# Revisionist v. State of U.P. & another

- **Citation:** (2009) 1 ILRA 166
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-01-17
- **Case number:** Criminal Revision No. 63 of 2002
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-another-41336
- **Pages:** 5

## Headnote

Criminal Revision-order passed under
Section 156 (3) for registration and
investigation-revision
preferred
by
prospective
accused-held-not
maintainable as he has no right to stop
registration and investigation of casenot effected person.

Held: Para 13

In view of the law laid down in the
aforesaid cases, I am of the considered
opinion that the prospective accused has
no right to stop the registration of the
FIR by challenging the order passed by
the Magistrate under section 156(3)
Cr.P.C. allowing the application and
directing
investigation.
Therefore,
in
present case also, the Revision preferred
by the revisionist against the impugned
order is not legally maintainable and is
liable to be dismissed on this ground
alone.
Case law discussed:
others 2008(60) ACC 476, 1997 (34) ACC 163,
2008 (61) ACC 922, 2000(41) ACC 435, 2006
(56) ACC 910, 2007(57) ACC 508, 2001 (42)
ACC 451,

## Text

166 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

15. In State of Andhra Pradesh &
Anr. Vs. Marri Venkaiah & Ors.,
(2003)7 SCC 280, the Hon'ble Supreme
Court had dealt with the issue of
limitation and held as under:-

"Plain language of the aforesaid
section would only mean that the period
of limitation is three months from the date
of the award of the court. It is also
provided that in computing the period of
three months, the day on which the award
was pronounced and the time requisite for
obtaining the copy of the award is to be
excluded.
Therefore,
the
aforesaid
provision crystallizes that application
under Section 28-A is to be filed within
three months from the date of the award
by the court by only excluding the time
requisite for obtaining the copy. Hence, it
is difficult to infer further exclusion of
time on the ground of acquisition of
knowledge by the applicant."

16. While deciding the said case
Court placed reliance on its earlier
judgment in Tota Ram Vs. State of U.P.
& Ors., (1997)6 SCC 280. The Court
further rejected the contention that
limitation would run from the date of
knowledge distinguishing the earlier
judgments on fact and law in Raja
Harish Chandra Raj Singh Vs. Deputy
Land Acquisition Officer, AIR 1961 SC
1500; and State of Punjab Vs. Qaisar
Jehan Begum, AIR 1963 SC 1604.

17. In Union of India Vs. Munshi
Ram & Ors., AIR 2006 SC 1716, the
Apex Court has laid down the law that
such an application is maintainable
provided a person has not filed an
application under Section 18 of the Act.
The Court held that Section28A seeks to
confer
the
benefit
of
enhanced
compensation on those owners who did
not seek Reference under Section 18.

18. From the facts of the present
case, we find that the application in fact
was made by the petitioner even before
the date the appeal filed by the State
before this Court was finally decided.
Further, we find that requisite averments
qua petitioner being illiterate and other
conditions referred to above be satisfied
need examination.

19. We are, therefore of the opinion
that interest of substantial justice would
be served if the petitioners' application is
reconsidered in the light of the conditions
specified by the Division Bench of this
Court in the case of Nanak (supra) and
the law as noticed above within 12 weeks
from the date a certified copy of this order
is filed before Additional District Judge
who shall examine the correctness of the
averments made and satisfying himself
with the requirement of law as explained
above. Fresh final order may be passed on
the application accordingly without being
influenced
with
the
order
dated
17.01.2007.

20. With the aforesaid observation,
the writ petition is disposed of.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.01.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Revision No. 63 of 2002

Ram Dhani

...Revisionist
Versus
State of U.P. & another ...Opposite parties
1 All] Ram Dhani V. State of U.P. and another

167
Counsel for the Revisionist:
Sri Ashok Kumar Srivastava

Counsel for the Opposite Parties:
Sri B.N. Singh
Sri H.N. Singh
A.G.A.

Criminal Revision-order passed under
Section 156 (3) for registration and
investigation-revision
preferred
by
prospective
accused-held-not
maintainable as he has no right to stop
registration and investigation of casenot effected person.

Held: Para 13

In view of the law laid down in the
aforesaid cases, I am of the considered
opinion that the prospective accused has
no right to stop the registration of the
FIR by challenging the order passed by
the Magistrate under section 156(3)
Cr.P.C. allowing the application and
directing
investigation.
Therefore,
in
present case also, the Revision preferred
by the revisionist against the impugned
order is not legally maintainable and is
liable to be dismissed on this ground
alone.
Case law discussed:
others 2008(60) ACC 476, 1997 (34) ACC 163,
2008 (61) ACC 922, 2000(41) ACC 435, 2006
(56) ACC 910, 2007(57) ACC 508, 2001 (42)
ACC 451,

(Delivered by Hon'ble Vijay Kumar Verma, J.)

The case has been taken up in the
revised list. None is present for the
revisionist.

2. Heard arguments of Sri H. N.
Singh, learned counsel for the opposite
party no. 2 and AGA for the State and
perused the material on record.

