# Dr. Harvir Singh v. State of U.P. and another

- **Citation:** (2007) 2 ILRA 486
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-06-29
- **Case number:** Criminal Revision No. 324 of 2007
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-harvir-singh-v-state-of-u-p-and-another-40947
- **Pages:** 5

## Headnote

(A) Code of Criminal Procedure-Section
202-Right of an alien-in complaint casethe Magistrate has sole power to direct
the method of investigation-for third
party No scope to intervene and compel
the court to accept the application and
affidavit on record-neither the witness
nor complainant were summoned by the
Court-No right to participate.

Held: Para 11

There is yet another bizarre aspect of the
matter and that is how a third person
can challenge an order passed by a
Magistrate when he has no right to
participate in the proceedings. If an alien
to a proceeding does not have any right
to participate in any proceeding, he also
does not possess the right to challenge
any order passed in the said proceeding.
The law does not confer any such right
on any body. R. K. Savita, respondent no.
2, being an alien to the proceeding had
no right to maintain the revision before
the lower revisional court, which was
wrongly entertained by it and has been
illegally allowed.

(B) Code of Criminal Procedure-Section
397 (2)-Revision by an alien-against the
order of rejection of his application-in
complaint ase-neither summoned by the
court-nor is witness of prosecution-heldapart from inter locutary order the
revision
on
behalf
of
alien-not
maintainable-being barred by section
397 (2) of the Code.

Held: Para 10

The lower revisional court did not
address itself at all to the statutory
provision under section 397 (2) Cr.P.C.
and cogitated on the fact that the order
passed by the Judicial Magistrate Court
No. 3 Aligarh dated 17.11.2006, which as
impugned before it, was purely an
interlocutory
order
and
no
revision
against the said order was maintainable
before it being barred by section 397 (2)
Cr.P.C.

## Text

486 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.06.2007

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Revision No. 324 of 2007

Dr. Harvir Singh

...Applicant
Versus
State of U.P. and another ...Opposite Parties

Counsel for the Applicant:
Sri V.P. Srivastava
Sri Akhilesh Srivastava

Counsel for the Opposite Parties:
Sri Dharmendra Singhal
Sri Rahul Bhargava
A.G.A.

(A) Code of Criminal Procedure-Section
202-Right of an alien-in complaint casethe Magistrate has sole power to direct
the method of investigation-for third
party No scope to intervene and compel
the court to accept the application and
affidavit on record-neither the witness
nor complainant were summoned by the
Court-No right to participate.

Held: Para 11

There is yet another bizarre aspect of the
matter and that is how a third person
can challenge an order passed by a
Magistrate when he has no right to
participate in the proceedings. If an alien
to a proceeding does not have any right
to participate in any proceeding, he also
does not possess the right to challenge
any order passed in the said proceeding.
The law does not confer any such right
on any body. R. K. Savita, respondent no.
2, being an alien to the proceeding had
no right to maintain the revision before
the lower revisional court, which was
wrongly entertained by it and has been
illegally allowed.

(B) Code of Criminal Procedure-Section
397 (2)-Revision by an alien-against the
order of rejection of his application-in
complaint ase-neither summoned by the
court-nor is witness of prosecution-heldapart from inter locutary order the
revision
on
behalf
of
alien-not
maintainable-being barred by section
397 (2) of the Code.

Held: Para 10

The lower revisional court did not
address itself at all to the statutory
provision under section 397 (2) Cr.P.C.
and cogitated on the fact that the order
passed by the Judicial Magistrate Court
No. 3 Aligarh dated 17.11.2006, which as
impugned before it, was purely an
interlocutory
order
and
no
revision
against the said order was maintainable
before it being barred by section 397 (2)
Cr.P.C.

(Delivered by Hon'ble Vinod Prasad, J.)

1. The applicant Dr. Harvir Singh
has filed this revision challenging the
order
dated
22.01.2007
passed
by
Additional Sessions Judge, Court No. 11,
Aligarh in Criminal Revision No. 541 of
2006 Ravi Kant Savita vs. State of Uttar
Pradesh.

