# Smt. Premwati .Revisionist v. State of U.P

- **Citation:** (2013) 3 ILRA 1601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-12-22
- **Case number:** Criminal Revision No. 3381 of 2013
- **Bench:** Mushaffey Ahmad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-premwati-revisionist-v-state-of-u-p-42818
- **Pages:** 6

## Headnote

Cr.P.C. 397(2)- Criminal Revision-against
order
passed
by
Magistrate
under
section 156(3)-whether such order can
be termed interlocutory one and revision
barred by section 397(2)?-as per full
bench
Father
Thomas
case-question
referred to constitute larger bench.

Held: Para-19
The
Hon'ble
Apex
Court
had
not
discussed or considered the scope of
application under section 156(3) or the
impact of the order passed under Section
156
(3)
Cr.P.C.
on
the
aggrieved
complainant
on
the
rejection
of
the
application. Similarly in the case of Sakhiri
Vasu (Supra), the Hon'ble Court did not
forbid
the
maintainability
of
revision
against the order passed under section
156(3) Cr.P.C. The court simply observed
that if the first information report was not
registered, the aggrieved might, instead of
rushing to the High Court to file writ
petition or a petition under Section 482
Cr.P.C., utilize the remedy under Sections
36, 154(3) and 156(3) Cr.P.C. or by filing a
criminal complaint under Section 200
Cr.P.C. Thus, it appears the Hon'ble Apex
Court never meant to shut the door for the
aggrieved to agitate the order of rejection
under Section 156 (3) Cr.P.C. in a revision.
Therefore, the conclusion of the Full Bench
on question-B that an order made under
Section 156(3) Cr.P.C. is an interlocutory
order, remedy of revision against such an
order is barred by sub section (2) and
Section
397
Cr.P.C.
requests
further
consideration by a Larger Bench.

Case Law discussed:
(2011)1 U.P.L.B.E.C. 1; 2000(41) A.C.C.
425(D.B.); A.I.R. 2007 S.C.(Suppl.) 684; AIR
2008 S.C. 907.

## Text

3 All] Smt. Premawati Vs. State of U.P.
1601
in the counter affidavit that interest on the
delayed payment has also been paid.

12. Learned counsel for the
petitioner has brought to the notice to the
Court
a
Government
Order
No.
lk&3&2102@nl&971@80
dated
6.12.1994 whereby order for payment of
interest
on
delayed
payments
was
modified and provision was made for
payment of 12% interest per annum on
delayed payment of pension, which is
payable on delayed payment of provident
fund. Therefore, the petitioners were
entitled for interest at the rate of 12% per
annum on the delayed payment of gratuity
and family pension.

13. Now the next point is to be
considered whether petitioner no. 1/2 and
1/3 being the son of the predeceased son
are entitled for family pension or not. The
date of birth of the predeceased son
Sameer Bajpai was mentioned in the
pension papers as 15.4.1961. Sameer
Bajpai expired on 11.4.2004, which
means that on the date of his death, he
was about 43 years old. Dr. A.P. Bajpai
expired on 23.7.2007. Dr. A.P. Bajpai
died
after
coming
into
force
of
government
order
of
2008
dated
8.12.2008.

14. Learned counsel for the
petitioner has also filed Government
Order No. lk&3&115@nl&3@82 dated
24.2.1998 (Annexure No. 5 to the
amended petition), which provides for
maximum age limit for entitlement of
family pension and this maximum age
limit was enhanced from 21 years to 25
years in case of sons. In case of daughter,
it was enhanced from 24 years to 25
years. Meaning thereby after attaining age
of 25 years the son of a government
servant shall not be entitled for the
payment of family pension provided he
remain unemployed till attaining the age
of 25 years. Even if the son of the
deceased petitioner Dr. A.P. Bajpai would
have survived even then he was not
entitled for the family pension because he
has crossed the maximum age limit of 25
years much earlier. The sons of Sameer
Bajpai could not inherit better right then
his own father. Therefore, in the facts of
this case, in our considered opinion,
family pension is not payable to the
present
petitioners.
Order
dated
22.12.2010 rejecting the representation of
the petitioner for grant of family pension
need not to be interfered with.

