# Prof. Ramesh Chandra v. State of U.P. & Anr

- **Citation:** (2020) 10 ILRA 498
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-17
- **Case number:** Application U/S 482 No. 5939 of 2006
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prof-ramesh-chandra-v-state-of-u-p-anr-45361
- **Pages:** 9

## Headnote

Law
-
Code
of
Criminal
Procedure,1973 - Section 482 Cr.P.C. has
been filed for quashing the charge sheet
(under section 295, 298, 203, 504 IPC) -
Section 197 (2) Cr.P.C. - Sanction provision
- Applicable for taking cognizance - For
conducting investigation and submission of
charge sheet - No sanction required under
section 195, 196, 197 Cr.P.C. (Para - 20)

Since applicant / accused is no more "public
servant" issue of section 197 is redundant and
could not vitiate proceedings since in such
matters sanction not required. (Para - 22)
There is no merit in the application. (Para - 27)

Application dismissed. (E-2)

List of Cases cited:-

## Text

498 INDIAN LAW REPORTS ALLAHABAD SERIES
Ghaziabad. In this view of the matter,
without interfering in the order dated
21.12.2009 passed by the Additional
Collector
(Finance
and
Revenue),
Ghaziabad, a mandamus is issued to the
revisional authorities to decide the revision
on merits.

32. The matter is restored back to the
Commissioner, Meerut Division, Meerut to
hear and decide the Revision No.39/10 on
merits.

33. In the facts and circumstances of
the case, the Court is of the view that the
orders 26.5.2010 and 04.05.2011 passed by
Additional Commissioner Meerut and the
order dated 10.8.2011 passed by Member
Board of Revenue Circuit Court Meerut are
liable to be set aside and they are hereby set
aside. The Commissioner Meerut Division
Meerut is directed to decide the revision
preferred by the petitioner being Revision
No.39 of 2009-10 (Mahipal Vs. State of
U.P. and others) on merits.

34. In the result the writ petition
succeeds and is partly allowed.

35. No order as to costs.
----------
(2020)10ILR A498
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.04.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Application U/S 482 No. 5939 of 2006

Prof. Ramesh Chandra ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Rakesh Kumar, Sri W.H. Khan, Sri R.P.
Tiwari

Counsel for the Respondents:
A.G.A., Sri P.K. Rao, Sri V.B. Rao

Criminal
Law
-
Code
of
Criminal
Procedure,1973 - Section 482 Cr.P.C. has
been filed for quashing the charge sheet
(under section 295, 298, 203, 504 IPC) -
Section 197 (2) Cr.P.C. - Sanction provision
- Applicable for taking cognizance - For
conducting investigation and submission of
charge sheet - No sanction required under
section 195, 196, 197 Cr.P.C. (Para - 20)

Since applicant / accused is no more "public
servant" issue of section 197 is redundant and
could not vitiate proceedings since in such
matters sanction not required. (Para - 22)
There is no merit in the application. (Para - 27)

Application dismissed. (E-2)

List of Cases cited:-

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

2.
Manharibhai
Muljibhai
Kakadia
Vs
Shaileshbhai Mohanbhai Patel, (2012) 10 SCC
517.

3. P.Sundarrajan Vs R. Vidhya Sekar, (2004) 13
SCC 472.

4. Raghu Raj Singh Rousha Vs Shivam
Sundaram Promoters (P) Ltd., (2009) 2 SCC
363.

5. A.N. Santhanam Vs E. Elangovan, (2012) 12
SCC 321.

6. Devarapalli Lakshminarayana Reddy Vs
Narayana Reddy, (1976) 3 SCC 252.

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

8. Dilawar Singh Vs St.of Delhi, (2007) 12 SCC
641.
10 All. Prof. Ramesh Chandra Vs. State of U.P. & Anr.
499
9. Maksud Saiyed Vs St. of Guj., (2008) 5 SCC
668.

