# Revision No.451/07 Nagendra Tiwari v. State of U.P. and another with the further

- **Citation:** (2007) 3 ILRA 765
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-10-26
- **Case number:** Crl. Misc. Application No. 24771 of 2007
- **Bench:** M.K. Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revision-no-451-07-nagendra-tiwari-v-state-of-u-p-and-another-with-the-further-41160
- **Pages:** 4

## Headnote

(A) Code of Criminal Procedure- Section-
497- Criminal Revision- direction to
register and investigate the case issued
by the Magistrate under section 156(3)
of the act.- revision by the accused- held
not maintainable- as no case has been
registered
nor
any
right
of
the
prospective accused is going to be
affected.

Held: Para 4

This contention of the learned counsel
for the applicant is correct. If an
application is filed under Section 156(3)
Cr.P.C.
in
the
Court
of
a
learned
Magistrate, it is a matter between the
applicant and the Court and the accused
does not come into picture as no
cognizance of the of fence is taken in the
matter. If the learned Magistrate finds
that a prima facie case is made out
which requires investigation, he can
direct for registration and investigation
under Section 156(3) Cr.P.C. Unless the
report is registered against the person
named therein as accused his legal or
fundamental rights are not infringed and
he has no locus to challenge that order
Case law discussed:
1977 SCC(Criminal) 585

(B) Code of Criminal Procedure- Section-
36 Superior Officer to the rank of Officer
in Charge- direction of Magistrate under
section 156(3)- to the Officer in Charge
of
police
station
to
register
and
investigate the case within 3 days-
offense under ST/SC Act.- contention the
investigation can be made only by
superior officer misconceived- once the
offense
is
registered-
no
bar
for
investigation by superior officer.

Held: Para 6

Therefore, if any order is passed by the
learned magistrate under Section 156(3)
Cr.P.C. and if investigation is required to
be made by any officer above the rank of
police officer in charge of the police
station , there is no bar and such matter:
can be investigated by his Superior
Officer also.
Case law discussed:
2001(2) A.C.R. 1875

## Text

3 All] Jokhan V. State of U.P. and others
765
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED ALLAHABAD 26.10.2007

BEFORE
THE HON'BLE M.K. MITTAL, J.

Crl. Misc. Application No. 24771 of 2007

Jokhan

...Applicant
Versus
State of UP & others ...Opposite Parties

Counsel for the Applicant:
Sri. Ravindra Prakash Srivastava

Counsel for the Opp. Parties:
A.G.A.

(A) Code of Criminal Procedure- Section-
497- Criminal Revision- direction to
register and investigate the case issued
by the Magistrate under section 156(3)
of the act.- revision by the accused- held
not maintainable- as no case has been
registered
nor
any
right
of
the
prospective accused is going to be
affected.

Held: Para 4

This contention of the learned counsel
for the applicant is correct. If an
application is filed under Section 156(3)
Cr.P.C.
in
the
Court
of
a
learned
Magistrate, it is a matter between the
applicant and the Court and the accused
does not come into picture as no
cognizance of the of fence is taken in the
matter. If the learned Magistrate finds
that a prima facie case is made out
which requires investigation, he can
direct for registration and investigation
under Section 156(3) Cr.P.C. Unless the
report is registered against the person
named therein as accused his legal or
fundamental rights are not infringed and
he has no locus to challenge that order
Case law discussed:
1977 SCC(Criminal) 585

(B) Code of Criminal Procedure- Section-
36 Superior Officer to the rank of Officer
in Charge- direction of Magistrate under
section 156(3)- to the Officer in Charge
of
police
station
to
register
and
investigate the case within 3 days-
offense under ST/SC Act.- contention the
investigation can be made only by
superior officer misconceived- once the
offense
is
registered-
no
bar
for
investigation by superior officer.

Held: Para 6

Therefore, if any order is passed by the
learned magistrate under Section 156(3)
Cr.P.C. and if investigation is required to
be made by any officer above the rank of
police officer in charge of the police
station , there is no bar and such matter:
can be investigated by his Superior
Officer also.
Case law discussed:
2001(2) A.C.R. 1875

(Delivered by Hon'ble M.K. Mittal, J.)

1. This application has been filed
under Section 482 Cr.P.C. for setting
aside the order dated 6.9.2007 passed by
Sessions
Judge
Basti,
in
Criminal
Revision No.451/07 Nagendra Tiwari Vs.
State of U.P. and another with the further
prayer
to
restore
the
order
dated
13.4.2007
passed
by
the
learned
Magistrate directing for registration and
investigation of the case under Section
156(3) Cr.P.C.

