# Sabir v. Jaswant and others

- **Citation:** (2002) 2 ILRA 457
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-09-27
- **Case number:** Criminal Misc. writ petition No. 6302 of 2002
- **Bench:** B.K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sabir-v-jaswant-and-others-39955
- **Pages:** 3

## Headnote

Code of Criminal Procedure- Section 156
(3)- an order u/s 156 (3) of the Code has
the complexion of a judicial order
amenable to revision jurisdiction under
section 397 of the Code.
Held in para 10

There is no illegality in the order of
Incharge Sessions Judge in admitting
the
revision
and
also
staying
the
operation of the order.
Case law referred:
JT 1997 (7) SC 85
2000 (41) ACC 435

## Text

http://www.allahabadhighcourt.nic.in
2 All] Sabir V. Jaswant and others
457
that there was no material indicating that
the release of the petitioner was likely.

13. The third contention raised by
the learned counsel for the petitioner that
the facts of the present case do not in any
manner cause any breach or apprehension
of breach of public order. It is not a
breach of public order but is a case of
breach of law and order. We are not
inclined to go into the merits of this last
submission made by detenu's counsel,
particularly when the Session Trial is
pending in the court below and if we enter
into
the
merits
of
the
case,
any
observation made by us may prejudice the
parties in prosecuting its case in the court
below. Suffice it to say that from the facts
and circumstances discussed above we are
fully inclined to accept the submission.

14. In the light of the discussion
made above we find that the subjective
satisfaction arrived at by the District
Magistrate, Fatehpur in passing the
impugned detention order dated 27.9.2001
is unwarranted in the eyes of law. It is
passed mechanically without applying its
mind. It is hereby quashed.

15. The petitioner is in jail and has
already served out more than 8 months in
pursuance to this impugned detention
order, he shall be set at liberty forthwith
unless wanted in some other case or cases.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.7.02

BEFORE
THE HON'BLE B.K. RATHI, J.

Criminal Misc. writ petition No. 6302 of
2002

Sabir

...Petitioner
Versus
Jaswant and others
 ...Respondents

Counsel for the Petitioner:
Sri Tej Pal

Counsel for the respondents:
Sri S.P. Tiwari
Sri Veer Singh
A.G.A.

Code of Criminal Procedure- Section 156
(3)- an order u/s 156 (3) of the Code has
the complexion of a judicial order
amenable to revision jurisdiction under
section 397 of the Code.
Held in para 10

There is no illegality in the order of
Incharge Sessions Judge in admitting
the
revision
and
also
staying
the
operation of the order.
Case law referred:
JT 1997 (7) SC 85
2000 (41) ACC 435

(Delivered by Hon'ble B.K. Rathi, J.)

1. Heard Sri Tejpal , learned counsel
for the petitioner, Sri S.P. Tiwari and Sri
Veer Singh, learned counsel for the
respondents.

2.

The
petitioner
moved
an
application under section 156 (3) Cr.P.C.
for
registration
of
the
case
and
investigation against the respondents for
offences under sections 147, 148, 149,
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
458
302 IPC. The learned Magistrate has
allowed the application on 25.6.2002 and
directed the police to register the case and
investigate.
Against
that
order,
the
respondents prefered criminal revision no.
215 of 2002 before the Incharge Sessions
Judge, Agra. The revision was put up
before the Additional Sessions Judge,
Agra, who has admitted it and stayed the
operation of the order of the Magistrate.
Aggrieved by it, the present petition has
been preferred.

3. It has been argued by Sri Tejpal,
learned counsel for the petitioner that the
Magistrate passing the order under section
156 (3) Cr.P.C. is not a court and
therefore, the criminal revision under
section 397 Cr.P.C. is not maintainable. It
has further been argued that the order is
inter locutory and therefore, the revision
does not lie as provided by Clause 2 of
Section 397 Cr.P.C., that therefore, the
learned Incharge Sessions Judge erred in
admitting the revision and staying the
operation of the order.

4. The learned counsel for the
petitioner in support of his first argument
has referred to the decision of the Apex
Court in Madhu Bala Versus Suresh
Kumar and others, JT 1997 (7) SC 85.
The only relevant observation in this case
is in para 8, which provide that as soon as
the order is passed under section 156 (3)
Cr.P.C. It transforms itself into a report
given in writing within the meaning
section 154 Cr.P.C. which is known as
first information report. As under Section
156 (1) Cr.P.C. the police can only
Investigate a cognizable case, it has to
formally register a case on that report.

