# Sri Krishna Kumar Gupta v. The Registrar General High Court, Allahabad and others

- **Citation:** (2007) 3 ILRA 757
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-25
- **Case number:** Civil Misc. Writ Petition No.23282 of 2007
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-krishna-kumar-gupta-v-the-registrar-general-high-court-allahabad-and-others-41153
- **Pages:** 9

## Headnote

Sri Neeraj Upadhyay
Sri Yogesh Kumar Saxena
Sri A.Z. Rizvi
Sri K.R. Sirohi
S.C.

Subordinate
Civil
Courts
Ministerial
Establishment
Rules,
1947-Rule-20Criteria
for
Promotion-merit-cumseniority-petitioner being Senior most
by-passed- as the private respondent got
several outstanding entries by different
officers while petitioner got good and
satisfactory-otherwise
every
thing
equal-No guide lines for determination of
better
candidates
provided-heldcommittee
possess
full
discretionpromotion of private respondent-valid.

Held: Para 14

On the touchstone of the rules which are
applicable in the present case and
dictum
noted
above,
claim
of
the
petitioner is being looked into. This fact
is undisputed that post in question is
selection post and promotion has to be
based on the principle of merit with due
regard to the seniority i.e. on the
principle of merit-cum-seniority where
merit has to be given precedence. As per
note appended due weight has to be
given to previous record of service and
758 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
seniority has to be disregarded only
when junior persons compared with his
senior is of outstanding merit. In the
present case, criteria of selection, which
had been adhered to by the Committee
constituted for considering the matter of
promotion was respective service record
of the incumbent in question. This fact is
not disputed that petitioner is senior viza-viz contesting respondent Sayed Zafar
Hussain.
'Merit-cum
seniority'
lays
greater emphasis on merit and ability,
and it is only when merit and suitability
are roughly equal then seniority will be
determining factor. Selection Committee
has unrestricted choice of best available
talent from amongst eligible candidates,
determined by reference to reasonable
criteria applied in assessing the facts
revealed by service records of all eligible
candidates so that merit and not mere
seniority is governing factor.
Case law discussed:
AIR 1967 SC-1910, 1998 (6) SCC-720, AIR
1966 SC-1547, 2000 (6) SCC-698, 2001 (5)
SCC-60, 2006 (6) SCC-145, 2006 (5) SCC-789,
1971 (2) SCC-452

## Text

3 All] Sri Krishna Kumar Gupta V. The Registrar General, High Court, Alld. and others
757
9. The Court concerned may also take
into consideration other evidence
before
passing
an
order
for
summoning a person as an accused
u/s 319 Cr.P.C.

13. The position in the present case
is that the learned Magistrate has not
taken into consideration the above aspects
of the case which he was bound to
consider while passing the order for
summoning the applicant u/s 319 Cr.P.C.
Hence, the order passed by him cannot be
sustained and it is liable to be set aside.

14. The present application u/s 482
Cr.P.C. is, therefore, allowed. The order
of the learned Magistrate concerned
summoning the accused applicant under
section 319 Cr.P.C. is set aside. The
application for summoning the accused
applicant under section 319 Cr.P.C. is
rejected. However, if at any subsequent
stage of the proceedings there comes any
credible evidence regarding participation
of the present accused applicant in
commission of the crime, then the learned
Magistrate can reconsider the feasibility
of
summoning
him
taking
into
consideration the observations of the
Hon'ble Apex Court in the above quoted
judgements.

15. Let a copy of this judgement be
sent to the Registrar General of the court
for circulation amongst Judicial Officers
of the subordinate judiciary for their
information and guidance.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2007

BEFORE
THE HON'BLE V.K. SHUKLA, J.

Civil Misc. Writ Petition No.23282 of 2007

Sri Krishna Kumar Gupta
...Petitioner
Versus
The
Registrar
General
High
Court,
Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri Siddhartha Srivastava

Counsel for the Respondents:
Sri Neeraj Upadhyay
Sri Yogesh Kumar Saxena
Sri A.Z. Rizvi
Sri K.R. Sirohi
S.C.

