# Santosh Kumar Singh v. State of U.P.& Ors

- **Citation:** (2019) 4 ILRA 146
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-20
- **Case number:** J. Crl. Misc. Application (U/S 482 Cr. P.C.) No. 24277 of 2019
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-singh-v-state-of-u-p-ors-44923
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 156(3) &
Section 197 - Rejection of application
moved under Section 156(3) Cr.P.C.- The
object for calling police report upon
receiving an application under Section
156 (3) Cr.P.C. is to find out primarily
whether any F.I.R. for same cause of
action has been registered or notAdopting a conjectural approach and
drawing presumptive inferences of some
supposed malice does not appear to be a
sound approach at all at this preliminary
stage-
If
cognizable
offences
are
disclosed by the version given by the
informant, the police is under bounden
duty to register the F.I.R.- The basic
nature of the relief which the informant
seeks in such matters is to get a judicial
order so that the statutory function of
the police may get initiated and be
expedited-The
ambit
and
scope
of
entering into a kind of pre-trial before
the actual trial may begin is highly
circumscribed
and
hazarding
an
uncertain plunge in this direction will be
anticipatory in nature- Whether the
allegations made in the application are
true or false must be discerned by a
proper and fair investigation into the
same-Plea with regard to requirement of
sanction u/s 197 Cr.P.C. cannot be raised
or brought into application in cases
where the alleged acts of the proposed
accused constituting the offences have
no nexus with the official duty and are in
the nature of independent delinquent
aberrations of a guilty mind. (Para 7, 8 &
9)

Criminal Application u/s 482 Cr.P.C
allowed. (E-3)

List of cases cited: -

## Text

146 INDIAN LAW REPORTS ALLAHABAD SERIES
could not ordinarily embark upon an
inquiry whether the evidence in question
is reliable or not or whether on a
reasonable apprehension of it, accusation
could not be sustained rather that is the
function of trial judge.

10. In Hamida vs. Rashid (2008) 1
SCC 474, Apex Court has propounded
that ends of justice would be better served
if valuable time of court is expand in
hearing
those
appeals
other
than
entertaining petition under Section 482
Cr.P.C. at an interlocutory stage, which
are profiled with some oblique motive in
order to circumvent prescribed procedure
or to delay the trial which enable to win
over the witness or disinterested in giving
evidence
ultimately
resulting
in
miscarriage of justice.

11. Apex Court further in Monika
Kumar vs. State of Uttar Pradesh (2008) 8
SCC 781 has propounded that inherent
jurisdiction under Section 482 Cr.P.C. has
to be exercised sparingly, carefully and
with caution and only when such exercise
is justified by the tests specifically laid
down in the section itself.

12. Section 482 Cr.P.C. provides that
nothing in this Code shall be deemed to
limit or affect the inherent powers of the
High Court to make such orders as may
be necessary to give effect to any order
under this Code, or to prevent abuse of
the process of any Court or otherwise to
secure the ends of justice. Meaning
thereby, inherent jurisdiction under this
Section provides this Court's power to
make such order as may be necessary to
give effect to any order under this Code or
to prevent abuse of process of law or
otherwise to secure the ends of justice.
Hence, to secure ends of justice, to
prevent abuse of process of any law, this
Court has been given this inherent
jurisdiction, beside being any other
provision
in
this
Code.
Whereas,
Protection of Women from Domestic
Violence Act, 2005 is special Act to
provide for more effective protection to
the right of women guaranteed under the
Constitution where a women is victim of
violence. Hence, it's a self contained Code
having procedure and power of appeal,
wherein, Magistrate after exercising due
procedure, has passed impugned order
against which appeal was preferred and
this appeal was decided by appellate
court, hence, there remains nothing for
any indulgence, in exercise of inherent
power, under Section 482 Cr.P.C. for
assessing judgment of appellate court,
being its second appellate court.

