# Abbas & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2025) 1 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-27
- **Case number:** Criminal Revision No. 5217 of 2023
- **Bench:** Ram Manohar Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abbas-anr-revisionists-v-state-of-u-p-anr-52956
- **Pages:** 11

## Headnote

Criminal law-Code of Criminal Procedure,
1973 - Sections 161, 164, 173, 190(1)(b),
200, 202 & 397-Final Report - Protest
Petition
-
Rejection
-
Powers
of
Magistrate - Contradictory St.ments of
prosecutrix - St.ment under Section 161
Cr.P.C. implicating accused and later
exculpatory St.ment under Section 164
Cr.P.C. - Final report submitted by police
concluding
no
offence
made
out
-
Magistrate accepted final report and
rejected
protest
petition
-
Held,
Magistrate
not
bound
by
police
conclusions and may independently assess
material on record - St.ment under
Section 164 Cr.P.C., being judicial in
nature, carries greater probative value
than one under Section 161 Cr.P.C. -
Protest
petition
based
on
retracted
version rightly dismissed - No illegality or
perversity
in
Magistrate's
order
-
Revision dismissed. (Paras 14, 15, 17 to
20)
HELD:
In light of aforesaid dictum of this Hon'ble Court
in Pakhandu (supra) undoubtedly the Magistrate
is at liberty to adopted all the four courses
enumerated in the said judgment on production
of a closure report by police after investigation
into a FIR to the effect that complicity of the
accused is not found in the alleged offence or
no alleged offence has not been found to be
committed. (Para 14)

In the present case, learned Magistrate after
placing reliance on closure report filed by the
police after conclusion of an investigation,
adopted Ist course as St.d in Pakhandu (supra)
and accepted closure report submitted by police
in favour of the accused persons whose name
has been surfaced during investigation, placing
reliance on St.ment of prosecutrix under Section
164 Cr.P.C. and affidavits of the father and uncle
(phupha) of the prosecutrix during the course of
investigation
which
was
made
part
of
investigation. (Para 15)

The St.ment made by the prosecutrix/victim
under Section 164 Cr.P.C. before the Magistrate
stands on a high pedestal and a sanctity is
attached on such St.ment recorded during the
course of investigation, than that of her St.ment
recorded under Section 161 of the Code by the
Investigating Officer. (Para 18)

With foregoing discussion this court does not
find any illegality, irregularity or perversity in the
impugned order passed by learned Magistrate,
whereby the final report filed by the police after
investigation in the case in favour of accused
persons placing reliance on St.ment of the
prosecutrix recorded under Section 164 Cr.P.C.
as well as affidavits filed by father and uncle of
the victim, has been accepted and protest
petition filed by the prosecutrix has been
dismissed. (para 19)

Revision Application dismissed. (E-14)

List of Cases cited:

## Text

154 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted therewith and after hearing
submissions of the accused and the
prosecution in this behalf, the judge
considers that there is no sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his
reasons for doing so.

20. This Court is of the view that if for
the same case crime number, two separate
trials are conducted and in the first trial on
the basis of the identical charges, on
identical evidence and on the basis of the
testimonies of the identical witnesses, few
accused have been acquitted from the
charges by the judgement passed in the first
trial then the trial court while dealing with
the second trial for other accused on the
identical charges, on the identical evidence
and on the basis of the testimonies of the
identical witnesses cannot say that the
judgement rendered in the first trial shall
not be the part of the record of the other
connected second trial.

21. This Court is of the firm view that
the trial court while dealing with the
application filed by the revisionists under
Section 227 Cr.P.C. for discharge must have
considered the judgement and order dated
22.08.2023 passed in Special Sessions Trial
No. 1000066 of 2015 as part of the record of
the case as the said judgement had been
rendered in respect of the same case crime
number for identical charges, on the basis of
identical evidence and on the basis of the
testimonies of the identical witnesses.

22. This Court is also of the view that
once for identical charges and on the basis of
the
identical
evidence
based
on
the
testimonies of the identical witnesses, coaccused of the same case crime number have
been acquitted from the charges then if other
co-accused are permitted to be tried by the
trial court without there being any new
evidence on record, there would be one and
the only one conclusion i.e. their acquittal
from the charges, as such allowing to proceed
the second trial would amount to abuse of the
process of the Court.

23. Once it is admitted by the State that
the charges levelled against the accused in
Special Sessions Trial No. 1000066 of 2015
are identical and the evidence relied on and
the witnesses are also identical to that of the
charges levelled against the accused and
evidence relied on and witnesses in Special
Sessions Trial No 2800039 of 2016, there
was no occasion for the trial court to reject
the application filed by the revisionists for
their discharge and to further proceed with
the trial.

