# Shiv Narain Jaiswal and others v. State of U.P. and another

- **Citation:** (2006) 3 ILRA 1171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-10-13
- **Case number:** Criminal Misc. Application No. 11893 of 2004
- **Bench:** R.K. Rastogi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-narain-jaiswal-and-others-v-state-of-u-p-and-another-40778
- **Pages:** 10

## Headnote

Code of Criminal Procedure-Section 156
(3)-power of the Magistrate to register
and investigate the case-treating the
application under Section 156 (3)-as a
complaint.

Held: Para 24

The position that emerges out of the
discussion attempted above is that,
taking into consideration the above
rulings of Hon'ble Apex Court and Full
Bench of this Court, the Single Judge
ruling in Shyam Lal Jaiswal's case laying
down a contrary view can not be
followed and in view of the above ruling
of Hon'ble Supreme Court and the Full
Bench of this Court, the order passed by
the learned Magistrate is completely
valid . He had jurisdiction to pass an
order for registration of the case as a
complaint
on
an
application
under
section 156(3) Cr. P. C. as laid down by
the above Full Bench on the point no. 2
in its judgement.
Case law discussed:
1997 (35) ACC-371 (SC), 2004 (1) ACC-831,
2001 (Suppl.) ACC-277, J.T. 2001 (2) SC-81,
AIR 1961 SC-986, AIR 1977 SC-240. 2001 (43)
ACC-50, 1997 (35) ACC-371 (SC), 2000 (41)
ACC-831, 2001 (Suppl.) ACC-277

## Text

1170 INDIAN LAW REPORT ALLAHABAD SERIES [2006
therefore neither ratio in Raj Vikram
Khare (Supra) nor the rules apply in the
present case.

13. Apart from the aforesaid, no
pleadings have been raised in the writ
petition to show how the 1972 Rules
apply to employees of the Cooperative
Society.

14. For the reasons above, this is not
a fit case for interference under Article
226
of
the
Constitution
of
India.
However, in case, any fresh recruitment is
made, as directed by the Bank, the
petitioner of either the present petition or
the connected petitions can apply, but
their claim may not be dislodged only on
the ground of age. With the aforesaid
observation, the petition is rejected. No
order as to costs. Petition Dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2006

BEFORE
THE HON'BLE R.K. RASTOGI, J.

Criminal Misc. Application No. 11893 of
2004

Shiv Narain Jaiswal and others

...Applicants
Versus
State of U.P. and another

...Opposite Parties

Counsel for the Applicants:
Sri R.S. Gupta

Counsel for the Opposite Parties:
Sri Brijesh Sahai
A.G.A.

Code of Criminal Procedure-Section 156
(3)-power of the Magistrate to register
and investigate the case-treating the
application under Section 156 (3)-as a
complaint.

Held: Para 24

The position that emerges out of the
discussion attempted above is that,
taking into consideration the above
rulings of Hon'ble Apex Court and Full
Bench of this Court, the Single Judge
ruling in Shyam Lal Jaiswal's case laying
down a contrary view can not be
followed and in view of the above ruling
of Hon'ble Supreme Court and the Full
Bench of this Court, the order passed by
the learned Magistrate is completely
valid . He had jurisdiction to pass an
order for registration of the case as a
complaint
on
an
application
under
section 156(3) Cr. P. C. as laid down by
the above Full Bench on the point no. 2
in its judgement.
Case law discussed:
1997 (35) ACC-371 (SC), 2004 (1) ACC-831,
2001 (Suppl.) ACC-277, J.T. 2001 (2) SC-81,
AIR 1961 SC-986, AIR 1977 SC-240. 2001 (43)
ACC-50, 1997 (35) ACC-371 (SC), 2000 (41)
ACC-831, 2001 (Suppl.) ACC-277

(Delivered by Hon'ble R.K.Rastogi, J.)

