# Preeti Srivastava v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1554
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-11-26
- **Case number:** Criminal Revision No. 523 of 2013
- **Bench:** Arvind Kumar Tripathi(Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/preeti-srivastava-v-state-of-u-p-and-ors-42745
- **Pages:** 6

## Headnote

Cr.P.C. Section-397(2)-Criminal RevisionAgainst order rejecting application under
section 156(3) Cr.P.C.-being interlocutory in
nature-revision-held-barred.

Held: Para-18
Considering the above decisions of the
Apex Court and after a careful reading of
the decision of Full Bench of this in Court
Father Thomas (supra), it is abundantly
clear
that
an
order
rejecting
the
application under Section156(3) Cr.P.C.
3 All] Preeti Srivastava Vs. State of U.P. and Ors.
1555
is also an interlocutory order and remedy
of revision is barred.

Case Law discussed:
2011
Crl.
Law
Journal
2278;
2000(41)
Allahabad Law Journal 2730; (2009) 1 SCC
801 (AIR 2008) SC Supplementary 706); 2007
Criminal Law Journal 3729; 1996(4) Crimes
189 SC; 2006 Criminal Law Journal 3283.

## Text

1554 INDIAN LAW REPORTS ALLAHABAD SERIES
the provisions of sub-section (3), be
appealable as decrees of the court made in
the exercise of its original civil jurisdiction,
and every such appeal shall lie to the court to
which appeals ordinarily lie from the
decisions of the court given in the exercise of
its original civil jurisdiction.

(2) Orders made by the court in any
proceeding under this Act under Section
25 or Section 26 shall, subject to the
provisions
of
sub-section
(3),
be
appealable if they are not interim orders,
and every such appeal shall lie to the
court to which appeals ordinarily lie from
the decisions of the court given in
exercise of its original civil jurisdiction.

(3) There shall be no appeal under
this section on the subject of costs only.

(4) Every appeal under this section
shall be preferred within a period of
[ninety] days from the date of the decree
or order."

3. From a perusal of the provisions
of Section 28 of the Act, it is clear that no
appeal lies against an order passed under
Section 24 of the Act. It is not disputed by
the learned counsel for the appellant or by
Sri Ishtiyaq Ali , learned counsel for the
respondent that proceedings under Section
13 of the Act for divorce are still pending
in the civil court. It is also admitted by
both the parties that these are not
proceedings under Section 19 of the
Family Court Act.

4. Learned counsel for the appellant
has placed reliance upon the Full Bench
decision of this Court reported in 2006 All.
C.J, 1936, Kiran Bala Srivastava (Smt) vs.
Jai Prakash Srivastava. Proceedings in that
case arose under the Family Court Act and it
was against an order passed under Section 24
of the Hindu Marriage Act, 1955, that the
appeal was filed under Section 19 of the
Family Court Act. Present proceedings are
not under the Family Court Act but under
Section 28 of the Hindu Marriage Act, 1955.

5. Even otherwise the appeal under
the Family Court Act is cognizable by a
Division Bench as per the provisions of
the Act itself.

6. In view of the above legal
position, the present appeal under Section
28 of the Hindu Marriage Act, 1955 is not
maintainable and is accordingly dismissed.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED:
LUCKNOW 26.11.2013

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI(II),J.

Criminal Revision No. 523 of 2013

Preeti Srivastava... Petitioner
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioner:
Sri T.N. Tiwari

Counsel for the Respondents:
Govt. Advocate

Cr.P.C. Section-397(2)-Criminal RevisionAgainst order rejecting application under
section 156(3) Cr.P.C.-being interlocutory in
nature-revision-held-barred.

Held: Para-18
Considering the above decisions of the
Apex Court and after a careful reading of
the decision of Full Bench of this in Court
Father Thomas (supra), it is abundantly
clear
that
an
order
rejecting
the
application under Section156(3) Cr.P.C.
3 All] Preeti Srivastava Vs. State of U.P. and Ors.
1555
is also an interlocutory order and remedy
of revision is barred.

Case Law discussed:
2011
Crl.
Law
Journal
2278;
2000(41)
Allahabad Law Journal 2730; (2009) 1 SCC
801 (AIR 2008) SC Supplementary 706); 2007
Criminal Law Journal 3729; 1996(4) Crimes
189 SC; 2006 Criminal Law Journal 3283.

(Delivered by Hon'ble Arvind Kumar
Tripathi (II), J.)

1. This criminal revision has been
filed by Preeti Srivastava challenging the
order
dated
23.9.2013
passed
by
Additional Chief Judicial Magistrate,
Court No.27, Lucknow by which an
application under Section156(3) Cr.P.C.
was rejected.

