# Ajay @ Sheru and others v. State of U.P. & another

- **Citation:** (2008) 2 ILRA 603
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-21
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-sheru-and-others-v-state-of-u-p-another-41327
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 482quashing of summoning order-on the
basis
of
FIR-alleged
offence
under
Section 392,323,504 IPC-I.O. submitted
charge sheet for offence under Section
323/504 IPC-Magistrate on the basis of
report
submitted
u/s
173
taken
cognizance
after
due
application of
mind-objection
regarding
following
procedure of chapter XV-not sustainablesubmission
of
investigating
reporttreated
complaint,
the
Investigation
Officer a complainant-being a Police
Officer acted during discharge of public
duty-no need of examination u/s 202held order passed by Magistrate-warrant
no interference.

Held: Para 8

In instant case, the investigating officer
had submitted a report in a case, which
discloses
after
investigation
the
commission of a non-cognizable offence,
which in view of the Explanation to
Section 2(d) Cr.P.C. shall be deemed to
be a complaint and the police officer by
whom the said report was made shall be
deemed to be the complainant. Since the
604 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
said deemed complaint has been filed by
a public servant in discharge of his
official duties, hence it is not necessary
to examine the said police officer upon
oath under Section 200 Cr.P.C. During
the course of investigation of the case of
crime no. 282 of 2006, evidence has
already
been
collected
by
the
investigating officer. Hence, there is no
need now to make further inquiry by the
Magistrate
or
to
direct
fresh
investigation to be made by a police
officer as envisaged in Section 202
Cr.P.C., because the purpose of holding
inquiry by the Magistrate under Section
202 Cr.P.C. is also to collect the evidence
for deciding whether or not there is
sufficient ground for proceedings and to
pass order under Section 203 or 204
Cr.P.C. as the case may be.
Case law discussed:
2007(58) ACC 998, 2007(57), ACC 528,
2007(59), ACC 998, 2001(1) UPCRR 165 (SC).

## Text

2 All] Ajay @ Sheru and others V. State of U.P. and another
603
Bench of the Hon'ble Apex Court has held
that there cannot be any doubt or dispute
that only because the Magistrate has
accepted the final report, the same by
itself would not stand in his way to take
cognizance
of
the
offence
on
a
protest/complaint petition on the same or
similar allegations. From the law laid
down by the Hon'ble Apex Court in above
mentioned ruling, it is crystal clear that
even after acceptance of the final report
by the Magistrate, the complainant can
file protest petition and such petition can
be
treated
as
complaint
and
after
following the procedure laid down in
Chapter XV Cr.P.C., summoning order
under Section 204 Cr.P.C. can be passed,
if there are sufficient grounds to proceed
against the accused. In the instant case,
the revisionist/complainant has already
filed objections against final report which
have been rejected by the learned
magistrate vide impugned order dated
13.08.2007
without
following
the
procedure laid down in Chapter XV
Cr.P.C. as directed by the learned lower
Revisional Court in its judgment dated
07.10.2006 passed in Crl. Revision No. 27
of 2006.

9. Consequently, the revision is
partly allowed. The impugned order dated
13.08.2007 rejecting the objections of the
complainant against final report is set
aside and the case is sent back to the court
of judicial magistrate Rampur with the
direction to decide the objections/protest
petition
of
the
complainant
afresh,
treating the same as complaint and
following the procedure laid down in
Chapter XV Cr.P.C.

The Office is directed to return lower
court record expeditiously along with a
copy of this judgement for further
necessary action. Revision partly allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.05.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Crl. Misc. Writ Petition 4301 of 2008

Ajay @ Sheru and others
...Applicants
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicants:
Sri. S.K. Dubey

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

Code of Criminal Procedure-Section 482quashing of summoning order-on the
basis
of
FIR-alleged
offence
under
Section 392,323,504 IPC-I.O. submitted
charge sheet for offence under Section
323/504 IPC-Magistrate on the basis of
report
submitted
u/s
173
taken
cognizance
after
due
application of
mind-objection
regarding
following
procedure of chapter XV-not sustainablesubmission
of
investigating
reporttreated
complaint,
the
Investigation
Officer a complainant-being a Police
Officer acted during discharge of public
duty-no need of examination u/s 202held order passed by Magistrate-warrant
no interference.

