# Alok Singh v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1458
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-20
- **Case number:** Application U/S 482 No. 1329 of 2020
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alok-singh-v-state-of-u-p-anr-45512
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 190(1)(b) -
Protest petition allowed on basis of affidavits
filed by witnesses which are extraneous to the
2 All. Alok Singh Vs. State of U.P. & Anr.
1459
case diary- Cognizance and summoning orders
passed by the court below by considering the
affidavit filed by the named eye witnesses is
not legally sustainable.

Consideration of material extraneous to the
case diary is not permissible while summoning
the accused on a Protest Petition.

It is the incumbent duty of the Investigating
Officer to record the statement under Section
161 Cr.P.C. of named witnesses cited in the
FIR.

B. Criminal Law - Code of Criminal
Procedure,1973
-
Section 190(1)b
-
Obligatory upon the Magistrate either to direct
the Investigating Officer to further investigate
the matter under Sections 156(3) Cr.P.C. or
adopt the procedure of Complaint Case as per
law laid down by Pakhandu Vs. State of U.P.
Where affidavits and material extraneous to the
Case Diary are relied upon, along with the
Protest Petition, by the First Informant, then
the two courses open to the Magistrate are
either to direct the police to conduct further
investigation u/s 173(8) or to treat the Protest
Petition as a Complaint and proceed under
Chapter XV of the Cr.Pc. (Para 13, 14)

Application u/s 482 Cr.Pc allowed

Case law discussed:-

## Text

1458 INDIAN LAW REPORTS ALLAHABAD SERIES
indicated that the material placed before
him are sufficient to proceed with the case.

21. In the present case detail
cognizance order as well as summoning
order is passed by the learned Magistrate
with judicial application of mind as the
same reflects that the learned Magistrate
has applied his mind to material available
on record and materials are sufficient to
proceed
against
the
applicants.
The
cognizable order is not a proforma order,
every aspect is touched by the learned
Magistrate and applicants failed to adduce
any evidence which caused prejudice to
them so cognizance order is perfectly valid
and there is no occasion to quash the same.

22. From the perusal of the material
on record and looking into the facts of the
case at this stage it cannot be said that no
offence is made out against the applicants.
All the submission made at the bar relates
to the disputed question of fact, which
cannot be adjudicated upon by this Court
in exercise of power conferred under
Section 482 Cr.P.C. At this stage only
prima facie case is to be seen in the light
of the law laid down by Supreme Court in
cases of R.P. Kapur Vs. State of Punjab,
A.I.R. 1960 S.C. 866, State of Haryana
Vs. Bhajan Lal, 1992 SCC (Cr.) 426,
State of Bihar Vs. P.P.Sharma, 1992 SCC
(Cr.)
192
and
lastly
Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005
SCC (Cr.) 283. The disputed defence of
the accused cannot be considered at this
stage. Moreover, the applicants have got a
right of discharge according to the
provisions prescribed in Cr.P.C. as the
case may be through a proper application
for the said purpose and he is free to take
all the submissions in the said discharge
application before the Trial Court.

23. The prayer for quashing the
cognizance order as well as summoning
order and charge sheet hereby refused.

24. However, it is provided that if the
applicants appear and surrender before the
court below within 15 days from today and
apply for bail, then the bail application of the
applicant
be
considered
and
decided
expeditiously in view of the settled law laid
by Hon'ble Supreme Court. For a period of
15 days from today or till the disposal of the
application for grant of bail whichever is
earlier, no coercive action shall be taken
against the applicants. However, in case, the
applicants do not appear before the Court
below within the aforesaid period, coercive
action shall be taken against them.

25. With the aforesaid directions, this
application is finally disposed of.
----------
(2020)02ILR A1458

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 1329 of 2020

Alok Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri
Manish
Tiwary,
Sri
Syed
Imran
Ibrahim, Sri Manas Bhargava

Counsel for the Opposite Parties:
A.G.A., Sri Muktesh Kumar Singh

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 190(1)(b) -
Protest petition allowed on basis of affidavits
filed by witnesses which are extraneous to the
2 All. Alok Singh Vs. State of U.P. & Anr.
1459
case diary- Cognizance and summoning orders
passed by the court below by considering the
affidavit filed by the named eye witnesses is
not legally sustainable.

Consideration of material extraneous to the
case diary is not permissible while summoning
the accused on a Protest Petition.

It is the incumbent duty of the Investigating
Officer to record the statement under Section
161 Cr.P.C. of named witnesses cited in the
FIR.