10. CREF Finance Ltd. Vs Shree Shanthi Homes
(P) Ltd., (2005) 7 SCC 467.

11. Madhao Vs St. of Mah., (2013) 5 SCC 615.

12. Ramdev Food Products (P) Ltd. Vs St. of
Guj., (2015) 6 SCC 439.

13. Lalita Kumari Vs St. of U.P. ,(2014) 2 SCC 1.

14. Station House Officer, CBI/ACB/ Bangalore
Vs B.A. Srinivasan & ors., 2019(16) SCALE 803.

15. Shambhoo Nath Misra Vs St. of U.P., (1997)
5 SCC 326 (Para 5).

16. Parkash Singh Badal Vs St. of Punj., (2007)
1 SCC 1 (Paras 20 and 38).

17. Rajib Ranjan Vs R. Vijay Kumar, (2015) 1
SCC 513 (Para 18).

18. P.K. Pradhan Vs St. of Sikkim represented
by the Central Bureau of Investigation, (2001) 6
SCC 704.

19. N.K. Ganguly Vs CBI, New Delhi, (2016) 2
SCC 143.

20. U. P. Pollution Control Board Vs Mohan
Meaking Limited and others, (2000) 3 SCC 745.

21. Kanti Bhadra Shah Vs St. of W.B, 2001 SCC
722.

22. Nupur Talwar Vs C.B.I. & ors. , (2012) 11
SCC 465.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri W.H.Khan, Senior
Advocate, assisted by Sri R.P.Tiwari,
learned counsel for applicant, learned
A.G.A. for opposite party 1 and Sri
P.K.Rao, Advocate, for opposite party 2.

2. This is an application under Section
482 of Code of Criminal Procedure, 1973
(hereinafter referred to as "Cr.P.C.") filed
by Prof. Ramesh Chandra with the prayer
that charge sheet dated 11.8.2005 submitted
in Case Crime No.C-26 of 2004 under
Sections 295, 298, 203, 504 IPC, arising
from Case No.8791 of 2005 registered at
Police Post Bundelkhand Vishwavidyalaya,
Police Station (hereinafter referred to as
"P.S.")
Nawabad,
District
Jhansi
be
quashed.

3. Facts in brief giving rise to present
application are that opposite party 2
(hereinafter referred to as "O.P.-2")
Arvind Kumar Soni, (hereinafter referred
to as "Complainant/Informant") filed an
application under Section 156(3) Cr.P.C.
before Chief Judicial Magistrate, Jhansi
(hereinafter referred to as "C.J.M.") to
direct Police to register report against
applicant Ramesh Chandra, Smt. Kalpana
Mathur,
V.K.Sinha,
R.K.Saxena,
Ms.
Aparnaraj, Priyanka and three others under
Sections 295, 298, 120B, 504 IPC. O.P.-2
i.e. Complainant/Informant claimed himself
to be District Coordinator of Bundelkhand
Insaaf Sena. Allegations in complaint read
as under :

1- ;g fd fnukad 13-10-04 dh jkf= esa
bULVhV~;wV vkQ eSustesUV ds rRok/kku esa eSxk
QsLV 2004 dk ,d dk;Zdze dk vk;kstu
cqUnsy[k.M fo'ofo|ky; esa vk;ksftr fd;k x;k
FkkA

2- ;g fd mDr dk;Zdze dh v/;{krk
vfHk;qDr ua0 2 funsZ'ku vfHk;qDr ua0 1] 3 ,oa 4
us dk;Zdze dk usr`Ro fd;k ,oa dk;Zdze dk
lapkyu vfHk;qDr ua0 5 ]6] 7 us fd;k FkkA

3- ;g fd dk;Zdze ds nkSjku ,d y?kq
ukVd ds uke ls ;wfuolZy ekdsZfVax mDr
dk;Zdze eap ls izLrqr fd;k x;k bl ukVd esa
:nzkorkj egkcyh Hkxoku Jh guqeku tks nqfu;k
ds djksM+kas&djksM fgUnqvksa ds iwT; ,oa vkjk/; gSa
ftu ij fgUnw tu csgn vkLFkk j[krs gSa ftUgsa
cky czg~epkjh] ladV ekspu vkSj egkcyh ds :i
500 INDIAN LAW REPORTS ALLAHABAD SERIES
,oa vusd ukeksa ls ge fgUnq oxZ ds yksx iwtrs gSa
,oa mu ij vVwV vkLFkk] J)k j[krs gSa ;gka rd
fd Hkxoku Jh guqeku th ds izpfyr fnu
eaxyokj o 'kfuokj ds fnu iw.kZ lkfRod ozr
j[kdj J)kiwoZd iwtu djrs gSaA