13. This application lacks merit and
is accordingly dismissed.

14. However, a portion of order
regarding residence has become inexecutable,
in
above
changed
circumstances, for which Magistrate will
take notice and will act in accordance
with law.
----------
(2019)12 ILR A146

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.08.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE,
J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
24277 of 2019

Santosh Kumar Singh ...Applicant
Versus
State of U.P.& Ors. ...Opposite Parties
4 All. Santosh Kumar Singh Vs. Stae of U.P. & Ors.
147
Counsel for the Applicant:
Sri Syed Wajid Ali, Sri Santosh Kumar
Singh

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

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 156(3) &
Section 197 - Rejection of application
moved under Section 156(3) Cr.P.C.- The
object for calling police report upon
receiving an application under Section
156 (3) Cr.P.C. is to find out primarily
whether any F.I.R. for same cause of
action has been registered or notAdopting a conjectural approach and
drawing presumptive inferences of some
supposed malice does not appear to be a
sound approach at all at this preliminary
stage-
If
cognizable
offences
are
disclosed by the version given by the
informant, the police is under bounden
duty to register the F.I.R.- The basic
nature of the relief which the informant
seeks in such matters is to get a judicial
order so that the statutory function of
the police may get initiated and be
expedited-The
ambit
and
scope
of
entering into a kind of pre-trial before
the actual trial may begin is highly
circumscribed
and
hazarding
an
uncertain plunge in this direction will be
anticipatory in nature- Whether the
allegations made in the application are
true or false must be discerned by a
proper and fair investigation into the
same-Plea with regard to requirement of
sanction u/s 197 Cr.P.C. cannot be raised
or brought into application in cases
where the alleged acts of the proposed
accused constituting the offences have
no nexus with the official duty and are in
the nature of independent delinquent
aberrations of a guilty mind. (Para 7, 8 &
9)

Criminal Application u/s 482 Cr.P.C
allowed. (E-3)

List of cases cited: -

1. Lalita Kumari Vs. Govt. of U.P. and others
2014(2) SCC 1 (relied)

2. D.T. Virupakshappa Vs. C. Subash, (2016)1
SCC (Crl.) 82 (Distinguished on facts)

3. Anil Kumar & ors vs. M.K. Aiyappa and
another, 2013(10) SCC 705 (Distinguished on
facts)

(Delivered by Karuna Nand Bajpayee, J.)

1. This application u/s 482 Cr.P.C.
has been filed seeking the quashing of
impugned order dated 27.5.2019 passed
by Chief Judicial Magistrate, Bareilly as
well as the entire proceedings arising out
of Criminal Misc. Case No.620 of 2019
(Santosh Kumar Singh Vs. S.I. Siddhant
Sharma),
u/s
156(3)
Cr.P.C.,
P.S.-
Kotwali, District- Bareilly, pending in the
Court of Chief Judicial Magistrate,
Bareilly.

2. Case called out. None appeared
on behalf of the opposite party no.2 and 3
even after repeated calls. Learned A.G.A.
as well as learned counsel for the
applicant are present. Perusal of the ordersheet shows that notices have been issued
to the opposite party no. 2 and 3 which
were duly served upon them. Despite
sufficient service no one has appeared on
behalf of the them to oppose the present
application. In the wake of heavy
pendency of cases in this Court where
dockets are already bursting on their
seams there is no justifiable reason to
further procrastinate the matter. This
 Court, therefore, deems it fit to decide the
matter on the basis of the record and with
the assistance of the learned A.G.A.
representing the State.
148 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Heard learned counsel for the
applicant and learned A.G.A. and also
perused the record.