2. Heard Sri T. N. Tiwari, learned
counsel for the revisionist assisted by Sri
Vishnu
Kumar
Srivastava,
learned
counsel and Shri Faisal Ahmad Khan,
learned AGA for the State.

3. Brief facts of the case is essential
for this revision is that an application
under Section 156(3) Cr.P.C. was moved
by Preeti Srivastava before the Court of
Additional Chief Judicial Magistrate,
Court No.27, Lucknow for directing the
police station concerned to register an FIR
and for investigating the matter this
application
was
rejected
by
which
Magistrate.
Feeling
aggrieved
this
criminal revision has been filed.

4. It was submitted by learned
counsel for the revisionist that as the
contents of the application constitute a
cognizable offence hence the magistrate
was bound to allow the application and
direct the Station Incharge concerned to
register and investigate the case.

5. Learned AGA argued that in view
of the case of Father Thomas Vs. State of
U.P. and Anr. 2011 Crl. Law Journal
2278
criminal
revision
is
not
maintainable.

6. Replying to the argument learned
counsel for the revisionist argued that the
case of Father Thomas relates to the case
where application under Section 156(3)
Cr.P.C. has been allowed and it has been
held by the Full Bench that revision is not
maintainable at the instance of proposed
accused.

7. In the case Father Thomas Vs. State
of U.P. and Anr. 2011 Crl. Law Journal 2278
though the matter was that an application
under Section 156(3) Cr.P.C. was allowed
and when revision came before learned
Single Judge for decision, he was of the view
that the accused has no locus standi to
challenge an order passed, and an order
directing investigation is purely interlocutory
in nature in view of statutory bar contain
under section 397(2) of the Code the said
order was not reviseable. However in the
case of Ajay Malviya V. State of U.P. and
others 2000(41) Allahabad Law Journal
2730; in which has been held by Division
Bench that under Section 156(3) Cr.P.C. is a
judicial order. Hence any FIR registered on
the basis cannot be challenged by means of
writ petition, learned Single Judge raised
doubts about the correctness of the decision
of Division Bench Ajay Malviya V. State of
U.P. and others and the matter was referred
before the Larger Bench. While referring the
matter to the Larger Bench, learned Single
Judge formulated following questions for
consideration:-

(A) Whether the order of the
Magistrate made in exercise of powers
under Section 156(3) Cr.P.C. directing the
1556 INDIAN LAW REPORTS ALLAHABAD SERIES
police to register and investigate is open
to revision at the instance of a person
against whom neither cognizance has
been taken nor any process issued ?

B. Whether an order made under
Section
156(3)
Code
of
Criminal
Procedure is an interlocutory order and
remedy of revision against such order is
barred under Subsection (2) of Section
397 of the Code of Criminal Procedure,
1973 ?

C. Whether the view expressed by a
Division Bench of this Court in the case
of Ajay Malviya v. State of U.P. and
Ors.(XLI) 2000 ACC 435, that as an order
made under Section 156(3) of the Code of
Criminal Procedure is amenable to
revision, no writ petition for quashing an
F.I.R. registered on the basis of the order
will be maintainable, is correct?

8. While answering the three
questions the Full Bench has held in para
65 is that;

65. A. The order of the Magistrate
made in exercise of powers under Section
156(3) Code of Criminal Procedure
directing the police to register and
investigate is not open to revision at the
instance of a person against whom neither
cognizance has been taken nor any
process issued.

B. An order made under Section
156(3) Code of Criminal Procedure is an
interlocutory
order
and
remedy
of
revision against such order is barred under
Subsection (2) of Section 397 of the Code
of Criminal Procedure, 1973.

C. The view expressed by a Division
Bench of this Court in the case of Ajay
Malviya v. State of U.P. and Ors.
2000(41) ACC 435:(200 Allahabad Law
Journal 2730) that as an order made under
Section 156(3) of the Code of Criminal
Procedure is amenable to revision, and no
writ petition for quashing an F.I.R
registered on the basis of the order will be
maintainable, is not correct.

9. The Full Bench's answer to
question no.1 is that if an application
under Section 156(3) Cr.P.C. has been
allowed then it is on open to revision by
proposed accused.

10. If the intention of learned Single
Judge was only to refer the controversy
regarding the decision of Ajay Malviya's
case (supra) then learned Single Judge
would not have formulated Question 'B'
and the matter would have been ended
only after formulating Questions A and B.
When learned Single Judge formulated
Question 'B' then it was the intention of
learned
Single
Judge
to
get
the
controversy decided once for all and thus
they framed Question 'B'.

11. The Full Bench while giving
opinion to this Question B has answered
in a very categorical term that an order
passed under Section 156(3) Cr.P.C. is an
interlocutory order and remedy is revision
is barred.