2. Heard Sri Ravindra Prakash
Srivastava the learned counsel for the
applicant, learned AGA and perused the
material on record.

3. The brief facts of the case are that
the applicant filed an application under
Section 156(3) Cr.P .C. alleging that on
766 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
12th December 2005 at about 10.00 in the
day
Awadesh
Prasad
Tiwari,
Ram
Krishna Tiwari, Ram Singhasan Tiwari
and Nagendra Tiwari armed with lathis
and dandas came near the canal in village
Bhitiya Digar where he and his brother
Sadhu Prasad were grazing pigs. These
persons abused the informant and his
brother and also called them with caste
denoting words and beat them with lathis
and dandas. On the alarm raised the
witnesses came and saved them. The
informant
and
his
brother
received
injuries. The learned magistrate finding a
prima facie case directed for registration
and investigation of the case and further
directed the S.O. concerned to submit
compliance report within three days.
Against that order Nagendra Tiwari filed
Criminal Revision No.451/07 in the Court
of Sessions Judge Basti and the learned
Sessions Judge by the impugned order
dated 6.9.2007 held that the revision was
maintainable and that in view of Section
156(3) Cr.P.C. the Station Officer of a
police station could only investigate the
matter. But in this case allegations were
also under the SC/ST Act and that case
could be investigated by officer not below
the rank of the Deputy Superintendent of
Police and therefore, no such directioncould have been issued by the learned
Magistrate. Feeling aggrieved, the present
application has been filed.

4. Learned counsel for the applicant
has contended that the revision as filed in
the Court of Sessions Judge against the
order of the learned Magistrate was not
competent because Nagendra Tiwari is
only a prospective accused and he had no
locus standi to file revision and the
learned Sessions Judge erred in holding
that the revision was maintainable. This
contention of the learned counsel for the
applicant is correct. If an application is
filed under Section 156(3) Cr.P.C. in the
Court of a learned Magistrate, it is a
matter between the applicant and the
Court and the accused does not come into
picture as no cognizance of the offence is
taken in the matter. If the learned
Magistrate finds that a prima facie case is
made out which requires investigation, he
can
direct
for
registration
and
investigation
under
Section
156(3)
Cr.P.C. Unless the report is registered
against the person named therein as
accused his legal or fundamental rights
are not infringed and he has no locus to
challenge that order. The Hon'ble Apex
Court has laid down in several cases that
the accused does not have any right to
interfere in the registration of an FIR or
investigation of the same. In the case of
Amar Nath Vs. State of Harayana 1977
Supreme Court Cases (Criminal) 585 it
has been held that the accused has got no
right to be heard before he is summoned
and no proceeding in his respect takes
place
before
that
stage.
Therefore
Nagendra Tiwari had no right to file the
revision against the order passed by the
learned
Magistrate
and
the
learned
Sessions Judge has erred in holding that
revision was maintainable.

5. Learned Sessions Judge has also
observed that in this case the offense was
also allegedly committed within the
provisions of the SC/ST Act and that
could only be investigated by an Officer
not
below
the
rank
of
Deputy
Superintendent of Police and therefore,
the learned Magistrate could not have
directed for registration and investigation
of the case under Section 156(3) Cr.P.C.
In order to arrive, at this conclusion the
learned
Sessions
Judge
has
placed
reliance on the case of C.B.I. Vs. State of
3 All] Jokhan V. State of U.P. and others
767
Rajasthan 2001 (2) Allahabad Criminal
Ruling 1875, but the learned Sessions
Judge has not correctly interpret the law
as laid down in that case. In paragraph
9,10, 11 it has been held as under-:

9. It is clear that a place or post
declared by the Government as police
station, must have a police officer in
charge of it and if he, for any reason, is
absent in the station house, the officer
who is next in the junior rank present in
the police station, shall perform the
function as officer in charge of that police
station. The primary responsibility for
conducting investigation into offenses in
cognizable cases vests with such police
officer, Section 156(3) of the Code
empowers a Magistrate to direct such
officer in charge of the police station to
investigate any cognizable case over
which such Magistrate has jurisdiction.
10. In this context a reference has to be
made to Section 36 of the Code which
says that:

