# Praveen Kumar & Anr v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 441
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-13
- **Case number:** Application U/S 482 Cr. P.C. No. 9184 of 2002
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/praveen-kumar-anr-v-state-of-u-p-ors-45077
- **Pages:** 27

## Headnote

A. Criminal Procedure Code, Section 156
(3) - Section 197 of the Cr.P.C - Section
397/401 and Section 482 of the Cr.P.C-
Suo Motu inherent and revisional power
of High Court- Application moved by
opposite party no.2 u/s 156(3) Cr.P.C.
allowed -Magistrate directed the police to
lodge F.I.R. against the applicants, who
are
Government
servants
-Previously
applicant no.1 had passed order under
the Land Revenue Act in continuation
thereof, the applicant no.2 submitted
report on basis of which First Information
Report was got lodged - F.I.R. was
challenged by one of the accused before
the Division Bench of this Court which
took a serious view of the matter and
entrusted investigation of said criminal
case to the CBI -Applicant no.2 appeared
before the trial court as prosecution
witness.

B. (First Issue)- Action of the applicants
on the date of incident was unmistakably
within discharge of their official duty and
was as such so inextricably intertwined
with their official obligations that the two
cannot
be
separated
and
thus
the
provision of section 197 of Cr.P.C. is duly
applicable
in
the
matter
and
the
magistrate could not have taken judicial
notice of the complaint u/s 156(3) Cr.P.C.
unless
the
same
would
have
been
accompanied with the requisite sanction
order- Categories no. 6 and 7 expounded
in Bhajan Lal's case squarely applicable in
present case.

C. (Second Issue)- Maintainability of the
criminal
application-locus
standi
of
proposed accused to challenge order
passed under section 156(3) of Cr.P.C.-
full bench case of Father Thomas - Norms
of judicial propriety and decorum and law
of precedent-Not proper for this court
while sitting singly to observe anything
except to act on the supposition as if the
second issue has been answered in
negative.

D. (Third Issue when the second issue
has been answered in the negative)- Suo
442 INDIAN LAW REPORTS ALLAHABAD SERIES
Motu authority of High Court under
Section 397 read with 401 of Cr.P.C. or
under section 482 of Cr.P.C. -Fairly well
settled and if the facts so warrant, there
is no fetter on the power of this Court to
obviate or correct the miscarriage of
justice
in
an
appropriate
case
by
exercising
its
extensive
supervisory
jurisdiction under Sections 397 read with
Section 401 of Cr.P.C. or its inherent
power under section 482 of Cr.P.C.
without being moved by any party. (Para
12, 24, 25, 26, 29, 33, 36, 41, 46 & 47)

Criminal Misc. Application u/s 482 Cr.P.C
allowed. (E-3)

List of cases cited: -

## Text

_Characters 0–39,966 of 92,443. This is a partial read: ask again with offset=39966 for what follows._

1 All. Praveen Kumar & Anr. Vs. State of U.P. & Ors.
441
accused before issuance of summoning
order and further reasons has to be
recorded. If in such case, which is before
this
Court,
continuance
of
criminal
proceeding is permitted then this would be
hazardous as no teachers of College would
come forward to hold Administrative post
for smooth and peaceful functioning of
Educational Institution.

18. Learned Chief Judicial Magistrate
was required to see this aspect of the matter
before issuing summoning order, therefore,
proceedings in Criminal Complaint Case No.
1668 of 2005 ( Ishu Sonkar Vs. Dr.
Satyamvada Singh and others) under sections
323, 504, 506 I.P.C. and summoning order
dated 01.12.2005 are bad in the eye of law and
are hereby quashed.

19. With the aforesaid observations,
present 482 Cr.P.C. application is allowed.

20. No order as to costs.
----------
(2020)1ILR 441

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.11.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Application U/S 482 Cr. P.C. No. 9184 of 2002

Praveen Kumar & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri Samit Gopal, Sri G.S. Chaturvedi, Sri
Gopal Chaturvedi, Sri Viresh Mishra, Sri
Amit Misra, Sri Imran Ullah

Counsel for the Opposite Parties:
A.G.A., Sri Govind Saran, Sri Manish
Tiwari, Sri Ankit Saran, Sri Atharva Dixit
A. Criminal Procedure Code, Section 156
(3) - Section 197 of the Cr.P.C - Section
397/401 and Section 482 of the Cr.P.C-
Suo Motu inherent and revisional power
of High Court- Application moved by
opposite party no.2 u/s 156(3) Cr.P.C.
allowed -Magistrate directed the police to
lodge F.I.R. against the applicants, who
are
Government
servants
-Previously
applicant no.1 had passed order under
the Land Revenue Act in continuation
thereof, the applicant no.2 submitted
report on basis of which First Information
Report was got lodged - F.I.R. was
challenged by one of the accused before
the Division Bench of this Court which
took a serious view of the matter and
entrusted investigation of said criminal
case to the CBI -Applicant no.2 appeared
before the trial court as prosecution
witness.