4- ;g fd gekjs egku vkjk/; nso dks
mDr ukVd eapu esa vfHk;qDrx.kksa us ,d ;qod
dks Jh ctjax cyh dk okuk 1⁄4:i j[kokdj1⁄2 ,d
fQYeh xkuk ^^vks jktk vk tk caxys ds ihNs dkaVk
yxk gk; jCck - - - ** ctok;k x;k ,oa Jh
ctjax cyh ds :i /kkj.k djus okys mDr ;qod
dks jSEi ij bl v'yhy xkus ij upok;k x;kA

5- ;g fd mDRk ukVd eapu fgUnqvksa
ds vkjk/; nso ftUgsa egkcyh ds :i esa tkuk
tkrk gS dks igys mDr ukVd eapu esa ,d nqcyk
iryk ,oa detksj O;fDr ds :i esa izLrqr fd;k
x;k ,oa ek[kkSy mMkus okys vankt esa mDr ukVd
eapu esa ,d cqUnsy[k.M fo'ofo|ky; ls
tqxkMesUV uke dh fMxzh mRrh.kZ Nk= }kjk
LokLF; o/kZd Jh guqeku th dks dSIlwy f[kykrs
fn[kk;k x;kA ftlds mijkUr ,d nwljs ;qod dks
dSIlwy [kkus ds mijkUr mDr dSIlwy ds izHkko ls
,d cy'kkyh ;qod ds :i esa fn[kk;k x;k] bruk
gh ugha Hkxoku Jh guqeku dks mDr ukVd eapu
esa vfHk;qDrx.kksa }kjk tyrh flxjsV ihrs fn[kk;k
x;kA v'yhy xkus ij vU; nwljs yM+dksa ds lkFk
Hkxoku Jh guqeku dks tedj ukprs fn[kk;k x;k
ftl ij mDr vfHk;qDrx.k rkfy;ka ctkdj
tksj&tksj ls galrs jgsA nsof"kZ fo'okfe= Hkxoku
Jh jke ds xq: dks fVIl nsdj riL;k Hkax djkrs
fn[kk dj ;g n'kkZ;k x;k fd gekjs _f"k eqfu
fcdkÅ gSA

6-
;g
fd
dk;Zdze
ds
vk;kstd@vfHk;qDrx.k tks i<+s fy[ks ,oa
cqf)thoh oxZ ds O;fDr tkus tkrs gSa vkSj Hkyh
Hkkafr tkurs gSa Hkkjr ds /keZ fujis{k jkT; esa lHkh
/keksZ dk lEeku nsus vkSj lEeku djus dh O;oLFkk
gS dkuwu us fdlh Hkh O;fDRk ,oa lewgks dks ;g
vf/kdkj ugha fn;k gS fd og ,slk d`R; djsa
ftlls vketu dh /kkfeZd Hkkoukvksa dks Bsal igqWaps
yksd 'kkfUr izdksfir gks] ns'k esa oxZ fo'ks"k] /keZ
fo'ks"k ds yksd m)fyr gksdj yksd'kkafUr Hkax
djus ij vkeknk gks tk;s ftlls ns'k esa fo}s"k dh
fLFkfr iSnk gks 'kkfUr O;oLFkk ds fy, iqfyl }kjk
ifCyd 'kklu }kjk ,sls m)fyr tu dks 'kkafr
djus ds fy, 'kfDr dk bLrseky fd;k tk;
ftlls vdkj.k jktnzksg dh fLFkfr iSnk gks bl
izdkj oxksZa ds chp /kkfeZd 'k=qrk dk Hkko iSnk
djuk vkSj ladsrksa o n`';;Liksa }kjk /kkfeZd
Hkkoukvksa dks Bsl igqWapkus vkSj /kkfeZd Hkkoukvksa dks
vkgr djus ds vk'k; ls jktnzksgkRed d`R;
tkucw>dj vkijkf/kd "kM;a= ds rgr cqUnsy[k.M
fo'ofo|ky; ds dqyifr jes'k pUnzk] dqylfpo
oh0ds0 flUgk] ,oa vU; vfHk;qDrx.k 1 yxk;r 7
us dk;ZLFk esa izk;ksftr fd;k ftls ehfM;k us
vius v[kckjksa esa foHkUu rjhdksa ls izdkf'kr fd;k
ftls i<+dj vketu dh /kkfeZd Hkkoukvksa dks
csgn Bsl igqaph gSA