Held: Para 8

In instant case, the investigating officer
had submitted a report in a case, which
discloses
after
investigation
the
commission of a non-cognizable offence,
which in view of the Explanation to
Section 2(d) Cr.P.C. shall be deemed to
be a complaint and the police officer by
whom the said report was made shall be
deemed to be the complainant. Since the
604 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
said deemed complaint has been filed by
a public servant in discharge of his
official duties, hence it is not necessary
to examine the said police officer upon
oath under Section 200 Cr.P.C. During
the course of investigation of the case of
crime no. 282 of 2006, evidence has
already
been
collected
by
the
investigating officer. Hence, there is no
need now to make further inquiry by the
Magistrate
or
to
direct
fresh
investigation to be made by a police
officer as envisaged in Section 202
Cr.P.C., because the purpose of holding
inquiry by the Magistrate under Section
202 Cr.P.C. is also to collect the evidence
for deciding whether or not there is
sufficient ground for proceedings and to
pass order under Section 203 or 204
Cr.P.C. as the case may be.
Case law discussed:
2007(58) ACC 998, 2007(57), ACC 528,
2007(59), ACC 998, 2001(1) UPCRR 165 (SC).

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

1. "Whether after taking cognizance
and issuing summons to the accused on
the
police
report
disclosing
noncognizable offence after investigation,
fresh summoning order is to be passed
after following the procedure laid down in
Chapter XV of the Code of Criminal
Procedure (in short, the Cr.P.C.)", is the
main point that falls for consideration in
this
proceeding
under
Section
482
Cr.P.C.,
by
means
of
which
the
applicants-accused have invoked inherent
jurisdiction of this Court praying for
quashing
the
entire
proceedings
of
criminal case no. 5513 of 2006 (State Vs.
Ajay and others) arising out of case crime
no. 282 of 2006 under Section 323, 504
I.P.C. P.S. Buxa, District Jaunpur pending
in the Court of Judicial Magistrate 1st
(Court No. 27) Jaunpur.

2. Shorn of unnecessary details, the
facts leading to the filing of the
application under Section 482 Cr.P.C., in
brief, are that Sri Ramesh Kumar
(opposite party no. 2 herein) had lodged
an F.I.R. on 26.05.2006 at P.S. Buxa,
District Jaunpur, where a case under
Section 392, 323, 504 I.P.C. was
registered at crime no. 282 of 2006
against the accused-applicants. After
investigation, the police submitted the
report (charge sheet) on 28.06.2006 under
the provisions of Section 173(2) Cr.P.C.
under Section 323, 504 I.P.C., on which
cognizance was taken by learned Judicial
Magistrate 1st (Court No. 27) Jaunpur
vide order dated 28.09.2006 and the
applicants-accused were summoned to
face the trial under Section 323, 504
I.P.C. When the accused-applicants did
not appear in pursuance of the summons,
order of issuing bailable warrant was
passed against them. Instead of appearing
in the Trial Court, the applicants-accused
have approached this Court in this
proceeding under Section 482 Cr.P.C. to
quash the entire proceedings of criminal
case referred to above.

3. I have heard Sri S. K. Dubey,
learned counsel for the applicants, learned
A.G.A. for the State and perused the
entire record.

4. The main contention raised by the
learned counsel for the applicants-accused
was that after investigation of the case of
crime no. 282 of 2006, the police of P.S.
Buxa
(Jaunpur)
had
submitted
chargesheet under Section 323, 504
I.P.C.,
which
are
non-cognizable
offences,
which
in
view
of
the
Explanation to Section 2 (d) Cr.P.C., will
be deemed to be a complaint and hence,
the
order
dated
28.09.2006
taking
2 All] Ajay @ Sheru and others V. State of U.P. and another
605
cognizance by the learned Magistrate
without following the procedure laid
down in Chapter XV Cr.P.C is wholly
illegal and on this ground alone, the entire
proceedings of criminal case no. 5513 of
2006 arising out of case crime no. 282 of
2006 are liable to be quashed. In the
alternative, it was submitted by the
learned counsel for the applicants that the
order dated 28.09.2006 passed by the
learned Magistrate be quashed and
direction be issued to the learned
Magistrate to pass fresh summoning order
after following the procedure laid down in
chapter XV Cr.P.C. The contention of the
learned counsel for the applicants was that
since the police report (chargesheet)
submitted under the provisions of Section
173 (2) Cr.P.C., which after investigation
discloses
non-cognizable
offence,
is
deemed to be a complaint in view of the
Explanation to Section 2(d) Cr.P.C.,
hence cognizance on such police report
cannot be taken without recording the
statements of the police officer making
investigation and witnesses as provided
under Section 200 and 202 Cr.P.C. In
support of his contention, the learned
counsel for the applicants has placed
reliance on the cases of Santosh Kumar
Trivedi Vs. State of U.P. and another
(2007 (58) ACC 998), Parvesh and
another Vs. State of U.P. and another
(2007 (57) ACC 528), Dr. Rakesh Kumar
Sharma Vs. State of U.P. and another
(2007 (59) ACC 998), State of Bihar Vs.
Chandra Bhushan Singh and others
(2001 (1) U.P.C.R.R. 165(S.C.) and two
unreported
judgements
both
dated
05.03.2008 passed by this Court in
criminal misc. application no. 3111 of
2008 and 3112 of 2008.