B. (First Issue)- Action of the applicants
on the date of incident was unmistakably
within discharge of their official duty and
was as such so inextricably intertwined
with their official obligations that the two
cannot
be
separated
and
thus
the
provision of section 197 of Cr.P.C. is duly
applicable
in
the
matter
and
the
magistrate could not have taken judicial
notice of the complaint u/s 156(3) Cr.P.C.
unless
the
same
would
have
been
accompanied with the requisite sanction
order- Categories no. 6 and 7 expounded
in Bhajan Lal's case squarely applicable in
present case.

C. (Second Issue)- Maintainability of the
criminal
application-locus
standi
of
proposed accused to challenge order
passed under section 156(3) of Cr.P.C.-
full bench case of Father Thomas - Norms
of judicial propriety and decorum and law
of precedent-Not proper for this court
while sitting singly to observe anything
except to act on the supposition as if the
second issue has been answered in
negative.

D. (Third Issue when the second issue
has been answered in the negative)- Suo
442 INDIAN LAW REPORTS ALLAHABAD SERIES
Motu authority of High Court under
Section 397 read with 401 of Cr.P.C. or
under section 482 of Cr.P.C. -Fairly well
settled and if the facts so warrant, there
is no fetter on the power of this Court to
obviate or correct the miscarriage of
justice
in
an
appropriate
case
by
exercising
its
extensive
supervisory
jurisdiction under Sections 397 read with
Section 401 of Cr.P.C. or its inherent
power under section 482 of Cr.P.C.
without being moved by any party. (Para
12, 24, 25, 26, 29, 33, 36, 41, 46 & 47)

Criminal Misc. Application u/s 482 Cr.P.C
allowed. (E-3)

List of cases cited: -

1. Hinch Lal Tiwari Vs. Kamla Devi & ors., 2001
(92) RD 689 (SC)

2. St. of Har. & ors. Vs. Bhajan Lal 1992
(Supp.1) SCC 335

3. Anil Kumar Vs. M.K.Aiyappa, (2013) 10 SCC 705

4. L. Narayana Swamy Vs. St. of Kar., (2016) 9
SCC 598

5. Father Thomas Vs. St. of U.P, (2000) 41 ACC
435

6. Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai
Mohanbhai Patel & Ors, 2012 (10) SCC 517

7. Priyanka Srivastava & anr. Vs St. of U.P. &
ors., (2015) 6 SCC 287

8. Cricket Association of Bengal Vs. St. of W.B,
1971 (3) SCC 239

9.
Nadir
Khan
Vs.
St.
(The
Delhi
Administration), 1976 CriLJ 1721

10. Eknath Shankarrao Mukkawar Vs. St. of
Maha.(1977) 3 SCC 25

11. Municipal Corp. of Delhi Vs. Girdharilal
Sapuru, 1981 (2) SCC 758

12. Janata Dal Vs. H.S. Chowdhary and Ors.,
(1992) 4 SCC 305
13. Bhima Naik & Ors. vs State, 1975 CriLJ
1923 (Orrisa)

(Delivered by Hon'ble Karuna Nand
Bajpayee, J.)

1. This application u/s 482 of Cr.P.C.
has been preferred by applicants Praveen
Kumar and Vijai Shankar Mishra for
quashing of the order dated 25.9.2002
passed by the court of Additional Chief
Judicial Magistrate, Court No.9, Allahabad
whereby
Misc.
Application
No.172/XII/2002 (Ram Surat Pasi vs.
Vijai Shankar and another), P.S.-George
Town,
District-Allahabad,
moved
on
behalf of opposite party no.2 u/s 156(3)
Cr.P.C. was allowed and directions were
issued to lodge the F.I.R. and to
investigate into the matter and submit
report of investigation before the Court.

2. It appears that after filing of this
petition the operation of the impugned
order was put in abeyance. Eventually the
matter has come up now to be heard and
decided finally.

3. Short counter affidavit filed on
behalf of opposite party no.2 today in the
court, is taken on record.

4. Heard Shri Gopal Swaroop
Chaturvedi,
learned
Senior
Counsel
assisted by Shri Imran Ullah, Advocate
appearing on behalf of applicants and Shri
Ankit Saran, Advocate assisted by Shri
Atharva Dixit, Advocate holding brief of
Shri Manish Tiwari, learned Senior
Counsel appearing on behalf of opposite
party no.2. Learned A.G.A. has also been
heard and record has been perused.

