# Amit Kumar Tiwari & Ors v. State of U.P. & Ors

- **Citation:** (2025) 2 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-24
- **Case number:** Application U/S 482 No. 27233 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-tiwari-ors-v-state-of-u-p-ors-54535
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 362 & 482 - Indian Penal
Code, 1860 - Sections 147, 354-Kha, 323,
504 & 506 - The Protection of Children
from Sexual Offences (POCSO) Act, 2012 -
Sections 7 & 8 - Application u/s 482 - for
quashing the impugned order - FIR - lodged by
the opposite party no. 4, alleging sexual assault
on his minor daughter - investigation - final
report - Magistrate issue notices - opposite
party no. 4 was not appeared - final report
accepted - recalled applicant along with a
protest petition - trail court recalled and ordered
to registered as complaint case - under
challenged - plea taken that, acceptance of a
final report does not bar cognizance if sufficient
material exists - objected that, if a final report
is accepted after hearing the informant, it
cannot be recalled u/s 362 Cr.P.C - The legal
issue revolves around whether recalling the
acceptance of the final report violates Section
362 Cr.P.C., which bars courts from reviewing
final orders except for clerical errors
-
Applicability of Section 362 Cr.P.C. - Section 362
Cr.P.C. bars courts from reviewing or altering
final orders except for clerical errors, However,
cognizance can still be taken based on fresh
material - court finds that, the trial court passed
acceptance order of the final report after serving
the notice upon the opposite party no. 4 but, it
was recalled later without giving any reasoning
that the case was of procedural recall/review
and not the substantive recall/review, despite
the fact that order of accepting the final report
was a final order disposing the case regarding
cognizance on the basis of material available in
the case diary - therefore, same is barred by
section
362
Cr.P.C.
-
Consequently,
the
impugned order is set aside, and the matter is
remanded for fresh consideration - application
is allowed. (Para - 17, 18, 19, 20, 21)

Application Allowed. (E-11)

List of Cases cited:
2 All. Amit Kumar Tiwari & Ors. Vs. State of U.P. & Ors.
175

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES
manufacturer
and
relied
upon
the
information given by the manufacturer of
the turmeric powder about the quality and
standard on the basis of invoices, then in
such circumstances if the turmeric powder
is found to be unsafe despite guarantee of
its
quality
by
its
registered/licensed
manufacturer, in that case the food business
operator dealing with business of selling
the turmeric powder or its distributor would
be liable and not the restaurant or its owner
or any of its employees selling the food.

28. In view of the above, this Court
is of the view that the impugned proceeding
against applicant No.2 and applicant No.1,
who is employee of applicant No.2,
deserves to be quashed. Therefore, the
impugned proceeding so far as the present
applicants are concerned is hereby quashed.

29. Accordingly, the application is
allowed.

30. However, the court below is free
to proceed against the manufacturer/distributor
of the turmeric powder who despite issuing an
invoice regarding its quality, failed to adhere
to its standard.
---------
(2025) 2 ILRA 174
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 27233 of 2024

Amit Kumar Tiwari & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Indra Deo Mishra, Manoj Kumar Mishra,
Pankaj Kumar Tiwari

Counsel for the Opposite Parties:
Brijesh Kumar, G.A., Sudhanshu Kumar
Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 362 & 482 - Indian Penal
Code, 1860 - Sections 147, 354-Kha, 323,
504 & 506 - The Protection of Children
from Sexual Offences (POCSO) Act, 2012 -
Sections 7 & 8 - Application u/s 482 - for
quashing the impugned order - FIR - lodged by
the opposite party no. 4, alleging sexual assault
on his minor daughter - investigation - final
report - Magistrate issue notices - opposite
party no. 4 was not appeared - final report
accepted - recalled applicant along with a
protest petition - trail court recalled and ordered
to registered as complaint case - under
challenged - plea taken that, acceptance of a
final report does not bar cognizance if sufficient
material exists - objected that, if a final report
is accepted after hearing the informant, it
cannot be recalled u/s 362 Cr.P.C - The legal
issue revolves around whether recalling the
acceptance of the final report violates Section
362 Cr.P.C., which bars courts from reviewing
final orders except for clerical errors
-
Applicability of Section 362 Cr.P.C. - Section 362
Cr.P.C. bars courts from reviewing or altering
final orders except for clerical errors, However,
cognizance can still be taken based on fresh
material - court finds that, the trial court passed
acceptance order of the final report after serving
the notice upon the opposite party no. 4 but, it
was recalled later without giving any reasoning
that the case was of procedural recall/review
and not the substantive recall/review, despite
the fact that order of accepting the final report
was a final order disposing the case regarding
cognizance on the basis of material available in
the case diary - therefore, same is barred by
section
362
Cr.P.C.
-
Consequently,
the
impugned order is set aside, and the matter is
remanded for fresh consideration - application
is allowed. (Para - 17, 18, 19, 20, 21)

