# Hari Prakash Kasana Revisionist/ v. State of U.P

- **Citation:** (2009) 2 ILRA 514
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-15
- **Case number:** Criminal Revision No.350 of 2001
- **Bench:** Subhash Chandra Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-prakash-kasana-revisionist-v-state-of-u-p-41648
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section-438direction for lodging FIR against S.H.O.-
while deciding bail application by the
Session
Judge-two
police
constable
involved in offence7/13 prevention of
corruption Act, read with 348 IPC during
course of argument that those constable
were forced for taking bribery and were
subjected to manhandled by concern
S.H.O.-duly supported by medical reportdirection
to
lodge
FIR
against
revisionist-held-illegal.
Session
Judge
executed
its
jurisdiction-except
the
Magistrate U/s 156 (3)-the Session
Judge has no jurisdiction.

Held: Para 9

After hearing the learned counsel for the
revisionist and learned AGA, I find that
order passed by the learned Sessions
Judge directing the registration of FIR
against
the
revisionist
cannot
be
sustained and is liable to be set aside. In
the code of criminal procedure, the
powers to direct for registration of FIR
has been specifically conferred on the
Magistrate under Section 156 (3) Cr.P.C.
If such an application was moved before
the Magistrate and was rejected, only
2 All] Hari Prakash Kasana V. State of U.P.
515
then in revision, the Sessions Judge
could have directed the Magistrate to
pass appropriate orders but the Sessions
Judge
himself
cannot
direct
for
registration of FIR against any person. If
the learned Sessions Judge was of the
opinion that there was some truth in the
allegations made by Mohd. Arif Khan, he
should have directed Mohd. Arif Khan to
file complainant before the Magistrate or
to move an application under Section
156 (3) Cr.P.C. Before the Magistrate.
While deciding an application for bail
learned Sessions Judge exceeded his
jurisdiction in directing the registration
of FIR against Hari Prakash Kasana.
Therefore,
revision
deserves
to
be
allowed.

## Text

514 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
shall look into the matter and take
appropriate action as directed above
against the police Officer-in-Charge of
the police station concerned as well as the
S.P./S.S.P. concerned for his inaction also
into the matter within three months and
communicate about the action within next
one month to the Magistrate concerned.
The Principal Secretary (Home), U.P.,
Lucknow and the Director General of
Police, U.P. Lucknow shall also submit a
report regarding number of the cases
informed by the concerned Magistrate in a
calender year and also the action taken, by
them as directed above by the end of
February of every year to the Registrar
General of this Court.

(v) Besides above, non compliance of
the above directions of this Court shall
also be treated to be a deliberate defiance
by the concerned authorities above
mentioned constituting contempt of this
Court and may be taken up before the
Court concerned having jurisdiction in the
matter, whenever it is brought to the
notice of this Court.

The Registrar General of this Court
is directed to send a copy of this order
forthwith to the Principle Secretary
(Home), U.P. Lucknow, the Director
General of Police, U.P. Lucknow so that
they may issue necessary instructions in
respect of the compliance of the various
directions contained in the judgement to
the
concerned
S.P./S.S.P.
of
the
concerned districts of the State of U.P.
and also to the various Police Officers-inCharge of the concerned police stations
apprising them about the directions of this
Court and for compliance thereof.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.05.2009

BEFORE
THE HON'BLE SUBHASH CHANDRA
AGARWAL, J.

Criminal Revision No.350 of 2001

Hari Prakash Kasana
...Revisionist/
 Applicant

Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Anurag Khanna

Counsel for the Opposite Party:
Sri V.M. Zaidi

Code of Criminal Procedure-Section-438direction for lodging FIR against S.H.O.-
while deciding bail application by the
Session
Judge-two
police
constable
involved in offence7/13 prevention of
corruption Act, read with 348 IPC during
course of argument that those constable
were forced for taking bribery and were
subjected to manhandled by concern
S.H.O.-duly supported by medical reportdirection
to
lodge
FIR
against
revisionist-held-illegal.
Session
Judge
executed
its
jurisdiction-except
the
Magistrate U/s 156 (3)-the Session
Judge has no jurisdiction.