5. Brief facts, as emerge from the
pleadings, are that the applicant no.1 was
1 All. Praveen Kumar & Anr. Vs. State of U.P. & Ors.
443
working as S.D.M. (Sadar), Allahabad at
the relevant point of time and the applicant
no.2 was working as Nayab Tehsildar
(North) in the office of applicant no.1. In
the year 2002, the applicant no. 1 after
being selected in the Indian Police Service
(I.P.S) was waiting for his appointment
and training schedule for the same.
According to the pleadings, there was a
land of high economic worth being Plot
No.408 (admeasuring about 10 bighas) in
Mauza Fatehpur Bichhua, Pargana and
Tehsil Sadar, District-Allahabad, which
had market value of Rs.16 crores at the
time of filing of this petition in the year
2002. The said piece of land being nazul
land was a government property and as
such, it could not have been sold or
purchased by anyone without proper
sanction of the State Government. The
pleading of the instant petition reveals that
the land in question is situated in the midst
of the city in posh prime locality of
George Town, Allahabad. It has also been
pleaded in this petition that the said 10
bighas of land having plot no.408 had a
long lineage of history and the ownership
thereof along with other lands (total 509
bigha and 6 biswa) travelled from ExZamindar Maharaja Sewai Ram Singh of
Jaipur up to the State Government and
ultimately
it
was
being
managed,
controlled and governed by the Board of
Revenue and the land of said Gata No.408
along with other gata numbers was
transferred to the Municipal Board vide
order
No.2125N/XI-868,
dated
04.08.1911. The land in question i.e.
approximately 10 bighas land of Gata
No.408 was entered into the register of
government property (nazool) as 'pond' at
serial no.16 having entry of transfer of
land
by
the
Board
of
Revenue.
Subsequently when certain unscrupulous
persons made efforts to illegally trespass
and possess the land in question, a report
about the status of land was called by the
District Magistrate, Allahabad from the
Additional District Government Counsel
(Civil), Allahabad namely Maya Shankar
Srivastava, who submitted report dated
07.09.1999 with an opinion that along with
certain legal formalities, the possession of
land in question is liable to be resumed by
the State Government in the interest of the
Government of Uttar Pradesh.

6. It has also been pleaded in this
petition that the Chairman, Board of
Revenue circulated a letter No.G865/5-9R/2001 dated 24.01.2002 to all the
Commissioners and District Magistrates of
State of U.P. giving the reference of Hon'ble
Supreme Court decision given in the case of
Hinch Lal Tiwari vs. Kamla Devi and
others reported in 2001 (92) RD 689 (SC)
with specific instructions that the public
lands be secured, managed and maintained
by the Revenue Departments as well as the
State Government to maintain ecological
balances. Yet another government order No.
3135/1-2-2001 Rajaswa dated 08.10.2001
was also circulated by the State Government
to all the District Magistrates of State of U.P.
to ensure compliance of the judgment of
Hinch Lal Tiwari's case (supra) having
observation
about
removal
of
illegal
possessions from such lands of public utility
as well as land of ponds. It has been further
pleaded in the petition that applicant no.1
wrote several letters to the Vice Chairman,
Allahabad
Development
Authority;
Commissioner Allahabad; S.S.P. Allahabad
and the District Magistrate, Allahabad as
well as the Board of Revenue and the State
Government showing grave concern about
illegal grabbing of State land causing huge
losses to the government exchequer and
about illegal constructions upon such State
lands.
444 INDIAN LAW REPORTS ALLAHABAD SERIES

7. In the petition, two letters dated
05.08.2002 and 06.09.2002 have been
annexed as Annexure No.5 to the petition.
In the letter dated 06.09.2002, the concern
about the land of Plot No.408 i.e., the land
in question, was specifically expressed and
mentioned.
Subsequently
the
District
Magistrate, Allahabad also wrote a letter
to the Commissioner, Allahabad on
07.09.2002 in respect of safety and
security of land in question and also in
respect
of
unauthorized
construction
thereupon.

8. According to the pleadings of the
petition and the Annexure no.7 thereof, it
is revealed that applicant no.1 had passed
order dated 27.08.2002 in Case No.138 of
2002 u/s 33/39 of Land Revenue Act in
connection with the land of plot no.408,
Mauza Fatehpur Bichhua, Pargana and
Tehsil Sadar, District-Allahabad, whereby
it was ordered that the land in question be
entered into the name of State Government
in the revenue record and in continuation
thereof, the applicant no.2 submitted
report dated 24.09.2002 to the In-charge
Inspector Police Station Colonelganj,
Allahabad for lodging of first information
report against several persons including
concerned
Lekhpals
and
Revenue
Inspectors for committing cheating and
forgery
in
the
revenue
records
in
connection with the land of Plot No.408
i.e. the land in question.

9. It has also been pleaded in the
petition that First Information Report was
got lodged on 25.09.2002 and was
registered as Case Crime no.361 of 2002
u/s 419, 420, 466, 467, 468, 470 and 471
I.P.C.,
P.S.-Colonelganj,
DistrictAllahabad. According to the pleadings,
certain civil suits and writ petitions were
instituted by a few persons in which orders
were passed by the concerned courts as
well as High Court in the form of statusquo to be maintained on the land in
question. It has also been pleaded in the
petition that no layout plan was ever
passed by any authority and no map for
raising construction over the land in
question was ever submitted by any
person, despite which certain persons were
trying to raise illegal constructions over
the land in question and in view of the
provisions of Urban Planning Act, 1973,
the Allahabad Development Authority
issued notices to such persons for
demolition of existing construction.