B. Criminal Law - Code of Criminal
Procedure,1973
-
Section 190(1)b
-
Obligatory upon the Magistrate either to direct
the Investigating Officer to further investigate
the matter under Sections 156(3) Cr.P.C. or
adopt the procedure of Complaint Case as per
law laid down by Pakhandu Vs. State of U.P.
Where affidavits and material extraneous to the
Case Diary are relied upon, along with the
Protest Petition, by the First Informant, then
the two courses open to the Magistrate are
either to direct the police to conduct further
investigation u/s 173(8) or to treat the Protest
Petition as a Complaint and proceed under
Chapter XV of the Cr.Pc. (Para 13, 14)

Application u/s 482 Cr.Pc allowed

Case law discussed:-

1. Crl. Misc. Application No. 3264 of 2000
(Pakhandu Vs. State of U.P.), J.I.C (20020 1
104, A.C.C 2001 (43) 1096.

2. Crl. Revision No. 1210 of 2000 (Harkesh and
others Vs. State of U.P. and others) decided on
31.8.2001

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. This application u/s 482 Cr.P.C.
has been filed by the applicant with a
prayer to quash the summoning order
dated 7.12.2019 passed by Civil Judge,
(SD/FTC), Jaunpur, in case No. 24 of 2019
(Rinki Singh Vs. State of U.P.) arising out
of case crime No. 168 of 2019, under
Sections 354, 504, 506 IPC, P.S. Newaria,
District Jaunpur.

2. The brief facts of this case are that
the opposite party No. 2 lodged FIR by
means of Application under Section 156(3)
Cr.P.C.
dated
17.5.2019
with
the
allegations that on 7.5.2019 the opposite
party No. 2 who is an 'Asha-Sangini', at
that time was invited by the applicant to
participate in a meeting that was presided
over
by
the
applicant
(Medical
Superintendent) and when the meeting was
over, the applicant allegedly called the
prosecutrix in his room and made sexual
overtures at her and also the applicant tried
to establish physical contact with her
which was resisted by the opposite party
No. 2. Being aggrieved with applicant's
molestation, hurling abuses and intimating
with her, on the basis of 156(3) Cr.P.C.,
FIR was lodged by the opposite party No.
2 against the applicant under Sections 354,
504 and 506 IPC.

3. Subsequently, the statement of the
victim has been recorded under Section
164 Cr.P.C. before the learned Magistrate
and under Section 164 Cr.P.C. she
elaborated version as brought forward by
her in the FIR and in the statement under
Section 161 Cr.P.C. Investigating Officer
had recorded the statement of three
independent witnesses, namely, Devendra
Kumar Singh, Ankit Kumar Maurya and
Rekha
Rani
Pandey.
On
29.9.2019,
Investigating Officer incorporated the
statements of 13 independent witnesses.
All of them have specifically stated that
the proceedings have been initiated by the
prosecutrix against the applicant are false,
malafide and only in order to exert
pressure upon him as the applicant
recommended
the
cancellation
of
vaccination centre of opposite party No. 2.
1460 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigating Officer after considering the
statement
of
independent
witnesses
submitted the final report in favour of the
applicant.

4. Being aggrieved by the final
report, opposite party No. 2 moved a
Protest Petition before the learned court
below on 22.11.2019 alongwith the
affidavit of three witnesses, namely,
Bhawana Singh, Rekha Maurya and
Kamlesh, a copy of the Protest Petition is
annexed as annexure-7 of this application.

5. After considering the protest
petition which includes the affidavit of the
above named witnesses, learned court
below rejected the final report and passed
the cognizance order to face the trial under
Sections 354, 504 and 506 IPC. Learned
counsel for the applicant submitted that the
learned court below relied the Protest
Petition only on the basis of the affidavit
which comes under the category of
extraneous material. This affidavit is not
the part of the case diary.

6. Learned counsel for the applicant
relied upon the following judgements
passed in Crl. Misc. Application No. 3264
of 2000 (Pakhandu Vs. State of U.P.)
decided on 9.13.2001; Application U/s
482 Cr.P.C. No. 882 of 2019 (Rishipal
and others Vs. State of U.P.) decided on
20.2.2019; Application u/s 482 Cr.P.C.
No. 4314 of 2005 and Application U/s 482
Cr.P.C. No. 6652 of 2005 (V.V. Shree
Khande and others Vs. State of U.P. and
another) both decided on 14.3.2019.

