# Ram Anuj Dubey v. State of U.P

- **Citation:** (2003) 3 ILRA 761
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-02
- **Case number:** Criminal Misc. Application No. 3056 of 2003
- **Bench:** K.N. Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-anuj-dubey-v-state-of-u-p-40194
- **Pages:** 2

## Headnote

U.P.Z.A. & L.R. Act-Section 281-readwith
Article 21 of the Constitution of Indiavalidity of detention of the defaulteronly when the defaulter has sufficient
means to pay but avoiding the Paymentsuch
finding
must
be
recorded
in
detention order.

Held-Para 9

Though we are not dealing with the
question of legality and constitutional
validity of Section 281 of the Act,
however,
keeping
in
mind
the
International Covenant to which India is
a signatory coupled with Article 21 of the
Constitution, we are of the opinion that
merely on failure of the defaulter to
discharge his liability upon receipt of
demand notice, harsh method of arrest
and detention to coerce him to make the
payment should not be resorted. When
arrest and detention affects personal
liberty of a person, the authority before
taking recourse to such method must be
satisfied that the defaulter in spite of
having sufficient means, has willfully and
with mala fide intention refused to pay.
This satisfaction must be evident from
the
order
passed
by
the
recovery

## Text

http:\\allahabadhighcourt.nic.in
3 All] Ram Anuj Dubey V. State of U.P.
761
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2003

BEFORE
THE HON'BLE K.N. SINHA, J.

Criminal Misc. Application No. 3056 of 2003

Ram Anuj Dubey

...Applicant
Versus
State of U.P

...Opposite Party

Counsel for the Applicant:
Sri N.D. Shukla

Counsel for the Opposite Party:
A.G.A.

Criminal Procedure Code 1808-Sec.-156
(3) application under section 156 (3)-
Direction to register as complaint caseorder without jurisdiction-direction to
register case under Section 156 (3)
Cr.P.C. is quite different to the complaint
case under Section 200 Cr.P.C.

Held-Para 9

Thus the pronouncement of this Court in
the case of Dinesh chandra and others
(Supra)
clarified
the
position
of
complaint under Section 200 Cr.P.C and
application under Section 156(3) Cr.P.C.
I, therefore, find that the learned C.J.M.
Bhadohi exceeded the jurisdiction in
registering

the
application
under
Section 156 (3) Cr.P.C as a complaint.
The application is, therefore, allowed.
The impugned order dated 19.4.2003 so
far as it relates to registration of
application under Section 156 (3) Cr.P.C
as a complaint case is quashed. The
C.J.M. Bhadohi is directed to proceed and
pass appropriate order on the application
under Section 156 (3) Cr.P.C at an early
date.
Case law:-
2001 (1) J.I.C. page 4701
2001 (1) J.I.C. page 942 Alld.
AIR 1997 S.C. page 3104
(Delivered by Hon'ble K.N.Sinha, J.)

1. The present application has been
filed against the order dated 19.4.2003
passed by Chief Judicial Magistrate,
Bhadohi whereby he directed to register
the application under Section 156 (3)
Cr.P.C as complaint.

2. The brief fact giving rise to this
application are that an application under
Section 156 (3) Cr.P.C was moved by
applicant for registration of the case and
investigation. The C.J.M Bhadohi ordered
for registering of the case as a complaint
case.

3. The learned counsel for the
applicant has submitted that the procedure
of complaint case and application under
Section 156 (3) Cr.P.C are quite different
and the C.J.M. Bhadohi has without
caring for this passed the impugned order.
In support of the contention he has relied
upon two case law.

4. Being aggrieved by the said order
the present application has been filed.

5. I have heard learned counsel for
the applicant and learned A.G.A and also
perused the impugned order.

6. In the case of Mahboob Ali Vs.
State of U.P. and others, reported in
2001(1) JIC page 470, Alld. It has been
held that the scope of application under
Section 156 (3) Cr.P.C and that of
complaint are different. The facts of the
case referred in the case of Mahboob Ali
(Supra) are similar to those of the present
case. In that too the applicant had moved
an application under Section 156 (3)
Cr.P.C which was ordered to be registered
as a complaint.
http:\\allahabadhighcourt.nic.in
762 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
7. In the above case the order of the
Magistrate was set aside and he was
ordered to pass proper order.

8. In the case of Dinesh Chandra
and others Vs. State of U.P 2001(1) JIC
page 942, Alld., it was held that the
powers under Section 156 (3) Cr.P.C are
quite different to the power under Section
200 Cr.P.C. The case of Madhu Bala Vs.
Suresh Kumar and others, AIR 1997
Supreme Court page 3104 was fully
discussed. In the case of Dinesh Chandra
and others (Supra) and it was held as
follows.

"The Apex Court has definitely not
used the term complaint to thwart or
defeat the purpose behind the enactment
of Section 156 (3) itself. The term was
never used with any intention that the
reference order appears to channelise.
Thus in my view it should be an
application and not a complaint."

9. Thus the pronouncement of this
Court in the case of Dinesh chandra and
others (Supra) clarified the position of
complaint under Section 200 Cr.P.C and
application under Section 156(3) Cr.P.C.
I, therefore, find that the learned C.J.M.
Bhadohi exceeded the jurisdiction in
registering the application under Section
156(3) Cr.P.C as a complaint. The
application is, therefore, allowed. The
impugned order dated 19.4.2003 so far as
it relates to registration of application
under Section 156 (3) Cr.P.C as a
complaint case is quashed. The C.J.M.
Bhadohi is directed to proceed and pass
appropriate order on the application under
Section 156(3) Cr.P.C at an early date.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2003

BEFORE
THE HON'BLE R.K. DASH, J.
THE HON'BLE V.N. SINGH, J.

Civil Misc. Writ Petition No. 21659 of 2003

Om Prakash Gupta

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ranjit Asthana

Counsel for the Respondents:
Sri Hari Ashok Kumar, S.C.

U.P.Z.A. & L.R. Act-Section 281-readwith
Article 21 of the Constitution of Indiavalidity of detention of the defaulteronly when the defaulter has sufficient
means to pay but avoiding the Paymentsuch
finding
must
be
recorded
in
detention order.

Held-Para 9

Though we are not dealing with the
question of legality and constitutional
validity of Section 281 of the Act,
however,
keeping
in
mind
the
International Covenant to which India is
a signatory coupled with Article 21 of the
Constitution, we are of the opinion that
merely on failure of the defaulter to
discharge his liability upon receipt of
demand notice, harsh method of arrest
and detention to coerce him to make the
payment should not be resorted. When
arrest and detention affects personal
liberty of a person, the authority before
taking recourse to such method must be
satisfied that the defaulter in spite of
having sufficient means, has willfully and
with mala fide intention refused to pay.
This satisfaction must be evident from
the
order
passed
by
the
recovery