"36 Police Officers superior in rank to an
officer in charge of a police station may
exercise the same powers, throughout the
local area to which they are appointed, as
may be exercised by such officer within
the limits of his station."
11. This means any other police officer,
who is superior in rank to an officer in
charge of the police station, can exercise
the same powers of the officer in charge
of a police station and when he so
exercises the power he would do it in his
capacity as officer in charge of the police
station. But when a Magistrate orders
investigation under Section 156(3), he can
only direct an officer in charge of a police
station to conduct such an investigation
and not a superior police officer, though
such an officer can exercise such powers
by virtue of Section 36 of the code.
Nonetheless, when such an order is
passed any police officer superior in the
rank of such officer, can as well exercise
the power to conduct an investigation, and
all such investigations would then be
deemed to be investigation conducted by
the officer in charge of a police station.
Section 36 of the Code is not meant to
substitute the magisterial power envisaged
in Section 156(3) of the Code, though it
could supplement the powers of an officer
in charge of a police station. It is
permissible for any superior officer of
police to take over investigation from
such officer in charge of the police station
either suo motu or on the direction of the
superior officer or even that of the
Government.

6. Therefore, if any order is passed
by the learned magistrate under Section
156(3) Cr.P.C. and if investigation is
required to be made by any officer above
the rank of police officer in charge of the
police station, there is no bar and such
matter can be investigated by his Superior
Officer also.

7. The allegations as made in the
application under Section 156 (3) Cr.P.C
show that prima facie a cognizable case is
made out and the learned Magistrate
rightly directed for registration and
investigation of the case. However, he
was not required to call for compliance
report in 3 days.

8. Therefore, in any case I come to
the conclusion that learned Sessions
Judge has erred in allowing the revision
and setting aside the order passed by the
learned Magistrate is to be restored to an
extent of registration and investigation of
the case.
768 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

9. The application under Section 482
Cr.P.C. is hereby allowed and the
impugned order dated 6.9.2007 is hereby
set aside. The order passed by learned
Magistrate on 13th April; 2007 is restored
as above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2007

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 30051 of 2004

Up Ganna Aayukta & another ...Petitioner
Versus
Up Shram Aayukta, U.P. Saharanpur Kshetra,
Saharanpur and others ...Respondents

Counsel for the Petitioners:
Sri I.N. Singh
Sri Ajay Yadav

Counsel for the Respondents:
Sri Shiv Avtar Sharma
Sri Virendra Kumar
S.C.

U.P. Industrial Dispute Act 1947-Section33-C (2)-arrears of wages-period of
working between 58-60 years-based on
interim order passed in writ petition-still
pending question of entitlement and
working still to be decided-application
under section 33-C(2) not maintainable.

Held: Para 12 & 13

There being no pre-existing right vested
in respondent no. 3 or the corresponding
obligation upon the petitioners to make
payment of wages for the disputed
period, the application under Section 33
C (2) filed by respondent no. 3 was not
at all maintainable.

Obviously,
the
Presiding
Officer/
respondent no. 2 fell in error in directing
the petitioners to pay emoluments to the
respondent no. 3 in proceedings under
Section 33-C (2) of the Act for the period
he had not worked without any predetermination
of
the
question
that
respondent
no.
3
was
entitled
to
continue in service and had a right to be
paid salary.
Case law discussed:
1978 FLR-383
1988 (3) SCC-457
1982 LAB IC-284
AIR 1974 SC-1604

(Delivered by Hon'ble Krishna'Murari, J.)

1. Heard Sri 1. N. Singh, learned
counsel
for
the
petitioners, learned
standing counsel for State-respondents
and Sri Shiv Avtar Sharma appearing for
respondent no.3.

2. By means of this writ petition
filed under Article 226 of the Constitution
of India, the petitioners have challenged
the award dated 22.05.2004 passed by
Presiding Officer, Labour Court U.P.
Saharanpur under Section 33-C(2) of
Uttar Pradesh Industrial Disputes Act (for
short the 'Act') directing the petitioners to
pay a sum of Rs.48,875/- as wages for the
period 1.2.1994 to 11.7.1995 and the
consequential
order
dated
22.7.2004
passed by Deputy Labour Commissioner,
U.P. Saharanpur Kshetra, Saharanpur
under Section 33-C (1) of the Act for
recovery of the said amount.

3. Facts giving rise to the dispute are
as under;

Respondent no. 3 was appointed as
Kamdar vide order dated 8.10.1954 in the
year 1965. The post of Kamdar was re:
designated as Ganna Gram Sewak and
later on as Cane Supervisor (Ganna
Paryavekshak) vide order dated 5.7.1989/