without
giving
an
opportunity of being heard to the person
against whom FIR was intended to be
lodged, it will amount to violation of
mandatory provisions contained in sub
section 2 of section 401 Cr.P.C.
Case Law discussed:
(2009) 1 SCC (Cri) 801; (2008) 2 SCC 409

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. Heard learned counsel for the
petitioner and the learned AGA.

2.

Learned
counsel
for
the
respondent no. 2 is not present despite
filing power on his behalf, whereas he
has filed counter affidavit, which is on
record.

3. In this petition under section 482
Cr.P.C.
the
question
raised
for
consideration is whether the court of
revision may set aside the order passed
by the learned Magistrate rejecting the
petition under section 156(3) of Code of
Criminal Procedure (for short Cr.P.C)
without giving opportunity of being
heard to the proposed accused and the
FIR sought to be lodged in pursuance of
section 156(3) Cr.P.C.

4. While deciding this petition the
entire facts need not be discussed in view
of the limited controversy involved in
this case. The relevant facts necessary to
decide this petition are as follows:-

5. Respondent no. 2 Ajit Singh
moved the application under section
156(3) Cr.P.C. against the petitioner for
taking electricity connection on the basis
12 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
of false affidavit and requested that this
matter be investigated after lodging FIR.

6. The copy of petition under
section 156(3) Cr.P.C. has been filed as
Annexure no.2 to this petition. The
petition under section 156(3) Cr.P.C.
filed by Ajit Singh (respondent no. 2) has
been rejected by the Chief Judicial
Magistrate, Bahariach vide order dated
28.7.2010 with the finding that no
cognizable offence is made out against
the petitioner Bhupendra Singh, copy of
which has been annexed as Annexure
No. 3 to this petition.

7. Being aggrieved by the said
order respondent no. 2 preferred criminal
revision bearing no. 400 of 2010 before
Session Judge, Bahriach, who allowed
the same vide order dated 24.12.2010
and
remanded
the
matter
to
the
Magistrate concerned for a fresh decision
in pursuance of the direction issued by
the Session Judge, copy of which has
been annexed as annuxure no. 1 to this
petition. Copy of the memo of the
revision has also been annexed as
Annexure no. 4 to this petition, which
shows that in revision only State of U.P.
was arrayed as opposite party and the
proposed accused (present petitioner in
this petition) was not arrayed as opposite
party therein. It shows that without
issuing notice to the petitioner and
without giving opportunity of being
heard to him the revision was allowed.
On this ground, the order of revisional
court has been challenged by the present
petitioner through this petition.

8. Controversy in question is not
res integra and is squarely covered by the
judgment of Apex court reported in
(2009) 1 SCC (Cri) 801` Raghu Raj
Singh Rousha Vs. Shivam Sunderam
Promoters
Private
Limited
and
another, wherein relying upon the
judgment rendered in (2008) 2 SCC 409
Sakiri Vasu Vs. State of U.P., the
Hon'ble
Supreme
Court
held
that
revisional court has violated the mandate
of section 401 (2) Cr.P.C. which
provides that no order under this section
shall be passed to the prejudice of
accused or other person unless he has
been given an opportunity of being heard
either personally or by pleader in his
defence.

9. Respondent no. 2 has filed
counter affidavit. In para 23 of counter
affidavit it has been averred that
petitioner was neither summoned nor any
adverse finding has been given against
him, as such, he is not entitled to file
present petition as he is not an aggrieved
person. It has been further averred that
right
accrues
only
when
notices/summons are issued to the
petitioner, then he can approach this
Court otherwise filing of the present
petition at this stage is premature, as
such, the present petition is liable to be
dismissed.

10. This controversy was set at rest
in Raghu Raj Singh Rousa's case
(Supra). The relevant paras 22 and 23 of
this case are reproduced hereinbelow:-

22. "Here, however, the leaned
Magistrate had taken cognizance. He had
applied his mind. He refused to exercise
his jurisdiction under section 156 (3) of
the Code. He arrived at a conclusion that
the dispute is a private dispute in relation
to an immovable property and, thus,
police investigation is not necessary. It
was only with that intent in view, he
1 All] Bhupendra Singh V. State of U.P. and another
13
directed examination of the complainant
and his witnesses so as to initiate and
complete the procedure laid down under
Chapter XV of the Code.

23. We therefore, are of the opinion
that the impugned judgment cannot be
sustained and is set aside accordingly.
The High court shall implead the
appellant as a party in the criminal
revision application, hear the matter
afresh and pass an appropriate order."