Application Allowed. (E-11)

List of Cases cited:
2 All. Amit Kumar Tiwari & Ors. Vs. State of U.P. & Ors.
175
1. Hazi Mahamud Ali Vs St. of Tripura (2006
CrLJ 4259),

2. Kishore Kumar Gyanchandani Vs G.D.
Mehrotra (AIR 2002 SC 483),

3. Munilal Thakur & ors. Vs Nawal Kishore
Thakur & anr. (1985 CRILJ 437),

4. Safdar Vs St. of U.P. (2008 (6) ADJ 64),

5. Surendra Singh Vs St. of Bihar (2005 12 SCC
361),

6. Ganesh Patel Vs Umakant Rajoria - SLP
(Criminal) No. 9313 of 2021,

7. Subrata Chaudhury @ Santosh Choudhury &
ors. Vs St. of Assam & anr. (2024 SCC Online SC
3126).

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Indra Deo Mishra,
learned counsel for the applicants, Sri
Brijesh
Kumar,
learned
counsel
for
opposite party no.4 and Sri Pankaj Saxena,
learned AGA for the State.

2. The present application has been
filed to set aside the order dated 25.01.2024
passed
by
Additional
Sessions
Judge/Special
Judge,
POCSO
Act,
Prayagraj in Criminal Misc. Case No.79 of
2023, arising out of Case Crime No.415 of
2014, under Sections-147, 354Kha, 323,
504, 506 IPC and Section 7/8 of POCSO
Act,
Police
Station-Meja,
DistrictAllahabad.

3. Facts giving rise to the present
controversy is that an FIR dated 09.10.2024
was lodged by opposite party no.4 against
the applicants in Case Crime No.415 of
2014, under Sections-147, 354Kha, 323,
504, 506 IPC and Section 7/8 of POCSO
Act
making
allegation
against
the
applicants that they have sexually assaulted
his minor daughter. Police after the
investigation submitted final report in that
case on 24.08.2018. After receiving the
final report, learned Magistrate issued
notice to the opposite party no.4 but
opposite party no.4 could not appear before
the court. Thereafter, the concerned court
accepted the final report vide order dated
19.10.2023. Thereafter, the opposite party
no.4 filed an application on 18.12.2023 to
recall the order dated 19.10.2023 along
with protest petition to reject the final
report no.238 of 2018. The court below
vide impugned order dated 25.01.2024 after
recalling the order dated 19.10.2023
registered the protest petition of the
opposite party no.4 as complaint case
which is under challenge in the present
petition.

4. Contention of learned counsel
for the applicants is that after investigation
in case crime no.415 of 2024, u/s 147,
354Kha, 323, 504, 506 IPC and Section 7/8
of POCSO Act, registered against the
applicants, final report was submitted by
the police. Thereafter, despite receiving the
notice, first informant did not appear and
court finally accepted the same vide order
dated
19.10.2023.
Thereafter,
recall
application along with protest petition was
filed by opposite party no.2 on 18.10.2023
which was allowed and the order dated
19.10.2023 by which the final report was
accepted was recalled and case was
registered as complaint case without giving
any reason. Even same amounts to review
of the order dated 19.10.2023, which is
barred by Section 362 Cr.P.C. In support of
his contention, learned counsel for the
applicants has also relied upon the
judgement of a coordinate Bench of
Gauhati High Court in Hazi Mahamud Ali
Vs. The State of Tripura reported in 2006
176 INDIAN LAW REPORTS ALLAHABAD SERIES
0 CrLJ 4259 wherein it is observed that
when the order has been passed in criminal
court on merit, same cannot be recalled
being barred by Section 362 Cr.P.C.

5. Per contra, learned counsel for
opposite party no.4 has submitted that even
after accepting the final report, there is no
bar of taking cognizance by the Magistrate,
if there is sufficient material on record.
Therefore, there is no illegality in the
impugned
order.
In
support
of
his
contention, learned counsel for the opposite
party no.4 has relied upon the judgement of
the Supreme Court in the case of Kishore
Kumar
Gyanchandani
Vs.
G.D.
Mehrotra & Another reported in AIR
2002 Supreme Court 483 as well as
judgement of Munilal Thakur and others
etc. Vs. Nawal Kishore Thakur and
another reported in 1985 CRI.L.J. 437
and also the judgement of co-ordinate
Bench of this Court in the case of Safdar
Vs. State of U.P. And Others reported in
2008 (6) ADJ 64, wherein it is observed
that even if the final report is accepted,
there is no bar in taking cognizance of
offence on the protest petition.