7- ;g fd mDr lEcU/k esa izkFkhZ us ,d
izkFkZuk i= Fkkuk uokckn dks izFke lwpuk fjiksVZ
ntZ djus ds fy;s fn;k ysfdu izkFkhZ dh fjiksVZ
ntZ ugha dh x;h rc izkFkhZ us fnukad 15-10-04
dks ,d izkFkZuk i= Jheku ofj"B iqfyl v/khk{kd
>kalh dks tfj;s Mkd fn;k ysfdu dksbZ dk;Zokgh
ugha dh x;h mDr izkFkZuk i= o jlhn dh izfr
Jheku th ds voyksdukFkZ layXu gSA

8- ;g fd izkFkZuk i= ds lkFk mDr
dk;Zdze ds lEcU/k esa nSfud lekpkj i=ksa esa
izdkf'kr lekpkj fnukad 14] 15] 16] 17 18
vDVwcj 04 ds izeq[k lekpkj i=ksa dh Nk;k izfr
layXu gSA**

4. Chief Judicial Magistrate, Jhansi
passed an order on 05.11.2004 directing
Police to register First Information Report
(hereinafter referred to as "FIR") and after
investigation submit report under Section
173 Cr.P.C. Police of P.S. Nawaband,
Jhansi consequently registered FIR under
Sections 295, 298, 120B, 504 IPC as Case
Crime No.C4 of 2004 dated 07.11.2004
wherein applicant and five others were
named and three were unnamed accused
persons.

5. Applicant and other five named
accused filed Criminal Revision No. 208 of
2004
against
C.J.M.'s
order
dated
05.11.2004 before District and Sessions
Judge, Jhansi. The revision was registered
10 All. Prof. Ramesh Chandra Vs. State of U.P. & Anr.
501
on 01.12.2004 and ultimately dismissed
vide judgment dated 09.02.2005 passed by
Sri Upendra Kumar, Additional Sessions
Judge/Fast Track Court No.3, Jhansi
(hereinafter referred to as "Revisional
Court").

6. Applicant and other named accused
filed Criminal Misc. Writ Petition No.2941
of 2005 challenging C.J.M.'s order dated
05.11.2004 and Revisional Court's order
dated 09.02.2005 but this Court vide
judgment dated 21.3.2005 declined to
interfere with aforesaid orders holding that
prima facie cognizable offence is made out
and therefore, there is no illegality in the
said orders. However, this Court granted
indulgence
only
to
the
extent
that
petitioners during investigation may not be
arrested.

7. After investigation, Police has
submitted charge sheet No.322/05 dated
11.8.2005 against applicant. It is this
charge sheet which has been challenged in
the present application.

8. Sri W.H.Khan, Senior Counsel
appearing for applicant submitted that
charge sheet has been submitted before
Magistrate without any application of
mind; applicant is a ''public servant' and no
sanction under Section 197 Cr.P.C. has
been obtained; and no specific allegation
has been made and proceedings under
Section 156(3) Cr.P.C. were wholly illegal.

9. In my view, none of the arguments
have any force.

10. Order passed by C.J.M. under
Section
156(3)
Cr.P.C.
was
already
challenged by applicant in Revision by
District Judge and then in Criminal Misc.
Writ Petition No.2941 of 2005. He lost in
both Courts. This Court, having not found
any illegality therein, declined to interfere.
Hence order of C.J.M. directing Police to
register FIR cannot be allowed to be
reagitated in this application.

