# Munish Chandra Srivastava Revisionist v. State of U.P. and others - **Citation:** (2007) 3 ILRA 652 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2007-05-31 - **Bench:** Vinod Prasad - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munish-chandra-srivastava-revisionist-v-state-of-u-p-and-others-41044 - **Pages:** 3 ## Headnote Code of Criminal Procedure-Section397-Criminal Revision-Maintainabilityorder passed by Magistrate under section 156 (3)-directing the police to register the case- an administrative order-though passed judicially-in nature of reminder to police to perform its duty-held- revision not maintainable. Held-para 7 Since I am of the view that the revision by the accused persons against whom the FIR has not yet been registered was not maintainable at all therefore, the impugned order passed by the Sessions Judge, Basti is de hors the law. Sessions Judge, Basti wrongly usurped the power of the revisional court and entertained the revision before the FIR was registered against the accused persons. How an accused can install the order for registration of FIR is not understandable? Under Section 156(3) Cr.P.C., the accused persons have got no right to be heard. It is an administrative power of the Magistrate, though passed judicially, directing the police to register the FIR and the said order is in the nature primary reminder to the police to perform its legal duty as has been held by the Apex Court in State of Haryana Vs. Bhajan Lal 1992 SCC (Criminal) 426 and Deverappalli Lakshaminarayana Reddy & Others versus V. Narayana Reddy 1976 SCC (3) 252. Lower revisional court can not set aside the primary reminder by exercising the power under Section 397 Cr.P.C. Case law discussed: 2007(1) ALJ.169. 1992 SCC(Crl.) 426 1993 SCC- (Crl.) 1171 ## Text 652 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 11. Thus, in the totality of the circumstances, I am of the considered opinion that the reference court has erred in law in enhancing the compensation awarded by the SLAO to the claimantrespondent. 12. Accordingly, the appeal succeeds and is allowed. The judgment and order of the reference court dated 3.11.1989 passed in LAR 77 of 1988 (Dariyao Singh Vs. Collector, Varanasi) is set aside. No orders as to costs. Appeal Allowed. --------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 31.5.2007 BEFORE THE HON'BLE VINOD PRASAD, J Criminal Revision No. [210] Of 2007 Munish Chandra Srivastava ...Revisionist Versus State of U.P. and others ...Respondents Counsel for the Revisionist: Sri Gopal Srivastava Counsel for the Respondents: A.G.A. Code of Criminal Procedure-Section397-Criminal Revision-Maintainabilityorder passed by Magistrate under section 156 (3)-directing the police to register the case- an administrative order-though passed judicially-in nature of reminder to police to perform its duty-held- revision not maintainable. Held-para 7 Since I am of the view that the revision by the accused persons against whom the FIR has not yet been registered was not maintainable at all therefore, the impugned order passed by the Sessions Judge, Basti is de hors the law. Sessions Judge, Basti wrongly usurped the power of the revisional court and entertained the revision before the FIR was registered against the accused persons. How an accused can install the order for registration of FIR is not understandable? Under Section 156(3) Cr.P.C., the accused persons have got no right to be heard. It is an administrative power of the Magistrate, though passed judicially, directing the police to register the FIR and the said order is in the nature primary reminder to the police to perform its legal duty as has been held by the Apex Court in State of Haryana Vs. Bhajan Lal 1992 SCC (Criminal) 426 and Deverappalli Lakshaminarayana Reddy & Others versus V. Narayana Reddy 1976 SCC (3) 252. Lower revisional court can not set aside the primary reminder by exercising the power under Section 397 Cr.P.C. Case law discussed: 2007(1) ALJ.169. 1992 SCC(Crl.) 426 1993 SCC- (Crl.) 1171 (Delivered by Hon'ble Vinod Prasad, J.) 1. The application under Section 156(3) Cr.P.C. was filed by the revisionist Munish Chandra Srivastava in the Court of J.M.- I, Basti on 5.12.2006 with the allegations that he is a practicing advocate in District Basti and he is owner of plot No. 378 on which he and his brother are in opposition. The accused persons Sarjan Lal Srivastava along with other accused person Surendra Mohan Mishra came on the said plot on 21.11.2006 at 4 p.m. along with five or six unknown persons who were armed with firearms and forcibly put four electric pole on the said plot. When the applicant objected to the said installation of electric poles on his plot he was threatened in the witnessing of many other co-villagers. The applicant 3 All] Munish Chandra Srivastava V. State of U.P. and others 653 made a report to the police but no action was taken by it against the accused persons. 2. With such allegations, the applicant filed an application under Section 156(3) Cr.P.C., which was allowed by J.M.-I, Basti vide his order dated 14.12.2006. Against the said order, the accused persons filed the revision before the Sessions Judge, Basti which was allowed by the Sessions Judge, Basti by passing his impugned order dated 14.5.2007. Session's Judge Basti set aside the order for registration of FIR passed by the Magistrate concerned. 