4. Submission of learned counsel for
the applicant is that while rejecting the
application filed under section 156(3) of
Cr.P.C. moved on behalf of the applicant,
learned
Magistrate
has
committed
manifest error of law as prima facie
cognizable offences were well made out
from the perusal of the allegations made
in the application and therefore, the
learned Magistrate was legally bound in
the ordinary course to allow the said
application and get the matter investigated
after due registration of F.I.R. It has
further been pointed out that need of
sanction as contemplated under Section
197 Cr.P.C. is not at all attracted in the
present case. Learned counsel for the
applicant has further submitted that the
finding recorded by the court below in the
impugned
order
regarding
malafide
motive of Peshbandi being at the back of
moving the application is perverse and
unfounded and is not only undesirably
premature but is also based on material
which itself is the false creation of police.

5. From the perusal of the record it
seems that the applicant had moved an
application under Section 156(3) Cr.P.C.
before the court of C.J.M., Bareilly with a
prayer that the S.H.O. of concerned police
station may be directed to lodge F.I.R.
against the respondent nos.2 and 3 and the
matter should be investigated. Upon
receiving the said application the learned
Magistrate had called for a report and as
per the police report there was no F.I.R.
lodged in the concerned police station for
same cause of action. However, vide
impugned order the learned Magistrate
had rejected the application of the
applicant filed under Section 156(3)
Cr.P.C. on the ground that as at earlier
point of time F.I.Rs. were lodged against
the applicant and his son by the police,
therefore, the present application moved
by the applicant was a counterblast
reaction adopted in Peshbandi. The
second ground stated by the learned
Magistrate
for
rejecting
the
said
application was that without sanction of
the competent authority, the Magistrate
could not order for investigation against a
public servant and as the requisite
sanction was not available, the the
registration of F.I.R. in the matter could
not have been directed.

6. The perusal of the application
moved by applicant under Section 156(3)
Cr.P.C. shows that it contains some very
serious
and
disturbing
allegations.
According to the version given out in the
application it appears that the wife of
applicant was the licensee of a Beer Shop.
In the evening of 22.4.2019 two police
personnel of Police Station Kotwali,
District Bareilly, contacted the applicant
and had insistently demanded a cartoon of
beer. The aforesaid two policemen were in
plain dress whom the informant had the
occasion to know for the reason that they
used to come at times to the beer shop and
by exercising their official clout they used
to take away the beer bottles without
making any payment. On the day of
occurrence, when the shop was not open,
the aforesaid two policemen came up to
the informant and told that a full cartoon
of beer is being demanded by the
Inspector of Police and therefore, he must
arrange for the same. The informant told
those policemen that the beer shop had
been closed under the directions of the
Election Commission and District Excise
officer, and therefore, he must be excused
4 All. Santosh Kumar Singh Vs. State of U.P. & Ors.
149
from doing this favour. But despite all
this, the two policemen kept on insisting
for the same. The things did not stop at
that and what happened subsequently that
the plain dressed policemen made some
calls as a result of which S.I. Siddhant
Sharma and Constable Vinay Kumar
Baliyan (opposite party no.2 and 3) came
over there and instead of being equitable
with the informant, they too forcibly
insisted to meet out the said unfair and
illicit demand which resulted in some