10. It has also been pleaded in the
petition that one Mr. Subhash Chandra
Bose (opposite party no.3 in the present
petition) was posted as Additional District
and Session Judge in the judgeship of
Allahabad since last several years and had
purchased a piece of land which was part
of the land in question by means of a saledeed executed on 15.02.1999 for a sale
consideration of Rs.53,000/-, whereas the
cost of land was shown in the deed as
Rs.4,21,000/-. Mr. Subhash Chandra Bose
also purchased a disputed land in the name
of his wife Smt. Madhuri Srivastava by
surreptitiously showing her identity, not as
his wife, but as Km. Madhuri d/o Shri
Gopal Narayan Srivastava. According to
the pleadings of the petition, the applicant
no.1
was
directed
by
the
superior
authorities
to
remove
the
illegal
constructions over the leased land of the
State Government and in continuation of
such exercise by the applicants, the
constructions over two plots purchased by
opposite party no.3 were obstructed and as
such, being indignated the opposite party
no.3 evolved an evil design in order to
blackmail, harass and pressurize the
applicants as well as other government
1 All. Praveen Kumar & Anr. Vs. State of U.P. & Ors.
445
officials and with such ulterior oblique
motive
and
a
disingenuous
modus
operandi, one Original Suit No.1054 of
1998 was got filed by Mr. Subhash
Chandra Bose in his own court through
one person namely Munna seeking the
relief of permanent injunction and in the
said original suit, authorities of U.P. State
Road
Transport
Corporation
were
impleaded as defendant no.1 and 2 and
Smt.
Madhuri
Srivastava
w/o
Shri
Subhash Chandra Bose himself was also
impleaded. Mr. S.C. Bose also purchased a
house situated at Muirabad from the
scheme developed by the Allahabad
Development
Authority
and
in
this
manner, the opposite party no.3 Mr. S.C.
Bose started misusing his official position
being a judicial officer posted in the
judgeship of Allahabad itself. As the
applicants being officers of District
Administration and Revenue Department
were creating hindrance and putting a
spanner in the unfair design of Mr. S.C.
Bose, he got a contempt petition filed in
his own court in the name of Sri Dhara
Singh, Advocate which was numbered as
Contempt Petition No.21 of 2002, wherein
notices were issued to the applicants as
well
as
the
Secretary,
Allahabad
Development Authority and other officers.
Those notices for contempt were issued by
Mr. S.C. Bose in the capacity of
Additional District Judge-XII, Allahabad.

11. It has also been pleaded in this
petition that the opposite party no.3 in
furtherance of his vicious design got one
application dated 16.9.2002 u/s 156(3)
Cr.P.C. filed in the court of Chief Judicial
Magistrate,
Allahabad
through
the
opposite party no.2, who is admittedly said
to be none else than an employee of
aforesaid Sri Dhara Singh Advocate
making absolutely baseless and imaginary
allegations against the applicants. In the
said application dated 16.9.2002, it was
alleged that opposite party no.2 being Pasi
by caste belongs to scheduled caste
category and was raising construction on
behalf of Dhara Singh, Advocate and
Munna Pandey, Advocate over Plot
No.408/2 Fatehpur Bichhua, P.S.- George
Town, Allahabad, during which, on
12.9.2002 the applicant no.1 Praveen
Kumar and applicant No.2 Vijai Shankar
Mishra along with 7-8 unknown persons in
plain dress came on the spot and started
beating the laborers of opposite party no.2
and upon being objected, the opposite
party no.2 was abused and beaten up and
was
also
threatened
with
dire
consequences. It was also alleged in the
said application that the damage to the
tune of Rs.10,000/- was caused and an
amount of Rs.5000/- was snatched away
by the applicants and the report was not
lodged by the concerned police station
George Town under the influence of the
applicants.

12. It has also been pleaded in this
petition that upon this application dated
16.9.2002, a report was called by the court
of Chief Judicial Magistrate, Allahabad
from
the
concerned
police
station,
whereupon the Station House Officer
started inquiry about the contents of
application
dated
16.9.2002
and
approached the applicant no.2 to ascertain
the factual status. The applicant no.2
submitted a written reply to the allegations
made by opposite party no.2 before the
Station House officer, Police StationGeorge Town, Allahabad on 24.9.2002.
Upon this, the Station House Officer made
efforts to get the version of opposite party
no.2 but an incident of terrorist attack on
the temple in State of Gujrat took place on
25.09.2002, because of which a high alert
446 INDIAN LAW REPORTS ALLAHABAD SERIES
was made all over the country and some
political party had claimed for entire
Bharat Band on 26.09.2002. Under such
eventuality, the Station House officer,
George
Town
appeared
before
the
A.C.J.M.-VIII, Allahabad and prayed for
two days' further time for submitting his
report by disclosing that the opposite party
no.2 could not be contacted despite best
efforts and before submitting any report, it
would be proper to obtain his version also.
Despite application moved by the Station
House officer seeking only two days'
further time to submit report, the court of
Additional
Chief
Judicial
Magistrate,
Court No. IX, Allahabad without granting
any time passed the impugned order dated
25.09.2002 in questionable haste, whereby
application moved on behalf of opposite
party no.2 u/s 156(3) Cr.P.C. was allowed
and the Station House officer, P.S. George
Town was directed to lodge the F.I.R. and
to investigate into the matter and submit
report of investigation before the Court.
This order dated 25.09.2002 is being
challenged by the applicants.