3. By means of this Revision, order
dated 09.01.2002 passed by the Chief
Judicial
Magistrate,
Sonbhadra
in
criminal misc. application no. 17 of 2002
(Smt. Maya Devi Vs. Ram Dhani and
others) under section 462, 466, 468, 471,
419, 420 IPC has been challenged by the
prospective accused.

4. By the impugned order, the
learned Chief Judicial Magistrate has
allowed the application of Smt. Maya
Devi under section 156(3) Cr.P.C. and
S.O. P.S. Robertsganj has been directed to
investigate the case after registration of
the FIR.

5. At the outset, it is contended by
learned counsel for the opposite party no.
2 and learned AGA that revision against
the impugned order is not legally
maintainable as the prospective accused
has no right to challenge the order passed
by the Magistrate allowing the application
under section 156(3) Cr.P.C. directing
investigation after restoration of the FIR.
The contention of the learned counsel for
the opposite party no. 2 is that on the FIR
being lodged in pursuance of the
impugned order, the accused persons
could seek remedy under Article 226 of
Constitution of India for quashing the FIR
and they have no right to challenge the
impugned order either in Revision or in
the proceedings under section 482 Cr.P.C.

6. Having given my thoughtful
consideration to the submissions made by
the learned counsel for the opposite party
no. 2 and learned AGA, I agree that
prospective accused can not challenge the
order passed by the Magistrate under
section 156(3) Cr.P.C. allowing the
application and directing investigation by
the police.
168 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

7. I had an occasion to consider this
matter in the case of Prof. Ram Naresh
Chaudhary and another Vs. State of
U.P. and others 2008(60) ACC 476. The
following observations made in para 9 of
the
said
judgement
are
worth
mentioning:-

"At this stage accused does not come
into picture at all, nor can he be heard.
He has no locus to participate in the
proceedings. He can at the most stand
and watch the proceedings. It must be
remembered that it is pre-cognizance
stage. The nature of the order passed by
the Magistrate under Section 156(3)
Cr.P.C.
directing
registration
and
investigation of case is only a peremptory
reminder or intimation to the police to
exercise its power of investigation under
Section 156(1) Cr.P.C, as has been held
by Hon'ble Apex Court in the case of
Devarappalli Lak-Shaminarayana Reddy
and others Vs. V. Narayana Reddy and
others (1976 ACC 230). How such a
reminder is subject to revisional power of
the Court is something which goes beyond
comprehension. From the nature of the
order itself, it is clear that it is an
interlocutory order, not amenable to
revisional power of the Court. Section
397(2) Cr.P.C. specifically bars revision
filed against interlocutory orders."

8. This Court in the case of Karan
Singh Vs. State (1997 (34) ACC 163),
has observed as follows:-

"Where an order is made under
section 156 (3) Cr.P.C. directing the
police to register FIR and investigate the
same, the Code no where provides that
the Magistrate shall hear the accused
before issuing such a direction, nor any
person can be supposed to be having a
right asking the Court of law for issuing
a direction that an FIR should not be
registered against him. Where a person
has no right of hearing at the stage of
making an order under section 156(3) or
during the stage of investigation until
Courts takes cognizance and issues
process, he can not be clothed also with
a right to challenge the order of the
Magistrate by preferring a revision
under the Code. He can not be termed as
an "aggrieved person" for purpose of
section 397 of the Code."

9. This matter was considered again
by me in the case of Gulam Mustafa @
Jabbar Vs. State of U.P. and others
2008 (61) ACC 922. The following
observations made in para 8 of the report
at page 924 are relevant:-

"Thus at the stage of Section 156(3)
Cr.P.C.
any
order
made
by
the
Magistrate does not adversely affect the
right of any person, since he has got
ample remedy to seek relief at the
appropriate
stage
by
raising
his
objections. It is incomprehensible that
accused
can
not
challenge
the
registration of F.I.R. by the police
directly, but can challenge the order
made
by
the
Magistrate
for
the
registration of the same with the same
consequences. The accused does not
have any right to be heard before he is
summoned by the Court under the Code
of Criminal Procedure and that he has
got no right to raise any objection till the
stage of summoning and resultantly he
can not be conferred with a right to
challenge the order passed prior to his
summoning. Further, if the accused does
not
have
a
right
to
install
the
investigation, but for the limited grounds
available to him under the law, it
1 All] Ram Dhani V. State of U.P. and another

169
surpasses all suppositions to comprehend
that he possesses a right to resist
registration of F.I.R."

