# Lakhan Singh v. State of U.P. & Anr Opp. Parties

- **Citation:** (2014) 1 ILRA 366
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-11
- **Case number:** J. U/s 482/378/407 No. 6319 of 2013
- **Bench:** Bala Krishna Narayan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhan-singh-v-state-of-u-p-anr-opp-parties-42827
- **Pages:** 4

## Headnote

Cr.P.C. Section 482-Quashing of orderrejecting application under section 156(3)
Cr.P.C.-on
objection
by
prospectiveaccused-held-no locustandi unless process
issued
on
cognizance
taken-order
impugned
quashed-direction
for
fresh
consideration given.

Held: Para No. 32& Para 10-
In the light of the aforesaid discussions, it is
abundantly clear that the prospective
accused has no locus standi to challenge a
direction for investigation of a cognizable
case under Section 165(3) Cr.P.C. before
cognizance or issuance of process against
the accused. The first question is answered
accordingly.

For the aforesaid reasons and the settled
legal position on the issue, I have no
hesitation in holding that the Chief Judicial
Magistrate, Raebareli clearly exceeded his
1 All] Lakhan Singh Vs. State of U.P. and Anr.
367
jurisdiction in rejecting the application
moved by the applicant before him after
considering the objection filed before him by
the proposed accused, opposite party no. 2.

Case Law discussed:
1997(34) ACC 163; 2009 Crl. Law Journal
1683; 2011(2) ALJ 217.

## Text

366 INDIAN LAW REPORTS ALLAHABAD SERIES
the jurisdiction of the Registrar in terms
of Section 38 of the 1965 Act.

4. In Section 2 (o), an Officer of the
Cooperative Society has been defined
which also includes a Member of
Committee
of
Management.
The
provisions are extracted hereunder for
ready reference:-

"(o) "Officer of a co-operative society"
means
the
president,
vice-president,
chairman,
vice-chairman,
secretary,
member of committee of management,
treasurer, liquidator, administrator or any
other persons employed by co-operative
society
whether
with
or
without
remuneration to carry on the business of the
society or to supervise its affairs."

5. Consequently, the Division Bench
upon an interpretation of Section 38
readwith Section 29 of the Act came to
the conclusion that the Registrar has the
authority to enter into such a question and
accordingly, the Joint Registrar, who had
issued the notices, was directed to dispose
of the matter finally.

6. As a consequence of the aforesaid
direction of the High Court, the impugned
order has been passed. The same can be
subjected to a challenge through an appeal
as urged by Sri Misra. The provisions of
Section
98
(1)
(d)
are
extracted
hereunder:-

"98 (1)(d). an order of the Registrar
under sub-section (2) of Section 27
expelling or removing a member or under
sub-section (2) of Section 38 removing or
disqualifying any officer of a co-operative
Society."

7. The said provision makes it amply
clear that an order such as that passed
under Section 38 in the present case is
appealable and, therefore, the preliminary
objection raised by Sri Mishra is upheld.

8. The writ petition is dismissed on
the ground of availability of alternative
remedy.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.03.2014

BEFORE
THE HON'BLE BALA KRISHNA NARAYAN,
J.

U/s 482/378/407 No. 6319 of 2013

Lakhan Singh..... Applicant
Versus
State of U.P. & Anr....... Opp. Parties

Counsel for the Petitioner:
Sri Gopesh Tripathi

Counsel for the Respondents:
Govt. Advocate

Cr.P.C. Section 482-Quashing of orderrejecting application under section 156(3)
Cr.P.C.-on
objection
by
prospectiveaccused-held-no locustandi unless process
issued
on
cognizance
taken-order
impugned
quashed-direction
for
fresh
consideration given.

Held: Para No. 32& Para 10-
In the light of the aforesaid discussions, it is
abundantly clear that the prospective
accused has no locus standi to challenge a
direction for investigation of a cognizable
case under Section 165(3) Cr.P.C. before
cognizance or issuance of process against
the accused. The first question is answered
accordingly.

For the aforesaid reasons and the settled
legal position on the issue, I have no
hesitation in holding that the Chief Judicial
Magistrate, Raebareli clearly exceeded his
1 All] Lakhan Singh Vs. State of U.P. and Anr.
367
jurisdiction in rejecting the application
moved by the applicant before him after
considering the objection filed before him by
the proposed accused, opposite party no. 2.