Subordinate
Civil
Courts
Ministerial
Establishment
Rules,
1947-Rule-20Criteria
for
Promotion-merit-cumseniority-petitioner being Senior most
by-passed- as the private respondent got
several outstanding entries by different
officers while petitioner got good and
satisfactory-otherwise
every
thing
equal-No guide lines for determination of
better
candidates
provided-heldcommittee
possess
full
discretionpromotion of private respondent-valid.

Held: Para 14

On the touchstone of the rules which are
applicable in the present case and
dictum
noted
above,
claim
of
the
petitioner is being looked into. This fact
is undisputed that post in question is
selection post and promotion has to be
based on the principle of merit with due
regard to the seniority i.e. on the
principle of merit-cum-seniority where
merit has to be given precedence. As per
note appended due weight has to be
given to previous record of service and
758 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
seniority has to be disregarded only
when junior persons compared with his
senior is of outstanding merit. In the
present case, criteria of selection, which
had been adhered to by the Committee
constituted for considering the matter of
promotion was respective service record
of the incumbent in question. This fact is
not disputed that petitioner is senior viza-viz contesting respondent Sayed Zafar
Hussain.
'Merit-cum
seniority'
lays
greater emphasis on merit and ability,
and it is only when merit and suitability
are roughly equal then seniority will be
determining factor. Selection Committee
has unrestricted choice of best available
talent from amongst eligible candidates,
determined by reference to reasonable
criteria applied in assessing the facts
revealed by service records of all eligible
candidates so that merit and not mere
seniority is governing factor.
Case law discussed:
AIR 1967 SC-1910, 1998 (6) SCC-720, AIR
1966 SC-1547, 2000 (6) SCC-698, 2001 (5)
SCC-60, 2006 (6) SCC-145, 2006 (5) SCC-789,
1971 (2) SCC-452

(Delivered by Hon'ble V.K. Shukla, J.)

1. Present writ petition has been
filed by the petitioner assailing the
validity of the decision dated 1.5.2007
according promotion to Sri Syed Zafar
Husain as Sadar Munsarim in the
judgeship of District Bareilly.

2. Brief facts of the case is that in
the judgeship of District Bareilly on
account
of
attaining
age
of
superannuation of Sadar Munsarim Sri
Kailash Chandra Agarwal, post of Sadar
Munsarim fell vacant and then senior
most employee Sri Margoob Hussain was
accorded promotion vide order dated
30.3.2007.
Thereafter
said
Margoob
Hussain
also
attained
the
age
of
superannuation and then exercise was
undertaken for according promotion on
the post of Sadar Munsarim. In the said
exercise so undertaken, petitioner, who is
un-disputedly senior, has been non suited
and Sri Syed Zafar Husain has been
accorded promotion as Sadar Munsarir,
on the recommendation of Committee, at
this juncture present writ petition has been
filed.

3. Counter affidavit has been filed
and therein it has been stated that rightful
decision has been taken and the post of
Sadar Munsarim was selection post,
promotion has been made on the basis of
the merit with due regard to the seniority,
in this background there is no occasion to
interfere.

4. Counter affidavit has been filed
on behalf of the District Judge, Bareilly
and therein to action taken, has been
justified.

5. Rejoinder affidavit has been filed
to the counter affidavit and supplementary
has also been filed reiterating all mosi all
the averments mentioned on the earlier
occasion.

6. After respective arguments have
been advanced, present writ petition has
been taken for final disposal/hearing with
the consent of the parties.

7. Original record on the basis of
which impugned decision in question has
been taken has also been produced.
Sri Sidhhartha Srivastava, Advocate,
learned
counsel
for
the
petitioner
contended with vehemence that in the
present case petitioner was senior and
merely on the basis of assessment made in
the A.C.R. and old stale reports opinion
has been formed in respect of outstanding
merit and promotion has been accorded,
3 All] Sri Krishna Kumar Gupta V. The Registrar General, High Court, Alld. and others
759
as such action, is unjustified action, and
same cannot be subscribed by any means.