altercation also, the details of which have
been narrated in the application. Certain
persons gathered on the spot and tried to
intervene but their requests to the
aforesaid policemen did not yield any
result. Constable Vinay Kumar Baliyan
forcibly took away informant's purse
which contained his Aadhar Card, PAN
card, Voter I.D. Card etc. and also took
away his ATM card, driving license etc.
S.I. Siddhant Sharma also snatched away
informant's bag which contained his
license of revolver and also contained
Rs.8000/- in it and thereafter those
persons coercively made the informant
and his son sit on the motorcycle and
whisked them away to the Kotwali. There
they were not only abused but were also
beaten up. It has been further alleged that
at about 10.00 in the night S.I. Siddhant
Sharma in the presence of the Police
Inspector asked the Munshi of the police
station to dump them in the lock up. The
informant and his son were then badly
assaulted upon in the lock up also and his
spectacles, mobile, belt and sphatik beads
were also taken away. Later on in the mid
night they were again taken out from the
lock up and then the Police Inspector,
Constable Vinay Kumar Baliyan and S.I.
Siddhant Sharma and two aforementioned
police personnel forced the informant and
his son to put their signatures upon certain
papers and they were again dumped back
in the lock up. During all this night of
torment it was made to appear by these
police personnel that the informant shall
be taught a lesson which he shall never
forget in his life and which shall teach
him for future what kind of consequences
follow for defying the diktats of the
police. Later on, the informant came to
know that he has been booked in some
false case also. It has also been alleged in
the application that the son of informant is
a patient of hysteria/epilepsy and as such
he was under regular treatment of Dr.
Shriprakash Mishra. During the course of
informant's
unlawful
detention
and
wrongful
confinement
the
aforesaid
doctor had even come to the police station
to give the medicine to his son but S.I.
Siddhant Sharma and Constable Vinay
Kumar Baliyan ill-behaved with the
doctor also and hurled filthy abuses and
disallowed him even to handover the
essential medicines needed for informant's
son. The doctor was not allowed to meet
the informant and threats were given to
him that he too shall face the same fate in
case he would insist. It has also been
alleged in the application that during the
course of their wrongful confinement,
informant's wife Neeru Singh, Nand
Kishor Maurya, Kunwar Pal and certain
other persons had made calls to informant
but as the mobile of the informant was
with the policemen, they did not allow the
callers to have any talks with the
informant or his son. Aforesaid criminal
acts committed by the accused not only
decimated informant's social prestige but
it also deprived the first informant and his
entire family from their constitutional
right of casting their votes, not to speak of
physical and mental trauma which was
caused to them. It further transpires from
the application that the informant did not
150 INDIAN LAW REPORTS ALLAHABAD SERIES
give up his courage and decided to take
up the issue and fight it out. Later on he,
therefore, went to the In-charge Inspector
of Kotwali and gave him an application
making complaint with regard to all the
offences that were committed against him
and he also sent the same through
registered post next day without evoking
any result. As no action followed, the
informant went and approached the
Senior Superintendent of Police, Bareilly
also and give him application in this
regard, but despite all this, the grievance
of the informant remained unaddressed
and unredressed both which impelled him
to move the application before the
Magistrate u/s 156(3) Cr.P.C.