24. In view of the aforesaid reasons,
this revision is allowed. The impugned
order dated 03.02.2024 passed by the
learned Additional Sessions Judge/Special
Judge (P.O.C.S.O. Act) Basti in Special
Sessions Trial No. 2800039 of 2016 is setaside. The present revisionists who are
accused in Special Sessions Trial No
2800039 of 2016 are hereby discharged
and the entire proceedings of the Special
Sessions Trial No. 2800039 of 2016 are
hereby quashed.
----------
(2025) 1 ILRA 154
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2025
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
SHUKLA, J.

Criminal Revision No. 5217 of 2023

Abbas & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties
1 All. Abbas & Anr. Vs. State of U.P. & Anr.
155
Counsel for the Revisionists:
Shubham
Srivastava,
Sunil
Kumar
Srivastava

Counsel for the Opposite Parties:
G.A., Shivam Tiwari

Criminal law-Code of Criminal Procedure,
1973 - Sections 161, 164, 173, 190(1)(b),
200, 202 & 397-Final Report - Protest
Petition
-
Rejection
-
Powers
of
Magistrate - Contradictory St.ments of
prosecutrix - St.ment under Section 161
Cr.P.C. implicating accused and later
exculpatory St.ment under Section 164
Cr.P.C. - Final report submitted by police
concluding
no
offence
made
out
-
Magistrate accepted final report and
rejected
protest
petition
-
Held,
Magistrate
not
bound
by
police
conclusions and may independently assess
material on record - St.ment under
Section 164 Cr.P.C., being judicial in
nature, carries greater probative value
than one under Section 161 Cr.P.C. -
Protest
petition
based
on
retracted
version rightly dismissed - No illegality or
perversity
in
Magistrate's
order
-
Revision dismissed. (Paras 14, 15, 17 to
20)
HELD:
In light of aforesaid dictum of this Hon'ble Court
in Pakhandu (supra) undoubtedly the Magistrate
is at liberty to adopted all the four courses
enumerated in the said judgment on production
of a closure report by police after investigation
into a FIR to the effect that complicity of the
accused is not found in the alleged offence or
no alleged offence has not been found to be
committed. (Para 14)

In the present case, learned Magistrate after
placing reliance on closure report filed by the
police after conclusion of an investigation,
adopted Ist course as St.d in Pakhandu (supra)
and accepted closure report submitted by police
in favour of the accused persons whose name
has been surfaced during investigation, placing
reliance on St.ment of prosecutrix under Section
164 Cr.P.C. and affidavits of the father and uncle
(phupha) of the prosecutrix during the course of
investigation
which
was
made
part
of
investigation. (Para 15)

The St.ment made by the prosecutrix/victim
under Section 164 Cr.P.C. before the Magistrate
stands on a high pedestal and a sanctity is
attached on such St.ment recorded during the
course of investigation, than that of her St.ment
recorded under Section 161 of the Code by the
Investigating Officer. (Para 18)

With foregoing discussion this court does not
find any illegality, irregularity or perversity in the
impugned order passed by learned Magistrate,
whereby the final report filed by the police after
investigation in the case in favour of accused
persons placing reliance on St.ment of the
prosecutrix recorded under Section 164 Cr.P.C.
as well as affidavits filed by father and uncle of
the victim, has been accepted and protest
petition filed by the prosecutrix has been
dismissed. (para 19)

Revision Application dismissed. (E-14)

List of Cases cited:

1. Pakhandu Vs St. of U.P., 2001 Cri LJ 3560

2. H.S. Bains Vs St., (1980) 4 SCC 631

3. India Carat Pvt. Ltd. Vs St. of Karn., (1989) 2
SCC 132

4. Raju Vs St. of U.P., 2012 (78) ACC 111

(Delivered by Hon'ble Ram Manohar
Narayan Shukla, J.)

1. Instant Criminal Revision has been
preferred
against
the
order
dated
04.08.2023 passed by learned Judicial
Magistrate IIIrd Saharanpur on Misc.
Application No.02 of 2022 Abbas Vs.
Taushif , whereby the protest petition filed
by the revisionist against final (closure)
report submitted by the police after
investigation in Case Crime No.17 of 2021,
under Section 366 and 376 IPC has been
156 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed and final report has been
accepted.