11. Learned counsel for applicant
submitted that application under Section
156(3) Cr.P.C. must have been supported
by an affidavit and relied on Supreme
Court's judgment in Priyanka Srivastava
and Another vs. State of Uttar Pradesh
and others (2015) 6 SCC 287, but, as
already said, this issue is not open to be
raised in this application since order passed
by C.J.M. on 05.11.2004 on the application
filed under Section 156(3) Cr.P.C. was
already agitated by applicant in Criminal
Revision before District Judge and then in
Criminal Misc. Writ Petition No.2941 of
2005 and he failed therein. This Court has
already upheld order of C.J.M. And
Revisional Court vide judgment dated
21.3.2005, hence this issue cannot be
allowed to be reagitated in this application.
Therefore, aforesaid judgment would not
help applicant in any manner.

12. Even otherwise, I do not find that
for the purpose of present case, applicant
can have any benefit of aforesaid authority
as it has not application to this case.
Therein one Prakash Kumar Bajaj availed a
housing loan from Punjab National Bank
Housing Finance Limited
(hereinafter
referred to as "PNBHFL") on 21.01.2001.
Loan was in the name of Prakash Kumar
Bajaj and his wife Jyotsana Bajaj. They
committed
default
in
payment
of
instalment. PNBHFL treated housing loan
as a non-performing asset (hereinafter
referred to as "NPA") in accordance with
guidelines framed by Reserve Bank of
India. PNBHFL issued notice to borrowers
Prakash Kumar Bajaj and Jyotsana Bajaj
502 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 13(2) of Securitisation and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
(hereinafter referred to as "SARFAESI Act").
PNBHFL
on
05.06.2007
submitted
application
before
District
Magistrate,
Varanasi for taking action under Section
13(4) of SARFAESI Act. At this stage, Sri
Bajaj preferred Writ Petition No.44482 of
2007 before this Court, which was dismissed
on 14.09.2007 with the observation that Sri
Bajaj may file requisite objection and take
appropriate action under Section 17 of
SARFAESI Act. Sri Bajaj however preferred
Criminal Complaint Case No.1058 of 2008
against V.N.Sahay, the then Vice President;
Sandesh Tiwari, Assistant President and
V.K.Khanna,
Managing
Director
of
PNBHFL for offences punishable under
Sections 163, 193, 506 IPC, alleging that said
accused persons had intentially taking steps
to cause injury to him. Vide order dated
04.10.2008, Magistrate dismissed criminal
complaint and declined to take cognizance
after recording statements of complainant Sri
Bajaj under Section 200 Cr.P.C. and
witnesses
under
Section
202
Cr.P.C.
Undeterred,
Sri
Prakash
Kumar
Bajaj
preferred Criminal Revision No.460 of 2008
whereupon
Additional
Sessions
Judge,
Varanasi
allowed
revision,
set
aside
Magistrate's order dated 04.10.2008 and
remanded the matter to Magistrate with
direction that he shall hear again and pass
order on cognizance according to law on the
basis of merits in the light of directions given
by Revisional Court. Revisional Court while
allowing revision had not issued any notice to
accused persons. Supreme Court deprecated
this approach of Revisional Court in
Priyanka Srivastava (Supra) by observing
in para 5 as under :

"Be it noted, the learned Additional
Sessions Judge heard the counsel for the
Respondent No. 3 and the learned Counsel
for the State but no notice was issued to the
accused persons therein. Ordinarily, we
would not have adverted to the same because
that lis is the subject matter in the appeal, but
it has become imperative to do only to
highlight how these kind of litigations are
being dealt with and also to show the
Respondents
had
the
unwarranted
enthusiasm to move the courts. The order
passed against the said accused persons at
that time was an adverse order inasmuch as
the matter was remitted. It was incumbent to
hear the Respondents though they had not
become accused persons."
 (Emphasis added)

13. For making above observation,
Supreme Court relied on its authority in
Manharibhai Muljibhai Kakadia vs.
Shaileshbhai Mohanbhai Patel (2012) 10
SCC 517; P.Sundarrajan vs. R. Vidhya
Sekar (2004) 13 SCC 472; Raghu Raj
Singh Rousha vs. Shivam Sundaram
Promoters (P) Ltd. (2009) 2 SCC 363;
and A.N. Santhanam vs. E. Elangovan
(2012) 12 SCC 321.