Held: Para 9

After hearing the learned counsel for the
revisionist and learned AGA, I find that
order passed by the learned Sessions
Judge directing the registration of FIR
against
the
revisionist
cannot
be
sustained and is liable to be set aside. In
the code of criminal procedure, the
powers to direct for registration of FIR
has been specifically conferred on the
Magistrate under Section 156 (3) Cr.P.C.
If such an application was moved before
the Magistrate and was rejected, only
2 All] Hari Prakash Kasana V. State of U.P.
515
then in revision, the Sessions Judge
could have directed the Magistrate to
pass appropriate orders but the Sessions
Judge
himself
cannot
direct
for
registration of FIR against any person. If
the learned Sessions Judge was of the
opinion that there was some truth in the
allegations made by Mohd. Arif Khan, he
should have directed Mohd. Arif Khan to
file complainant before the Magistrate or
to move an application under Section
156 (3) Cr.P.C. Before the Magistrate.
While deciding an application for bail
learned Sessions Judge exceeded his
jurisdiction in directing the registration
of FIR against Hari Prakash Kasana.
Therefore,
revision
deserves
to
be
allowed.

(Delivered by Hon'ble S.C. Agarwal, J.)

1. Heard Sri Anurag Khanna,
learned counsel for the revisionist and
learned AGA for the State.

2. This criminal revision has been
filed against the order dated 1.2.2001
passed by the learned Sessions Judge,
Bijnor in bail application no. 129 of 2001
whereby while granting the bail to the
accused Mohd. Arif Khan and Ravindra
Raghav, learned Sessions Judge directed
for registration of FIR against the
revisionist
Hari
Prakash
Kasana,
Inspector P.S. Kotwali, District-Bijnor for
committing an offence punishable under
relevant provision of the Indian Penal
Code.

3. In brief the facts of the case are
that Mohd. Arif Khan and Ravindra
Raghav was accused in Case Crime
No.908 of 2000, under Section 7/13
Prevention of Corruption Act and Section
384 IPC, P.S. Kotwali City, DistrictBijnor. The prosecution case was that the
on 19.10.2000 at 9.15 p.m., complainant
Sardar Harbhajan Singh was taken his
combine on road and he was stopped by
three constables, namely accused Mohd.
Arif Khan, Ravindra Raghav and coaccused Gian Prakash and sum of Rs.50/-
was demanded as bribe. When bribe was
not paid, he was scolded, threatened and
beaten by the accused persons. In the
meantime, Inspector Hari Prakash Kasana
came on the spot and rebuked the
constable and obtained a written report
from Sardar Harbhajan Singh, on the
basis of which FIR was registered on
20.10.2000, at about 4.30 p.m.

4. At the time of hearing of the bail
application on behalf of Mohd. Arif Khan
and Ravindra Raghav, it was argued on
their behalf that no case under Section
7/13 of Prevention of Corruption Act was
made out and at the most it was a matter
of extortion punishable under relevant
provision of the Indian Penal Code. It was
further submitted before learned Sessions
Judge that SHO H.P. Kasana was a very
corrupt officer and he pressurized the
police constables to give him hush money
and when they refused, they were
manhandled and accused Mohd. Arif
Khan was beaten by Mr. Kasana. Mohd.
Arif
Khan
got
himself
medically
examined on 20.10.2000 and injuries
were found on his person. It was further
argued that FIR was obtained by H.P.
Kasana from the complaint in the back
date.

5. Agreeing with the submission
made by the learned counsel for the
accused persons, learned Sessions Judge
was convinced that Mohd. Arif Khan was
manhandled by the SHO, therefore, while
granting bail to the accused Mohd. Arif
Khan and Ravindra Raghav, the Sessions
Judge directed that a case be registered
against
Mr.
Hari
Prakash
Kasana,
516 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Inspector P.S. Kotwali City, DistrictBijnor for committing an offence under
the relevant provisions of Indian Penal
Code and that of misconduct on the basis
of statement of Mohd. Arif Khan and
directed investigation by a Senior Officer.
Senior Superintendent of Police CBCID
was directed to nominate a Senior Officer
to investigate the matter. Against the
impugned order Hari Prakash Kasana had
preferred this revision.

6. It is submitted by the learned
counsel for the revisionist that while
deciding the application for bail, learned
Sessions Judge had no jurisdiction to
order for registration of FIR against the
revisionist. It is contended that only
provision
in
the
Cr.P.C.
regarding
registration of FIR is under Section 154
and Section 156 (3). Under Section 156
(3) Cr.P.C. only Magistrate is empowered
to direct the police to register the FIR and
to make an investigation if prima facie
cognizable offence is made out. Under
Section 154 Cr.P.C., the police can
register the FIR on the basis of written
report or oral statement made by the
complainant.

7. It is further submitted that the
Sessions Judge himself cannot exercise
the powers conferred on the Magistrate
while deciding an application for bail.