2. Heard Sri S.K. Srivastava, learned
counsel for the revisionists, Sri Shivam
Tiwari, learned counsel for the respondent
No.2 and learned A.G.A. for the Staterespondent and perused the material
available on record.

3. The factual matrix of the case in
brief are that the informant Abbas lodged
an
FIR
at
P.S.
Gagalhedi,
District
Saharanpur on 14.01.2021 under Section
363
IPC
against
one
Taushif
with
averments that on 09.01.2021 his minor
daughter aged around 14 years was enticed
away by accused Taushif son of Hazi
Julfan, his daughter is student of class IXth.
He has been searching for his daughter for
three days and now he came to know that
Taushif had kidnapped his minor daughter
by enticing and taking her away. The
informant came to the place of Hazi Julfan,
the father of Taushif, where his father and
family
members
misbehaved
and
threatened him that his daughter will not be
handed over to him. In the transfer
certificate of class IXth of the victim issued
by
Siyaram
Intermediate
College,
Gagalhedi, Saharanpur, her date of birth is
recorded as 30.06.2006 and accordingly she
was of fourteen and half years of age on the
date of incident and minor, the victim was
recovered by police on 15.01.2021 at 10:30
am. As per G.D. Report No.17 dated
10.10.2021
time
10:30
hours,
P.S.
Gagalhedi Saharanpur, at the time of her
recovery, effected on secret information
she was found in the company of a boy on
Rana Steel Trisection. However, her
companion could not be caught and he fled
away from the spot on noticing the police
team. The statement of the victim was
recorded on the same day under Section
161 Cr.P.C., wherein she stated that she
studied
in
Class
IXth
at
Siyaram
Intermediate College. Vasim and Taushif
called her and took her near the shop, they
got her sniffed some substance, whereupon
she got unconscious and when she regain
her consciousness, she found her in
Dehradoon in a room where Farman,
Danish, Wasim, Taushif and their sister
Tasmini met her in the room. Farman,
Wasim, Taushif and Danish committed
rape on her and when she requested them to
arrange a call from her family members,
they threatened her with life. They took her
at Sikandarpur and they stayed at the house
Kuban, they took her from there to
Sansarpur where she was confined for four
days. She requested the police to inform
her family members so that they could visit
her in the police station. She was present
before lady doctor Dr. Deepika for her
medico legal examination, but she refused
to get herself examined and stated that
there was no pressure on her. The
informant Abbas reiterated his FIR version
in his first statement under Section 161
Cr.P.C., but after recording of the statement
of victim under Section 161 Cr.P.C. he
filed affidavit before SSP Meerut together
with Abdul Rahman his brother in-law in
the light of the statement of victim under
Section 164 Cr.P.C.

4. The statement of the victim was
recorded by Magistrate under Section 164
Cr.P.C. which has been copied in case
diary Parcha No.7 dated 01.02.2021,
wherein she did volte face and deviated
from her version under Section 161 Cr.P.C.
and stated that on 09.01.2021 at 12:00
hours she went to the place of her aunt
(Bua) Gulshan at village Paragpur near
Meerut on her own by traveling in a bus.
No wrong act is done with her, she stayed
there for three days, her father lodged a
1 All. Abbas & Anr. Vs. State of U.P. & Anr.
157
false case against Gram Pradhan Farman
and Ramesh due to enmity. Informant
Abbas and Abdul Rahman the uncle
(Phufa) of the victim had filed an affidavit
which is addressed to the S.S.P. Saharanpur
on 21.01.2021 and same was forwarded to
SHO concerned for necessary action
through circle officer. In this affidavit they
supported the version of the victim
recorded under Section 164 Cr.P.C.,
wherein she has given a clean chit to the
named accused as well as other accused
persons whose name surfaced during
investigation, on the basis of statement of
victim recorded under Section 161 Cr.P.C.

5. The police placed reliance on the
statement of the victim under Section 164
Cr.P.C. and affidavits of Abbas and Abdul
Rahman, the father and Phufa of the victim
submitted final report in favour of the
accused persons with finding that their
complicity in the disappearance of the
victim was not established, and she had left
her home on her own as she became
disturbed on being rebuked by her parent
and went to the place of her bua alone and
went back to her home on her own volition.