3. I have heard learned counsel for the revisionist and the learned AGA. 4. Learned counsel for the revisionist argued that the Sessions Judge, Basti illegally entertained the revision at the behest of those person against whom the FIR was not yet been registered and therefore, the revision before the lower revisional court was not maintainable and the impugned order dated 14.5.2007 is wholly illegal. 5. Learned AGA also could not support the fact that how the revision was maintainable before the learned Sessions Judge, Basti at the behest of those persons who were alleged to be an accused against whom the FIR was not yet registered. The matter has been exhaustively dealt with by this Bench in the case of Rakesh Puri and another Vs. State of U.P. and another 2007 (1) ALJ 169. 6. It has been held in the said case that order under section 156(3) Cr.P .C. is in the nature of an administrative direction directing the police to exercise their plenary power of investigation of cognizable offence under Chapter XII Cr.P.C. relating to the power of police to investigate the cognizable offence. It has also been held that order under section 156 (3) Cr.P.C. is a pre - cognizance order therefore revisional power under section 397/401 Cr.P.C. is not available to an accused person to thwart the registration of FIR of cognizable offences. 7. Since I am of the view that the revision by the accused persons against whom the FIR has not yet been registered was not maintainable at all therefore, the impugned order passed by the Sessions Judge, Basti is de hors the law. Sessions Judge, Basti wrongly usurped the power of the revisional court and entertained the revision before the FIR was registered against the accused persons. How an accused can install the order for registration of FIR is not understandable? Under Section 156(3) Cr.P.C., the accused persons have got no right to be heard. It is an administrative power of the Magistrate, though passed judicially, directing the police to register the FIR and the said order is in the nature primary reminder to the police to perform its legal duty as has been held by the Apex Court in State of Haryana Vs. Bhajan Lal 1992 SCC (Criminal) 426 and Deverappalli Lakshaminarayana Reddy & Others versus V. Narayana Reddy 1976 SCC (3) 252. Lower revisional court can not set aside the primary reminder by exercising the power under Section 397 Cr.P.C. 8. I have not issued notices to the accused persons as in my view that would have perpetuated an illegality of hearing the accused even before FIR is registered against them against the law laid down by 654 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 the Apex Court in Union Of India versus W.N. Chadha: 1993 SCC (Cr.) 117l. 9. The impugned order dated 14.5.2007 passed by Session's Judge, Basti in Criminal Revision No. 1229 of 2006 is hereby set aside and the order dated 14.12.2006 passed by J.M.-I, Basti in Case No. 556/12/06 on the application under section 156 (3) filed by the revisionist is hereby restored. Police is directed to register the FIR. However, this order will not prejudice the rights of the accused persons which they have got under the law against the said registration of FIR. 10. In view of the aforesaid discussion, this revision is allowed at the admission stage itself. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 15.03.2007 BEFORE THE HON'BLE H.L. GOKHALE, C.J. THE HON'BLE ASHOK BHUSHAN, J. Special Appeal No. 292 of 2007 Km. Rita Yadav ...Appellant Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Anil Kumar Dubey Counsel for the Respondents: Sri V.P. Mishra Sri K. Sahai Sri V.K. Singh S.C. Constitution of India-Art. 226Interpretation of statutes-circular issued on 4.12.06 governing mode of giving weightage to disable persons-no where mention about retrospective applicableheld-prospective applicable-selection made earlier can not be questioned. Held: Para 10 But if it is capable of two interpretations, it ought to be considered as prospective. In the present case, we have gone through this circular issued on 24th April, 2006. It undoubtedly states to begin with that the Government order dated 10th October, 2005 has led to some confusion with respect to the addition of the weightage that was provided there under. However, the Government clarificatory order does not say anything to provide that it will govern the selection made earlier or made from any particular date in the past. There is no indication in this subsequent circular that it is to act retrospectively. Inasmuch as there is no specific indication therein, as stated by the Apex Court, assuming that two interpretations are possible, the circular will have to be operated as prospectively. Case law discussed: 2005 (2) ESC (SC) 247 (Delivered by Hon'ble H.L. Gokhale, C.J.) 1. Heard Mr. Anil Kumar Dubey for the appellant, learned Standing Counsel for the State and Sri V.P. Mishra appears for respondent No.6. 2. The appeal raises question with respect to the interpretation of the clarification issued by the State Government on 24th April, 2006 to clarify the earlier Government circular dated 10th October, 2005. The matter requires consideration. 3. The appeal is admitted.