5. The learned A.G.A. on the other
hand submitted that on submission of the
police report (chargesheet) in case crime
no. 282 of 2006, the Magistrate has
rightly
taken
cognizance
and
issue
summons against the accused-applicants
and hence it is not necessary now to pass
fresh summoning order after following
the procedure laid down in chapter XV
Cr.P.C. It was further submitted by
learned A.G.A. that the Magistrate
concerned may be directed to follow the
procedure for trial of the accused as laid
down in Chapter XX Cr.P.C.

6. Having given my thoughtful
consideration to the rival submissions
made by the learned counsel for the
parties, in my considered opinion, the
proceedings of criminal case no. 5513 of
2006 arising out of crime no. 282 of 2006
pending
in
the
Court
of
Judicial
Magistrate 1st Jaunpur cannot be quashed
on the basis of the aforesaid submissions
made by the learned counsel for the
applicants. I entirely agree with the
submission of the learned A.G.A. that
after
taking
cognizance
on
the
chargesheet (deemed complaint), there is
no need to pass fresh summoning order
after following the procedure laid down in
the Chapter XV Cr.P.C.

7. It is true that after investigation of
the case of crime no. 282 of 2006 police
report (chargesheet) under the provisions
of Section 173(2) Cr.P.C. was submitted
under Section 323, 504 I.P.C. which are
non-cognizable
offences
and
hence
according to the Explanation to Section
2(d) Cr.P.C, the said police report shall be
deemed to be a complaint and the police
officer by whom such report was
submitted shall be deemed to be the
complainant, but since the cognizance has
already been taken by the Magistrate on
the said deemed complaint and summons
606 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
have
been
issued
to the accusedapplicants, hence in my opinion, there is
no need at all to pass fresh summoning
order by the Magistrate after following
the procedure laid down in Chapter XV
Cr.P.C.