6. However, on the turn of events, the
victim herself filed a protest petition before
the court of Magistrate against the final
report submitted by police in favour of
accused persons namely Taushif, Wasim,
Farman, Danish and Tasleem wherein she
acknowledged and placed reliance on her
statement under Section 161 Cr.P.C.
recorded by Investigating Officer and has
deviated from her statement recorded by
Magistrate under Section 164 Cr.P.C. She
stated that her father reconciled the matter
after fifteen days of the incident with the
accused
persons,
in
view
of
some
inducement or pressure and he exerted
pressure on her to depose infavour of the
accused persons before the Magistrate and
for that reason she had given her statement
before the Magistrate under Section 164
Cr.P.C. in favour of accused persons. She
also refused to get herself medically
examined on instructions of her father. She
clarified that her statement under Section
164 Cr.P.C. on the basis of which the
police has filed final report in favour of
accused persons is not a free statement.
Infact, her statement under Section 161
Cr.P.C. is a real and true statement and on
that basis police should have submitted
chargesheet against the accused persons.
Now the accused persons are threatening
her and she apprehends some unforeseen
incident may have occurred with her. In
protest petition she has prayed for settingaside the final report dated 02.12.2021 and
summoning the accused persons under
Sections 366 and 376-D IPC and Section 3⁄4
of POCSO Act, after taking cognizance
under Section 190 (1)(b) Cr.P.C.

7. Learned Magistrate in the impugned
order dismissed the protest petition filed by
the victim and accepted the final report
filed by the police after investigation in the
case on the ground that the victim has
exonerated the accused persons in her
statement under Section 164 Cr.P.C.
recorded
by
Magistrate.
She
has
controverted her statement under section
161 Cr.P.C recorded by Investigating
Officer in her statement before the
Magistrate under Section 164 Cr.P.C. her
father has also supported her stand under
Section 164 Cr.P.C. by filing an affidavit
which is part of case diary, no presumption
can be raised against genuineness of the
statement of the victim recorded by
Magistrate under Section 164 Cr.P.C.

8. Feeling aggrieved by the impugned
order dated 04.08.2023 the informant has
158 INDIAN LAW REPORTS ALLAHABAD SERIES
filed
present
criminal
revision.
The
informant and victim has jointly filed
present criminal revision with prayer to setaside the impugned order passed by learned
Magistrate and the matter be remitted to
learned Magistrate to decide the protest
petition a fresh and summon the respondent
No.2 for facing trial.

9. Learned counsel for the revisionists
submitted that the learned trial court has
wrongly placed reliance on statement of the
victim recorded under Section 164 Cr.P.C.
and ignored her statement under Section
161 Cr.P.C., in which she has given an
entire gamut of the sequence of events
which occurred with her from the date of
her disappearance to the date of her
recovery. He also submitted that the
learned trial court has given a wrong
finding that no prima facie case is made out
to summon the accused persons to face trial
after rejecting the final report. The learned
Magistrate has eve not considered the
averments in respect of protest petition
filed by the victim. Accused Vasim and
Taushif mislead the victim and called her
near their shop on 09.01.2021; they got her
sniffed some intoxicating substance and
thereafter they committed rape on her, and
they threatened his father to pressurize her to
give the statement before the Magistrate in
their favour and also to refuse her medico legal
examination. He next submitted that age of the
victim was fourteen and half years at the time
of incident and she was minor at the time of
incident and therefore in view of commission
of rape on her by accused persons a case under
Section 3⁄4 of POSCO Act is also made out
together with sections 363, 366, 376 IPC.
Learned Magistrate did not record statement of
the victim in proper manner.

10. Per contra, learned counsel for the
respondent No.2 submitted that there is no
consistency in prosecution version, the
father of the victim lodged an FIR naming
accused Taushif only under Section 366
IPC, the victim in her statement under
Section 161 Cr.P.C. implicated the accused
persons including sister of the accused
Taushif , however she has not implicated
any of the accused persons in her statement
under Section 164 Cr.P.C. and stated that
she was rebuked by her parent and having
been angry for that reason, she left her
home on the date of incident and travelled
to the place of her bua (aunt) in a bus and
stayed there for three days and came to her
home on her own. Even father and phupha
(uncle of the victim) has supported her
stand taken under Section 164 Cr.P.C. by
filing their affidavit during investigation
which is included in the case diary.
However, the victim did a volte face after
filing of closure report by the police in the
case and filed a protest petition with prayer
to take cognizance
against proposed
accused and summon them as accused to
face trial for alleged offence and when the
court dismissed the protest petition and
accepted closure report, her father and
victim had filed present criminal revision
placing reliance on statement under Section
161 Cr.P.C. made by the victim before
Investigation
Officer
.
There
is
no
illegality, irregularity or perversity in the
impugned order passed by the learned trial
court. The victim has changed her stand at
every stage and therefore, no reliance can
be placed on her averment. She even
denied to undergo medicolegal examination
when offered by the doctor.