6. Learned AGA though adopted
the argument of opposite party no.4 but
fairly submitted that in the impugned order
dated 25.01.2024, no reasoning was given
while recalling the order dated 19.10.2023
regarding prima facie case.

7. Considering the rival submission
of parties and on perusal of record, it is
clear that after receiving the final report,
learned Magistrate issued notice to opposite
party no.4 and it was also served upon him.
Thereafter,
the
concerned
court
has
accepted the final report vide order dated
19.10.2023 on perusal of case diary but no
satisfaction was recorded about availability
or non-availability of material in case
diary.

8. The legal issue which arises for
consideration in the present case is whether
order of Magistrate accepting the final
report would come within the purview of
Section 362 Cr.P.C., hence cannot be
recalled or reviewed.

9.
Section
362
Cr.P.C.
(corresponding Section 403 of BNSS) talks
about judgement or final order disposing of
a case which cannot be altered or reviewed
by the concerned court. It would be
apposite to mention Section 362 Cr.P.C.
which is being quoted as under:

 "362.
Court
not
to
alter
judgment.-Save as otherwise provided by
this Code or by any other law for the time
being in force, no Court, when it has signed
its judgment or final order disposing of a
case, shall alter or review the same except
to correct a clerical or arithmetical error."

10. From the perusal of Section
362 Cr.P.C. which is corresponding to
Section 403 of BNSS, it is clear that when
a judgement or a final order disposing of a
case is signed then same cannot be altered
or reviewed. Now the question arises
whether the order accepting the final report
submitted by police will come in the
category of final order disposing of the
case.

11. Apex Court in the case of
Kishore Kumar Gyanchandani (supra) has
observed that even after the acceptance of
final report, Magistrate can take cognizance
of offence on the complaint filed by the
first informant. Paragraph no.6 of the
Kishore Kumar Gyanchandani (supra) is
being quoted as under:
2 All. Amit Kumar Tiwari & Ors. Vs. State of U.P. & Ors.
177

"6. It is too well settled that when
police after investigation files a final form
under Section 173 of the Code, the
Magistrate
may
disagree
with
the
conclusion arrived at by the police and take
cognizance in exercise of power under
Section 190 of the Code. The Magistrate
may not take cognizance and direct further
investigation in the matter under Section
156 of the Code. Where the Magistrate
accepts the final form submitted by the
police, the right of the complainant to file a
regular complaint is not taken away and in
fact on such a complaint being filed the
Magistrate follows the procedure under
Section 201 of the Code and takes
cognizance if the materials produced by the
complainant make out an offence. This
question has been raised and answered by
this Court in the case of Gopal Vijay
Verma v. Bhuneshwar Prasad Sinha
[(1982) 3 SCC 510 : 1983 SCC (Cri) 110]
whereunder the view of the Patna High
Court to the contrary has been reversed.
The Court in no uncertain terms in the
aforesaid case has indicated that the
acceptance of final form does not debar the
Magistrate from taking cognizance on the
basis of the materials produced in a
complaint proceeding."

12. Judgement of Kishore Kumar
Gyanchandani (supra) was also relied
upon by a coordinate Bench of this Court in
Safdar's case (supra).

13. Apex Court in the case of
Surendra Singh Vs. State of Bihar
reported in (2005) 12 SCC 361, has
observed that when the final report is
accepted by the concerned Magistrate after
issuing notice to the first informant then
same cannot be recalled, as recalling the
same would amount to review of its earlier
order which is impermissible in the eyes of
law u/s 362 Cr.P.C. Paragraph nos.6 and 7
of the aforesaid judgement are being
quoted as under:

 "6. We have perused the two
orders referred to hereinabove and we do
notice that in the first of the orders the
learned Chief Judicial Magistrate recorded
that even though the notice was sent to the
informant along with the police report no
one appeared on behalf of the informant
and the prosecution has submitted the final
report mentioning 'truth undetected'. He
further stated that the case is pending from
the year 1998, hence final report had to be
accepted. Thus in the factual background of
the case, after applying its mind the court
accepted the final report of the police.