1. This is an application under
section 482 Cr.P.C. for quashing the
proceedings of criminal case no. 3025 of
2002, Abhay Pratap Singh Vs. Shiv
Narain Jaiswal and others, pending before
the
the
Chief
Judicial
Magistrate,
Azamgarh and the orders dated 23.9.2002
and 2.1.2003 passed by the Chief Judicial
Magistrate, Azamgarh.

I have heard learned counsel for the
applicants and learned A.G.A. for the
State.

2. The facts relevant for disposal of
this application are that Abhay Pratap
Singh, (O.P.no. 2 in this case) moved an
3All] Shiv Narain Jaiswal and others V. State of U.P. and another 1171
application under section 156 (3) Cr.P.C.
against the accused applicants with these
allegations that he is an Advocate
practising in civil court, Azamgarh. He
had purchased a piece of land bearing plot
no. 485 in Mauza Kolwaz Bahadur for
construction of his house and after getting
his name mutated he started construction
of
the
house
in
accordance
with
sanctioned map. Prem Narain and Shiv
Narain etc. (applicants in the present case)
had their land adjacent to the aforesaid
land
and
they
objected
to
these
constructions hence, the plots of both the
parties were surveyed and a report was
submitted to higher authorities which
made it clear that Shiv Narain etc. have
no concern with the land of Abhay Pratap
Singh. The authorities were also satisfied
on seeing the documents of Abhay Pratap
Singh and Abhay Pratap Singh after
completing the construction of walls on
10.9.2002 put roof on the walls, and on
that date at about 11 P.M. accused Prem
Narain, Shiv Narain and two sons of Prem
Narain along with their 3-4 companions
came to the newly constructed house of
Abhay Pratap Singh. They were having
lathis, Dandas, Ballam, Gandasa, and
country made pistol in their hands. Abhay
Pratap Singh was present at his newly
constructed house along with Avnind
Singh and Mundesh Singh. Prem Narain
and his companions started abusing them
and challenged Abhay Pratap Singh,
Avnind Singh and Mundesh Singh, and
fired at them with an intent to kill them.
The assailants were identified in the light
of torches. They demolished the roof of
the house and caused loss to the
complainant to the tune of Rs.30,000/-.
They also took five bags of cement, four
Phawaras, two Belchas and three Balties
with them. Fires were done by the
accused persons from their fire arms but
the complainant and his companions some
how escaped injuries. The complainant
went to the police station to lodge a report
but his report was not written. When the
local police did not take any action,
Abhay Pratap approached the higher
Police authorities vide his application
dated 11.9.2002 which was sent by
Registered Post. Even then no action was
taken. Then he moved this application
under Section 156(3) Cr,P.C. for taking
action against the accused persons who
had committed offences under sections
504, 506, 147, 148, 149, 440, 307 and 379
I.P.C.

3. On the above application moved
on 17.9.2002, the Magistrate passed an
order on 23.9.2002 for its registration as
complaint and fixed a date for recording
statement of the complainant under
section 200 Cr.P.C. After recording
statement of the complainant he also
recorded the statements of witnesses
Awanind Singh and Mukesh Singh under
section 202 Cr.P.C. Then he passed an
order on 2.1.2003 summoning the accused
applicants under sections 147, 148, 149,
379, 354, 440, 504 and 506 I.P.C.
Aggrieved
with
the
orders
dated
23.9.2002 and 2.1.2003 the accused filed
this application under section 482 Cr.P.C.
for quashing these orders.