13. The applicants have also filed a
supplementary affidavit dated 26.09.2019,
in which averments have been made to the
effect that the F.I.R. lodged by the
applicant
no.2
on
25.09.2002
and
registered as Case Crime No.361 of 2002
was challenged by one of the accused
namely Ram Prasad Singh before the
Division Bench of this Court in Criminal
Misc. Writ Petition No. 5969 of 2002,
which was disposed of finally by means of
order
dated
11.10.2002
and
while
disposing of the writ petition, the Division
Bench of this Court took a serious view of
the matter and noted the fact about the
valuable land worth crores of rupees and
involvement of high officials in the land
grabbing scam and with such observations,
the Division Bench of this Court entrusted
investigation of said criminal case to the
Central Bureau of Investigation and directed
the
Senior
Superintendent
of
Police,
Allahabad to hand over all the papers
relating to aforesaid case to the C.B.I. for
investigation and even a direction was issued
to the C.B.I. to submit report about the
progress of investigation up to 16.12.2002.

14. It has also been stated in the
supplementary affidavit that after taking
over of the investigation, the C.B.I.
registered a case as R.C.No.14(A)/2003
and after completing investigation in
compliance of the order of this Court, the
C.B.I. submitted charge sheet dated
18.01.2006 against the accused persons
including aforesaid Dhara Singh Advocate
before the concerned court of Lucknow
Judgeship and subsequently the trial of
said criminal case was registered as Case
No.15 of 2007 (C.B.I. vs. Kamal Narayan
Mishra and others) and recently applicant
no.2 was also called for his deposition
before the trial court by means of notice
dated 22.08.2019. In compliance of said
notice the applicant no.2 has appeared
before the trial court and deposed as
prosecution witness being P.W.-3 on
06.08.2019 and 28.08.2019 and his crossexamination is to be done on the next
dates. It has also been stated in the said
supplementary affidavit that against the
show cause notice issued by Sri S.C. Bose
in the capacity of Additional District Judge
on 13.9.2002, both the applicants had
preferred
Civil
Misc.
Writ
Petition
No.42396 of 2002 before this Court which
came up for admission on 30.09.2002 and
after considering the facts of the case, this
Court vide order dated 30.9.2002 was
pleased to make prima facie observation
about malafide and oblique intent of Shri
S.C. Bose in following words:
1 All. Praveen Kumar & Anr. Vs. State of U.P. & Ors.
447

"The cognizance taken by Shri
S.C. Bose prima facie appears to be
malafide and for some oblique purpose".

15. In the short counter affidavit filed
on behalf of opposite party no. 2 i.e. the
complainant, it has been stated that he had
filed the application under section 156(3)
of Cr.P.C. under some misconception on
the basis of hearsay information and he
does not want to prosecute the applicants
any further and assures this court that he
will not file further litigation or complaint
against the applicants in any manner
whatsoever before any forum or the court
of law with regard to issue involved in
present matter. He has also stated in his
short counter affidavit that the application
is bonafide and has been filed in the
interest of justice.

16. With aforesaid factual backdrop,
Mr. Gopal Chaturvedi learned senior
counsel appearing for applicants has
submitted that the applicants being upright
officers were faithfully imparting their
official duties in connection with the land
in question and the case in hand is a
classic example of malicious prosecution
brought against them as an arm twisting
contrivance in order to cause sheer
harassment
of
upright
officers
for
committing no offence whatsoever so that
they may not pursue the matter against the
wrong doers in right earnest. It was further
urged before the Court that in a matter like
this even if a regular F.I.R. had been
lodged by police on its own at the instance
of the complainant, the same would have
overwhelmingly deserved to be quashed
by this Court in view of the law laid down
by Hon'ble Supreme Court in the case of
State of Haryana and others vs. Bhajan
Lal 1992 (Supp.1) SCC 335. Further
submission is that in any case, the learned
court below was obliged to consider the
applicability of section 197 of Cr.P.C.
before passing the impugned order in view
of law laid down in Anil Kumar vs.
M.K.Aiyappa, (2013) 10 SCC 705 and L.
Narayana Swamy vs. State of Karnataka,
(2016) 9 SCC 598, according to which
sanction for prosecution of applicants by
the competent authority was a mandatory
requirement in the circumstances of the case.
Mr. Gopal Chaturvedi learned senior counsel,
while placing reliance upon the documents
filed in support of factual background of the
controversy in question, has submitted that the
documents appended with the petition and
supplementary affidavit are of unimpeachable
nature, most of them being official documents
or documents forming part of court's record,
and are liable to be considered and deserve to
be seen by this Court for adjudication over
controversy in hand. Further submission is that
the abuse of process of the court and
miscarriage of justice is apparent on the face of
record and in case, this court does not come
forward to the judicious rescue of applicants, it
would be a travesty of justice, especially in
view of the fact that the opposite party no. 2
i.e. the complainant himself does not want to
proceed with his complaint. In support of
submissions, various case-laws have been
cited, which may be dealt with accordingly at
appropriate stage.