8. Sri Neeraj Upadhaya, Advocate,
representing District Judge, Bareilly and
Sri Yogesh Kumar Saxena representing
private respondents on the other hand
contended that selection is based on
merit-cum-seniority and here on the basis
of the merit, contesting respondents has
been accorded promotion as such no
interference be made in exercise of
authority of judicial review.

9. Before proceeding to consider the
respective arguments advanced, relevant
rules which holds the field of promotion,
Rule 20 of Subordinate Civil Courts
Ministerial Establishment Rule, 1947 is
being quoted below for being looked into

20. Promotion:- (1) The posts in a
judgeship reserved for clerks in that
judgeship and promotion to higher posts
shall be made from amongst them, If,
however no suitable clerk is available in
the judgeship for promotion to a particular
post, promotion as a special case may be
made from another judgeship with the
sanction of the High Court or the Chief
Court, as the case may be .
(2) Except in cases of Amins,
promotion shall be made according to
seniority subject to efficiency up Rs.80
grade in the case of persons getting pre1931 scale of pay and the scale of Rs.704-90 (Callas III in the case of persons
getting pay on the post -1931 scale of
Rs.85-6-145 in the case of persons
drawing the revised 1947 scale.
(3) Post other than those mentioned
in Clause (2) above, for persons in the pre
1931 scale on post 1931 scale respectively
shall be treated as selection posts,
promotion to which shall be based on
merit with the due regard to seniority.

Note- In passing over a person for
inefficiency as well as promotion for a
selection post due weight shall be given to
his previsions record of service and
seniority should be disregarded only when
the
junior
official
promoted is
of
outstanding merit as compared with his
seniors.

10. Perusal of the aforementioned
rules would go to show that as far as post
of Sadar Munsarim is concerned, same
being covered in sub Rule 3 of Rule 20 of
Subordinate
Civil
Courts
Ministerial
Establishment Rules, 1947, is selection
post, promotion whereof, is to be made,
based on merit with due regard to
seniority. Note has been appended therein
providing that for passing over a person
for inefficiency as well as promotion for
selection post due weight has to be given
to his previous record of the service and
seniority is to be disregarded only when
junior official promoted is of outstanding
merit as compared with his seniorities.

11. Criteria of merit-cum-seniority
has been subject matter of consideration
time and again and same is approved
method of selection and promotion to
selection grade post is not automatic on
the basis of ranking in gradation list and
promotion is based primarily on merit and
not on seniority alone.

Hon'ble Apex Court in the case of Sant
Ram Sharma v. State of Raiasthan, AIR
1967 SC 1910 held that promotion to
'selection grade posts' is not automatic on
the basis of ranking in Gradation list and
the promotion is primarily based on merit
and not on seniority alone. At page 1914
760 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
of the Judgment, it is stated as under (para
6):-

"The circumstance that these posts
are classed as 'Selection Grade Posts'
itself suggests that promotion to these
posts is not automatic being made only on
the basis of ranking in the Gradation List
but the question of merit enters in
promotion to selection posts. In our
opinion, the respondents are right in their
contention that the ranking or position in
the Gradation List does not confer any
right on the petitioner to be promoted to
selection post and that it is a well
established
rule
that
promotion
to
selection grades or selection posts is to be
based primarily on merit and not on
seniority alone. The principle is that when
the claims of officers to selection posts is
under consideration, seniority should not
be regarded except where the merit of the
officers is judged to be equal and no other
criterion is, therefore, available"

Hon'ble Apex Court in the case of
State of Orissa v. Duroa Charan Das.
AIR 1966 SC 1547, the Constitution
Bench held that the promotion to a
selection post is not a matter of right
which can be claimed merely by seniority.

Hon'ble Apex Court thereafter in the
case of B. V. Sivaiah v. K. Addanki Babu
(1998) 6 SCC 720 held that the principle
of "merit-cum-seniority" lays greater
emphasis on merit and ability and
seniority plays a less significant role.
Seniority is to be given weight only when
merit and ability are approximately equal.