4. It has been alleged in this
application that a civil suit was already
pending between the parties in respect of
the disputed land and a copy of the plaint
of O.S. no. 679 of 2001 filed in the court
of
Civil
Judge
(Junior
Division),
Azamgarh was produced as Annexure
no.1 to the affidavit and a copy of
injunction order issued by the Civil Judge
(Junior Division) in that suit directing
both the parties to maintain status-quo
1172 INDIAN LAW REPORT ALLAHABAD SERIES [2006
was filed as Annexure no.2. A copy of the
written statement of the defendants in that
suit was also filed as annexure no.3.It was
alleged that since the application was filed
under
section
156(3)
Cr.P.C.,
the
Magistrate could not pass an order for
registering it as a complaint case and in
support of this contention the learned
counsel for the applicant has cited before
me a ruling of Hon'ble K.N. Sinha, J. of
this Court in 'Shyam Lal Jaiswal Vs. State
of U.P' 2003 (46) ACC 1164 in which it
has been held that in an application
moved under section 153(3) Cr.P.C.
Magistrate cannot pass an order for
registering it as complaint and such an
order is illegal. In reply to this contention,
the learned counsel for O.P. no.2 cited
before me a Full Bench ruling of this
Court in 'Ram Babu Gupta Vs. State of
U.P.and others ' 2001 (43) ACC 50. In
this case it has been held that Magistrate
has got jurisdiction to treat the application
moved under section 156(3) Cr.P.C. as
complaint and the different view taken by
the Division bench of this Court in the
case of 'Suraj Mal Vs. State' 1993(30)
ACC 81 does not lay down correct law.

5. I have carefully gone through
both these rulings. The Full Bench
decision in the case of Ram Babu Gupta is
based upon the decision of Hon'ble
Supreme Court in the case of Suresh
Chand Jain Vs. State of Madhya Pradesh
and another' J.T. 2001 (2) SC 81. Their
Lordships of Full Bench have referred to
various rulings on the above point in para
15 of the judgment. It may be mentioned
that the decision in Suresh Chand Jain's
case was pronounced by Hon'ble Supreme
Court when the judgment in Ram Babu
Gupta's case had been reserved. After
delivery of the judgment of Hon'ble Apex
Court in the aforesaid case the Full bench
fixed a date for re-hearing of the matter in
the light of the above judgment and
thereafter it decided this case on the basis
of the above judgment in Suresh Chand
Jain's case holding that in view of this
pronouncement of the Hon'ble Supreme
Court there was no necessity to deal with
the rulings referred to in para 15 of the
judgment.

6. The view taken by Hon'ble Single
Judge in Shyam Lal Jaiswal's case is just
opposite to the view taken by the Full
bench in the case of Ram Babu Gupta and
it appears that this Full Bench ruling was
not cited before his Lordship while
deciding the above case. His Lordship
has, however, relied upon the following
three rulings in his judgment in the case
of Shyam Lal Jaiswal:

1. Madhu Bala Vs.Suresh Kumar and
others 1997 (35) ACC 371 (S.C.);
2. Dinesh Chandra and others Vs. State
of U.P. 2000(41) ACC 831 (Allahabad);
3. Mahboob Ali Vs. State of U.P. and
others
2001
(Suppl)
ACC
277
(Allahabad).

7. I have gone through all the
aforesaid three rulings as well as the
ruling of Hon'ble Apex Court in Suresh
Chandra Jain's case referred to in the Full
Bench ruling of this Court in Ram Babu
Gupta's case with a view to ascertain as to
what is correct legal position, I now
proceed to discuss all these rulings:

8. First of all I take up the
judgement of Hon'ble Apex Court in the
case of Suresh Chand Jain Vs. State of
Madhya Pradesh & another: JT 2001 (2)
SC 81. In this case facts were that a
complaint was made before the Chief
Judicial Magistrate, Neemuch (M.P.) with
3All] Shiv Narain Jaiswal and others V. State of U.P. and another 1173
the allegation that the accused had
committed
offence
punishable
under
section 420 I.P.C. and under section 3 of
the Prizes, Chits and Money Circulation
Scheme (Prohibition) Act. After perusal
of the complaint the Magistrate was of the
view that the offence was of serious
nature
and
so
it
required
to
be
investigated by the police. He, therefore,
instead of proceeding with the matter as a
complaint case, passed an order directing
the police under section 156(3) Cr. P. C.
to investigate the case. This order was
challenged by the accused before the
learned Sessions Judge by filing a
revision contending that the Magistrate
had no jurisdiction to pass such an order
on a complaint filed before him. This plea
was rejected by the Sessions Judge. Then
he moved an application before High
Court under section 482 Cr.P.C. That
application was also dismissed. Then he
filed a criminal appeal before the Hon'ble
Apex Court challenging the above order.
The Hon'ble Supreme Court holding that
the order passed by the Magistrate was
absolutely
right
made
following
observations in para 10 of the judgement:

"The position is thus clear. Any
judicial
Magistrate,
before
taking
cognizance of the offence, can order
investigation under Section 156 (3) of the
Code. If he does so, he is not to examine
the complainant on oath because he was
not taking cognizance of any offence
therein. For the purpose of enabling the
police to start investigation it is open to
the Magistrate to direct the police to
register an F.I.R. There is nothing illegal
in doing so. After all registration of an
F.I.R. involves only the process of
entering the substance of the information
relating to the commission of the
cognizable offence in a book kept by the
officer in charge of the police station as
indicated in Section 154 of the Code.
Even if a Magistrate does not say in so
many words while directing investigation
under Section 156 (3) of the Code that an
F.I.R. Should be registered, it is the duty
of the officer-in- charge of the police
station to register the F.I.R. regarding the
cognizable offence disclosed by the
complaint because that police officer
could take further steps contemplated in
Chapter XII of the Code only thereafter."

9. The Hon'ble Apex Court in the
said judgement relied upon its earlier
decision of three Judges Bench in Gopal
Das Sindhi and others Vs. State of Assam
and another (AIR 1961 SC 986) and two
Judges Bench in Tula Ram and others Vs.
Kishore Singh (AIR 1977 SC 240). In
Gopal Das Sindhi (supra) the Hon'ble
Apex Court had made the following
observations:

"If the Magistrate had not taken
cognizance
of
the
offence
on
the
complaint filed before him, he was not
obliged to examine the complainant on
oath and the witnesses present at the time
of the filing of the complaint. We can not
read the provision for section 190 to mean
that once a complaint is filed, a
Magistrate is bound to take cognizance if
the facts stated in the complaint disclose
the commission of any offence. We are
unable to construe the word 'may' in
section 190 to mean 'must'. The reason is
obvious.
A
complaint
disclosing
cognizable offences may well justify a
Magistrate in sending the complaint,
under section 156(3) to the police for
investigation. There is no reason why the
time of the Magistrate should be wasted
when primarily the duty to investigate the
cases involving cognizable offences is
1174 INDIAN LAW REPORT ALLAHABAD SERIES [2006
with the police. On the other hand, there
may be occasions when the Magistrate
may exercise his discretion and take
cognizable of a cognizance offence."

10. The same position was reiterated
by Hon'ble Apex Court in Tula Ram
(supra).

11. A decision of Punjab & Haryana
High Court in Suresh Kumar Vs. State of
Haryana [1996 (3) Recent Criminal
Reports 137] was also cited before the
Hon'ble Apex Court in which a contrary
view was taken by that Court. In regard to
that ruling the Hon'ble Apex Court made
the following observation in para 12 of its
judgement:

".......... It is unfortunate that when
this Court laid down the legal position so
explicitly in the above two decisions
which reached the notice of the learned
Judge of the Punjab and Haryana High
Court, he had formulated a position
contrary to it by stating that "the
Magistrate has no power within the
contemplation of section 156(3) of the
Code, to ask for registration of the case."
It appears that the judicial officers under
Punjab and Haryana High Court who
were, till then, following the correct
position, were asked by the learned Judge
to
follow
the
erroneous
position
formulated by him in the aforesaid
judgement."

12. Now I take up the Full Bench
judgement of this Court in Ram Babu
Gupta and another Vs. State of U.P. and
others [2001 (43) ACC 50]. In this Full
Bench case the following two points were
framed for consideration:

"1. Should the Magistrate while
exercising powers under Section 156(3)
Cr.P.C. be left to write cryptic orders "
register and investigate." or " register and
do the needful" or " he has to investigate",
or the like? Or the Magistrate's order
should prima facie indicate application of
mind;
2. Is the observation of the Division
Bench in Suraj Mal (supra) correct when
it says that when an applicant before a
Magistrate prays only for registration and
investigation
of
a
case,
such
an
application will not become "complaint"
as defined in Section 2 of the Cr.P.C.?"