7. The perusal of the impugned
order dated 27.5.2019 would reveal that
while rejecting the application of the
applicant moved under Section 156(3)
Cr.P.C. the learned Magistrate had taken
into consideration the detailed report
submitted by the police station Kotwali,
district- Bareilly. Admittedly, both the
proposed accused persons also were
posted
in
the
said
police
station.
Moreover the object for calling police
report upon receiving an application
under Section 156 (3) Cr.P.C. is to find
out primarily whether any F.I.R. for same
cause of action has been registered or not.
Other facts mentioned in the police report
appear to have been overestimated and
given undue weightage. The mere fact
that two F.I.Rs. had been already lodged
against the applicant and his son on
23.4.2019 by the opposite party no. 2 does
not disprove or improbabilize or vitiate
the allegations made by the applicant in
the application moved under Section
156(3) Cr.P.C. The F.I.R. lodged by the
opposite party no. 2 against the applicant
and his son was for selling beer in
restricted hours as well as for making
some alleged assault by the applicant and
his son upon the police personnel on
23.4.2019 at about 11.15 A.M. The
relative truth of the two versions can be
ascertained
either
through
a
fair
investigation or through a fair trial, as the
case may be. Adopting a conjectural
approach
and
drawing
presumptive
inferences of some supposed malice does
not appear to be a sound approach at all at
this preliminary stage. It is an inherent
right of the aggrieved person to approach
the police and get the F.I.R. registered
with regard to the cognizable offences, if
they have been committed against him by
some accused persons. If cognizable
offences are disclosed by the version
given by the informant, the police is under
bounden duty to register the F.I.R. The
law as has been laid down in the case of
Lalita Kumari vs. Govt. of U.P. and
others 2014(2) SCC 1 is categorical in
this regard, and is no more res integra.
But when the police fails to perform its
own duty and even other attempts of the
informant in this regard which include its
approach to police higher ups do not yield
any result, he feels impelled to approach
the court and move an application u/s
156(3) Cr.P.C. The basic nature of the
relief which the informant seeks in such
matters is to get a judicial order so that
the statutory function of the police may
get initiated and be expedited. The court,
when it directs the registration of the
F.I.R. or the investigation in the case, is
basically doing nothing except asking the
police to perform its bounden legal duty
which it has otherwise failed to do. The
ambit and scope of entering into a kind of
pre-trial before the actual trial may begin
is highly circumscribed and hazarding an
uncertain plunge in this direction will be
anticipatory in nature. For reasons of
4 All. Santosh Kumar Singh Vs. State of U.P. & Ors.
151
being premature and dicey it shall not be a
sound approach to be adopted. Everyday
we see cross cases being registered in
police station. Everyday we see cross
versions coming in the court. In all such
matters one version is registered earlier
while another version is registered later
on. It cannot be held as a matter of law or
even as a rule of prudence that the
subsequent version of the other side
should be presumed to be false or that it
should be invariably presumed that it is a
counterblast
reaction
expressed
and
brought out of malice. On that analogy
there will be scarcely any scope to have
either the cross cases or the cross versions
registered or to have two cases registered
against rival parties that may be lodged
against each other even with regard to
different incidents that may take place
with some hiatus of time existing in
between. The judicial disposition of
drawing the inference of malice or
malafides at such a premature stage with
regard to the cases or versions brought
later in point of time may prove to be a
deceitful prejudice or a
misleading
guideline. Such an inference may be
drawn only in rarest of rare cases where
the
circumstances
may
be
so
overwhelmingly demonstrable that the
vicious mal-intention or the oblique
motive of false implication prompted by
express malafides may be conclusively
deduced
from
the
conspicuous
circumstances of that particular case.
Otherwise in ordinary course whether the
allegations made in the application are
true or false must be discerned by a
proper and fair investigation into the
same. In this particular case where the
accusations have been made against
police personnel themselves, one might
find it more probable to presume that after
having
committed
such
criminal
highhandedness as has been alleged the
most normal course likely to be adopted
by the police in its own defence is or
could have been to register a false case
against the informant. The fear of being
prosecuted or the fear to face charges after
having committed the alleged offences,
might naturally prompt the guilty police
personnel to invent a defence mechanism
and what could have been a better
prophylactic defensive strategy than to
embroil the informant in some false case
and use it as an arm twisting device in
order to save themselves from any
possible future complaint. It is not
difficult to understand as to how difficult
it is to get a case registered in the police
department itself against its own men. But
all such reasonings and inferences would
be based on broad generalizations and
such kind of approach is again not a very
desirable or called for judicious approach.
There was no good reason for the court
below to draw any such adverse inference
either against the informant or against the
police party at such a premature stage. To
draw the inference of malafides and
damning the informant's version as a
Peshbandi and not to allow his report
even
to
be
registered
against
the
policemen and thereby not to allow even a
fair investigation into the truthfulness of
such serious allegations, was not at all a
judicious approach. We live in a society
which takes pride in being under the rule
of law and for not being under the rule of
men or their executives. Under the
protective
umbrella
of
our
solemn
constitution even an ordinary man of
humble background has got a legal right
to express his grievance against the
powers that might be if they have been
guilty of being unjust against him, not to
speak of having committed punishable
offences against him. The truthfulness or
152 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise of the allegations, as have been
made by the informant, has to be probed
into by a fair and impartial investigation.
The duty of the department of police and
the investigating officer in such a matter
would be much more onerous as he shall
be required to perform his duty with a
higher sense of non partisan fairness, the
accused persons in the case being his own
compatriots and peers. If the allegations,
as have been made, are not found false,
they shall have constituted a very sad
commentary upon the working of this
executive
arm
which
is
otherwise
supposed to act and function in order to
protect the people and maintain the law
and order. When law enforcing agencies
go awry and unruly, it evokes a serious
judicial concern and reports of such kind
cannot be either soft-pedalled or be
countenanced with. In the wake of the
serious allegations as have been made in
the application u/s 156(3) Cr.P.C., the
least which was required was that the
Magistrate should have directed the
investigation into the case and get the
truth ascertained and not to scuttle the
inquiry
and
bury
forever
all
the
possibilities of finding the truth.