Case Law discussed:
1997(34) ACC 163; 2009 Crl. Law Journal
1683; 2011(2) ALJ 217.

(Delivered by Hon'ble Bal Krishna Narayan, J.)

1. Counter affidavit filed on behalf
of the State today is taken on record.

2. Heard learned counsel for the
applicant and Smt. Madhulika Yadav,
learned A.G.A. for the State. None has
put his appearance on behalf of the
opposite party no. 2, despite being served.

3. The short controversy involved in
this application under section 482 Cr.P.C. is
that whether the learned Magistrate was
legally justified in rejecting the application
moved by the applicant under section 156(3)
Cr.P.C. before him on the basis of the
objection filed by the proposed accused
before him at the pre cognizance stage.

4. Learned counsel for the applicant
submitted that the proposed accused has no
right of hearing at the stage of making an
order under section 156(3) Cr.P.C. or during
the stage of investigation until court took
cognizance and issued process. In support of
his contention he has placed reliance on Karan
Singh & others vs. State of U.P. & others
1997(34) ACC 163, Abdul Aziz & others vs.
State of U.P. and others 2009 Crl. Law
Journal 1683 and Father Thomas versus State
of U.P. and another 2011(2) ALJ 217.

5. Smt. Madhulika Yadav, learned
A.G.A. has made her submissions in support
of the impugned judgment and order.

6. I have heard the learned counsel
for the parties present and perused the
impugned order dated 21.10.2013 passed
by
the
Chief
Judicial
Magistrate,
Raebareli, copy whereof has been filed as
Annexure-9, as well as the other material
brought on record.

7. The brief facts of the case are that
the applicant filed an application under
section 156(3) Cr.P.C. before the Chief
Judicial
Magistrate,
Raebareli
alleging
commission of offences under Sections, 420,
467, 468 and 218 I.P.C. by one Sri Pankaj,
Circle Officer (city), Raebareli with a prayer
for registering the first information report
against him and investigating the same.
Upon getting information of filing of the
application under Section 156(3) Cr.P.C.
against him by the applicant, the opposite
party no. 2 appeared before the Chief Judicial
Magistrate, Raebareli on 1.2.2013 and filed
his objection before him on the same date,
copy whereof has been filed as Annexure-8
to this application. The Chief Judicial
Magistrate, Raebareli by the impugned order
after considering the objection filed by the
opposite party no. 2 rejected the application
moved by the applicant before him under
Section 156(3) Cr.P.C. As far as the legal
position on the issue involved in this matter
is concerned, the same is crystal clear. This
Court has repeatedly held in a catina of
decisions that the proposed accused has no
locus or right to be heard at the pre
cognizance stage. This Court in the case of
Karan Singh (supra) while dealing with the
same issue has held as hereunder :-

"Where an order is made under
Section 156(3) Cr.P.C. directing the
police to register FIR and investigate the
same, the Code nowhere provides that the
Magistrate shall hear the accused before
issuing such a direction,nor any person
368 INDIAN LAW REPORTS ALLAHABAD SERIES
can be supposed to be having a right asking
the Court of law for issuing a direction that
an FIR should not be registered against him.
Where a person has no right of hearing at
the stage of making an order under section
156(3) or during the stage of investigation
until court takes cognizance and issues
process, he cannot be clothed also with a
right to challenge the order of the
Magistrate by preferring a revision under
the Code. He cannot be termed as an
"aggrieved person" for purpose of section
397 of the Code."

8. This Court again in paragraph 9
of the case of Abdul Aziz (supra) has
reiterated as hereunder :-

"Thus at the stage of 156(3) Cr.P.C. any
order made by the Magistrate does not
adversely affect the right of any person, since
he has got ample remedy to seek relief at the
appropriate stage by raising his objections. It
is incomprehensible that accused cannot
challenge the registration of F.I.R. by the
police directly. But can challenge the order
made by the Magistrate for the registration of
the same with the same consequences. The
accused does not have any right to be heard
before he is summoned by the Court under the
Code of Criminal Procedure and that he has
got no right to raise any objection till the stage
of summoning and resultantly he cannot be
conferred with a right to challenge the order
passed prior to his summoning. Further, if the
accused does not have a right to install the
investigation, but for the limited grounds
available to him under the law, it surpasses all
suppositions to comprehend that he possesses
a right to resist registration of F.I.R."