13. This Hon'ble Full Bench after
referring to the case law on the point and
then relying upon the aforesaid ruling of
Hon'ble Apex Court in Suresh Chand Jain
(supra), replied point no.1 as under:

"16.
Having
thus
noticed
the
observations aforesaid in Suresh Chand
Jain, it may be desirable to revert to the
facts
in
Suresh
Chand
Jain.
The
Magistrate in that case received a
complaint submitted by the complainant
and expressed his opinion that from the
allegations therein, serious offences were
disclosed and the complaint was required
to be investigated by the police and thus
forwarded it to the police station with the
direction to register the First Information
Report and initiate investigation and
called a copy of the FIR immediately on
registration of the case.
17.
In
view
of
the
aforesaid
discussion on the legal provisions and
decisions of the Supreme Court as on
date, it is hereby held that on receiving a
complaint, the Magistrate has to apply his
mind to the allegations in the complaint
upon which he may not at once proceed to
take cognizance and may order it to go to
3All] Shiv Narain Jaiswal and others V. State of U.P. and another 1175
the police station for being registered and
investigated. The Magistrate's order must
indicate application of mind. If the
Magistrate takes cognizance, he proceeds
to follow the procedure provided in
Chapter XV of Cr.P.C. The first question
stands answered thus."

Regarding point no.2 the Full /Bench
made the following observations in para
18 and 19 of the judgement:

"18. Coming to the second question
noted above it is to be at once stated that a
provision empowering a court to act in a
particular manner and a provision creating
a right for an aggrieved person to
approach a Court or authority, must be
understood distinctively and should not be
mixed up. While Sections 154,155 subsection (1) and (2) of 156, Cr.P.C. confer
right on an aggrieved person to reach the
police, 156(3) empowers a Magistrate to
act in a particular manner in a given
situation. Therefore, it is not possible to
hold that where a bare application is
moved before Court only praying for
exercise of powers under Section 156 (3)
Cr.P.C., it will remain an application only
and would not be in the nature of a
complaint. It has been noted above that
the Magistrate has to always apply his
mind on the allegations in the complaint
where he may use his powers under
Section 156 (3) Cr.P.C. In this connection
it may be immediately added that where
in an application, a complainant states
facts which constitute cognizable offence
but makes a defective prayer, such an
application will not cease to be a
complaint nor can the Magistrate refuse to
treat it as complaint even though there be
no prayer seeking trial of the known or
unknown accused. The Magistrate has to
deal with such facts as constitute
cognizable offence and for all practical
purposes even such an application would
be a complaint. This Court can do no
better
than
refer
to
the
following
observations
in
Suresh
Chand
Jain
(supra):-
"The position is thus clear. Any
judicial
Magistrate,
before
taking
cognizance of the offence, can order
investigation under Section 156(3) of the
Code....
could
take
further
steps
contemplated in Chapter XII of the Code
only thereafter."
19.
In
view
of
the
aforesaid
discussion, the observations in the two
paragraphs noted above in Suraj Mal
(supra), cannot be said to be laying down
correct law, therefore, those observations
shall remain confined to the decision in
Suraj Mal. The second point formulated
above stands also answered thus."

14. It was thus also held in the above
para 19 of the Full Bench Judgement that
the Division Bench of this Court in Suraj
Mal 1993 (30) ACC 81 taking a contrary
view did not lay down the correct law.