8. Learned AGA is unable to defend
the impugned order. It is submitted by
him that if the Sessions Judge was of the
opinion that an investigation into oral
complaint made by Mohd. Arif was
required, he should have directed him to
present himself before the Magistrate for
filing an application under Section 156 (3)
Cr.P.C. or to file complaint under Section
190 Cr.P.C.

9. After hearing the learned counsel
for the revisionist and learned AGA, I
find that order passed by the learned
Sessions Judge directing the registration
of FIR against the revisionist cannot be
sustained and is liable to be set aside. In
the code of criminal procedure, the
powers to direct for registration of FIR
has been specifically conferred on the
Magistrate under Section 156 (3) Cr.P.C.
If such an application was moved before
the Magistrate and was rejected, only then
in revision, the Sessions Judge could have
directed
the
Magistrate
to
pass
appropriate orders but the Sessions Judge
himself cannot direct for registration of
FIR against any person. If the learned
Sessions Judge was of the opinion that
there was some truth in the allegations
made by Mohd. Arif Khan, he should
have directed Mohd. Arif Khan to file
complainant before the Magistrate or to
move an application under Section 156
(3) Cr.P.C. Before the Magistrate. While
deciding an application for bail learned
Sessions Judge exceeded his jurisdiction
in directing the registration of FIR against
Hari Prakash Kasana. Therefore, revision
deserves to be allowed.

10. The revision is allowed. Part of
the order dated 1.2.2001 passed by the
learned Sessions Judge, Bijnor on bail
application No.129 of 2001 in Case Crime
No. 908 of 2000, P.S. Kotwali City,
Bijnor directing the registration of FIR
against Hari Prakash Kasana and further
directing the investigation by a Senior
Officer of C.B.C.I.D. is set aside.
---------
2 All] Rakesh Kumar Singh and others V. D.M., Maharajganj and others
517
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2009

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.2167 of 1992,
2168 of 1992,5513 of 1992,2169 of
1992,2821of1992,10957 of 1992,24132 of
2003

Rakesh Kumar Singh and others

 ...Petitioners
Versus
District Magistrate, Maharajganj and
others

...Respondents

Counsel for the Petitioners:
Sri Suresh Chandra Dwivedi

Counsel for the Respondents:
Sri Ashok Mehta

Constitution
of
India,
Art.
226Appointment-Dismissal order passed by
District
Magistrate-without
disclosing
any
reason
for
dismissal-petitioners
were appointed by the D.D.O. inspite of
restraint order passed by D.M. without
following procedure for appointmentinterview
held
by
compelling
the
members of committee to affixed their
signature on plain paper-appointment
termed
as
fraudulent
based
on
extraneous
considerations-but
termination also made without following
the procedure-even no reason disclosedheld-illegal-reinstatment with direction
to work on their respective basic pay
without increments through out service
life-D.D.O. to pay one lace Rs. To each of
petitioners towards compensation, in
case of death amount shall be recorded
from the assets of erring D.D.O.

Held: Para 16

Accordingly, as held above, on the one
hand, all the appointments were utterly
illegal and fraudulent; the then D.D.O.,
Shiv Ram Bhatt made the appointment
for extraneous considerations and no
rule was followed. Appointments were
made in spite of restraint order by the
D.M. No interview was held for these
posts. Reasonable opportunity to apply
was not provided to the general public.
Accordingly, all the appointments were
illegal.
However,
I
find
that
the
cancellation order dated 16.01.1992 is
also not in accordance with law as it did
not give any reason and due to this
callousness of the then D.M., all the writ
petitioners got stay orders from this
Court.
Case law discussed:
AIR 1997 SC 399

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
parties.

2. These are unusual cases. Neither
appointments of the petitioners nor order
of cancellation of appointment is in
accordance
with
law.
Accordingly,
unusual relief has to be granted to the
petitioners. In the first writ petition, there
are six petitioners. In the second writ
petition, there are nine petitioners. In the
third writ petition, there is one petitioner.
In the fourth writ petition, there are two
petitioners. In the fifth writ petition, there
is one petitioner. In the sixth writ petition,
there are two petitioners. In the seventh
writ petition, there are six petitioners.

3. Petitioners of W.P. Nos.2167,
2168 and 5513 (first three writ petitions)
were appointed as clerks by District
Development
Officer
(D.D.O.),
Maharajganj on 13.01.1992. All the
appointments of class III & IV employees
made
in
the
office
of
District
Development during last six months were
cancelled by D.M. Maharajganj by order