14. In Prinyanka Srivastava (supra)
following Revisional Court's direction,
Magistrate vide order dated 13.7.2009 took
cognizance and issued summons to all the
three
accused
officials
of
PNBHFL.
Accused persons then came to this Court in
application under Section 482 Cr.P.C.,
which was allowed and proceedings in
Criminal Complaint Case No.1058 of 2009
were quashed. In the meantime Prakash
Kumar Bajaj and his wife i.e. borrowers,
filed objection under Section 13 of
SARFAESI Act. The objections having not
been dealt with, Prakash Kumar Bajaj filed
Writ Petition No.22254 of 2009, which was
decided by this Court vide order dated
05.05.2009 directing disposal of objection.
10 All. Prof. Ramesh Chandra Vs. State of U.P. & Anr.
503
The objection was rejected by Competent
Authority vide order dated 01.6.2009
whereagainst Securitisation Appeal No. 5
of 2010 was filed by Prakash Kumar Bajaj
before Debt Recovery Tribunal, Allahabad
(hereinafter referred to as "D.R.T."). The
appeal was rejected vide order dated
23.11.2012. Sri Bajaj preferred further
appeal before Debt Recovery Appellate
Tribunal, Allahabad (hereinafter referred
to as "D.R.A.T."). Sri Bajaj then filed
another application under Section 156(3)
Cr.P.C.
against
V.N.Sahay,
Sandesh
Tripathi and V.K.Khanna, officials of
PNBHFL alleging criminal conspiracy and
forging of documents referring to three
post-dated cheques. It was numbered as
Complaint Case No.344 of 2011 giving rise
to FIR No.262 of 2011 under Sections 465,
467, 468, 471, 386, 506, 34, 120-B IPC. Sri
Bajaj
filed
third
application
dated
30.10.2011 under Section 156(3) Cr.P.C.
alleging that there was undervaluation of
his property. This complaint was registered
as Complaint Case No.396 of 2011 causing
registration of FIR No.298 of 2011.
Continuous
filing
of
criminal
cases
compelled officials of PNBHFL to enter
into one-time settlement on the stipulation
that Sri Bajaj shall withdraw all the cases
on acceptance of one-time settlement. It
was acted upon and Sri Bajaj deposited
Rs.15 lakhs. Sri V.N.Sahay and two others,
in the meantime, preferred Writ Petition
No.17611 of 2013 which was heard by a
Single Judge along with Criminal Misc.
Application No.13628 of 2010 filed under
Section 482 Cr.P.C. Writ Petition was
disposed of alongwith application under
Section 482 Cr.P.C. observing that since
final report has been submitted, therefore,
writ petition has become infructuous.
Appeal preferred by Sri Bajaj at D.R.A.T.
was
decided
in
terms
of
one-time
settlement. Sri Bajaj still proceeded further
by filing one more application under
Section 156(3) Cr.P.C. on 30.10.2011
against Vice-President and Valuer of
PNBHFL. Magistrate directed Police to
register FIR, which resulted in FIR No.298
of 2011 for offences under Sections 465,
467, 471 IPC as Case Crime No.415 of
2011. It was challenged by officials of
PNBHFL in Criminal Misc. Application
No.24561 of 2011, which was rejected by
this Court vide order dated 23.12.2011 and
thereafter matter came to Supreme Court. It
is in this backdrop and peculiar facts,
Supreme Court in para 19 observed that
narration of facts exemplifies in enormous
magnitude recourse to Section 156(3)
Cr.P.C., as if it is a routine procedure.
Court
deprecated
this
approach
and
observed, if a borrower is allowed to take
recourse to criminal law in the manner it
has been taken, it has inherent potentiality
to affect marrows of economic health of the
nation. Statutory remedy were cleverly
bypassed
and prosecution
route
was
undertaken for instilling fear amongst
individual authorities compelling them to
concede to the request for one-time
settlement which the financial institution
may not have acceded. Court observed that
there was a contest with a perverse sadistic
attitude. Court also deprecated Magistrate
who ordered registration of FIR, observing
that he exercised power under Section
156(3) Cr.P.C. without any application of
mind and passed order for registration of
FIR in a routine manner. Court said :

"The duty cast on the learned
Magistrate, while exercising power under
Section
156(3)
CrPC,
cannot
be
marginalized." (Emphasis added)