2. The short question which is
involved in this application is as to
whether in a complaint case filed by the
complainant Dr. Harvir Singh can a third
person (Ravi Kant Savita) be allowed to
get his statement recorded at the stage of
inquiry under section 202 Cr.P.C. against
the wishes of the complainant and also
without
being
summoned
by
the
Magistrate for giving evidence.

3. The short facts of the case are that
a complaint was filed by Dr. Harvir Singh
against Dr. R.N. Singh for offences under
2 All] Dr. Harvir Singh V. State of U.P. and another
487
section 406, 409, 420, 468 and 471 I.P.C.
Police Station Gandhi Park, district
A1igarh. In the aforesaid complaint case
complainant Dr. Harvir Singh examined
himself under section 200 Cr.P.C. and his
witness Laxmi Chandra under section 202
Cr.P.C.
Trial
Magistrate
heard
the
complainant's counsel on the question of
summoning of the accused under section
204 Cr.P.C. at this stage an application
was filed by Ravi Kant Savita, an alien to
the proceedings, that his application
supported by an affidavit be kept on
record under section 202 Cr.P.C. The trial
Magistrate was of the opinion that an
alien to a proceeding has got no right to
be heard and that Ravi Kant Savita was
not a witness of complainant nor the
Court has given him a direction to lead
evidence and, therefore, he can not be
heard
at
all.
It
opined
that
the
responsibility to prosecute the accused in
a
complaint
case
lies
with
the
complainant. By such an opinion, which
was just, legal and in accordance with the
scheme
of
the
Code
of
Criminal
Procedure, the Judicial Magistrate, Court
No.3, Aligarh, who was inquiring in to the
complaint filed by the complainant, Dr.
Harvir Singh, rejected the application
filed by Ravi Kant Savita on 17.11.2006
and fixed 28.11.2006 for hearing the
arguments on the question of summoning
the accused.

4. The aforesaid order dated
17.11.2006 passed by the Magistrate was
challenged by Ravi Kant Savita by filing
Criminal Revision No. 541 of 2006 before
the Sessions Judge, Aligarh, which was
heard and allowed by Additional Sessions
Judge, Court No. 11, Aligarh by passing
the impugned order dated 22.01.2007,
which
order
passed
by
the
lower
revisional court is under challenge in this
revision.

5. I have heard Sri V.P. Srivastava
assisted by Sri Akhilesh Srivastava,
learned counsel for the revisionist and the
learned A.G.A. on behalf of respondent
no. 1 as well as Sri Dharmendra Singhal
and Rahul Raghav on behalf of Ravi Kant
Savita, respondent no. 2.

6. The short question that arises for
consideration is as to whether an alien to a
proceeding can file an application and
affidavit before the trial Magistrate while
he is conducting an inquiry under section
202 Cr.P.C. and can he compel the Court
to hear him. The ancillary question is as
to whether an alien to a proceeding can
participate in the inquiry against the
wishes of the complainant or the Court.
For a better understanding of the said
question section 202 Cr.P.C. is quoted
below:

"202.Postponement of Issue of
process: (1) 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,
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:
Provided that no such direction for
investigation shall be made-
(a)
where
it
appears
to
the
Magistrate that the offence complained
of is triable exclusively by the Court of
Sessions; or
488 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(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.
(2) In an inquiry under sub-section
(1), the Magistrate may, if he thinks fit,
take evidence of witness on oath;
Provided that if it appears to the
Magistrate that the offence complained
of is triable exclusively by the Court of
session,
he
shall
call
upon
the
complainant to produce all his witnesses
and examine them on oath.
(3) If an investigation under subsection (1) is made by a person not being
a police officer, he shall have for that
investigation all the powers conferred by
this Code on an officer in charge of a
police station except the power to arrest
without warrant.

