# Smt. Manju Singh v. Tara Chandra

- **Citation:** (2009) 1 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-28
- **Case number:** Crl. Misc. Application No. 33133 of 2008
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-manju-singh-v-tara-chandra-41304
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 482Order
passed
by
Magistrate
under
Section
156
(3)-directing
the
S.O.
concern to register and investigate the
same-whether can be challenged by
18 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
prospective accused either by way of
criminal
revision
or
under
482
proceeding? Held-'No'.

Held: Para 6

Having
given
my
thoughtful
consideration to the rival submissions, I
find force in the aforesaid preliminary
objection raised by the learned AGA. As
stated
herein-above,
the
application
moved by opposite party no. 2 Smt. Baby
under section 156(3) Cr.P.C. has been
allowed
by
the
court
below
vide
impugned order and S.O. P.S. Kareli
(Allahabad)
has
been
directed
to
investigate the case after registration of
the FIR. In my considered opinion, such
order can not be challenged by the
prospective accused either in Revision or
in the proceeding under section 482
Cr.P.C. Reference in this regard may be
made to the case of Gulam Mustafa @
Jabbar Vs. State of U.P. and others 2008
(61) ACC 922. This matter was also
considered by this court in the case of
Prof.
Ram
Naresh
Chaudhary
and
another Vs. State of U.P. and others
2008(60) ACC 476.
Case law discussed:
2008 (61) ACC 922, 2008(60) ACC 476, 1976
ACC 230, 1997 (34) ACC 163, 2000(41) ACC
435, 2006 (56) ACC 910, 2007(57) ACC 508,
2001 (42) ACC 451

## Text

1 All] Abdul Aziz and others V. State of U.P. and another
17
After setting-aside the order of High
Court deciding the revision without
hearing the counsel of respondent, the
case was sent back to the High Court with
the direction to decide the revision afresh
after hearing both the parties.

15. This Court in the case of Badloo
Vs. State [1999 (39) ACC 889] has held
that the Court is empowered to recall the
order of dismissal of criminal revision
without hearing the revisionist or his
counsel under inherent jurisdiction to
secure the ends of justice. Similar view
was taken by this Court in the case of
Smt. Manju Singh Vs. Tara Chandra
and another [2005(52) ACC 372].

16. The Hon'ble Supreme Court in
the case of Minu Kumari and another
Vs. State of Bihar and others [2006 (55)
ACC 541] has held that all Courts
whether civil or criminal, possess in the
absence of any express provision, as
inherent in their constitution, all such
powers as are necessary to do the right or
to undo wrong in the course of
administration of justice on the principle,
"quando
lex
aliquid
alicui
conceditconcedere videtur et id sine quo
res ipsae esse non potest (when the law
gives a person anything it gives him that
without which it cannot exist). It is also
observed by Hon'ble Apex Court that it is
neither possible nor desirable to lay down
any inflexible rule, which would govern
the exercise of inherent jurisdiction and
no legislative enactment dealing with
procedure can provide for all cases that
may possibly arise. Courts, therefore,
have
inherent
powers
apart
from
expressed provisions of law, which are
necessary
for
proper
discharge
of
functions and duties imposed upon them
by law.
17. Therefore, having regard to the
observations made in the cases referred to
above, the order dismissing criminal
revision in default or non prosecution as
well as the order deciding the revision on
merit in absence of any or both parties can
be recalled in exercise of inherent powers
not only by the High court, but by the
Court of Session also.

18. For the reasons mentioned
herein-above,
the
restoration/recall
application dated 20.07.2007 is allowed
and order dated 30.03.2007 dismissing the
criminal revision no. 4693 of 2006 for
non prosecution is hereby recalled, but
interim order dated 24.08.2006 will not
automatically be restored.

19.