15. Referring to earlier decision in
Devarapalli Lakshminarayana Reddy vs.
V. Narayana Reddy (1976) 3 SCC 252,
504 INDIAN LAW REPORTS ALLAHABAD SERIES
Court,
in
Priyanka
Srivastava
and
Another (supra), said, that an order made
under sub-section (3) of Section 156, is in
the nature of a peremptory reminder or
intimation to the police to exercise their
plenary powers of investigation under
Section 156(1). Such an investigation
embraces the entire continuous process
which begins with collection of evidence
under Section 156 and ends with a report or
charge-sheet under Section 173. With
regard
to
Section
156(3)
Cr.P.C.,
observations regarding caution noticed in
Anil Kumar vs. M.K. Aiyappa (2013) 10
SCC 705; Dilawar Singh vs. State of
Delhi (2007) 12 SCC 641; Maksud
Saiyed vs. State of Gujarat (2008) 5 SCC
668; CREF Finance Ltd. vs. Shree
Shanthi Homes (P) Ltd. (2005) 7 SCC
467; Madhao vs. State of Maharashtra
(2013) 5 SCC 615; and Ramdev Food
Products (P) Ltd. vs. State of Gujarat
(2015) 6 SCC 439 were also referred.
Supreme Court also referred to and relied
on its Constitution Bench judgment in
Lalita Kumari vs. State of U.P. (2014) 2
SCC 1.

16. Having referred to above
authorities, in para 27 of judgment, Court
in Priyanka Srivastava and Another
(supra), said :

"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.
It is also to be noted that when a borrower
of the financial institution covered under
the
SARFAESI
Act,
invokes
the
jurisdiction under Section 156(3) Code of
Criminal Procedure and also there is a
separate procedure under the Recovery of
Debts due to Banks and Financial
Institutions Act, 1993, an attitude of more
care, caution and circumspection has to
be adhered to. " (Emphasis added)

17. Further, in paras 29 and 30 of
judgment, Court Priyanka Srivastava and
Another (supra) said :

29. 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.

30. In our considered opinion, a
stage has come in this country where
Section
156(3)
Code
of
Criminal
Procedure
applications
are
to
be
supported by an affidavit duly sworn by
the applicant who seeks the invocation of
the jurisdiction of the Magistrate. That
apart, in an appropriate case, the learned
Magistrate would be well advised to verify
the truth and also can verify the veracity
10 All. Prof. Ramesh Chandra Vs. State of U.P. & Anr.
505
of the allegations. This affidavit can make
the applicant more responsible. We are
compelled to say so as such kind of
applications are being filed in a routine
manner without taking any responsibility
whatsoever only to harass certain persons.
That apart, it becomes more disturbing
and alarming when one tries to pick up
people who are passing orders under a
statutory
provision
which
can
be
challenged under the framework of said
Act
or
Under
Article
226
of
the
Constitution of India. But it cannot be done
to take undue advantage in a criminal
court as if somebody is determined to
settle the scores." (Emphasis added)

18. To avoid mischief, which was
noticed by Court in above authority i.e.
Priyanka
Srivastava
and
Another
(supra), it was, thus observed that now
time has come that application under
Section 156(3) must be supported by an
affidavit. The above judgment nowhere
shows that in the earlier matters where
applications have already been decided,
they shall be bad if no affidavit was filed.

19. Reverting to basic contention, in
any case, argument of lack of affidavit
along with application under Section
156(3) Cr.P.C. disappeared when petitioner
challenged correctness of order dated
05.11.2004 passed by Magistrate directing
Police to register FIR as also upheld in
revision but the said orders were upheld by
this Court in Writ Petition No.2941 of 2005
filed by petitioner wherein Court declined
to
interfere
vide
judgment
dated
21.03.2005. The said order has attained
finality. What relief petitioner could not get
in earlier writ petition, cannot be allowed to
be reagitated in the present writ petition
also and to this extent issue having already
attained finality, has to be rejected.

20. Now coming to second aspect that
sanction under Section 197(2) Cr.P.C. has
not been obtained and therefore entire
proceedings are bad in law, here, I find that
aforesaid provision is applicable for the
purpose of taking cognizance but applicant
has preferred this application challenging
charge
sheet
only
and
for
making
investigation and submission of charge
sheet, no sanction is required as provisions
as contained in Sections 195, 196 and 197
Cr.P.C. have no application at that stage.