8. Chapter XV Cr.P.C. relates to the
complaints to the Magistrate. It is provided
in Section 200 Cr.P.C., which lies in
Chapter XV, that a Magistrate taking
cognizance of an offence on a complaint
shall examine upon oath the complainant
and the witnesses present, if any. The first
proviso to Section 200 Cr.P.C. lays down
that when the complaint is made in writing,
the Magistrate need not examine the
complainant and the witnesses in the cases
where the complaint has been filed by a
public servant acting or purporting to act in
the discharge of his official duties or a
Court has made the complaint. Section 202
Cr.P.C., which also lies in Chapter XV
Cr.P.C., lays down the procedure for
making inquiry by the Magistrate himself
or to direct an investigation to be made by
a police officer for the purpose of
collecting the evidence for deciding
whether or not there is sufficient ground
for proceeding. In instant case, the
investigating officer had submitted a report
in
a
case,
which
discloses
after
investigation the commission of a noncognizable offence, which in view of the
Explanation to Section 2(d) Cr.P.C. shall
be deemed to be a complaint and the police
officer by whom the said report was made
shall be deemed to be the complainant.
Since the said deemed complaint has been
filed by a public servant in discharge of his
official duties, hence it is not necessary to
examine the said police officer upon oath
under Section 200 Cr.P.C. During the
course of investigation of the case of crime
no. 282 of 2006, evidence has already been
collected by the investigating officer.
Hence, there is no need now to make
further inquiry by the Magistrate or to
direct fresh investigation to be made by a
police officer as envisaged in Section 202
Cr.P.C., because the purpose of holding
inquiry by the Magistrate under Section
202 Cr.P.C. is also to collect the evidence
for deciding whether or not there is
sufficient ground for proceedings and to
pass order under Section 203 or 204
Cr.P.C. as the case may be. As stated
above, the police officer, who made the
investigation in instant case, has already
collected
the
evidence
during
the
investigation, on the basis of which, the
police
report
(deemed
complaint)
disclosing the offences punishable under
Section 323, 504 I.P.C. has been filed.
From the order dated 28.09.2006 passed by
the learned Magistrate on the said deemed
complaint, it is revealed that the learned
Magistrate had applied his mind to the
facts of the case and the evidence collected
by the investigating officer was perused by
him and only thereafter, cognizance was
taken and summons were issued to the
applicants-accused to face the trial under
Section 323, 504 I.P.C. When a Magistrate
on the basis of the material available in the
case diary submitted with the police report
has taken cognizance and summons have
been issued to the accused, then in my
opinion, there is no need at all to pass fresh
summoning order after following the
procedure laid down in Chapter XV
Cr.P.C. No prejudice has been caused to
the accused by the impugned summoning
order dated 28.09.2006, which in my
opinion does not suffer from any illegality,
as there was no need to follow the
procedure laid down in Chapter XV
Cr.P.C. before taking cognizance on the
basis of the police report (deemed
complaint) Therefore, the proceedings of
2 All] Safdar V. State of U.P. and others
607
criminal case no. 5513 of 2006 pending in
the Court of Judicial Magistrate 1st
Jaunpur on the basis of the summoning
order dated 28.09.2006 are not liable to be
quashed.

9. The observations made by the
Hon'ble Apex Court in the case of State of
Bihar vs. Chandra Bhushan Singh (supra),
are not helpful to the applicants in instant
case, as the controversy which has been
raised in instant case was not involved in
the aforesaid ruling. I respectfully differ
from my esteemed brothers, who have
taken contrary view on this matter in the
cases referred to herein-above.

10. Before parting with this order, I
would like to state that trial of the
accused-applicants shall be made in
accordance with the procedure laid down
in Chapter XX Cr.P.C. The title of the
criminal case no. 5513 of 2006 also
should
be
amended
showing
S.I.
Ramakant (investigating officer) as the
complainant and the case shall be treated
as complaint case.

11. With these observations and for
the reasons mentioned herein-above, the
application under Section 482 Cr.P.C. is
rejected. The Magistrate concerned is
directed to follow the procedure laid
down in Chapter XX Cr.P.C. for the trial
of the applicants-accused in criminal case
no. 5513 of 2006 arising out of case crime
no. 282 of 2006 under Section 323, 504
I.P.C. P.S. Buxa, District Jaunpur.

The office is directed to send a coy
of this judgement to the Trial Court
concerned for necessary action.
Application Rejected.
---------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.05.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Crl. Misc. Application No. 5660 of 2008

Safdar

...Applicant
Versus.
State of U.P. & others ...Opposite Parties

Counsel for the Applicant:
Sri. Haji S. Kamal Akhatar Khan

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

Code of Criminal Procedure-Section 482Final report accepted by the Magistrateprotest
application
rejected
on
the
ground
final
report
accepted-heldMagistrate as well as the revisional Court
committed great illegality by ignoring
the well settled principal of Law-learned
Session Judge also misinterpreted the
ratio of Law laid down by Apex Court in
Mahesh
Chandra
case-even
if
the
complainant absent and from case dairy
sufficient
evidence
found
to
take
cognizance-Magistrate is not bound to
accept the final report-held-application
allowed impugned orders quashed with
direction to pass fresh reasoned order.

Held: Para 9

The order dated 06.06.2006 passed by
the Judicial Magistrate/2nd Additional
Civil Judge(J.D.), Rampur in criminal
misc. case no. 523 of 2007 (State Vs.
Safdar)
shows
that
the
learned
Magistrate did not apply his mind to the
facts of the case and even the case diary
was not perused by him at the time of
passing this order and the final report
has been accepted merely on the ground
that the complainant is absent and a
report under Section 182 Cr.P.C. has
been submitted by the police for taking