7. From a perusal of the aforesaid
section it is clear that if a complaint is
filed before a Magistrate under section
190(1)
(a)
Cr.P.C.,
of
which
the
Magistrate
is
authorized
to
take
cognizance or which complaint has been
transferred to him under section 192
Cr.P.C., the Magistrate may postpone
issue of process against the accused and
either inquiry in to the case himself or
direct an investigation to be made by a
police officer or such other person as he
thinks fit, for the purposes of finding out
as to whether there is sufficient ground
for proceeding or not. The proviso
attached to this Section provides that if
the offence complained of is triable by
court of session or where the complaint
has not been made by a court, unless the
complainant and his witnesses have been
examined by the Magistrate, no direction
for investigation could be made under
section 202 (1) of the Code. Sub section
(2) provides that in an inquiry under
subsection (1) Magistrate may take
evidence of witnesses on oath. The
proviso
attached
to
sub-section
(2)
provides that if the offence is triable by
Court of Session, he shall take the
evidence of all the witnesses of the
complainant and examine them on oath.

8.

Under
such
a
procedure
prescribed by the law, under Chapter XV
there is no scope for a third party to
intervene into the matter as of right and
participate in the proceedings and compel
the Court to take his application and
affidavit on record or to record his
statement. The right of inquiry is vested in
the Magistrate. It is for the Magistrate to
decide in what manner he is going to
conduct an inquiry under section 202
Cr.P.C. Under the aforesaid section it is
for the complainant to bring his witnesses
before the Court, examine them on oath to
substantiate the charge levelled by him. If
some body is not a witness of the
complainant, he is not obliged to examine
him as a witness in the said inquiry, as he
is not a witness in the case at all. It is the
choice of the complainant to chose the
witness and to examine them on oath.
This choice of the complainant can not be
curtailed or modified in any manner
whatsoever. The complainant is the best
person to watch his interest. It should be
left alone to him to decide in what manner
and by what evidence he is going to
establish the charge levelled by him
against the malefactors.

9. In the present case Ravi Kant
Savita was not a witness of the
complainant. He was not summoned by
the Court also which was conducting an
inquiry to give evidence. Ravi Kant Sa
vita was an alien to the proceedings. He
2 All] Dr. Harvir Singh V. State of U.P. and another
489
has no right to file an application and
jump into the arena of litigation on his
own. If such a venture is allowed, the
inquiry
to
be
conducted
by
the
Magistrates will never come to an end and
Magistrates will be saddled unfathomably
to go on recording the statements of
unaccountable number of persons, which
can never be a law nor is the law. An
alien to the proceedings cannot be
allowed to interject in the inquiry
conducted by the Magistrate. The law
does not confer any such power on any
body. The procedure prescribed under
Chapter XV of the Code of Criminal
procedure is well defined and the inquiry
should be conducted within the purview
and scope of such provisions as is
provided under section 202 Cr.P.C. It is
not for the Court to jumble down the law
and enlarge its scope to an extent which
leads to an absurdity.

10. Further in the present case the
lower revisional court, without caring to
look in to the various rulings cited by it in
the impugned order has allowed the
revision filed by an alien to a proceeding.
How the revision by an alien to the
proceeding was maintainable before the
lower
revisional
court
against
the
statutory bar provided under section 397
(2) Cr.P.C. is not understandable. The
lower revisional court did not address
itself at all to the statutory provision
under section 397 (2) Cr.P.C. and
cogitated on the fact that the order passed
by the Judicial Magistrate Court No. 3
Aligarh dated 17.11.2006, which as
impugned before it, was purely an
interlocutory order and no revision
against the said order was maintainable
before it being barred by section 397 (2)
Cr.P.C. The Additional Sessions Judge,
Court No. 11, Aligarh Sri N.A. Zaidi,
therefore, passed a wholly illegal order by
usurping the power of the revisional court
under section 397 (2) Cr.P.C. Such type
of interference by the lower revisional
court in the proceeding pending before the
Magistrates not only delays the trial but
creates utter confusion, saddling the
Magistrates with unmanageable load of
work which must be curbed. Section 397
(2) Cr.P.C. has been ingrafted in the
Statute (Code) for being observed and not
to be ignored. No revision against an
interlocutory
order,
therefore,
was
maintainable before the lower revisional
Court, specially when it was conceded
before me that the order passed by the
Magistrate, which was challenged in
revision before the lower revisional court
was pure and simple interlocutory order at
the stage of an inquiry under section 202
Cr.P.C. Thus the impugned order passed
by the Additional Sessions Judge, Court
No. 11, Aligarh in criminal revision no.
541 of 2006 dated 22.1.2007 is wholly an
illegal order and cannot be sustained at
all.