5. This authority does not lay down
that the Magistrate passing the order
under Section 156 (3) Cr.P.C. is not a
court and does not support the argument
of the learned counsel for the petitioner.

6. It has also been argued that the
order is inter locutory and no revision lie
against that order. In my opinion, the
argument of Sri Tejpal, learned counsel
for the petitioner does not require a
detailed discussion in view of the decision
of Division Bench of this Court in Ajai
Malviya Versus State of UP and others,
2000 (41) ACC 435.

7. In this case, the F.I.R. was
registered pursuant to an order under
Section 156 (3) Cr.P.C. of the code
directing the police to register and
investigate
the
case.
The
accused
approached this court under Article 226 of
the Constitution seeking a direction not to
arrest him besides the relief of certiorari
for quashing the first information report
of the said case. At the very outset a
question arose before the bench as to
whether the writ petition for quashing the
first information report sans any challenge
to the order under Section 156 (3) Cr.P.C.
passed by the Magistrate is maintainable.
It was urged on behalf of the accusedpetitioner that the order under section 156
(3) of the Code has the complexion of an
administrative order and hence it was
neither revisable under section 397 of the
Code nor open to challenge under section
482 of the Code and, therefore, the F.I.R.
could be quashed by this court under
Article 226 of the Constitution in case the
Court was of the opinion that taken in its
entirely
the
FIR
did
not
disclose
commission of cognizable offence.

8. The division bench took the view
'Having given our anxious consideration
to submission of the learned counsel for
http://www.allahabadhighcourt.nic.in
2 All] Brijesh Kumar Gupta V. Smt. Poonam Gupta
459
the petitioner we are of the considered
view that an order under section 156 (3)
of the Code has the complexion of a
judicial order amenable to revision
jurisdiction under section 397 of the
Code. ' Accordingly the writ petition for
quashing the first information report was
dismissed as not maintainable.

9. This decision supply the complete
reply of both the submission of Sri Tejpal.

10. In view of the above decision,
there is no illegality in the order of
Incharge Sessions Judge in admitting the
revision and also staying the operation of
the order.

11. Accordingly, the petition is
dismissed. However, the learned Sessions
Judge, before whom the revision is
pending is directed to dispose of the
revision expeditiously preferably within a
period of one month from the date of
presentation of the certified copy of this
order before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD JULY 17, 2002

BEFORE
THE HON'BLE A.K. YOG, J.

Civil Misc. Transfer Application No. 211 of
2002

Brijesh Kumar Gupta

...Applicant
Versus
Smt. Poonam Gupta
...Opposite party

Counsel for the Applicant:
Sri Vijaya Prakash

Counsel for the Opposite Party:

Code
of
Civil
Procedure-
Territorial
Jurisdiction 23 (3) 24- readwith section
21-A Hindu Marriage Act- Divorce
Proceeding pending before family court
judge, Meerut to Judge Family Court,
Gwaliyar (MP) can not be entertained by
High Court Allahabad.

Held- para 23

In view of the above, the present
transfer application seeking transfer of
the case from Meerut (State of UP) to
gwalior (State of MP) is not cognizable
by this Court.
Case law discussed:
AIR 1981 SC 1143

(Delivered by Hon'ble A.K. Yog, J.)

1. Brijesh Kumar Gupta, applicant
before this Court, has filed the present
Transfer Application under Section 23 (3)
and 24 of the Code of Civil Procedure
read with Section 21 A (B) of Hindu
Marriage Act praying for transferring
divorce petition no. 367 of 2001- Smt.
Poonam Gupta versus Brijesh Gupta,
under section 13 and 27, Hindu Marriage
Act pending in the Court of Principal
Judge. Family Court, Meerut to the Court
of VII- Additional District Judge, Gwalior
where Matrimonial petition no. 2A/2000-
Brijesh
Kumar
Gupta
versus
Smt.
Poonam Gupta under section 12. Hindu
Marriage Act (to declare the marriage
between the parties as void) is said to be
already pending since before the filing of
the aforementioned divorce petition by
the wife at Meerut.

2. In para 10 of the affidavit, filed in
support of the transfer application, the
applicant, Brijesh Kumar Gupta has
admitted that he had received notice of
the said matrimonial divorce petition no.
367 of 2001 (Annexure 2 to the affidavit)