15. In view of the decision of
Hon'ble Supreme Court in Sumer Chand
Jain (supra) and the Full Bench decision
of this Court in Ram Babu Gupta (supra),
the correct legal position is that even in a
complaint, the Magistrate before taking
the cognizance under Chapter XV of
Cr.P.C. can pass an order for investigation
by police under section 156(3) Cr.P.C. if
the allegations made in the complaint
disclose a cognizable offence. Similarly
on an application under section 156(3)
Cr.P.C. the Magistrate has got a right to
treat it as a complaint and to proceed with
it under Chapter XV of the Cr.P.C.
1176 INDIAN LAW REPORT ALLAHABAD SERIES [2006
16. The aforesaid ruling of Hon'ble
Supreme Court and the above Full Bench
ruling of this Court do not appear to have
been cited before Hon'ble K.N. Sinha, J.
when his Lordship was deciding the case
of Shyam Lal Jaiswal Vs. State of U.P.
[2003 (46) ACC 1164] in which he has
taken a view contrary to the law laid
down by Hon'ble Apex Court and by the
Full Bench of this Court.

17. Hon'ble K.N. Sinha, J. has,
however, referred to following three
decisions in support of his view that on an
application moved under section 156(3)
Cr.P.C. the Magistrate has got no
jurisdiction to pass an order to treat it as a
complaint.

1.
Madhu Bala Vs. Suresh Kumar
1997(35) ACC 371 (SC)
2.
Dinesh Chandra Vs.State of U.P.
2000 (41) ACC831
3.
Mahboob Ali Vs. State of U.P 2001
(Suppl.) ACC 277.
I have gone through all these rulings
also and now I proceed to discuss them
one by one.

18. First of all I take up the ruling in
the case of Madhu Bala (supra). In this
case facts were that a complaint was
lodged before the C.J.M. Kurukshetra
under section 498A and 406 I.P.C. and on
that complaint the Magistrate instead of
taking cognizance under section 190
Cr.P.C. passed order for investigation by
the police under section 156(3) Cr.P.C.
directing the police to register the case
and to investigate the same. Thereafter the
police
investigated
the
matter
and
submitted
charge
sheet
against
the
accused persons under section 498A and
406
I.P.C.
The
Magistrate
took
cognizance against the accused persons
under section 406 I.P.C. only . He did not
take cognizance under section 498A
I.P.C. holding that the offence under
section
498A
I.P.C.
was
allegedly
committed
outside
his
territorial
jurisdiction within the district of Karnal.
Thereafter another complaint was filed
against the accused persons in the court of
C.J.M. Karnal under Section 498A I.P.C.
and on this complaint also the Magistrate
passed order for investigation by the
police under section 156(3) Cr.P.C. The
police accordingly registered the case and
after investigation submitted charge sheet.
Then cognizance was taken by the
Magistrate. Charges were also framed
against the accused persons. Thereafter
accused persons filed application under
section 482 Cr.P.C. before Punjab and
Haryana High Court challenging the
orders
of
both
the
Chief
Judicial
Magistrate of Karnal and Kurukshetra.
The High Court allowed the application
under section 482 Cr. P. C. holding that
the Magistrate had no power to direct the
police to register the case. The order of
the High Court was challenged before the
Hon'ble Apex Court. The Hon'ble Apex
Court allowed the appeal holding that the
order passed by the Magistrates were
completely legal and justified. It made the
following observations in this judgement:

"From a combined reading of the
above provisions, it is abundantly clear
that when a written complaint disclosing a
cognizable offence is made before a
Magistrate, he may take cognizance upon
the same under Section 190(1)(a) of the
Code and proceed with the same in
accordance with the provisions of Chapter
XV. The other option available to the
Magistrate is such a case is to send the
complaint to the appropriate Police
Station
under
Section
156(3)
for
3All] Shiv Narain Jaiswal and others V. State of U.P. and another 1177
investigation. Once such a direction is
given under sub-section (3) of Section
156 the police is required to investigate
into that complaint under sub-section (1)
thereof
and
on
completion
of
investigation to submit a 'police report' in
accordance with Section 173(2) on which
a Magistrate may take cognizance under
Section
190(1)(b)-
but
not
under
190(1)(a). Since a complaint filed before
a Magistrate cannot be a 'police report' in
view of the definition of 'complaint'
referred
to
earlier
and
since
the
investigation of a 'cognizable case' by the
police under Section 156 (1) has to
culminate
in
a
'police
report'
the
'complaint'-as soon as an order under
Section 156 (3) is passed thereon-
transforms itself to a report given in
writing within the meaning of Section 154
of the Code, which is known as the First
Information Report (F.I.R.) As under
Section 156(1), the police can only
investigate a cognizable 'case', it has to
formally register a case on that report"