7. Learned AGA and learned counsel
for the opposite party No. 2 vehemently
opposed the prayer made by the applicant
and submitted that the learned trial court
rightly accepted the Protest Petition filed
by the opposite party No. 2 and submitted
that the order passed by Civil Judge
(Senior Division) Fast Track Court,
Jaunpur dated 17.12.2019 is perfectly legal
and there is no irregularity or illegality in
the order passed by the learned court
below. Learned court below clearly
submitted that the Investigating Officer
did not bother to record the statement of
cited witnesses in the FIR. Investigating
Officer only recorded the statement of
another so-called independent witness.
Since, the complainant clearly stated in the
Protest Petition that the Investigating
Officer did not consider the affidavit filed
by the cited witnesses-Kamlesh Yadav,
Rekha Maurya and Bhawna Singh which
is earlier submitted by him before the S.P.
concerned. Learned trial court opined that
the offence relating to sexual assault, is
solely based on the solitary evidence of the
victim. On this conclusion, learned court
below rightly summoned the accused
under Section 190(1)b as a State case.
There is no infirmity in the order passed
by the learned Magistrate.

8. Learned counsel for the applicants
contended that where police submits final
report, though it is open to the Magistrate
to take cognizance under S. 190 (1) (b) Cr.
P. C. on the basis of investigation records
but in that event he cannot take any
external aid of any other piece of evidence
or material which does not form part of
police papers. If he decides to take into
account any material or evidence other
than
police
papers
prepared
during
investigation, he is bound to comply with
the requirement of Ss. 200 and 202 of the
Code. It was argued that since in the
present case the learned Magistrate has
taken into consideration the affidavits of
the complainant and other witnesses filed
along with the protest petition, he was
2 All. Alok Singh Vs. State of U.P. & Anr.
1461
bound to follow procedure laid down for
complaint cases. It was also contended that
if the Magistrate felt that the investigating
officer failed in his duty in collecting
relevant material, he should have directed
further investigation instead of issuing
process against the applications on the
basis of material brought on record in the
form of affidavits.

9. Chapter XIV 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 S. 190 (1) alone
which is reproduced below.

"190. Cognizance of offences by
Magistrates :- (1) Subject to the provisions
of this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under sub-sec. (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."

10. I have heard the learned counsel
for the applicant, learned AGA and
perused the record.

11. Learned counsel for the appellant
relied upon paragraph 15 and 16 of the
Judgement
passed
in
Crl.
Misc.
Application No. 3264 of 2000 (Pakhandu
Vs. State of U.P.) decided on 9.13.2001
which is quoted hereunder-

"(15)
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.

(16)
Where
the
Magistrate
decides to take cognizance of the case
under Section 190 (1) (b) of the Code
ignoring the conclusions arrived at by the
investigating agency and applying his
mind independently to the facts emerging
from the investigation records, in such a
situation the Magistrate is not bound to
follow the procedure laid down in Sections
200
and
202
of
the
Code,
and
consequently the proviso to Section 202
(2), Cr. P. C. will have no application. It
would however be relevant to mention that
for forming such an independent opinion
the Magistrate can act only upon the
statements of witnesses recorded by the
police in the case diary and other material
1462 INDIAN LAW REPORTS ALLAHABAD SERIES
collected during investigation. It is not
permissible for him at that stage to make
use
of
any
material
other
than
investigation records, unless he decides to
take cognizance under Section 190 (1) (a)
of
the
Code
and
calls
upon
the
complainant to examine himself and the
witnesses present if any under Section
200."

12. On perusal of the Judgement of
this Court passed in Crl. Revision No.
1210 of 2000 (Harkesh and others Vs.
State of U.P. and others) decided on
31.8.2001 which is quoted hereunder-

"(16.) The position is thus clear
that when Magistrate receives police
report under Section 173 (2), he is entitled
to take cognizance of an offence 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 investigation and other
material collected during investigation
and form his own opinion independently
without being bound by the conclusions
arrived at by the investigating agency and
take cognizance under Section 190 (1) (b)
of the Code and direct the issue of process
to the accused. However the Magistrate
cannot make use of any material or
evidence other than the investigation
records while acting under Section 190 (1)
(b) of the Code. If he chooses to make use
of
any
materials
other
than
the
investigation records, he will have to
follow the procedure laid down in relation
to complaint cases, on the basis of original
complaint or application moved under
Section 156 (3) Cr. P. C. which otherwise
tantamount to complaint or the Protest
petition filed against acceptance of final
report treating the same as complaint. This
proposition would be in consonance with
the provision of Section 207 which interalia provides for supply of copy of
statements recorded under sub-section (3)
of Section 161 of all persons whom the
prosecution proposes to examine as its
witnesses and any other document or
relevant extract thereof forwarded to the
Magistrate with the police report under
sub-section (5) of Section 173.