15. In view of the discussion made
above, this writ petition deserves to be
partly allowed and is hereby partly
allowed. The petitioners shall be entitled
for interest as provided under the relevant
government orders at the rate, which is
admissible under the government orders
on delayed payment of pension and if the
same has not already been paid then the
same shall be paid within a period of three
months from the date a certified copy of
the judgment is produced before the
concerned authority. To this extent the
writ petition is allowed. The second
prayer for grant of family pension in
favour of the son of the predeceased son
is hereby declined.

16. No order as to costs.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2013

BEFORE
THE HON'BLE MUSHAFFEY AHMAD, J.

Criminal Revision No. 3381 of 2013
1602 INDIAN LAW REPORTS ALLAHABAD SERIES
and Criminal Revision No. 3410 of 2013

Smt. Premwati .Revisionist
Versus
State of U.P..... Respondent

Counsel for the Revisionist:
Sri A.K. Kashyap, Sri A.S. Kashyap

Counsel for the Respondents:
A.G.A.

Cr.P.C. 397(2)- Criminal Revision-against
order
passed
by
Magistrate
under
section 156(3)-whether such order can
be termed interlocutory one and revision
barred by section 397(2)?-as per full
bench
Father
Thomas
case-question
referred to constitute larger bench.

Held: Para-19
The
Hon'ble
Apex
Court
had
not
discussed or considered the scope of
application under section 156(3) or the
impact of the order passed under Section
156
(3)
Cr.P.C.
on
the
aggrieved
complainant
on
the
rejection
of
the
application. Similarly in the case of Sakhiri
Vasu (Supra), the Hon'ble Court did not
forbid
the
maintainability
of
revision
against the order passed under section
156(3) Cr.P.C. The court simply observed
that if the first information report was not
registered, the aggrieved might, instead of
rushing to the High Court to file writ
petition or a petition under Section 482
Cr.P.C., utilize the remedy under Sections
36, 154(3) and 156(3) Cr.P.C. or by filing a
criminal complaint under Section 200
Cr.P.C. Thus, it appears the Hon'ble Apex
Court never meant to shut the door for the
aggrieved to agitate the order of rejection
under Section 156 (3) Cr.P.C. in a revision.
Therefore, the conclusion of the Full Bench
on question-B that an order made under
Section 156(3) Cr.P.C. is an interlocutory
order, remedy of revision against such an
order is barred by sub section (2) and
Section
397
Cr.P.C.
requests
further
consideration by a Larger Bench.

Case Law discussed:
(2011)1 U.P.L.B.E.C. 1; 2000(41) A.C.C.
425(D.B.); A.I.R. 2007 S.C.(Suppl.) 684; AIR
2008 S.C. 907.

(Delivered by Hon'ble Mushaffey Ahmad, J.)

1. These two criminal revisions have
been preferred against the orders passed
by the Magistrates on the applications
moved under Section 156 (3) Cr.P.C.
Since a common question is involved in
both the revisions, they are taken up
together.

2. In the first case, the Judicial
Magistrate, Mainpuri by order dated
3.11.2013 treated the application of the
applicant
as
complaint,
where
the
complainant had alleged against Opp.
Party offences of criminal house trespass,
mishandling and committing rape on her
under
threat.
In
the
second
case,
complainant Radhika Devi alleged against
the Opp. Party the offences of cheating
and forging of documents in respect of
agricultural land, but The Chief Judicial
Magistrate, Mainpuri by order dated
20.9.2013 rejected the application.

3. Learned A.G.A. makes preliminary
objection to the maintainability of the
revision against these orders on the strength
of this Court's Full Bench decision rendered
in the case of Father Thomas Vs. State of
U.P. and others, reported in (2011) 1 U.P.
L.B.E.C. 1.

4.

Learned
counsel
for
the
revisionists, on the other hand, press for
admission of and full fledged hearing on
the revisions.