8. So far as the requirement of
sanction u/s 197 Cr.P.C. is concerned,
there may be cases where the acts of the
accused or the proposed accused allegedly
said to be constituting the offence are
such
that
may
be
so
inextricably
intertwined with their official duty that
they would be termed to be acts
committed during the course of discharge
of their official duty. The alleged acts
must be either in excess or in dereliction
of the supposed or purported official duty.
Such kind of plea with regard to
requirement of sanction cannot be raised
or brought into application in cases where
the alleged acts of the proposed accused
constituting the offences have no nexus
with the official duty and are in the nature
of independent delinquent aberrations of a
guilty mind. The version as has been
disclosed in the application moved by the
informant shows that from the very
inception
of
the
alleged
criminal
transaction the proposed accused indulged
in the illicit demand of beer which had
nothing to do with their official duty. The
allegations of snatching the purse or
money and making a criminal assault
which included beating and abusing, are
also acts so independent and disconnected
with any official duty that they cannot at
all be termed as acts having been
committed by the accused person or
persons while acting or purporting to act
in the discharge of their official duty.
According to the version given out in the
application the informant had gone to the
vegetable Mandi from his house along
with his son and while he was going to his
house back after making the necessary
purchases, he met with a friend of his
namely Mohsin Ansari at a certain place
near Raghuvanshi Complex. At that point
of time when he was conversing with his
friend, the two policemen in plain dress
arrived there, about whom the reference
has already been made in earlier part of
the order while describing the version of
the application. This Court has already
referred to the facts contained in the
application wherein it has been described
as to how these two policemen used to
come to the beer shop of informant and
indulged in the illicit demand of beer off
and on in the name of Inspector of Police
without making any payment in lieu of
the same. On the day of incident also it
was made to appear by these two
policemen that a cartoon of beer was
being demanded by the Inspector of Police
4 All. Santosh Kumar Singh Vs. State of U.P. & Ors.
153
himself. They had also told the informant
that as his beer shop was closed that day
that is why the policemen had gone to the
house of the informant for that purpose. It
was at the house of the informant that the
policemen came to gather about the
whereabouts of the informant and after
coming to know that the informant had
come to the vegetable mandi, that is why
the aforesaid policemen had to follow his
trail and that was how they had come to
meet the informant at that place. It was at
that point of time that the informant was
asked by the policemen to open up the beer
shop and hand them over a cartoon of beer
as
was
demanded.
The
subsequent
description of the incident has already been
detailed herein before and does not need
repetition. But it is so very clear from the
version of the informant that the aforesaid
prelude and the evolution of events which
eventually led to the detention of applicant
and his son in the lock up after lifting them
from there and the criminal assault that was
allegedly made upon them in the police
station can hardly be reasonably connected
with the discharge of any official duty. Even
a most liberal construction of law would not
permit us to construe their acts as having
even a remote nexus, not to speak of having
a proximate nexus, with their official duty
and therefore, in the facts of the case the
view adopted by the court below whereby
the absence of sanction u/s 197 Cr.P.C. has
also been made an additional ground for
rejecting the application appears to be an
unsound approach. The cases as have been
cited in the order are factually so
distinguishable
that
they
cannot
be
successfully brought to the rescue of the
proposed accused. In the case of D.T.
Virupakshappa vs. C. Subash, (2016)1
SCC (Crl.) 82 referred to in the impugned
order, the allegations were to the effect that
the victim was taken to the police station in
connection with the investigation of some
cases and the accused policeman of that
case was said to have wrongfully detained
the victim in the police station and had
directed that the victim should not be let out
till he revealed or confessed about his
involvement
in
the
murder
of
one
Sannamma. Hon'ble Apex Court had arrived
at the conclusion that the factual matrix of
the case made it evident that the whole
allegation was regarding the police excess
in connection with the investigation of a
criminal case. In the view of the Apex Court
the said offensive conduct was reasonably
connected with the performance of the
official duty of the accused appellant of that
case, and therefore, the act of taking
cognizance in the matter without previous
sanction of the State Government was found
illegal. It is also worth taking note of that
aforesaid case of D.T. Virupakshappa vs. C.
Subash related to a private complaint filed
by the complainant on which the learned
Magistrate had taken cognizance and had
issued summons to the accused and it was
not a matter relating to an application
moved u/s 156(3) Cr.P.C. Another case
referred to in the impugned order is that of
Anil Kumar and others vs. M.K. Aiyappa
and another, 2013(10)SCC 705 in which
the facts were to the effect that the accused
of that case with malafide intention had
passed an order in connivance with other
officers and restored valuable land in favour
of
a
private person. When a complaint was
raised, the accused passed another order and
recalled the earlier order. The allegation
made against him was that the issuance of
the earlier order constituted the ingredients
of several offences including the Indian
Penal Code and also the ingredients of
certain offences under the Prevention of
Corruption Act. From the aforesaid facts of
the case also it is so clear that the act of
154 INDIAN LAW REPORTS ALLAHABAD SERIES
passing the order which was said to be
substratum giving rise to the various
offences was an act done while discharging
the official duty and if the duty was not
rightly performed, such an act would be in
dereliction of the official duty. The
impugned conduct of the accused in Anil
Kumar's case (supra) is so inextricably
intertwined with his official duty that the
same has to be termed either in excess or in
dereliction of the same. It was in the
particular background of this factual matrix
that the need of the sanction was approved
but as it has already been noted that so far
as the facts of the present case under
consideration is concerned, the allegations
are relating to a conduct quite independent
of any official act. Whether the allegations
are true or false is a different question and
which can only be discerned through a
legitimate investigation only.