(17.) In the present case the
learned
Magistrate
while
taking
cognizance under Section 190(1)(b) of the
Code has taken into consideration the
affidavits
of
complainant
and
other
witnesses filed alongwith Protest Petition
which was not permissible in law. He
could take cognizance on the basis of the
Protest Petition or the original compliant
but in that event he was bound to follow
procedure laid down for complaint cases.
The distinction between two types of
cognizance is apparent in as much as
cognizance under Section 190(1(b) is
taken only on the basis of papers
forwarded
by
police
under
Section
173(2)Cr.P.C. but when the magistrate
makes
up
his
mind
to
take
into
consideration other material or evidence
would be a case of taking cognizance
under Section 190(1)(a) of the Code and
for that matter procedure prescribed for
complaint cases under Sections 200 and
202 Cr.P.C. has to be followed. If the
Magistrate was of the opinion that the
investigating officer had failed to record
statements of material witnesses, it was
open for the learned Magistrate to have
sent back the case to police for a further
investigation."

13. On considering the rulings cited
by learned counsel for the appellant,
cognizance and summoning orders passed
by the learned Civil Judge (Senior
2 All. Charan Singh & Ors. Vs. State of U.P. & Anr.
1463
Division), is by considering the affidavit
filed by the named eye witnesses is not
legally sustainable. It is true that the
statement of the cited witness was not
recorded by the Investigating Officer.
Investigating Officer committed the gross
negligence in this matter. It is incumbent
duty of the Investigating Officer to record
the statement under Section 161 Cr.P.C. of
named witnesses cited in the FIR, it is
obligatory upon the Magistrate either to
direct the Investigating Officer to further
investigate the matter under Sections
156(3) Cr.P.C. or adopt the procedure of
complaint case as per law laid down by
Pakhandu Vs. State of U.P. (Supra).

14.

Considering
the
rival
submissions made by learned counsel for
the parties and perused the record, I am of
the view that the impugned order dated
7.12.2019 which clearly indicates that the
Magistrate considered the affidavit filed
alongwith Protest Petition which cannot be
sustained and summoning order is liable to
be set aside.

15. The present application u/s 482
Cr.P.C. is allowed.

16. The impugned order dated
7.12.2019 is hereby set aside and the case
is remanded back to the Magistrate,
concerned with the direction to pass fresh
order in light of the settled legal position
as discussed above.
----------
(2020)02ILR A1463

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 1594 of 2020

Charan Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Garun Pal Singh

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

A. Criminal law - Indian Penal Code,
1860- Section 504/ 506 - Criminal Law
Amendment
Act,
1932-
Section
10-
Cr.P.C, 1973- Section 2(d) - Offence under
Section 506 I.P.C. can not be treated as noncognizable since the offence under Section 506
I.P.C. has been made, cognizable, non-bailable
and non-compoundable vide U.P. Govt. vide
Notification No. 777/VIII-94(2)-87 dated July
31, 1989 the provisions of Section 2 (d) of
Cr.P.C. will not be applicable to the present
case.

The U.P. Govt. vide Notification No. 777/VIII94(2)-87 dated July 31, 1989 made the offence
u/s 506 I.P.C. as cognizable and non-bailable in
accordance with the power conferred by virtue
of Section 10 of Criminal Law Amendment Act,
1932.
The
legality
and
validity
of
the
notification was upheld by the Full Bench of
this Court in the case of Mata Sewak Upadhyay
and another versus State of U.P. and others .
Later, in the case of Virendra Singh and others
Vs. State of U.P. and others, a Division Bench
of this court declared the above notification as
illegal since the earlier Full Bench decision was
not brought before the Division Bench and it
was not considered. Subsequently, in the case
of Parveen Kumar and others Vs. State of U.P.
and another, it was observed that since the
Full Bench decision of this Court in Mata Sevak
Upadhyaya has not been over-ruled or setaside by any larger Bench of this Court or by
the Apex Court, so the decision of Division
Bench in Virendra Singh Vs. State of U.P. and
others (supra) case cannot be given effect to.
Judgment of this Court passed in Application
U/S 482 No. 1212 of 2020, Charan Singh and 3
others vs. State of U.P. and another - held not