11. This High Court in Pakhandu v.
State of U.P. decided on 13.09.2001 was
called upon for consideration of earlier
judgment in Moahabbat Ali v. State of
U.P reported in 1985 UP Cri R 264. The
brief facts of the case were that on an
1 All. Abbas & Anr. Vs. State of U.P. & Anr.
159
application moved by Smt. Vimala Devi,
the Magistrate in exercise of powers under
Section 156(3), Cr. P.C directed the police
to register the case and investigate the
same.
Consequently
an
F.I.R
under
Sections 467/468/419/420/364 and 392,
I.P.C was registered and investigated. On
completion of investigation, police for
warded a final report to the Court of the
concerned Magistrate. Feeling aggrieved,
the complainant Smt. Vimala Devi filed
objections in the form of 'Protest Petition'
against the acceptance of final report.
Along with the said petition, she also filed
her own affidavit and affidavits of
witnesses Ram Charan and Mata Prasad. It
further appears that the learned Magistrate,
on the basis of material on record came to
the conclusion that there was sufficient
ground to proceed against the applicants
and issued process against them under
Section 204 of the Code of Criminal
Procedure. Thereafter, an application on
behalf of the applicants was moved before the
Magistrate for recalling the summoning order
dated
7-7-1997.
This
application
was
however rejected by the learned Magistrate
by the order dated 21-10-1999 holding that
the applicants had no right of hearing before
passing of the summoning order and as
cognizance has been taken under Section
190(1)(b). Cr. P.C the order of summoning
was amenable to revision. The applicants
then preferred revision before the Session
Judge against the aforesaid order dated 2910-1999. The revision has also been
dismissed by the learned Session Judge by
the impugned order dated 15-5-2000. The
applicants have now approached this Court
for invoking inherent powers of the Court
under Section 482, Cr. P.C seeking quashing
of the summoning order dated 7-7-1997.

12. When this application was taken
up for admission on 25-5-2001 by this
Court, it was urged on behalf of the
applicants that they have been summoned
under Section 364, I.P.C also which
offence is triable exclusively by the Court
of Session, yet before issuing process the
learned
Magistrate
did
not
record
statements of all the witnesses as required
by the proviso to Section 202(2), Cr. P.C.
This Court observed as under:-

6. Chapter XTV of the Code of
Criminal
Procedure
deals
with
the
conditions
requisite
for
initiation
of
proceedings. For the purpose of this case,
we are concerned with Section 190(1)
alone which is reproduced below:

"190. Cognizance of offences by
Magistrate:- (1) Subject to the provisions
of this Chapter, and Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under subsection (2), may take cognizance
of any offence-

(a) upon receiving a complaint of
facts which constitute such offence:

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed."

7. There are four more methods
of taking cognizance of offences by the
Court competent to try the same. The Court
called upon to take cognizance of the
offence must apply its mind to the facts
placed before it either upon a police report
or upon a complaint or in some other
manner the Court came to know about it
and in the case of Court of Session upon
commitment of the case by the Magistrate.
[vide A.R Antulay v. R.S Nayak, (1984) 2
SCC 500 : (AIR 1984 SC 718)].

8. When a Magistrate receives a
complaint or an application under Section
160 INDIAN LAW REPORTS ALLAHABAD SERIES
156(3),
Cr.
P.C which
otherwise
tantamounts to complaint under Clause (d)
of Section 2 of the Code, there are two
courses open to him. He may take
cognizance under Section 190(1)(a) by
applying his mind to the facts of the case.
In that event he has to proceed in the
manner provided in Sections 200 and 202,
Cr. P.C By virtue of Section 200 he is
required to examine the complainant and
the witnesses present, if any. If the
Magistrate finds that there is sufficient
ground for proceeding, he may issue
process under Section 204. However, if the
Magistrate is not satisfied, he may either
dismiss the complaint under Section 203,
Cr. P.C or post pone the issue of process
and take recourse to Section 202 which
provides that he may inquire into the case
himself or may direct an investigation to be
made by a police of ficer or such other
person as he thinks fit for the purpose of
deciding whether or not there are sufficient
grounds to proceed. But if the offence is
triable exclusively by a Court of Session,
the Magistrate cannot make a direction for
investigation.
It
is
only
where
the
Magistrate decides to hold the inquiry
himself that the proviso to sub-section (2)
of Section 202, which we extract below,
would come into operation:

"Provided that if it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session, he shall call upon the complainant
to produce all his witnesses and examine
them on oath."