5. Thus, we are called upon to see if
the revisions arising from the orders under
Section 156 (3) Cr.P.C. are barred in the
light of father Thomas Case ( Supra).
3 All] Smt. Premawati Vs. State of U.P.
1603

6. The Full Bench was constituted to
consider and decide three questions
referred to by Hon'ble J.C. Gupta J, as His
Lordship then was, and those three
questions were;

(A) Whether the order of the
Magistrate made in exercise of power
under Section 156 (3) Cr.P.C. directing
the police to register and investigate it is
open to revision at the instance of a
person against whom neither cognizance
has been taken nor any process has been
issued?

(B) Whether an order made under
Section 156 (3) Cr.P.C. is an interlocutory
order and remedy of revision against such
an order is barred under sub section (2) of
section 397 Cr.P.C., 1973?

(C) Whether the view expressed by a
Division Bench of this Court in the case
of Ajai Malviya Vs. State of U.P. and
others, reported in 2000 (41) A.C.C. 435
(D.B.) that an order made under section
156 (3) Cr.P.C. is amenable to revision,
no writ petition for quashing of first
information report registered on the basis
of the order will be maintainable, is
correct?

7. The applications under Section
156 (3) Cr.P.C. are either allowed and
police concerned is directed to register
and investigate the case as alleged in the
applications, or they are rejected.

8. The Full Bench of this Hon'ble
Court in the case of Father Thomas
(Supra) discussed a catena of case laws
based on the question whether prospective
accused can be heard at the time of
disposal of the application under Section
156 (3) Cr.P.C. and held that such a
person is not entitled to any hearing
before or at the time of disposal of
application under Section 156 (3) Cr.P.C.
and, therefore, the Full Bench held that no
revision lay against such an order. The
decision to this effect has been based
upon the premise that the order passed
under Section 156 (3) Cr.P.C. directing
the police concerned to register a case and
investigate it does not affect the rights of
the accused, and therefore it is purely an
interlocutory in nature. The conclusions
of the Court have been based upon a
number of case laws discussed.

9. The cases such as one in Revision
No. 3381 of 2013, where a woman of a
weaker section has alleged the offence of
rape on her more than once against
persons not on convenient terms with her
husband, as the Magistrate has mentioned
it in the order, with incessant deterioration
in the social and moral set up, shall strain
the concept that the rights of perspective
accused are not affected by order passed
under Section 156(3) Cr.P.C.

10. But there is another situation,
and that is when an application disclosing
a cognizable offence is rejected, a
valuable right of the aggrieved to get
justice by bringing the accused to book
through agency of the State is infringed.
This aspect of the matter, though directly
agitated before the Full Bench, seems to
have not received concentrated attention.
On
the
rights
of
the
aggrieved
complainant to have justice through
machinery of the State, the Hon'ble Court
in para-40 of the judgment observed as
follows:-

"An order under section 156(3)
Cr.P.C. passed by the Magistrate directing
the police officer to investigate a
1604 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizable case on the other hand is no
such order of moment, which impinges on
any valuable rights of the party. Were any
objection to the issuance of such a
direction to be accepted (though it is
difficult to visualize any objection which
could result in the quashing of a simple
direction
for
investigation),
the
proceedings would still not come to an
end, as it would be open to the
complainant informant to move an
application under section 154(3) before
the Superintendent of Police (S.P.) or a
superior officer under section 36 of the
Code. He could also file a complaint
under section 190 read with section 200
of the Code. This is the basic difference
from the situations mentioned in Madhu
Limaye and in Amar Nath's cases, where
acceptance of the objections could result
in the said accused being discharged or
the
summons
set
aside,
and
the
proceedings
terminated.
Also
the
direction
for
investigation
by
the
Magistrate is but an incidental step in aid
of investigation and trial. It is thus similar
to
orders
summoning
witnesses,
adjourning cases, orders granting bail,
calling for reports and such other steps in
aid of pending proceedings which have
been described as purely interlocutory in
nature in Amar Nath (supra)".