11. The Apex Court held that even
at pre cognizance stage when learned
Magistrate declined to take any action
under section 156 (3) Cr.P.C. and
proceeded to treat the petition as
complaint case and directed examination
of the complainant and his witness, it
will amount
to
closing
of
police
investigation and if set aside in revision
and the Magistrate was directed to
reconsider the matter in light of section
156 (3) Cr.P.C. without giving an
opportunity of being heard to the person
against whom FIR was intended to be
lodged, it will amount to violation of
mandatory provisions contained in sub
section 2 of section 401 Cr.P.C. The
Apex Court further held that it make no
difference whether any notices/summons
were
issued
to
the
proposed
accused/suspect because the order passed
not to investigate the matter is an order
in favour of proposed accused and the
same cannot be set aside without giving
an opportunity of being heard to the
proposed accused.

12.

Similar
view
has
been
propounded
by
this Court in the
judgment reported in (2011) ADJ 9
Karan Singh and others Vs. State of
U.P. And another.

13. In the recent judgment reported
in (2012) 10 SCC 517 Maniharibhai
Muljibhai Kakadia and another Vs.
Shailesh bhai Mohan Bhai Patel and
others the Apex Court held that even in
the case of dismissal of complaint
proposed
accused/suspect
held
are
necessary
parties
to
whom
an
opportunity
of
hearing
should
be
accorded as especially provided in
section 401(2)Cr.P.C. notwithstanding
that order impugned in revision was
passed
without
participation
of
respondent no.2 ( in the present petition).

14. In view of the aforesaid legal
proposition the petition is liable to be
allowed.

15. Accordingly this petition is
allowed.

16. The impugned order dated
24.12.2010 passed by the Session Judge,
Bahraich in Criminal Revision No. 400
of 2010 is set aside. The matter is
remanded back to the revisional court
with direction that court shall direct the
revisionist-respondent no. 2 to implead
the proposed accused/suspect (petitioner)
against whom the petition under section
156 (3) Cr.P.C. was moved and decide
the matter afresh on merit after providing
an opportunity of being heard to him.
---------
14 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.01.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Criminal Misc Case No. - 235 of 2013 (U/s
482 Cr.P.C.)

Loknath

 ...Petitioner
Versus
State of U.P. and another

 ...Opposite Party

Counsel for the Petitioner:
Sri Narvind Kumar Singh

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure, Section 482application
against
conditional
bail
order-offence
under
section
135
Electricity Act punishable with 7 years
rigorous
imprisonment-does
not
fall
within the ambit of Section 437 (3)-
condition to deposit Rs. 50,000-heldwithout jurisdiction-technical objection
for taking recourse of section 439 (b)-
not
sustainable-order
passed-without
jurisdiction-can
be
interfered
by
exercising power under Section 482.

Held: Para-11

In view of Section 437 (3) Cr.P.C., the
imposition of condition of deposit of
money in cases of those offences which
are punishable less than 7 years of
imprisonment would not be permissible.
Hence, the condition of deposit of Rs.
50,000/- while granting the bail to the
petitioner would be improper. As the
matter relates to jurisdictional error in
passing the impugned order, so there
shall be no impediment in passing the
order by this Court in exercise of its
jurisdiction under Section 482 Cr.P.C. for
correcting the error.

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. Heard learned counsel for the
petitioners, learned counsel for Power
Corporation who appeared on the request
made by the Court and learned AGA.

2. In the present case accused
petitioner moved an application for bail in
an offence under Section 135 of Electricity
Act (for short the Act). The bail was granted
by the Special Court imposing a condition
that an amount of Rs. 50,000/- shall be
deposited within two months from the date
of order passed by the Court. The accused
in pursuance thereof submitted a bond filed
under taking to deposit the aforesaid
amount to the court. In terms of the bail
order petitioner was released on bail. Now
petitioner moved this petition under Section
482 Cr.P.C. to quash the condition imposed
in the bail order.

3. A preliminary objection has been
raised by learned AGA that petition under
Section 482 Cr.P.C. is not maintainable for
modification in order granting bail by
subordinate court because for this purpose
there is specific provision contained in
Section 439 (b) Cr.P.C. and the remedy is
available to the petitioner under the said
provision.

4. I have gone through the provision
contained under Section 439 (a) and (b)
Cr.P.C. and is reproduce hereinbelow:-

"439. Special powers of High Court
or Court of Session regarding bail.-

(1) A High Court or Court of Session
may direct-