9. The other course open to the
Magistrate is that instead of taking
cognizance,
he
may
send
the
complaint/application
under Section
156(3), Cr. P.C for police investigation. If
the course is adopted, the police will have
to investigate the matter as per the
procedure laid down in Section 157
onwards. If upon investigation the police
came to the conclusion that there was no
sufficient evidence or any reasonable
ground
of
suspicion
to
justify
the
forwarding of accused for trial and
submitted final report for dropping the
proceedings, following courses are open to
the Magistrate and he may adopt any one
of them as the facts and circumstances of
the case may require:

(I) He may agreeing with the
conclusions arrived at by the police, accept
the report and drop the proceedings. But
before so doing, he shall give an
opportunity of hearing to the complainant;

(II) He may take cognizance
under Section 190(1)(b) and issue process
straightway to the accused without being
bound
by
the
conclusions
of
the
investigating agency, where he is satisfied
that upon the facts discovered or unearthed
by the police, there is sufficient ground to
proceed;

(III)
he
may
order
further
investigation, if he is satisfied that the
investigation was made in a perfunctory
manner; or

(IV) he may, without issuing
process or dropping the proceedings decide
to take cognizance under Section 190(1)(a)
upon the original complaint or protest
petition treating the same as complaint and
proceed to act under Sections 200 and 202,
Cr. P.C and thereafter decide whether
complaint should be dismissed or process
should be issued.

10.
The
Apex
Court
in Abhinandan Jha v. Dinesh Misra, AIR
1968 SC 117 held that on receiving final
report it was not within the powers of the
Magistrate to direct the police to submit a
charge sheet but it is open to him to agree
or disagree with the police report. If he
agrees that there is no case made out for
issuing process, he may accept the report
1 All. Abbas & Anr. Vs. State of U.P. & Anr.
161
and drop the proceedings. He may come to
the conclusion that further investigation is
necessary in that event he may pass an
order to that effect. If ultimately the
Magistrate is of the opinion that the facts
set out in the police report constitute an
offence, he can take cognizance of the
offence,
notwithstanding
the
contrary
opinion, expressed in the police report. It
was observed there in that the Magistrate
in that event could take cognizance
under Section 190(1)(c) of the Code. The
reference
to Section
190(1)(c) was
a
mistake for Section 190(1)(b) and this has
been pointed out in a later decision of H.S
Bains v. State, (1980) 4 SCC 631 : AIR
1980 SC 1883.

11. In H.S Bains, ((1980) 4 SCC
631 : AIR 1980 SC 1883) (supra) it was
held by the Supreme Court that the
Magistrate is not bound to accept the
opinion of the police regarding the
credibility of the witnesses expressed in the
police report submitted to the Magistrate
under Section
173(2),
Cr.
P.C The
Magistrate may prefer to ignore the
conclusions of the police regarding the
credibility of the witnesses and take
cognizance of the offence. If he does so, it
would be on the basis of the statements of
the witnesses as revealed by the police
report. He would be taking cognizance
upon the facts disclosed by the police
report though not on the conclusions
arrived at by the police. In that case it was
observed : "If a complainant states the
relevant facts in his complaint and alleges
that the accused is guilty of an offence
under Section 307, Indian Penal Code the
Magistrate is not bound by the conclusion
of the complainant. He may think that the
facts disclose an offence under Section 324,
Indian Penal Code only and he may take
cognizance of an offence under Section 324
in stead of Section 307. Similarly, if a
police report mentions that half a dozen
persons examined by them claim to be eyewitnesses to a murder but that for various
reasons the witnesses could not be
believed, the Magistrate is not bound to
accept the opinion of the police regarding
the credibility of the witnesses. He may
prefer to ignore the conclusions of the
police regarding the credibility of the
witnesses and take cognizance of the
offence. If he does go, it would be on the
basis of the statement of the witnesses as
revealed by the police report. He would be
taking cognizance upon the facts disclosed
by the police report though not on the con
clusions arrived at by the police."