10. Distinguishing Division Bench
ruling in the case of Ajay Malviya Vs.
State of U.P., 2000(41) ACC 435, this
Court in the case of Rakesh Puri and
another Vs. State of U.P. and another
2006 (56) ACC 910 has held as under:-

"To sum up the discussions made
above, it is clear that the alleged accused
has no right to challenge an order
passed under section 156(3) Cr.P.C. at
pre-cognizance stage by a Magistrate
and no revision lay against such an
order at the instance of the alleged
accused under section 397(1) Cr.P.C.
being barred by section 397(2) Cr.P.C.
nor at his instance an application under
Section 482 Cr.P.C. is maintainable for
the simple reason that if cognizable
offence is disclosed in an application
filed by the aggrieved person, then his
such an application must be investigated
to bring culprits to books and not to
thwart his attempt to get the FIR
registered
by
rejecting
such
an
application which will not amount to
securing the ends of justice but will
amount to travesty of it."

11. This matter was considered in
detail by this Court in the case of
Chandan Vs. State of U.P. and another
2007(57) ACC 508 also in which, it was
held that accused does not have any right
to challenge an order passed under
Section 156(3) Cr.P.C.

12. Relying upon the decision of the
Apex Court in the case of Central Bureau
of Investigation Vs. State of Rajasthan
(2001 (42) ACC 451), it was held by this
Court in the case of Rakesh Puri Vs.
State (supra) as follow:-

"It is preposterous even to cogitate
that a person has a right to appear
before the Magistrate to oppose an
application seeking a direction from him
for registration and investigation of the
offence when he has no right to
participate
in
the
said
ex-pare
proceeding. If permitted this will amount
to killing of foetus of investigation in the
womb when it was not there at all. Such
power has not been conferred under the
law on the prospective accused.
When the accused does not have
any right to participate in a proceeding,
how can he be permitted to challenge an
interlocutory order passed in such a
proceeding. If an accused cannot stop
registration of a complaint under section
190(1)(a) Cr.P.C. howsoever fanciful,
mala fide or absurd the allegations may
be, he certainly does not possess the
power to stall registration of FIR of
cognizable offence against him."

13. In view of the law laid down in
the aforesaid cases, I am of the considered
opinion that the prospective accused has
no right to stop the registration of the FIR
by challenging the order passed by the
Magistrate under section 156(3) Cr.P.C.
allowing the application and directing
investigation. Therefore, in present case
also, the Revision preferred by the
revisionist against the impugned order is
not legally maintainable and is liable to be
dismissed on this ground alone.

14. Consequently, the Revision is
hereby dismissed. Interim order dated
17.01.2002 stands vacated.
---------
170 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Second Appeal No. 126 of 2009

Central Bank of India & others ...Appellants
Versus
Dinesh Kumar Agarwal and others

 ...Respondents

Counsel for the Appellants:
Sri Himanshu Tewari

Counsel for the Respondents:
Sri M.K. Gupta
Sri Nitin Kumar Agarwal

Code of Civil Procedure-Section 100Maintainability of Second Appeal-suit for
permanent injunction restraining the
respondent to in cash the bank draft
subsequently Bank Draft converted into
FDR-after
dismissal
of
suit-Second
Appeal by Bank without filing First
Appeal
or
cross
Appeal-held
not
maintainable.

Held: Para 7

Having considered the submission of the
learned counsel for the parties, this
Court is of the opinion that the objection
raised by the caveators has some force.
Nothing prevented the appellant bank
from filing its own appeal or taking
cross-objection against that part of the
decree of the trial court by which it
directed the bank to prepare F.D.R. in
the name of the Court. The dismissal of
the appeal of the plaintiff has not
resulted
in
any
modification
or
interference in the decree of the trial
court. The appellate court has only
affirmed the decree of the trial court. In
my opinion, on account of the failure of
the bank to file a first appeal against the
decree of the trial court or to take a
cross-objection, the bank has allowed
that part of the decree of the trial court
to achieve a finality which cannot be
allowed to be raised or questioned in a
second appeal. Consequently, this Court
is of the opinion that the second appeal
filed by the defendant-appellant bank is
not maintainable and is dismissed.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Himanshu Tiwari, the
learned counsel for the appellant and Sri
M.K.Gupta, the learned counsel assisted
by Sri Nitin Kumar Agarwal, for the
caveators-respondent Nos.2 and 3.

2. The plaintiff-respondent No.1
filed a suit for permanent prohibitory
injunction restraining the defendants from
encashing the bank-drafts and from
paying
the
amount
as
detailed
in
Schedule-A to the plaint. It was alleged
that the plaintiff had purchased six
demand
drafts
from
the
defendant/appellant bank, which was
payable to the present respondent Nos.2
and 3/defendants, but the said drafts
amounting to Rs.25,000/- each, were lost
and therefore, the suit for prohibitory
injunction.

3. An application for temporary
injunction was also filed. The trial court,
initially granted an injunction, restraining
the bank from getting the bank drafts
encashed.
Subsequently,
on
a
stay
vacating application filed by respondent
Nos.2 and 3, the injunction order was
vacated and the injunction application of
the plaintiff was rejected with a direction
that the bank drafts will be converted by
the bank in a F.D.R. in the name of the
Court. This interim order continue till the
pendency of the suit. Eventually, the suit
of the plaintiff was dismissed and the trial