12. "An order made under Section
156(3) Cr.P.C." clearly includes an order
rejecting
the
application
under
Section156(3) Cr.P.C. otherwise the Full
Bench would not have answered the
Question 'B'.

13. Learned counsel for the
revisionist argued on the strength of the
decision of Apex Court in Raghu Raj
Singh
Rousha
v.
Shiva
Sundaram
Promoters Private limited and Anr.
MANU/SC/0357/2009 : (2009) 1 SCC
801 (AIR 2008 SC Supplementary 706)
3 All] Preeti Srivastava Vs. State of U.P. and Ors.
1557
that criminal revision is maintainable
against an order rejecting the application
under Section156(3) Cr.P.C.

14. The Full Bench of this High
Court discussed the matter of Raghu Raj
Singh Rousha's case and held para 28 as
under:-

28. It may be noted that the backdrop
of Raghu Raj Singh Rousha's case was
that the complainant company had filed a
complaint petition accompanied by an
application under Section 156(3) of the
Code before the Metropolitan Magistrate
alleging commission of offences under
Sections 323, 382, 420, 465, 471, 120-B,
506 and 34 IPC against the accused. The
Magistrate refused to direct investigation
in terms of Section 156(3) Code of
Criminal Procedure but directed the
complainant
to
lead
pre-summoning
evidence. The High Court however in a
criminal revision against the order of the
Magistrate, where only the State was
impleaded,
without
giving
any
opportunity to the accused to be heard set
aside the order of the Magistrate and
directed the Magistrate to examine the
matter afresh after calling for a police
report The High Court's order was set
aside by the Apex Court on two counts.
One that there was an infringement of
Section 401(2) of the Code as the right of
hearing to an accused, or any other person
who may be aggrieved mandated by the
aforesaid provision, was denied to the
aggrieved party as a result of the High
Court's order. Two, according to the Apex
Court the initial order of the Magistrate,
who declined to entertain the application
under Section 156(3) of the Code, but
directed that the procedure of a complaint
case be followed, and that the witnesses
be examined under Section 200 and 202
Code of Criminal Procedure indicated that
cognizance had been taken, hence a right
of hearing had accrued to the accused.
That would not have been the case, if only
a pre-cognizance order of the Magistrate
refusing to issue a direction under Section
156(3) Code of Criminal Procedure had
been challenged in the High Court by the
informant, where right of hearing had
been denied to the accused in a Criminal
Revision. These are the two basic
distinctions from a direct order by a
Magistrate to the police to investigate an
offence. Here the direction under Section
156(3) Code of Criminal Procedure has
not been issued consequent to any
direction by the High Court in a criminal
revision at the instance of the informant
where only the State is made a party, and
the aggrieved accused is denied the
opportunity of hearing contemplated
under Section 401(2) Code of Criminal
Procedure. Also it is a pre-cognizance
order only containing a direction of the
Magistrate for investigation by the police,
where no valuable right has accrued to the
prospective accused, which is distinct
from the post cognizance order in
Rousha's cases, where the Magistrate had
decided to follow the procedure of a
complaint case under Section 200 and 202
Code
of
Criminal
Procedure.
We
therefore find that Rousha's case is no
authority for the proposition that any right
of hearing accrues to a prospective
accused or that any criminal revision is
maintainable against an order of the
Magistrate simply directing the police
officer in-charge of a police station to
investigate a case in exercise of powers
under Section 156(3) of the Code.

15. In the case of Aleque Padamsee
and Ors. Vs. Union of India (UOI) and
Ors. 2007 Criminal Law Journal 3729; the
1558 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court has held that Whenever any
information is received by the police
about the alleged commission of offence
which is a cognizable one there is a duty
to register the FIR. There can be no
dispute on that score. The only question is
whether a writ can be issued to the police
authorities to register the same. The basic
question is as to what course is to be
adopted if the police does not do it. The
correct position in law, therefore, is that
the police officials ought to register the
FIR whenever facts brought to its notice
show that cognizable offence has been
made out. In case the police officials fail
to do so, the modalities to be adopted are
as set out in Section 190 read with Section
200 of the Code.

16. In the case of All Institute of
Medical Sciences Employees Union Vs.
Union of India 1996 (4) Crimes 189
(Supreme Court), the Apex Court has held
Para 4:

"4. When the information is laid with
the police but no action in that behalf was
taken, the complainant is given power
under Section 190 read with Section 200
of the Code to lay the complaint before
the Magistrate having jurisdiction to take
cognizance of the offence and the
Megistrate is required to inquire into the
complaint as provided in Chapter XV of
the Code. In case the Magistrate after
recording evidence finds a prima facie
case, instead of issuing process to the
accused, he is empowered to direct the
concerned police to investigate into the
offence under Chapter XII of the Code
and to submit a report. If he finds that the
complaint does not disclose any offence
to take further action, he is empowered to
dismiss the complaint under Section 203
of the Code. In case he finds that the
complaint/ evidence recorded prima facie
discloses offence, he is empowered to
take cognisance of the offence and would
issue process to the accused."