11. There is yet another bizarre
aspect of the matter and that is how a
third person can challenge an order passed
by a Magistrate when he has no right to
participate in the proceedings. If an alien
to a proceeding does not have any right to
participate in any proceeding, he also
does not possess the right to challenge
any order passed in the said proceeding.
The law does not confer any such right on
any body. R. K. Savita, respondent no. 2,
being an alien to the proceeding had no
right to maintain the revision before the
lower
revisional
court,
which
was
wrongly entertained by it and has been
illegally allowed.
490 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
12. On the aforesaid reasons this
Criminal
Revision
is
allowed.
The
impugned order dated 22.1.2007 passed
by the Additional Sessions Judge, Court
No. 11, Aligarh in Criminal Revision No.
541 of 2006 is hereby set aside and the
order dated 17.11.2006 passed by the
Judicial Magistrate, Court No.3, Aligarh
in Complaint Case No. 2945 of 2005 Dr.
Harvir Singh vs. R.N. Singh is hereby
restored.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.06.2007

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Revision No.6149 of 2006

Smt. Pushpa

...Revisionist
Versus
State of U.P. and others Opp. Parties

Counsel for the Revisionist:
Sri Amit Kumar Chaudhary

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

Code of Criminal Procedure-Section-156
(3)-application
duly
supported
with
affidavit-disclosed the offence order 376
IPC-rejection
by
Magistrate-highly
condemnable-filing complaint is a right
of
victim-court
can
not
start
the
litigation by converting the application
u/s156 (3) as complaint-impugned order
held-passed most flagrant miscarriage of
justice-can not sustain.

Held: Para 7

Further the application under Section
156(3) Cr.P.C. can be treated to be a
compliant only when the victim wants
the court to treat it like so. Filing of a
complaint is a right of the victim. Court
cannot start the litigation by converting
an application under Section 156(3)
Cr.P.C. into a complaint on its own.
Case law discussed:
AIR 2006 SC-1322

(Delivered by Hon'ble Vinod Prasad, J.)

1. The revisionist Smt. Pushpa has
challenged the order dated 26.10.2006
passed
by
Upper
Mukhya
Nyayik
Magistrate, Hapur Ghazibad in Criminal
Miscellaneous case no.2189 of 2006
(Pushpa Vs. Subodh Tyagi and others) by
which her application under Section
156(3) Cr.P.C. was ordered to be
registered as a complaint case instead of
directing her F.I.R. to be registered.

2. The narration of facts are that an
application under Section 156(3) Cr.P.C.
was filed by Smt. Pushpa against Subodh
Tyagi, Om Prakash Tyagi, Jagdish Tyagi
and Sri Chandra in the court of A.C.J.M.,
Hapur on 3.10.2006 with the allegations
that she is a pardanashin lady and the
alleged accused persons were resident of
her own village and they are criminals
and history sheeters, who indulge into
abduction murder etc. Because of their
illegal activity there is terror of the
accused persons in the area.

3. On 19.9.2006 at 6.00 p.m. the
revisionist applicant Smt. Pushpa was
preparing food of her small children in
her house. Her husband had gone out with
some work. At that time the alleged
malefactors accompanied by two other
unknown persons entered into the house
of the revisionist applicant Smt. Pushpa
hurling filthily abuses and thereafter
Subodh, one of the accused, caught hold
of her by breast, two other accused
Jagdish Tyagi and Sri Chandra threw her
on the ground and Subodh attempted to