11. In para-42 of the judgment, the
Hon'ble Court has compared powers
under Section 156 (3) Cr.P.C. to be of the
same nature as the powers under Section
156 (1) Cr.P.C. i.e. where the police
officer incharge of a police station refuses
to register a case, the aggrieved have
further opportunity of approaching the
Superintendent of police concerned under
section 154(3) Cr.P.C. for a direction for
investigation, such powers may also be
exercised by any officer superior in rank
to officer incharge of a police station
under Section 36 of the Code. The
Hon'ble Full Bench has further observed
in the same para that it would be illogical
to suggest that the Courts have no
jurisdiction to interfere in the criminal
revision or other judicial proceedings with
the decision of the police officer incharge
of the police station to lodge the first
information report under Section 154 (1)
Cr.P.C. by superior officer under Section
154(3)
or
the
actual
investigation
conducted by the police under the
aforesaid provision.

12. The order directing investigation
may be an incidental step in aid of
investigation and trial and may be
compared
to
orders
summoning
witnesses, adjourning case, granting bail,
calling for report, etc. But once the
application for direction to register and
investigate the case is rejected, a poor and
resourceless aggrieved complainant loses
last hope to get justice when remedy of
revision is denied to him. It is termed the
last
hope
because
he
moves
the
application with an affidavit or copies of
application showing the police had not
responded to his request. It is the last
hope because even the writ petition does
not lie against the refusal of direction for
investigation as it has been observed in
para-58 of the Full Bench judgement,
'Even where the informant's plea for a
direction for investigation under section
156(3)
Cr.P.C
is
refused
by
the
Magistrate, as held by the three judge
bench of the Supreme Court in Aleque
Padamsee v. Union of India, AIR 2007
SC (Supp) 684, the remedy for the
informant lies not in filing a writ petition,
but in filing a complaint under section
190 (1)(b) read with section 200 of the
Code. The legal position after review of
3 All] Smt. Premawati Vs. State of U.P.
1605
the authorities as noted in Aleque
Padamsee in paragraph 7 was as follows:
"The correct position in law, therefore, is
that the police officials ought to register
the FIR whenever facts brought to its
notice show that a cognizable offence has
been made out. In case the police officials
fail to do so, the modalities to be adopted
are as set out in Section 190 read with
Section 200 of the Code'.

13. It is the last hope because the
order under Section 156 (3) has been
declared interlocutory as a whole, as the
Bench answers the question-B, the
petition under Section 482 Cr.P.C. would
not lie to circumvent the express ban
under Section 397(2) Cr.P.C.

14. No doubt, a person aggrieved by
the rejection of his application under
Section 156 (3) Cr.P.C. may file a
complaint and undertake to fee the
counsel, and bear the burden of collecting
and producing evidence at his own
expenses.

15. The State has the first
constitutional mandate to secure justice
and that too with a directive to provide
justice ensuring that opportunities for
securing justice are not denied to any
citizen by reason of economic or other
disabilities ( Art. 39-A of the Constitution
of India).

16. To elucidate the point: where a son
of a maid servant, who had gone to demand
his wages from doctors in a nursing home on
the occasion of those doctors' daughter's
marriage is found drowned in a pond and the
body discovered had the blood oozing from
the mouth and nostrils and the Magistrate on
the application under Section 156(3) Cr.P.C.
refuses to order registration and investigation
of the case, Can the maid servant be expected
to get justice by lodging a private complaint
and
collecting
evidence
against
the
influential doctors. Similarly, where in an
open assault, the husband of the complainant
is felled and killed at the spot, the victim
being the near relation of the accused, say
brother of the accused, the widow having
been first withheld from going to police
station to lodge a report and when after some
time she reaches the police station, the police
turning her away and not registering a case
and when the women resorts to her parental
house and then moves an application
alongwith post mortem report under Section
156 (3) Cr.P.C. and the Magistrate treats the
same as complaint, Can the lady be expected
to collect evidence from village where she is
not residing, against the persons who are
powerful and resourceful ( both the
illustrations cited happen to be the real cases
which came to my notice while working as
District and Sessions Judge).