17. Mr. Ankit Saran, Advocate
appearing on behalf of opposite party no.2, in
the light of short counter affidavit has
supported the submissions made on behalf of
the applicant and submits that the impugned
order may be quashed and his client does not
wish to pursue the matter anymore.

18. Learned A.G.A. has also not
disputed the factual and legal submissions
made on behalf of the applicant. However,
he has pointed out that the proposed
448 INDIAN LAW REPORTS ALLAHABAD SERIES
accused lack locus standi to challenge
order passed under section 156(3) of
Cr.P.C. and as such, the criminal misc.
application is not maintainable. Reliance
was placed on the case of Father Thomas
vs. State of U.P, (2000) 41 ACC 435.

19. In rejoinder reply, Mr. Gopal
Chaturvedi learned senior counsel has
submitted that the position of law with
regard to Locus Standi of proposed
accused to challenge order passed under
section 156(3) of Cr.P.C. needs to be seen
in the light of various pronouncements of
Hon'ble Supreme Court given in Anil
Kumar's case (supra) and L. Narayana
Swamy's case (supra) as well as in the
cases of Manharibhai Muljibhai Kakadia
& Anr vs. Shaileshbhai Mohanbhai Patel
& Ors, 2012 (10) SCC 517 and Priyanka
Srivastava and another vs State of U.P.
and others, (2015) 6 SCC 287, and when
we juxtapose the obiter and ratio of these
Apex court's pronouncements against the
view taken in the case of Father Thomas
(supra) which circumscribes the rights of
proposed accused, the embargo imposed
upon the locus standi of the proposed
accused for the purposes of challenging
the order passed against him u/s 156(3)
Cr.P.C.,
gets
automatically
lifted.
Contention is that if the impugned order
suffers from some illegality per se or in
case the order has been passed without
acquiring necessary jurisdiction to pass
such order, such an illegality cannot be
allowed to perpetuate or exist and any
view to the contrary would be tantamount
to putting the crown of infallibility upon
an order which has been passed in
complete violation of law. According to
counsel, aforesaid pronouncements given
by
Hon'ble
Apex
Court
make
the
procurement of sanction a mandatory
requirement in matters where the alleged
offences are said to have been committed
in discharge of official duty and in that
situation the non procurement of the same
will cut at the very root of the matter and
will hit adversely at the jurisdictional base
of the order. If the sanction is sine qua
non, a condition precedent, then it is only
in the presence of the same that the court
of
Magistrate
could
have
obtained
necessary jurisdiction to proceed in the
matter and if a particular order has been
passed without procuring such jurisdiction,
such kind of order shall be a nullity and
cannot be allowed to exist for reasons of
absence of necessary sanction in this
regard. In matters like this the normal
principles as have been laid down in cases
which de-recognize the right of accused to
challenge such order, would not come into
play which only in general restrict the
right or the locus standi of an accused to
challenge order passed under Section
156(3) of Cr.P.C. against him in ordinary
circumstances. The other limb of the
argument upon which emphasis has been
laid by learned senior counsel is that even
otherwise the criminal misc application is
liable to be entertained by this court suo
moto in exercise of its inherent or
revisional jurisdiction, which is a well
recognized independent power and which
must be used in view of glaring factual
background of the case and in view of the
per se illegality that has been committed
by the Magistrate showing the lack of
jurisdiction to pass such order in the
absence of sanction which appears to be
mandatory in the conspicuous backdrop
and the conspicuous circumstances of the
case.

20. In the light of rival submissions,
the record of the case has been perused,
which
demonstrates
peculiar
factual
history of the controversy. However, at the
1 All. Praveen Kumar & Anr. Vs. State of U.P. & Ors.
449
same time, the controversy in hand gives
rise to three main issues to be answered by
this court.

Firstly, whether the impugned
order is vitiated by non compliance of
section 197 of Cr.P.C. in view of Anil
Kumar's case (supra) and L. Narayana
Swamy's case (supra) and whether the
impugned order passed under section 156
(3) of Cr.P.C. directing the registration of
F.I.R. on the basis of complainant's
application, falls within any of the
categories illustrated in Bhajan Lal's case
(Supra).

Secondly, in case the answer to
1st issue is in affirmative, whether this
court
can
exercise
its
inherent
or
revisional jurisdiction at the instance of
proposed accused challenging an order
passed under section 156(3) of Cr.P.C. for
registration of criminal case and for
investigation thereof.