9. Full Bench of this Court in
paragraphs 30, 31, 32 and 65A in Father
Thomas (supra) has held as hereunder :-

30. We have also seen that during the
stage of investigation the accused has no
right of intervention as to the mode and
manner of investigation and who should
investigate.

31. Even after submission of a final
report, either when the police decides to
order further investigation under Section
173(8) Cr.P.C. or before accepting or
rejecting the report, only the informant is
required to be heard. The accused is not
entitled to be heard even at this stage. In
this view it would be unrealistic to confer
a right of hearing when only an innocuous
direction for investigation is passed by the
Magistrate in a case disclosing a cognizable
offence, especially when the allied order
regarding the decision of a police officer to
investigate in exercise of powers under
section 156(1) is not vulnerable to challenge
in the criminal revision. Also when
objections to maintainability of a case are
raised on the ground of limitation under
Section 468 or under section 195 Cr.P.C.,
the appropriate stage for raising these
objections is at the time of cognizance or at
the time of framing of charges, and not
when a Magistrate issues a direction for
investigation under Section 156(3) Cr.P.C.

32. In the light of the aforesaid
discussions, it is abundantly clear that the
prospective accused has no locus standi to
challenge a direction for investigation of a
cognizable case under Section 165(3) Cr.P.C.
before cognizance or issuance of process
against the accused. The first question is
answered accordingly.

65A. 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
1 All] U.P. Cooperative Union Ltd.Vs. Presiding Officer Labor Court
369
whom neither cognizance has been taken
nor any process issued."

10. For the aforesaid reasons and the
settled legal position on the issue, I have
no hesitation in holding that the Chief
Judicial Magistrate, Raebareli clearly
exceeded his jurisdiction in rejecting the
application moved by the applicant before
him after considering the objection filed
before him by the proposed accused,
opposite party no. 2.

11. In view of the above, the
impugned order dated 21.10.2013 passed
by the Chief Judicial Magistrate, court no.
9, Raebareli is set aside. The matter is
remitted back to the C.J.M., Court no. 9,
Raebareli for passing a fresh order in the
matter keeping in view the settled legal
position on the issue.

12. Accordingly, this application is
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Service Single No. 6412 of 1999

U.P. Cooperative Union Ltd. Petitioner
Versus
Presiding Officer Labour Court. Respondent
Counsel for the Petitioner:
Sri Rakesh Kumar

Counsel for the Respondents:
C.S.C., Sri B.S. Yadav

Constitution
of
India-Art.-226-claim
for
arrears of salary-of higher post-workman
being employee of co-operative societies Act
1961-provisions of Industrial Tribunal Act
1947-not applicable-order passed by Labor
Court-held
without
jurisdiction-order
quashed.

Held: Para-18
The impugned order dated 20.09.1999
cannot be sustained in the light of the law
stated herein above. The labour court did not
have jurisdiction to entertain the application
as U.P. Co-operative Societies Act, 1965
being special Act and Chapter IX of the Act
provides for settlement of dispute including
claims for amounts due. The order impugned
passed by the labour court is also without
jurisdiction as the entire mechanism for
redressal of dispute is provided under
Chapter IX of the U.P. Co-operative Societies
Act, 1965. The impugned order dated
20.09.1999 passed by the respondent no. 1,
Presiding Officer, Labour Court, Lucknow
cannot be sustained either on merit or on the
ground of jurisdiction and is hereby quashed.

Case Law discussed:
(2008)7 SCC 22; 2007AIR SCW 956; 2006 AIR
SCW 4901; (2005)8 SCC 58; (1997)5 SCC 59;
(1995) 1 SCC 235; [2008(3) LBESR 363 (All)];
[2001(1)SCC 73]; [2005(8) SCC 58]; 2006 SC
1784:2006 LLR 494(SC); AIR 2008 SC 968.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Matter has been taken up in the
revised list.

2. Heard Sri Rakesh Kumar, learned
counsel appearing for the petitioner for
U.P. Cooperative Union Limited.

3. This writ petition has been
preferred
against
the
order
dated
20.09.1999 passed by the respondent no.
1, Presiding Officer, Labour Court,
Lucknow in exercise of its power under
Section 6(H) of the U.P. Industrial
Disputes Act, 1947 which is pari materia
to Section 33-C(2) of the Industrial
Disputes Act, 1947. The respondent no. 2
i.e. Workman had approached Labour
Court making an application under