17. Similarly, the Apex Court has
again in the Case of Hari Singh Vs. State
of U.P. 2006 Criminal Law Journal 3283
held that para 4:

"4. When the information is laid with
the police, but no action in that behalf is
taken, the complainant can under Section
190 read with Section 200 of the Code lay
the complaint before the Magistrate having
jurisdiction to take cognizance of the offence
and the Magistrate is required to enquire into
the complaint as provided in Chapter XV of
the Code. In case the Magistrate after
recording evidence finds a prima facie case,
instead of issuing process to the accused, he
is empowered to direct the police concerned
to investigate into offence under Chapter XII
of the Code and to submit a report. If he
finds that the complaint does not disclose any
offence to take further action, he is
empowered to dismiss the complaint under
Section 203 of the Code. In case he finds that
the complaint/evidence recorded prima facie
discloses an offence, he is empowered to
take cognizance of the offence and would
issue process to the accused. These aspects
have been highlighted by this Court in All
India
Institute
of
Medical
Sciences
Employees'
Union
(Reg)
through
its
President v. Union of India and Ors.
MANU/SC/1769/1996 : (1996)11SCC582 .
It was specifically observed that a writ
petition in such cases is not to be entertained.
The above position was again highlighted
recently in Gangadhar Janardan Mhatre v.
State of Maharashtra MANU/SC/0830/2004
: 2004CriLJ4623 and in Minu Kumari and
Anr.
v.
State
of
Bihar
and
Ors.
MANU/SC/8098/2006:
2006CriLJ2468."
3 All]Drawing &Disbursement Officer,LIC of India &Ors. Vs. Asst. Commissioner of Income Tax&Ors. 1559

18. Considering the above decisions
of the Apex Court and after a careful
reading of the decision of Full Bench of
this in Court Father Thomas (supra), it is
abundantly clear that an order rejecting
the
application
under
Section156(3)
Cr.P.C. is also an interlocutory order and
remedy of revision is barred.

19. From the above discussion, this
criminal revision is liable to be dismissed,
and is hereby dismissed as being barred
under subsection(2) of Section 397 Cr.P.C.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ(TAX) Petition No. 620 of
2009
alongwith W.P. No. 619 of 2009, W.P. No.
621 of 2009

Drawing & Disbursement Officer, LIC of
India & Ors.... Petitioners
Versus
Asst. Commissioner of Income Tax &
Ors.... Respondents

Counsel for the PetitionerS:
Sri Rakesh Ranjan Agarwal

Counsel for the Respondents:
A.S.G.I., C.S.C (I. Tax)., G.Krishna

Income
Tax
Act-1961-Section
192Petitioner being Drawing and Disbursing
officer-paying salaries to the employeesdeducted income tax at source from
estimated income of employees-allowed
allowance
of
donation-given
by
the
employees to the institution for rural
development programe-obliged to have
broad
picture
of
estimated
incomecircular
relied
by
department
also
nowhere
provides
any
guidance
for
deduction under section 80 GGA-heldonce
employees
found
subjected
to
regular income tax-no liability could be
fastened
upon
petitioner-petition
allowed.

Held: Para-26
The petitioner had made bona fide
allowance of the donation made by the
employees
for
rural
development
programme while making deduction of
tax at source and as such there was no
occasion for any order under Section 201
read with Section 201 (1A) of the Act. It
may be pertinent to note that the
employer while making deduction of tax
at source is only required to have a
broad picture of the estimated income on
which tax is to be deducted. He is not
supposed
to
calculate
the
income
minutely to precession.

Case Law discussed:
2009(6) SCC 735; AIR 1978 SC 851;
2003(129) STC 526; 2058 ITR 529; [2000]
243 ITR 0435; [1983] 140 ITR 0832.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri Rakesh Ranjan
Agrawal, Senior Advocate, assisted by Sri
Suyash Agrawal, learned counsel for the
petitioner and Sri Govind Krishna,
learned Standing Counsel for the Income
Tax Department.

2. The above three petitions relate to
the assessment years 2003-04, 2004-05
and 2005-06 and are based upon identical
facts involving the same assessee.

3. In all the writ petitions separate
but identical orders dated 28.3.2007
passed by the Assistant Commissioner of
Income Tax, TDS, Varanasi and a
common order dated 29.12.08 passed by
the Commissioner of Income Tax, TDS,
Lucknow dismissing the three revisions
arising there-from have been impugned.