9. At any rate in the considered
opinion of the Court the allegations made in
the present application filed under Section
156 (3) Cr.P.C., which on the face of it do
constitute cognizable offences, need a fair
investigation in order to ascertain the truth
and arrive at a just conclusion. The
Magistrate has certainly committed error
while he rejected the application moved
under section 156(3) Cr.P.C.

10. In view of the above discussion,
the impugned order cannot be sustained
and the same deserves its quashing.
Accordingly
the
application
stands
allowed and the impugned order dated
27.5.2019 stands quashed.

11. The matter is remanded back to
the court below concerned for passing
fresh orders in accordance with law
keeping in view the observations made
hereinabove.

12. In the last it may also be
observed that as the accusations have
been made against police personnel
therefore it shall be in the fitness of the
things that the S.S.P. concerned should
appoint an officer of the higher rank,
being an officer not below the rank of
Deputy Superintendent of Police to
investigate the case under his own
supervision. The court below is therefore
directed to communicate this direction to
the S.S.P. concerned after passing fresh
orders in the matter.

13. Office is also directed to
communicate this order by fastest mode
available both to the concerned court
below and to the S.S.P. concerned.
----------

(2019)12 ILR A154

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
24529 of 2015

Jong Seuk Park President Korea Marine
Transport Company Ltd. ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anand Mohan Pandey, Sri Pankaj
Jaiswal, Sri Varun Shankar Dwivedi

Counsel for the Opposite Party:
A.G.A., Sri Deepak Agarwal, Sri Shiv
Sagar Singh

A. Criminal Law - Indian Penal Code
1860- Section 406/420-Cr.P.C, 1973-
Section 468- The transporter cannot be