List the revision before
appropriate Bench for final hearing in the
next cause list.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Crl. Misc. Application No. 33133 of 2008

Abdul Aziz and others

...Applicants
Versus
State of U.P. & another ...Opposite parties

Counsel for the Applicants:
Sri Shahabuddin

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

Code of Criminal Procedure-Section 482Order
passed
by
Magistrate
under
Section
156
(3)-directing
the
S.O.
concern to register and investigate the
same-whether can be challenged by
18 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
prospective accused either by way of
criminal
revision
or
under
482
proceeding? Held-'No'.

Held: Para 6

Having
given
my
thoughtful
consideration to the rival submissions, I
find force in the aforesaid preliminary
objection raised by the learned AGA. As
stated
herein-above,
the
application
moved by opposite party no. 2 Smt. Baby
under section 156(3) Cr.P.C. has been
allowed
by
the
court
below
vide
impugned order and S.O. P.S. Kareli
(Allahabad)
has
been
directed
to
investigate the case after registration of
the FIR. In my considered opinion, such
order can not be challenged by the
prospective accused either in Revision or
in the proceeding under section 482
Cr.P.C. Reference in this regard may be
made to the case of Gulam Mustafa @
Jabbar Vs. State of U.P. and others 2008
(61) ACC 922. This matter was also
considered by this court in the case of
Prof.
Ram
Naresh
Chaudhary
and
another Vs. State of U.P. and others
2008(60) ACC 476.
Case law discussed:
2008 (61) ACC 922, 2008(60) ACC 476, 1976
ACC 230, 1997 (34) ACC 163, 2000(41) ACC
435, 2006 (56) ACC 910, 2007(57) ACC 508,
2001 (42) ACC 451

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

"Whether the prospective accused
can
challenge
the
order
directing
investigation of the case after registration
of the FIR", is the main question that falls
for consideration in this application under
section 482 of the Code of Criminal
Procedure (in short, 'the Cr.P.C.') by
means
of
which,
the
order
dated
12.11.2008
passed
by
the
Judicial
Magistrate, Court No. 8, Allahabad on
application no. 293/XII of 2008 (Smt.
Baby Vs. Abdul Aziz and others) has
been challenged.
2. By the impugned order, the
application
moved
by
Smt.
Baby
(Opposite party No. 2) under section
156(3) Cr.P.C. has been allowed and S.O.
P.S. Kareli (Allahabad) has been directed
to investigate the case after lodging the
F.I.R. on the basis of that application.

3. Heard Sri Shahbuddin, learned
counsel for the applicants, learned A.G.A.
for the State and perused the record.

4. At the outset, a preliminary
objection has been raised by the learned
AGA
about
maintainability
of
the
application under section 482 Cr.P.C.
against the impugned order and it is
contended by him that the order passed
under section 156(3) Cr.P.C. directing
investigation of the case after registration
of the FIR can not be challenged by the
prospective
accused
either
in
the
proceeding under section 482 Cr.P.C. or
in Revision under section 397 Cr.P.C. and
hence the application in present case
moved by the applicants under section
482 Cr.P.C. is liable to be rejected on this
ground alone.

5. It is submitted by learned counsel
for the applicants that with mala fide
intention with a view to harass the
applicants,
application
under
section
156(3) Cr.P.C. was moved by Smt. Baby
with entirely false allegations and hence,
impugned order can be quashed by this
Court in its inherent jurisdiction under
section 482 Cr.P.C.

6. Having given my thoughtful
consideration to the rival submissions, I
find force in the aforesaid preliminary
objection raised by the learned AGA. As
stated
herein-above,
the
application
moved by opposite party no. 2 Smt. Baby
1 All] Abdul Aziz and others V. State of U.P. and another
19
under section 156(3) Cr.P.C. has been
allowed
by
the
court
below
vide
impugned order and S.O. P.S. Kareli
(Allahabad)
has
been
directed
to
investigate the case after registration of
the FIR. In my considered opinion, such
order can not be challenged by the
prospective accused either in Revision or
in the proceeding under section 482
Cr.P.C. Reference in this regard may be
made to the case of Gulam Mustafa @
Jabbar Vs. State of U.P. and others 2008
(61) ACC 922. This matter was also
considered by this court in the case of
Prof. Ram Naresh Chaudhary and
another Vs. State of U.P. and others
2008(60) ACC 476.