Thirdly, in case the answer to 1st
issue is affirmative and the answer of 2nd
issue in negative, whether this court can
suo
motu
exercise
its
inherent
or
revisional
jurisdiction
to
quash
the
impugned order in the light of peculiar
factual history of the controversy.

21. To answer the first issue, it
would be appropriate to observe that the
record available before this court includes
the main petition, its enclosures as well as
the
supplementary
affidavit
and
its
enclosures.
The
enclosures
of
main
petition and supplementary affidavit, in
order to support the averments made
therein, are mostly official documents like
communications between senior officers of
district administration as well as their
superior
authorities,
the
reports
of
subordinate
government
officers,
the
government orders and circulars. In
addition to this, orders of this Court and
Hon'ble Supreme Court as well as copy of
first information report and charge-sheet
as well as the order-sheets are also
enclosed with petition in support of facts
stated on behalf of applicants. On the other
hand, the court has before it the short
counter affidavit filed by the opposite
party no. 2, in which there is no paragraph
wise rebuttal of the contents of main
petition. In fact the counter affidavit not
only does not deny any of the averments of
affidavit filed on behalf of applicant, it
rather contains admission of opposite party
no. 2 that he had filed application under
section 156(3) of Cr.P.C. under some
misconception and he does not want to
prosecute the applicants any further and
will not proceed to any other forum or
court against him.

22. Considering the nature of
documents available before the court, the
undisputed facts of the case disclose that
applicants are government servants and the
land in question i.e. land of Gata No. 408
(approximately
10
bighas),
Mauza
Fatehpur Bichhua, Pargana and Tehsil
Sadar, District-Allahabad was nazul land
and thus, it was a government property, for
which there is an entry in the register of
government property (nazool) as 'pond' at
serial no.16. The applicants were duty
bound to protect said government property
as is unmistakably deducible in view of
report dated 07.09.1999 submitted by
Additional District Government Counsel
(Civil),
Allahabad
before
D.M.,
Allahabad, the letter dated 06.09.2002 sent
by the applicant no. 1 to the D.M.,
Allahabad, letter dated 07.09.2002 sent by
the D.M., Allahabad to the Commissioner,
Allahabad as well as in view of judgment
of Hinch Lal Tiwari's case (supra). The
applicant no.1 had passed order dated
450 INDIAN LAW REPORTS ALLAHABAD SERIES
27.08.2002 in Case No.138 of 2002 u/s
33/39 of Land Revenue Act in connection
with the land of plot no.408, Mauza
Fatehpur Bichhua, Pargana and Tehsil
Sadar, District-Allahabad, whereby it was
ordered that the land in question be
entered into the name of State Government
in the revenue record and in continuation
thereof, the applicant no.2 submitted
report dated 24.09.2002 to the In-charge
Inspector Police Station Colonelganj,
Allahabad for lodging of first information
report against several persons including
concerned
Lekhpals
and
Revenue
Inspectors for committing forgery and
cheating in the revenue records in
connection with the land of Plot No.408
i.e. the land in question, in continuation to
which first information report dated
25.09.2002 was also registered as Case
Crime no.361 of 2002 u/s 419, 420, 466,
467, 468, 470 and 471 I.P.C., P.S.-
Colonelganj,
District-Allahabad.
The
investigation of said criminal case was
transferred to the Central Bureau of
Investigation vide order dated 11.10.2002
passed by the Division Bench of this Court
in Criminal Misc. Writ Petition No. 5969
of 2002 and after due investigation in
compliance of the order of this Court, the
C.B.I. submitted charge sheet dated
18.01.2006 against the accused persons
including Dhara Singh Advocate before
the concerned court of Lucknow Judgeship
and subsequently the trial of said criminal
case has been registered as Case No.15 of
2007 (C.B.I. vs. Kamal Narayan Mishra
and others), wherein applicant no.2 has
appeared before the trial court and deposed
as prosecution witness being P.W.-3 on
06.08.2019 and 28.08.2019 and his crossexamination is awaited.

23. It is also discernible that the
application dated 16.09.2002 u/s 156(3)
Cr.P.C. filed by the opposite party no.2
contains allegation about interference,
obstruction and damage to the tune Rs.
10,000/- by applicants while construction
was being raised by the opposite party
no.2 on behalf of aforesaid Dhara Singh,
Advocate and one another advocate on the
land in question i.e. Gata No. 408 and it
also contains allegation about snatching of
Rs. 5,000/- by the applicants. The
applicants were arrayed as proposed
accused in that application showing their
post held by them at the relevant point of
time. In the considered view of this Court
the manner in which the Additional Chief
Judicial
Magistrate,
Court
No.
IX,
Allahabad dealt with the matter u/s 156(3)
Cr.P.C. and passed the impugned order
dated 25.09.2002 is not appreciable and
does not satisfy this court either about its
propriety or about its correctness and
leaves much to be desired.