12. In another decision in India
Carat Pvt. Ltd. v. State of Karnataka,
(1989) 2 SCC 132 : AIR 1989 SC 885
(890), it was held as under:

The position is, therefore, now
well settled that upon receipt of a police
report under Section 173(2) a Magistrate is
entitled to take cognizance of an offence
under Section 190(1)(b) of the Code even if
the police report is to the effect that no case
is made out against the accused. The
Magistrate can take into account the
statements of the witnesses examined by the
police during the investigation and take
cognizance of the offence complained of
and order the issue of process to the
accused. Section 190(1)(b) does not lay
down
that
a
Magistrate
can
take
cognizance of an offence only if the
investigating officer gives an opinion that
the investigation has made out a case
against the accused. The Magistrate can
ignore the conclusions arrived at by the
investigation officer and independently
apply his mind to the facts emerging from
the investigation and take cognizance of the
case, if he thinks fit, in exercise of his
powers under Section 190(1)(b) and direct
the issue of process to the accused. The
162 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate is not bound in such a situation
to follow the procedure laid down in
Sections 200 and 202 of the Code for
taking cognizance of a case under Section
190(1)(a) though it is open to him to act
under Section 200 or Section 202 also. The
High Court was, therefore, wrong in taking
the view that the Second Additional Chief
Metropplltan Magistrate was not entitled to
direct the registration of a case against the
second respondent and order the issue of
summons to him."

13. In the case of Tularam v.
Kishore Singh, (1977) 4 SCC 459 : AIR
1977 SC 2401, it was held that if the police,
after making an investigation, sent a report
that no case was made out against the
accused, the Magistrate could ignore the
conclusion drawn by the police and take
cognizance of the case under Section
190(1)(b) on the basis of material collected
during investigation and issue process or in
the alternative he could take cognizance of
the original complaint and examine the
complainant
and
his
witnesses
and
thereafter issue process to the accused, if
he was of opinion that the case should be
proceeded with.

14. From the aforesaid decisions,
it is thus clear that where the Magistrate
receives final report the following four
courses are open to him and he may adopt
any one of them as the facts and
circumstances of the case may require:-

(I) He may agreeing with the
conclusions arrived at by the police, accept
the report and drop the proceedings. But
before so doing, he shall give an
opportunity of hearing to the complainant;
or

(II) He may take cognizance
under Section 190(1)(b) and issue process
straightway to the accused without being
bound
by
the
conclusions
of
the
investigating agency, where he is satisfied
that upon the facts discovered or unearthed
by the police, there is sufficient ground to
proceed; or

(III)
he
may
order
further
investigation, if he is satisfied that the
investigation was made in
a perfunctory manner, or.

(IV) he may, without issuing
process or dropping the proceedings decide
to take cognizance under Section 190(1)(a)
upon the original complaint or protest
petition treating the same as complaint and
proceed to act under Sections 200 and 202,
Cr. P.C and thereafter decide whether
complaint should be dismissed or process
should be issued.

14. In light of aforesaid dictum of this
Hon'ble
Court
in
Pakhandu
(supra)
undoubtedly the Magistrate is at liberty to
adopted all the four courses enumerated in
the said judgment on production of a
closure report by police after investigation
into a FIR to the effect that complicity of
the accused is not found in the alleged
offence or no alleged offence has not been
found to be committed.

15. In the present case, learned
Magistrate after placing reliance on closure
report filed by the police after conclusion
of an investigation, adopted Ist course as
stated in Pakhandu (supra) and accepted
closure report submitted by police infavour
of the accused persons whose name has
been surfaced during investigation, placing
reliance on statement of prosecutrix under
Section 164 Cr.P.C. and affidavits of the
father
and
uncle
(phupha)
of
the
prosecutrix
during
the
course
of
investigation which was made part of
investigation.

16. In the instant case for the
prosecutrix though inculpated the named
1 All. Abbas & Anr. Vs. State of U.P. & Anr.
163
accused Taushif and three other accused
persons whose name surfaced during
investigation in her statement under Section
161 Cr.P.C. recorded by Investigating
Officer at the early stage of investigation
when she was recovered by police, but she
exculpated all the accused persons in her
statement under Section 164 Cr.P.C.
recorded by Judicial Magistrate during the
course of investigation and stated that she
had left her home on being rebuked by her
parent, and visited the place of her bua
(father's sister) where she stayed for three
days and he came back to her home
subsequently. This statement was supported
by father of the prosecutrix and her Phupha
Abdul Rahman by filing an affidavit during
investigation. Abdul Rahman stated in his
affidavit that victim visited his place alone
and remained there for three days during
the period of her disappearance. However,
when closure report was filed by the police,
the prosecutrix who was minor at the time
of incident filed a protest petition before
the court, wherein shes placed reliance on
her statement under Section 161 Cr.P.C.
recorded by police and stated that her
statement under Section 164 Cr.P.C. was
tutoring an external pressure.