19. Thereafter referring to certain
provisions of the Police Act and Rules it
further observed as under:

"From the foregoing discussion it is
evident that whenever a Magistrate directs
an investigation on a 'complaint' the
police has to register a cognizable case on
that complaint treating the same as the
F.I.R. and comply with the requirements
of the above Rules. It, therefore, passes
our comprehension as to how the
direction of a Magistrate asking the police
to 'register a case' makes an order of
investigation under Section 156 (3)
legally unsustainable. Indeed, even if a
Magistrate does not pass a direction to
register a case, still in view of the
provisions of Section 156(3) of the Code
which empowers the Police to investigate
into a cognizable 'case' and the Rules
framed under the Indian Police Act, 1861
it (the police) is duty bound to formally
register a case and then investigate into
the same. The provisions of the Code,
therefore, does not in any way stand in the
way of a Magistrate to direct the police to
register a case at the police station and
then investigate into the same. In our
opinion when an order for investigation
under Section 156(3) of the Code is to be
made the proper direction to the Police
would be 'to register a case at the police
station treating the complaint as the First
Information Report and investigate into
the same."

20. With due deference to his
Lordship deciding Shyam Lal Jaiswal's
case (supra), it is pointed out that the
above observations of the Hon'ble Apex
Court do not support the conclusion
drawn by his Lordship in the above
ruling.

21. The second ruling referred in the
case of Shyam Lal is of this Court in the
case Dinesh Chandra (supra). I have very
carefully gone through this ruling also. In
this judgement no specific finding has
been recorded on the issue and actually
his Lordship (Hon'ble S.K.Agarwal, J.)
has made a reference to the Full Bench
which was constituted in the case of Ram
Babu (supra). This reference has also
been considered in the Ram Babu's case.
In this case also, the Magistrate on a
complaint before him passed an order
directing registration of the case by the
police and this order was challenged
before this Court and the matter was
referred to the above Full Bench.
1178 INDIAN LAW REPORT ALLAHABAD SERIES [2006
While making the reference the
following observations were made by
Hon'ble S.K. Agarwal, J. in para 20 and
21 of its judgement:

"20. In view of the foregoing
discussions what is essential for the
exercise of the power under Section
156(3) is that the application must
disclose the commission of a cognizable
case and the facts given therein relate to
commission of a cognizable offence. If
that is there the Magistrate has to order
investigation.
21.The Magistrate even in the case of
a complaint, requesting him to take action
against the offender, may also exercise
this option. There is no bar to his doing
this but it can be done at a pre-cognizance
stage and not after cognizance is taken by
him."

22. With due deference to his
Lordship deciding Shyam Lal Jaiswal's
case (supra), it is pointed out that the
above observations of Hon'ble S. K.
Agarwal, J do not support the conclusion
drawn by his Lordship in the above
ruling. It may also be added that the Full
Bench of this Court in Ram Babu (supra)
in para 37 of its judgment upheld the
order passed by the Magistrate observing
that the order dated 2.7.1997 passed by
the Magistrate was reasoned one and there
were no error in the order. It dismissed
Crl. Revision No. 1466/2000 filed before
this Court.