Hon'ble Apex Court in the case of
Union of India v: Lt. Gen Raiendra
Singh Kadyan (2000) 6 SCC 698
observed as under
"Wherever fitness is stipulated as the
basis of selection, it is regarded as a nonselection post to be filled on the basis of
seniority subject to rejection of the unfit.
Fitness means fitness in all respects.
"Seniority-cum-merit"
postulates
the
requirement of certain minimum merit or
satisfying a benchmark previously fixed
Subject to fulfilling this requirement the
promotion is based on seniority. There is
no
requirement
of
assessment
of
comparative merit both in the case of
Seniority-cum-fitness and seniority-cummerit. Merit-cum-suitability with due
regard to seniority as prescribed in the
case of promotion to All India Services
necessarily
involves
assessment
of
comparative
merit
of
all
eligible
candidates, and selecting the best out of
them."

Hon'ble Apex Court in the case of
Central
Council
for
Research
in
Ayurveda and Siddha and another. Vs.
Dr. K. Santhakumari report in (2001)5
SCC 60 has taken the view that where
promotion
is
based
on
merit-cumseniority basis by departmental promotion
on the recommendation of Departmental
Promotion Committee, then a candidate
cannot challenge the select list on ground
that therein his/her juniors were placed
above
him/her
without
following
seniority-cum-fitness criterion. Relevant
para 12 are being quoted below:-

12. In the instant case, the selection was
made
by
Departmental
Promotion
Committee. The Committee must have
considered all relevant facts including the
inter-se merit and ability of the candidates
and prepared the selects list on that basis.
The
respondent
though
senior
in
comparison to other candidates, secured a
lower place in the select list, evidently
3 All] Sri Krishna Kumar Gupta V. The Registrar General, High Court, Alld. and others
761
because the principle of "merit-cumseniority" held been applied by the
Depal1rnental Promotion Committee The
respondent has no grievance that there
was any mala fides on the part of the
Departmental Promotion Committee. The
only contention urged by the respondent
is that the Departmental Promotion
Committee did not follow the principle of
"seniority-cum-fitness" In the High Court,
the appellants herein failed to point out
that the promotion is in respect of a
selection post' and the principle to be
applied is "merit-cum-seniority". Had the
appellants pointed out the true position,
the learned Single Judge would not have
granted relief in favour of the respondent.
If the learned Counsel has made an
admission or concession inadvertently or
under a mistaken impression of law, it is
not binding on his client and the same
cannot ensure to the benefit of any party.

12. Hon'ble Apex Court in the case
of Harigovind Yadav Vs. Rewa Sidhi
Gramin Bank and others reported in
(2006) 6 SCC 145 has taken the view that
policy which did not prescribe a minimum
standard
for
assessing
merit
which
promoted candidates on the basis of
comparative merit, with reference to total
marks obtained by the eligible candidate,
followed
the
merit-cum
seniority
principle,
and
same
was
not
in
consonance
with
the
principle
of
seniority-cum-merit. Relevant para nos.
26 and 27 are being quoted below:-