24. At any rate, the least that may be
said in the wake of the factual background
as has been enumerated hereinbefore, the
action of applicants in respect of land in
question appears to be absolutely justified
and was well within the four corners of
their official duties and there cannot be
any doubt in this regard. There is also no
doubt that hindrance was being created by
unscrupulous persons in performance of
official duties by the applicants, who
performed
their
duties
with
utmost
diligence without any fear, despite there
being several odds in such state of affairs,
as is depicted from perusal of record. This
court feels itself vindicated to observe that
the uprightness of these two officers is
writ large and the manner in which they
performed their duties in order to save
Government property is commendable.
Even otherwise, all the allegations leveled
against the applicants appear to be otiose
1 All. Praveen Kumar & Anr. Vs. State of U.P. & Ors.
451
and obsolete now in view of contents of
short counter affidavit filed by opposite
party no.2, noted above.

25. This Court has also cogitated
upon the submissions raised by applicants'
counsel based on the pronouncement of
Hon'ble Apex Court given in the case of
Priyanka Srivastava and another (supra)
whereby he has sought to emphasize that
the exercise of power u/s 156(3) of Cr.P.C.
warrants application of judicial mind as it
is a court of law required to act which is
verily different from a police official
supposed to act u/s 154 of the Code and in
appropriate cases where higher officers are
being embroiled as accused who normally
act in exercise of their statutory functions,
the judicial power ought to be exercised
with circumspection and not in routine or
in a cavalier manner and there ought to be
an endeavour on his part to have at least a
preliminary
satisfaction
about
the
possibility that the allegations made may
be true. This Court has been taken through
the pronouncement of of Hon'ble Apex
Court given in Priyanka Srivastava's case
(supra) in which while dealing with an
order passed u/s 156(3) of Cr.P.C. against
certain accused who were protected for
action taken in good faith u/s 32 of
SARFAESI Act the Apex Court proceeded
to observe as follows :

"17. The learned Magistrate, as
we find, while exercising the power under
Section 156(3) Cr.P.C. has narrated the
allegations and, thereafter, without any
application of mind, has passed an order
to register an FIR for the offences
mentioned in the application. The duty
cast on the learned Magistrate, while
exercising power under Section 156(3)
Cr.P.C., cannot be marginalized. To
understand the real purport of the same,
we think it apt to reproduce the said
provision:

"156. Police officer's power to
investigate congnizable case. -(1) Any
officer in charge of a police station may,
without the order of a Magistrate,
investigate any cognizable case which a
Court having jurisdiction over the local
area within the limits of such station
would have power to inquire into or try
under the provisions of Chapter XIII.

(2) No proceeding of a police
officer in any such case shall at any stage
be called in question on the ground that
the case was one which such officer was
no empowered under this section to
investigate.

(3) Any Magistrate empowered
under Section 190 may order such an
investigation as above-mentioned."

18.....................

19. In Anil Kumar v. M.K.
Aiyappal [3], the two-Judge Bench had to
say this:

"The scope of Section 156(3)
CrPC came up for consideration before
this Court in several cases. This Court in
Maksud Saiyed [(2008) 5 SCC 668]
examined
the
requirement
of
the
application of mind by the Magistrate
before
exercising
jurisdiction
under
Section 156(3) and held that where
jurisdiction is exercised on a complaint
filed in terms of Section 156(3) or Section
200 CrPC, the Magistrate is required to
apply his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter
under Section 156(3) against a public
servant without a valid sanction order.
The
application
of
mind
by
the
Magistrate should be reflected in the
order. The mere statement that he has
gone through the complaint, documents
and heard the complainant, as such, as
reflected in the order, will not be
452 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient.
After
going
through
the
complaint, documents and hearing the
complainant, what weighed with the
Magistrate to order investigation under
Section 156(3) CrPC, should be reflected
in the order, though a detailed expression
of his views is neither required nor
warranted. We have already extracted the
order passed by the learned Special Judge
which, in our view, has stated no reasons
for ordering investigation."

20. .......................

21. .......................

22. .......................

23. .......................

24. Regard being had to the
aforesaid enunciation of law, it needs to be
reiterated that the learned Magistrate has
to remain vigilant with regard to the
allegations made and the nature of
allegations and not to issue directions
without proper application of mind. He
has also to bear in mind that sending the
matter would be conducive to justice and
then he may pass the requisite order. The
present is a case where the accused
persons are serving in high positions in
the bank. We are absolutely conscious that
the position does not matter, for nobody is
above law. But, the learned Magistrate
should take note of the allegations in
entirety, the date of incident and whether
any cognizable case is remotely made out.
................... .........................

25. ...................................

26. At this stage it is seemly to
state that power under Section 156(3)
warrants application of judicial mind. A
court of law is involved. It is not the
police taking steps at the stage of Section
154 of the code. A litigant at his own
whim cannot invoke the authority of the
Magistrate. A principled and really
grieved citizen with clean hands must have
free access to invoke the said power. It
protects the citizens but when pervert
litigations takes this route to harass their
fellows citizens, efforts are to be made to
scuttle and curb the same.

27.