17. Section 164 of the Code also gives
power to the investigating agency to
forward any person for recording of his
confession and the statements before a
Magistrate. In the case of Raju Vs. State
of U.P. and others : 2012 (78) ACC 111, a
Division Bench of this Court in paragraph 9
has observed as follows:

"9. We are of the opinion that the
statement of an accused or victim or a
witness which is to be recorded under
Section 164 Cr.P.C., might be a statement
recorded during the course of investigation
of a case but that is quite different from the
statement of witnesses recorded under
Section 161 Cr.P.C. The reason is that
there is a full fledged provision under
Section
164
Cr.P.C.
authorizing
the
recording of such a statement by a judicial
Magistrate. The practise and the procedure
which is followed in recording such a
statement is that the police has to file an
application before the head of Magistracy,
who is presently the Chief Judicial
Magistrate, requesting for the statement of
such a person to be recorded. On receipt of
such an application, the Chief Judicial
Magistrate gets the relevant record before
him and thereafter passes an order in token
of receipt of such an application and
further passes an order upon the same and
thereafter direct by the same order for
deputation of a Magistrate to record the
statement. He may also record the
statement himself. In case of other judicial
Magistrate being deputed for recording the
statement under Section 164 Cr.P.C., the
witness along with the judicial record is
transmitted
to
the
deputed
judicial
Magistrate, who records the receipt of the
record for the purpose and proceeds to
record the statement and as soon as it is
recorded, he again records the recording of
such a statement in the order-sheet of the
same record and transmits the record
along with the recorded statement under
Section 164 Cr.P.C. to the Chief Judicial
Magistrate. Thus, the whole exercise
appears judicial in nature. Not only that, it
further indicates that the orders drawn in
the above behalf as also the statement
recorded are the records of the judicial
acts performed by him in discharge of
official and judicial functions by a Judge.
The recording of the statements is enjoined
by the law of the country and the record in
the form the recorded statement under
Section 164 Cr.P.C. is the record of the act
of a public servant discharging his official
164 INDIAN LAW REPORTS ALLAHABAD SERIES
and judicial functions. In addition to that the
statement recorded under Section 164
Cr.P.C. is never taken out of the judicial
record nor it is handed over to the
Investigating Officer or any other police
officer. The copy of the statement is allowed
to be copied in the relevant part of the case
dairy. Thus, the recorded statement under
Section 164 Cr.P.C. assumes the part of the
judicial record of that particular case and, as
such, it is the part of the case. This is the
reason that we have pointed out that in spite
of being a statement of a witness or any other
interested person during the course of
investigation, the recorded statement under
Section 164 Cr.P.C. could not, strictu sensu,
be said to be a mere statement during
investigation which could be treated as part
of the case dairy. It could never be put at par
with a statement under Section 161 Cr.P.C.
and as such it could never be said to be a
part of case dairy."

18. The statement made by the
prosecutrix/victim
under
Section
164
Cr.P.C. before the Magistrate stands on a
high pedestal and a sanctity is attached on
such statement recorded during the course
of investigation, than that of her statement
recorded under Section 161 of the Code by
the Investigating Officer.

19. With foregoing discussion this
court
does
not
find
any
illegality,
irregularity or perversity in the impugned
order passed by learned Magistrate,
whereby the final report filed by the police
after investigation in the case infavour of
accused persons placing reliance on
statement of the prosecutrix recorded
under Section 164 Cr.P.C. as well as
affidavits filed by father and uncle of the
victim, has been accepted and protest
petition filed by the prosecutrix has been
dismissed.

20. The learned court below has made an
observation that when she was presented for
medico legal examination. She refused to
undergo medico legal examination. She has
been changing her stand at different stages. No
presumption can be drawn that statement of
prosecutrix recorded by Magistrate before the
court suffers from falsehood or external
pressure.

21. The impugned order is within bounds
of law and no illegality, irregularity or
perversity is found therein. The revision is
devoid of merit and deserves to be dismissed.

22. However, it is pertinent to observe that
even after acceptance of final report and
dismissal of protest petition filed by the defacto
complainant or prosecutrix are at liberty to file
criminal complaint under Chapter 15 of Code
of Criminal Procedure before the competent
court, if they think fit and if such complaint is
made before the court below, the same will be
dealtwith in accordance with law, as no
embargo is created under law on filing of
criminal complaint only due to fact that revision
preferred against impugned order passed by
learned Magistrate has been dismissed by this
Court.

23. The revision is dismissed with
above observations.
----------
(2025) 1 ILRA 164
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.01.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 23 of 2025

Girja Shankar & Ors. ...Appellants
Versus
Ram Sajeevan & Ors. ...Respondents