26. The next question that arises for
consideration is the relief to be granted.
The appellant was first considered for
promotion during 1991 and was not
promoted, by wrongly adopting the
principle of merit-cum-seniority. The said
procedure was found to be erroneous by
the single Judge, Division Bench and by
this Court. The Bank was directed to
consider the case of Appellant for
promotion on the basis of seniority-cummerit
Thereafter,
in
the
contempt
proceedings initiated by the appellant, the
Bank undertook to comply with the order
directing consideration of the appellant's
case by the procedure of seniority-cummerit But the Bank, again by adopting the
merit-cum-seniority method, failed to
promote the appellant and promoted third
respondent The procedure adopted by the
Bank had been found to be faulty on three
occasions by this Court and the High
Court, one of which was in the case of
Appellant himself. The appellant had been
denied promotion for more than 16 years
by repeatedly adopting such an erroneous
procedure In the circumstances, we do not
think it necessary to drive the appellant
once again to face the process of selection
for promotion. This Court in Comptroller
and Auditor General of India v. K.S.
Jagannathan
[1986
(2)
SCC
679]
observed thus:_ There is thus no doubt
that the High Courts in India exercising
their jurisdiction under Article 226 have
the power to issue a writ of mandamus or
a writ if the nature of mandamus or to
pass orders and given necessary directions
where the Government or a public
authority has failed to exercise or has
wrongly
exercised
the
discretion
conferred upon it by a statute or a rule or
a policy-decision of the Government or
has exercised such discretion mala fide or
on
irrelevant
considerations
or
by
ignoring the relevant considerations and
materials or in such a manner as to
frustrate the object of conferring such
discretion or the policy for implementing
which such discretion has been conferred.
In all such cases and in any other fit and
proper case a High Court can, in the
762 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
exercise of its jurisdiction under Article
226, issue a writ of mandamus or a writ in
the nature of mandamus or pass orders
and given directions to compel the
performance in a proper and lawful
manner of the discretion conferred upon
the government or a public authority, and
in a proper case, in order to prevent
injustice resulting to the concerned
parties, the court may itself pass an order
or give directions which the government
or the public authority should have passed
or given had it properly and lawfully
exercised its discretion"

27.
Having
regard
to
the
factual
background of the case, and having regard
to the fact that even under the merit-cumseniority basis adopted by the bank the
appellant had secured high marks and he
was denied promotion on the ground that
he failed to secure minimum marks in the
interview, there is no need to refer the
matter for fresh consideration. With a
view to do complete justice, in exercise of
our power under Article 142 we hereby
direct the first respondent bank to
promote
the
appellant
as
a
Field
Supervisor, from the date the third
defendant
was
promoted
as
Field
Supervisor and place him above the third
Respondent. However, he will be entitled
to monetary benefits flowing from such
promotion only prospectively, though the
pay is to be refixed with reference to the
retrospective date of promotion.

13. Hon'ble Apex Court in the case
of K.K. Parmar and others Vs. H.C. of
Gujarat through Registrar and others
reported in (2006) 5 SCC 789 has taken
the view that Selection Committee cannot
ignore past performance. Moreover, it
was for the Selection Committee to devise
mode for assessing past performance such
as consideration of ACRs and having not
done so, the candidates cannot be blamed
on the ground that they having appear ed
in the examination were estopped from
questioning the selection process. Scope
of judicial review and the meaning of the
merit has also been considered in the said
judgment.
The
relevant
para
nos.
21.22,23,27, 28 are being quoted below.

21. The superior court exercising its
power of judicial review is not concerned
as to whether a wrong provision of law
has been taken recourse to, but is only
concerned with the question as to whether
the authority passing the order had the
requisite jurisdiction under the law to do
so or not. In the event, it is found that the
impugned order is not ultra vires or illegal
or without jurisdiction, the same would
not be interfered with only because it at
one point of time proceeded on a wrong
premise. A jurisdictional question, in our
opinion, can always be permitted to be
raised. We, therefore, do not find any
substance in the said contention of Mr
Kapur.

22. In so far as the second contention
raised on behalf of the appellants is
concerned apparently the same has merit.
Merit was the only consideration for
promotion to the post of Section Officer.
They were selection posts Selection was,
therefore, required to be made strictly on
the basis of respective merit of the
candidates as also on the basis of their
past performance No employee had a
claim to those posts only on the basis of
their seniority.

23. Sub-rule (2) of Rule 47 of the Rules
categorically provides for the mode and
manner as to how the merit should be
determined. In terms thereof, merit of a
3 All] Sri Krishna Kumar Gupta V. The Registrar General, High Court, Alld. and others
763
candidate was to be determined on the
basis of; (i) past performance, (ii)
performance at the written test and (iii)
performance at the oral test to be taken by
the selection committee.

27. Merit of a candidate is not his
academic qualification. It is sum total of
various qualities. It reflects the attributes
of an employee. It may be his academic
qualification. He might have achieved
certain distinction in the University. It
may involve the character, integrity and
devotion to duty of the employee. The
manner in which he discharges his final
duties would also be relevant factor (See
Guman Singh v. State of Rajasthan and
others (1971) 2 SCC 452) 1972 Lab IC
1295.

28. For the purpose of judging the merit,
thus, past performance was a relevant
factor. There was no reason as to why the
same had been kept out of consideration
by the Selection Committee. If a selection
is based on the merit and suitability,
seniority may have to be given due weight
but it would only be one of the several
factors affecting assessment of merit as
comparative experience in service should
be.

14. On the touchstone of the rules
which are applicable in the present case
and dictum noted above, claim of the
petitioner is being looked into. This fact is
undisputed that post in question is
selection post and promotion has to be
based on the principle of merit with due
regard to the seniority i.e. on the principle
of merit-cum-seniority where merit has to
be given precedence. As per note
appended due weight has to be given to
previous record of service and seniority
has to be disregarded only when junior
persons compared with his senior is of
outstanding merit. In the present case,
criteria of selection, which had been
adhered to by the Committee constituted
for considering the matter of promotion
was respective service record of the
incumbent in question. This fact is not
disputed that petitioner is senior viz-a-viz
contesting
respondent
Sayed
Zafar
Hussain. 'Merit-cum seniority' lays greater
emphasis on merit and ability, and it is
only when merit and suitability are
roughly equal then seniority will be
determining factor. Selection Committee
has unrestricted choice of best available
talent from amongst eligible candidates,
determined by reference to reasonable
criteria applied in assessing the facts
revealed by service records of all eligible
candidates so that merit and not mere
seniority is governing factor.

15.

Qua
petitioner
selection
Committee, has found that he has been
accorded pay scale of Rs.4500/- to 7000/-
w.e.f. 01.02.1997 and since last ten years
there is no adverse comment and no
enquiry is pending. Character Roll has
also been seen where for year 2000
"good" entry has been provided for and
for year 2002-03 2003-04 and 2004,05
"satisfactory" entry has been provided for.
Qua Sayed Zafar Hussain, it has been
mentioned that he is in pay scale of
Rs.4500/--7000/- w.e.f. 01.02.1997, and
his character roll reflects that for year
2001, "outstanding" entry was awarded.
Similarly for year 2002, "outstanding"
entry was awarded. In the year 2002-03
"good" entry was awarded, and in year
2005-06
"outstanding"
entry
was
awarded. Note has also been taken of the
award given by his Court on 25.03.1996.
On the basis of comparative assessment of
merit, Committee has resolved to accord
764 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
promotion to Sayed Zafar Hussain. Sayed
Zafar
Hussain
has
been
awarded
outstanding entries in respect of his
functioning by various officer from time
to time and as far as petitioner is
concerned, no such entry of outstanding
performance has been awarded to the
petitioner. In the ACRs, which are
maintained, said entries find place. Said
ACRs
have
not
only
been
made
foundation
and
basis
of
making
comparative assessment of merit, but in
respect of service of respondent, the other
positive factor, which was there, same has
also been taken into account by the
Selection Committee. Under the rules, no
criteria judging the merit has been
provided for. In the absence of there being
any provision in the rules, the Selection
Committee was fully competent to assess
the facts revealed by service records of all
eligible candidates, so that merit and not
seniority is, governing factor. Merit is
sum total of various qualities, and same
reflects attributes of an employee, in
different spheres of life. Same may
involve character integrity and devotion
to duty of the employee to-wards his
employer, and manner in which he/she
discharges duty is also relevant factor.
See Gumnam Singh Vs. State of
Raishthan 1971 (2) SCC 452. Here
respondent no. 3 by his sheer work has
earned outstanding entries, which has
given edge to the respondent no. 3, at the
point of time of assessing merit and
consequently he has outscored on merit.
Once objective consideration has been
there and there is no element of malafides
against member of Selection Committee
then once Selection Committee seized of
the matter on the basis of record
maintained has found that qua contesting
respondents, there were much more
outstanding entries, and has proceeded to
form opinion that said junior incumbent
was of outstanding merit as compared
with his senior, then as far as this court is
concerned in exercise of its authority of
judicial review this court cannot set aside
the aforementioned selection proceedings,
by means of which promotion has been
accorded.