21. Very recently, a three Judges
Bench of Supreme Court has considered a
similar issue in Station House Officer,
CBI/ACB/ Bangalore vs. B.A. Srinivasan
and Ors. 2019(16) SCALE 803 where
cognizance order passed on charge sheet
was challenged on the ground of lack of
sanction and prayer for discharge was made
but Trial Court rejected the same and in the
criminal revision, High Court interfered.
Supreme Court did not approve order of
High
Court
and
said
that
whether
protection under Section 197 is available or
not has to be examined not only on the
consideration that incumbent is a 'public
servant' but also whether offence alleged to
have been committed relates to his act or
purporting to act in discharge of official
duties which would require investigation
into facts. Relying on earlier judgments in
Shambhoo Nath Misra vs. State of U.P.
(1997) 5 SCC 326 (Para 5); Parkash
Singh Badal vs. State of Punjab (2007) 1
SCC 1 (Paras 20 and 38); Rajib Ranjan
vs. R. Vijay Kumar (2015) 1 SCC 513
(Para 18); P.K. Pradhan vs. State of
Sikkim represented by the Central
Bureau of Investigation (2001) 6 SCC
704 and N.K. Ganguly vs. CBI, New
Delhi (2016) 2 SCC 143, Supreme Court
said that whether alleged act is intricately
connected
with
discharge
of
official
506 INDIAN LAW REPORTS ALLAHABAD SERIES
functions and whether matter would come
within the expression 'while acting or
purporting to act in discharge of their
official duty', would get crystallized only
after evidence is led and issue of sanction
can be agitated at a later stage as well.
Court said that without there being
evidence and issue having been considered
by Trial Court, at the stage of summoning
such an issue cannot be examined by
superior Court on a Criminal Revision or
on an application under Section 482
Cr.P.C. This judgment, in my view, rather
goes against applicant instead of helping
him.

22. In this case, applicant has long back
ceased to be an official of University.
Learned A.G.A. has informed that he has
already been terminated. Once accusedapplicant is no more a 'public servant', issue
of Section 197 will become redundant and
would not vitiate proceedings since in such
matters sanction is not required.

23. Learned Senior Counsel submitted
that though order of cognizance could not be
appended to the application but he has got a
copy of said order dated 21.09.2005 and it
shows that it is a totally non speaking,
unreasoned order and therefore bad in law.
Copy of order placed before court passed by
C.J.M. on 21.09.2005 reads as under ;

^^vkt vkjksi i= U;k;ky; esa izkIr
gqvkA ckn voyksdu vkns'k gqvk fd ntZ jftLVMZ
gks vfHk;qDr ds fy, izlaKku fy;k x;k udys rS;kj
djk;h tkosA fnukad 30-11-05 dks okLrs gkftjh ,oa
nsus udys is'k gksaA** (Emphasis added)

24. Having gone through the said order
it cannot be said that Magistrate had not
applied its mind to the documents placed
before registering the case and taken
cognizance
by
summoning
accusedapplicant. A similar issue was considered in
U. P. Pollution Control Board vs. Mohan
Meaking Limited and others, 2000 (3)
SCC 745, and after referring to an earlier
decision in Kanti Bhadra Shah Vs State of
West Bengal 2001 SCC 722, Court said :

"Legislature has stressed the need
to record reasons in certain situations such
as dismissal of complaint without issuing
process. There is no such requirement
imposed on a Magistrate for passed detailed
order while issuing summons. Process
issued to accused cannot be quashed merely
on the ground that Magistrate had not
passed a speaking order." (Emphasis added)

25. Same proposition was reiterated in
Nupur Talwar Vs Central Bureau of
Investigation and others, 2012 (11) SCC
465. Thus even this argument fails.

26. No other point has been argued.

27. I, therefore, find no merit in the
application.

28. Dismissed. Interim order, if any,
stands vacated.
----------
(2020)10ILR A506
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Application U/S 482 No. 5469 of 2003
&
Application U/S 482 No. 2444 of 2005

Kuldeep Narayan & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicants: