# Revisionist v. State of U.P. and others Opp. Parties

- **Citation:** (2007) 2 ILRA 490
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-06-29
- **Case number:** Criminal Revision No.6149 of 2006
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-and-others-opp-parties-40948
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section-156
(3)-application
duly
supported
with
affidavit-disclosed the offence order 376
IPC-rejection
by
Magistrate-highly
condemnable-filing complaint is a right
of
victim-court
can
not
start
the
litigation by converting the application
u/s156 (3) as complaint-impugned order
held-passed most flagrant miscarriage of
justice-can not sustain.

Held: Para 7

Further the application under Section
156(3) Cr.P.C. can be treated to be a
compliant only when the victim wants
the court to treat it like so. Filing of a
complaint is a right of the victim. Court
cannot start the litigation by converting
an application under Section 156(3)
Cr.P.C. into a complaint on its own.
Case law discussed:
AIR 2006 SC-1322

## Text

490 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
12. On the aforesaid reasons this
Criminal
Revision
is
allowed.
The
impugned order dated 22.1.2007 passed
by the Additional Sessions Judge, Court
No. 11, Aligarh in Criminal Revision No.
541 of 2006 is hereby set aside and the
order dated 17.11.2006 passed by the
Judicial Magistrate, Court No.3, Aligarh
in Complaint Case No. 2945 of 2005 Dr.
Harvir Singh vs. R.N. Singh is hereby
restored.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.06.2007

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Revision No.6149 of 2006

Smt. Pushpa

...Revisionist
Versus
State of U.P. and others Opp. Parties

Counsel for the Revisionist:
Sri Amit Kumar Chaudhary

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

Code of Criminal Procedure-Section-156
(3)-application
duly
supported
with
affidavit-disclosed the offence order 376
IPC-rejection
by
Magistrate-highly
condemnable-filing complaint is a right
of
victim-court
can
not
start
the
litigation by converting the application
u/s156 (3) as complaint-impugned order
held-passed most flagrant miscarriage of
justice-can not sustain.

Held: Para 7

Further the application under Section
156(3) Cr.P.C. can be treated to be a
compliant only when the victim wants
the court to treat it like so. Filing of a
complaint is a right of the victim. Court
cannot start the litigation by converting
an application under Section 156(3)
Cr.P.C. into a complaint on its own.
Case law discussed:
AIR 2006 SC-1322

(Delivered by Hon'ble Vinod Prasad, J.)

1. The revisionist Smt. Pushpa has
challenged the order dated 26.10.2006
passed
by
Upper
Mukhya
Nyayik
Magistrate, Hapur Ghazibad in Criminal
Miscellaneous case no.2189 of 2006
(Pushpa Vs. Subodh Tyagi and others) by
which her application under Section
156(3) Cr.P.C. was ordered to be
registered as a complaint case instead of
directing her F.I.R. to be registered.

2. The narration of facts are that an
application under Section 156(3) Cr.P.C.
was filed by Smt. Pushpa against Subodh
Tyagi, Om Prakash Tyagi, Jagdish Tyagi
and Sri Chandra in the court of A.C.J.M.,
Hapur on 3.10.2006 with the allegations
that she is a pardanashin lady and the
alleged accused persons were resident of
her own village and they are criminals
and history sheeters, who indulge into
abduction murder etc. Because of their
illegal activity there is terror of the
accused persons in the area.

3. On 19.9.2006 at 6.00 p.m. the
revisionist applicant Smt. Pushpa was
preparing food of her small children in
her house. Her husband had gone out with
some work. At that time the alleged
malefactors accompanied by two other
unknown persons entered into the house
of the revisionist applicant Smt. Pushpa
hurling filthily abuses and thereafter
Subodh, one of the accused, caught hold
of her by breast, two other accused
Jagdish Tyagi and Sri Chandra threw her
on the ground and Subodh attempted to
2 All] Smt. Pushpa V. State of U.P. and others
491
commit rape on her. Her children raised
hue and cry on which the husband of the
victim and one Uttam Singh along with
co-neighbors collected on the spot. The
accused persons failing in their attempt to
commit rape on the victim bet her with
kicks and fists and then left the house.

4. The victim went to lodged the
F.I.R. but her F.I.R. was not registered by
the police. Thereafter the victim got
herself medically examined in UPHC,
Hapur, District Ghaziabad on 20.9.2006
vide annexure no.2 to the affidavit filed in
support of this application, in which the
injures has been found on her breast right
upper arm and forearm.

5. With such allegations the
revisionist had approached the Magistrate
for getting her F.I.R. registered. The
Magistrate refused to direct registration of
a F.I.R. and treated her application as a
complaint and directed her to lead
evidence under Section 200 Cr.P.C. by
passing the impugned order, which has
been assailed in the present revision.

Heard
learned
counsel
for
the
revisionist and the learned A.G.A.

6. In this case the application of the
revisionist made out a case for an attempt
to rape under Section 376/511 I.P.C. In
any case she was molested by the accused
persons in view of her own children. If
such a matter was not fit for investigation
it is not understandable what matters will
be referred to by the ACJM concerned to
get the offence investigated. How a
helpless lady will fight a compliant case
against accused persons who were so
daring as to entered into her house and
commit
rape
on
her
is
also
not
understandable. A.C.J.M. concerned has
not given any reason why the F.I.R. of the
victim should not be registered. Treating
her application for registration of F.I.R. as
a complaint was a subsidiary issue. The
primary concerned was why the F.I.R.
should be refused to be ordered to be
registered when the cognizable offence
was disclosed. A.C.J.M. concerned was
required to consider the prayer for
registration of F.I.R. first. He was nobody
to refuse to order for registration of F.I.R.
once
the
cognizable
offence
was
disclosed. The conduct of A.C.J.M.
concerned shows that he is not concerned
at all with the chastity the women folk.
He is so unmindful that he did not
realizeat all that the accused persons
attempted to commit rape on a lady. His
impugned
order
is
wholly
illegal
absolutely unjust and say the least is total
miscarriage of justice.

7. Further the application under
Section 156(3) Cr.P.C. can be treated to
be a compliant only when the victim
wants the court to treat it like so. Filing of
a complaint is a right of the victim. Court
can not start the litigation be converting
an application under Section 156(3)
Cr.P.C. into a complaint on its own. It
was not the court, which was to prosecute
the accused in a complaint case. It was the
victim who was to prosecute the accused
in a complaint case. The procedure of
complaint case is such that in the absence
of complainant her complaint can even be
dismissed.
Further
the
magistrate
concerned did not addressed himself to
the question that the victim never wanted
to prosecuted the accused persons in a
complaint case because she was a poor
and helpless lady. The unmindful attitude
of A.C.J.M. concerned is condemnable.
The Apex Court has also dealt with such
type of attitude in the case of Ramesh
492 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Kumari Vs. State (NCT Delhi) AIR 2006
SC 1322 and has held as follows:-

3. "Mr. Vikas Singh, learned Additional
Solicitor General, at the outset,
invites our attention to the counteraffidavit filed by the respondent and
submits
that
pursuant
to
the
aforesaid observation of the High
Court the complaint/representation
has been subsequently examined by
the respondent and found no genuine
case was established. We are not
convinced
by
this
submission
because the sale grievance of the
appellant is that no case has been
registered in terms of the mandatory
provisions of Section 154 (1) of the
Criminal
Procedure
Code.
Genuineness or otherwise of the
information can only be considered
after
registration
of
the
case.
Genuineness or credibility of the
information is not a condition
precedent for registration of a case.
We are also clearly of the view that
the High-court erred in law in
dismissing the petition solely on the
ground that the contempt petition
was pending and the appellant had
an alternative remedy. The ground of
alternative remedy nor pending of
the contempt petition would be no
substitute in law not to register a
case when a citizen makes a
complaint of a cognizable offence
against the Police Officer.

5. The views expressed by this Court in
paragraphs 31, 32 and 33 as quoted
above leave no manners of doubt that
the provision of Section 154 of the
Code
is
mandatory
and
the
concerned officer is duty bound to
register the case on the basis of such
an information disclosing cognizable
offence.

6. Undisputedly, in the present case no
case was registered pursuant to the
complaint dated 9-9-1997 and 13-91997 filed by the appellant. It is also
not disputed that the Contempt
Petition CCP No. 307/1997 filed by
the
appellant
is
also
pending
disposal before the High Court. It is,
however, stated by the respondent
that the non-disposal of the contempt
petition is due to the non-prosecution
by the appellant. Be that as it may,
we are of the view that the contempt
petition has been pending since 1997
and as such petition should be
disposed of with a sense of urgency
otherwise the petition itself will lose
all its force and the purpose for
which the contempt is initiated would
be defeat."

8. I do not want to say further
regarding the manner in which the
Magistrate
has
disposed
off
the
application of the revisionist but only
observe
this
much
that
A.C.J.M.
concerned
has
done
most
flagrant
miscarriage of justice. Chastity of a lady
is not redeemable.

9. With the aforesaid observations,
this revision is allowed. The impugned
order dated 26.10.2006 passed by Upper
Mukhya
Nyayik
Magistrate,
Hapur
Ghazibad in Criminal Miscellaneous case
no. 2189 of 2006 (Pushpa Vs. Subodh
Tyagi and others) under Section 156(3)
Cr.P.C. is hereby set aside. The matter is
remanded back to A.C.J.M. concerned to
pass appropriate order in accordance with
law within a period two weeks positively
2 All] Chandan Kumar V. Registrar, B.H.U. and another
493
from the date of receipt of certified copy
of this order by him. Revision allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2007

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No.12112 of 2000

Chandan Kumar

...Petitioner
Versus
Registrar, B.H.U., Varanasi and another

 Respondents

Counsel for the Petitioner:
Sri Akhileshwar Mishra
Sri R.K. Pandey
Sri Devendra Pandey
Sri Bimal Prasad

Counsel for the Respondents:
Sri V.K. Upadhyaya
Sri pankaj Naqvi

Constitution
of
India,
Art.
226Compassionate
Appointment-claim
rejected on ground his mother is working
with Nagar Palika-petitioner's father
died in harness-as Sweeper in Physics
Department, Banaras Hindu UniversityNo
finding
recorded
regarding
dependency
of
petitioner
upon
his
father-held-order refusing appointmentsuffer from error apparent on the face of
record.

Held: Para 6

Considering the materials on record, it is
clear that Opp. Party did not record any
finding
on
relevant
points
whether
petitioner was dependent of deceased
employed. Refusal to appoint petitioner
regularly under the Dying in Harness
Rules was passed only on the ground
that
mother
of
petitioner
was
in
employment in Nagar Nigam, Varanasi
without making any enquiry whether
petitioner was dependent on deceased
employee, i.e. father or mother. The
impugned order passed by the Banaras
Hindu University suffers from error of
law apparent on the face of record. It is
also well settled that the appointment
under the Dying in Harness Rules could
only be made on regular basis and not on
Daily Wage or Adhoc basis.

(Delivered by Hon'ble S.N. Srivastava. J.)

1. The matter relates to appointment
of petitioner under the Dying in Harness
Rules as Sweeper in Banaras Hindu
University.
Pl3titioner's
father-Ram
Sewak was working as Safaiwala in
Physics Department. He died in harness.
Petitioner being the son has applied for
appointment under the Dying in Harness
Rules after death of his father. He was
given temporary appointment on Daily
Wage basis. He moved an application for
substantive appointment by regularising
his services, but his claim for regular
appointment
was
denied
and
his
application was rejected by the impugned
order dated 23rd /24th August, 1994 on the
ground that petitioner's mother is in
employment of Nagar Nigam, Varanasi.

Heard learned counsel for the parties.

2. Learned counsel for the petitioner
urged that petitioner's father died in
'harness on 20.5.1994. He was appointed
on 14.6.1994 on Daily Wage basis
whereas he was entitled to get regular
appointment under the Dying in Harness
Rules. His claim for appointment under
the Dying in Harness Rules was rejected
on the ground that petitioner's mother was
in employment at that time. He further
urged that petitioner was dependent on his
father and his mother was residing