23. The last ruling cited by his
Lordship in the case of Shyam Lal Jaiswal
is the ruling in the case of Mahboob Ali
(supra)
delivered
by
Hon'ble
U.S.
Tripathi, J. In this case his Lordship had
observed that Magistrate has got no
jurisdiction to treat an application under
section 156(3) Cr.P.C. as complaint and
such an order passed by the Magistrate is
without jurisdiction. It is, however, to be
seen that this ruling was delivered by his
Lordship
on
21.12.2000
when
the
aforesaid judgemnt of Hon'ble Apex
Court in Suresh Chand Jain (supra) and of
Full Bench in the case of Ram Babu
Gupta (supra) had not been delivered. So
this ruling of Hon'ble Single Judge now
can not be treated to be laying down the
correct law in view of aforesaid rulings of
Hon'ble Apex Court and Full Bench of
this Court.

24. The position that emerges out of
the discussion attempted above is that,
taking into consideration the above
rulings of Hon'ble Apex Court and Full
Bench of this Court, the Single Judge
ruling in Shyam Lal Jaiswal's case laying
down a contrary view can not be followed
and in view of the above ruling of Hon'ble
Supreme Court and the Full Bench of this
Court, the order passed by the learned
Magistrate is completely valid. He had
jurisdiction
to
pass
an
order
for
registration of the case as a complaint on
an application under section 156(3) Cr. P.
C. as laid down by the above Full Bench
on the point no. 2 in its judgement.

25. Learned counsel for the
applicant has also pointed out that there is
no allegation of the offence under section
354 I.P.C. in the application of the
complainant and the Learned Magistrate
had
erroneously
passed
an
order
summoning the accused for this offence.
It was conceded by the Learned counsel
for the complainant also that there is no
allegation under section 354 I.P.C. against
the accused persons and it appears that the
order summoning the accused persons
under section 354 I.P.C. has been passed
3All] Hakim Singh V. State of U.P. and another 1179
under some misapprehension. Hence the
order
passed
by
the
Magistrate
summoning the accused under section 354
I.P.C. is liable to be set aside.

26. The position in this way is that
the application under section 482 Cr.P.C.
deserves to be partly allowed to the extent
of quashing of the summoning order
under section 354 I.P.C. only. The rest of
the summoning order passed by the
Magistrate in respect of the remaining
offences is valid.

27. Accordingly, the application
under section 482 Cr. P. C. is partly
allowed only to the extent it relates to
quashing of the summoning order under
section 354 I.P.C. and the summoning
order to that extent is quashed. The
remaining portion of the summoning
order passed by the Magistrate is valid
and is maintained. The accused are,
however, allowed one month's time to
appear before the Magistrate and during
this period the execution of non bailable
warrant against the accused applicant
shall remain stayed so as to enable him to
appear before the court concerned. The
accused
applicant,
after
putting
in
appearance before the court, may apply
for bail and their bail application shall be
decided by the Courts expeditiously, if
possible on the same day, taking into
consideration the directions of this Court
in the case of Amrawati Devi Vs. State of
U. P. [2004(ACJ) 1846].

With the above observations the
application under section 482 Cr.P.C.
stands disposed of. Petition Disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2006

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 3104 of 2004

Hakim Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Sant Sharan Upadhyaya
Mrs. Sadhna Upadhyaya january

Counsel for the Respondents:
Sri M.R. Jaiswal
Sri J.S. Tomar
S.C.

Constitution
of
India
Art.
226Compulsory retirement-committee found
not properly constituted-No sufficient
material before the screening committee
to form an objective opinion-justifying
the stand of compulsory retirementorder quashed.

Held: Para 11 & 12

The facts on record also do support the
case on the petitioner that the censure
entry
dated
25.7.2002
was
not
communicated to the petitioner but even
if it is accepted for argument shake that
the
said
censure
entry
was
communicated
to
the
petitioner
compulsory retirement on so censure
entry is not justified. Thus it is held that
there was no sufficient material before
the Screening Committee to form an
objective opinion that the petitioner was
fit to be compulsorily retired.

In the aforesaid judgment this Court has
held that the report of the Screening
Committee was vitiated since the District
Magistrate who was the appointing
authority has not participated in the