7. In Para 9 of the case of Prof.
Ram Naresh Chaudhary Vs. State of
U.P. (supra), following observations
have been made:-

"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. 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
20 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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
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 precognizance 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.

Again
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 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
and its investigation by the police either
by filing Revision or moving application
under section 482 Cr.P.C. Although after
registration of the case in pursuance of the
order
passed
under
section
156(3)
Cr.P.C., the accused can move the High
Court in its writ jurisdiction under Article
1 All] Prithvi Nath Misra V. Regional Admn. Committee and others
21
226 of the Constitution of India for
quashing of the FIR, but prior to the
registration of the F.I.R., the prospective
accused has no right to challenge that
order. Therefore, in present case also, the
application moved by the applicants under
section 482 Cr.P.C. to set aside the
impugned order deserves to be rejected.

14. Consequently, the application
under section 482 Cr.P.C. is hereby
rejected.

Let a copy of this order be sent by
the office to the Judicial Magistrate, Court
No. 8, Allahabad, who is directed to
ensure that proper investigation is made
after lodging the F.I.R. in pursuance of
the impugned order dated 12.11.2008
passed by him on application no. 293/XII
of 2008 (Smt. Baby Vs. Abdul Aziz and
other) under section 156(3) Cr.P.C. P.S.
Kareli (Allahabad). Application rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 40506 of 2000

Prithvi Nath Misra

...Petitioner
Versus
Regional
Administrative
Committee,
Uttar Pradesh Primary Agricultural Cooperative
Credit
Societies
Central
Service, Basti & others ...Respondents

Counsel for the Petitioner:
Sri K.M. Misra
Sri Triloki Nath

Counsel for the Respondents:
Sri Hemant Kumar
S.C.
U.P. Primary Agricultural Co-operative
Credit
Societies
Centralised
Services
Regulation
1978-Reg.-59
(1)(a)-
dismissal
of
secretary
of
primary
Agricultural Society by member secretary
without
decision
of
the
D.A.C.-
disciplinary
proceeding
conducted
in
utter violation of principle of natural
justice and contrary to Regulation-heldillegal-dismissal
order
quashed
for
limited
purpose
to
conduct
the
disciplinary proceeding in accordance
with law-from the date of suspension to
reinstatement till conclusion of enquiry
subsistence allowance be given-payment
of salary during these period shall be
subject to decision by the action taken
by the authority.

Held: Para 17

The reply of aforesaid paragraphs of the
writ petition has been given in para 15 of
the counter affidavit but there appears
neither
any
specific
denial
of
the
averments contained in paras 25, 26 and
27 of the writ petition nor any material
has been enclosed in support of fact that
the petitioner was afforded adequate
opportunity to defend his case before the
Inquiry Officer, as such I have no option
but to hold that entire disciplinary
inquiry was held in utter violation of
principles of natural justice embodied
under Regulation 59 (1) (a) of 1978
Regulations, as such could not be acted
upon
by
the
disciplinary
authority.
Further dismissal order was passed on
the basis of show cause notice dated
21.6.1999 sent to the petitioner which
was not accompanied by inquiry report
submitted by Inquiry Officer, as such on
this count also the impugned order of
dismissal of the petitioner from service
dated 5.8.1999 cannot be sustained and
for the same reason the order of
Appellate authority dated 16.6.2000 can
also not be sustained.
Case law discussed:
1997 (3) UPLBEC 1747 to 66, 1997 (3)
UPLBEC 1747, S.C. 647, (1987) 1 SCC 213 :
(AIR 1987 SC 1073, (2003) 2SCC 111 : (AIR