16. Much capital has been sought to
be made out of the fact that on the earlier
occasion all these entries were there but in
spite of the same Syed Zafar Hussain was
not promoted and this time senior
incumbent has been non suited. It is
prerogative of the Selection Committee to
consider the matter of selection. Here in
the present case, it may be true that in the
opinion
of
the
earlier
Selection
Committee, said material though available
may not have weighed, but that does not
mean
that
subsequent
Selection
Committee is debarred of consideration of
relative merit of the candidates.

17. In the present case, looking into
the record of the case, which has been
produced and there being outstanding
entries in favour of respondent no.3 and
other material on the basis of which he
has been preferred, no interference is
warranted.

18. Consequently, writ petition lacks
substance and same is dismissed.
---------
3 All] Jokhan V. State of U.P. and others
765
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED ALLAHABAD 26.10.2007

BEFORE
THE HON'BLE M.K. MITTAL, J.

Crl. Misc. Application No. 24771 of 2007

Jokhan

...Applicant
Versus
State of UP & others ...Opposite Parties

Counsel for the Applicant:
Sri. Ravindra Prakash Srivastava

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

(A) Code of Criminal Procedure- Section-
497- Criminal Revision- direction to
register and investigate the case issued
by the Magistrate under section 156(3)
of the act.- revision by the accused- held
not maintainable- as no case has been
registered
nor
any
right
of
the
prospective accused is going to be
affected.

Held: Para 4

This contention of the learned counsel
for the applicant is correct. If an
application is filed under Section 156(3)
Cr.P.C.
in
the
Court
of
a
learned
Magistrate, it is a matter between the
applicant and the Court and the accused
does not come into picture as no
cognizance of the of fence is taken in the
matter. If the learned Magistrate finds
that a prima facie case is made out
which requires investigation, he can
direct for registration and investigation
under Section 156(3) Cr.P.C. Unless the
report is registered against the person
named therein as accused his legal or
fundamental rights are not infringed and
he has no locus to challenge that order
Case law discussed:
1977 SCC(Criminal) 585

(B) Code of Criminal Procedure- Section-
36 Superior Officer to the rank of Officer
in Charge- direction of Magistrate under
section 156(3)- to the Officer in Charge
of
police
station
to
register
and
investigate the case within 3 days-
offense under ST/SC Act.- contention the
investigation can be made only by
superior officer misconceived- once the
offense
is
registered-
no
bar
for
investigation by superior officer.

Held: Para 6

Therefore, if any order is passed by the
learned magistrate under Section 156(3)
Cr.P.C. and if investigation is required to
be made by any officer above the rank of
police officer in charge of the police
station , there is no bar and such matter:
can be investigated by his Superior
Officer also.
Case law discussed:
2001(2) A.C.R. 1875

(Delivered by Hon'ble M.K. Mittal, J.)

1. This application has been filed
under Section 482 Cr.P.C. for setting
aside the order dated 6.9.2007 passed by
Sessions
Judge
Basti,
in
Criminal
Revision No.451/07 Nagendra Tiwari Vs.
State of U.P. and another with the further
prayer
to
restore
the
order
dated
13.4.2007
passed
by
the
learned
Magistrate directing for registration and
investigation of the case under Section
156(3) Cr.P.C.

2. Heard Sri Ravindra Prakash
Srivastava the learned counsel for the
applicant, learned AGA and perused the
material on record.

3. The brief facts of the case are that
the applicant filed an application under
Section 156(3) Cr.P .C. alleging that on