17. The provision for revision
having been barred by the case law, which
is the handy remedy with the locals, the
magistracy is testing absolutism, and
some times not without complaint.

18. We, therefore, hold that the
rejecting of the application in such many
similar cases not only affects the legal right
of the aggrieved to get justice but the
rejection order amounts to denial of justice to
them. The provision of revision would not
add to but could stem the rising numbr of
writ petitions and petitions under Section 482
Cr.P.C., as discountenanced by the Hon'ble
Apex Court in the cases in the case of Aleque
Pademsee Vs. Union of India , A.I.R. 2007
S.C. ( Suppl.) 684 and Sakhiri Vasu Vs. State
of U.P. and others, A.I.R. 2008 S.C. ,907. It
appears that the Hon. Full Bench ruled out
the right to revision against the order under
Section 156 (3) Cr.P.C. on a partial
1606 INDIAN LAW REPORTS ALLAHABAD SERIES
reading of Hon. Apex Court decision in
the case of Aleque Pademsee (Supra). The
Hon'ble Apex Court observed in that case
that where the first information report is
not
registered
by
the
police,
the
complainant has remedy under Section
190(1) (a) read with Section 200 of the
Code. The Hon'ble Full Bench has instead
read in ,' 'Even where the informant's plea
for a direction for investigation under
section 156(3) Cr.P.C is refused by the
Magistrate, as held by the three judge
bench of the Supreme Court in Aleque
Padamsee (Supra)'.

19. The Hon'ble Apex Court had not
discussed or considered the scope of
application under section 156(3) or the impact
of the order passed under Section 156 (3)
Cr.P.C. on the aggrieved complainant on the
rejection of the application. Similarly in the
case of Sakhiri Vasu (Supra), the Hon'ble
Court did not forbid the maintainability of
revision against the order passed under section
156(3) Cr.P.C. The court simply observed that
if the first information report was not
registered, the aggrieved might, instead of
rushing to the High Court to file writ petition
or a petition under Section 482 Cr.P.C., utilize
the remedy under Sections 36, 154(3) and
156(3) Cr.P.C. or by filing a criminal
complaint under Section 200 Cr.P.C. Thus, it
appears the Hon'ble Apex Court never meant
to shut the door for the aggrieved to agitate the
order of rejection under Section 156 (3)
Cr.P.C. in a revision. Therefore, the
conclusion of the Full Bench on question-B
that an order made under Section 156(3)
Cr.P.C. is an interlocutory order, remedy of
revision against such an order is barred by sub
section (2) and Section 397 Cr.P.C. requests
further consideration by a Larger Bench.

20. Record of this case be placed
before Hon'ble the Chief Justice with the
request that if it is found proper and
expedient the matter be referred to a Larger
Bench for consideration of the question,

" Whether an order made under
Section 156 (3) Cr.P.C. is an interlocutory
order and remedy of revision against such
an order is barred under sub Section (2) of
Section 379 Cr.P.C."

21. The maintainability of the
revisions filed shall abide by the judgment
of the Court after reference.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2013

BEFORE
THE HON'BLE KALIMULLAH KHAN, J.

Habeas Corpus Writ Petition No. 4583 of
2013

Smt. Gudiya and Anr.... Petitioners
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioners:
Sri Deepak Tripathi

Counsel for the Respondents:
C.S.C., Sri Nishant Singh

Constitution of India, Art.-226-Habeas
Corpus petition-by husband petitionerbeing employee of Government pressallegation against corpus found falserather the petitioner himself guilty of
maltreatment to his wife and two minor
children-petition disposed of with cost of
Rs. 50,000/- apart from Rs. 25000/-
towards
expenses-keeping
in
view
pendancy of suit of restitution of conjugal
rights-petition disposed of with further
direction to govt press(the employer) to
deduct Rs. 5000/- from salary of petitioner
and send to the corpus through many
order
on
monthly
basis.