7. Surprisingly and for the
reasons not noticeable in the subsequent
order on the same date the learned Chief
Judicial Magistrate proceeded to take
cognizance of the offence referred to
hereinabove. This as contended by the
learned
counsel
appearing
for
the
appellant amounts to review of its earlier
order which is impermissible in law under
Section 362 CrPC. Hence the subsequent
order of taking cognizance is bad in law."

14. The Apex Court in the case of
Ganesh Patel Vs. Umakant Rajoria in
SLP (Criminal) No.9313 of 2021 has
observed that procedural review u/s 362
Cr.P.C. is not barred and it is the
substantive review of the order passed by
criminal court which is barred by Section
362 Cr.P.C. The relevant extract of the
judgement of the Apex Court in Ganesh
Patel (supra) is being quoted as under:

 "This application for recall of the
order was maintainable as it was an
application seeking a procedural review,
and not a substantive review to which
178 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 362 of the Code of Criminal
Procedure, 1973, would be attracted.
[Grindlays
Bank
Ltd.
v.
Central
Government Industrial Tribunal & Ors.
1980 (supp) SCC 420]. On the aspect of the
difference between recall and review and
when an order of recall can be passed
reference can be made to Budhia Swain
and Others v. Gopinath Deb and Others,
(1999) 4 SCC 396."

15. The Patna High Court in the
case of Munilal Thakur (supra) has also
observed that even after accepting the final
report, Magistrate can still take cognizance
upon the complaint or a protest petition
filed by the first informant. Paragraph no.8
of Munilal Thakur's case (supra) is being
quoted as under:

 "8. To conclude, the answer to the
question posted at the outset is rendered in
the affirmative and it is held that a
Magistrate, even after accepting the final
report, can still take cognizance of the
offence upon a complaint or a protest petition
on same or similar allegations of fact."

16. However, Apex Court in the case
of Subrata Choudhury alias Santosh
Choudhury and Others Vs. State of Assam
& Another reported in 2024 SCC OnLine SC
3126 has observed that if final report submitted
by the police was accepted after considering the
objection/protest petition then second protest
petition or complaint on the same ground as of
the earlier one is not maintainable except the
case where the subsequent protest petition or
second complaint has been filed on different
grounds. Paragraph nos.23 and 27 of Subrata
Choudhury's case (supra) is being quoted as
under:

 23.In view of the plethora of
decisions, there can be no doubt that even
when Final Report filed after investigation
based on the FIR registered pursuant to the
receipt of complaint forwarded by a Court
for
investigation
under
Section156
(3)of the Cr. P.C., is accepted and protest
petition thereto is rejected, the Magistrate
can still take cognizance upon a second
complaint or second protest petition, on the
same or similar allegations or facts. But
this position is subject to conditions.

27. Now, we will have to proceed
with the appeal bearing in mind the
exposition of law in Samta Naidu's case
(supra) that if earlier disposal of the
complaint was on merits and in a manner
known to law, the second complaint on
'almost identical facts' which were raised
in the first complaint would not be
maintainable. 'If the core of both the
complaints is same, the second complaint
ought not to be entertained,' it was further
held therein. In the light of the factual
narration with respect to the disposal of the
original complaint dated 11.11.2010, made
hereinbefore and in view of the courses
open to a Magistrate on receipt of a
negative report and applying the exposition
of law in Samta Naidu's case (supra) with
respect to the maintainability of a second
complaint we have no hesitation to hold
that the maintainability of the second
complaint dated 20.07.2011 filed by the
second respondent would depend upon the
question whether the core of the original
complaint dated 11.11.2010 and the second
complaint dated 20.07.2011 is the same as
the disposal of the complaint dated
11.11.2010 was on merits and in a manner
known to law. In this context, it is also to
be noted after considering the final report,
the protest complaint and admittedly, upon
hearing the counsel for the complainant the
protest petition was rejected not only by
finding that the investigation suffers from
no infirmity but also by finding that since it
2 All. Amit Kumar Tiwari & Ors. Vs. State of U.P. & Ors.
179
was conducted properly, no order for
further investigation is invited and further
that the materials are not sufficient to take
cognizance. As noted earlier, despite the
said nature of the order dated 06.06.2011
the second respondent-complainant has not
chosen to challenge the same but, chosen
only to file a fresh complaint, viz., the
second complaint dated 20.07.2011."

17. From the analysis of the
aforementioned judgements, it is clear
that even if the final report is accepted
by an order even then the concerned
court may take cognizance of the offence
on protest petition or separate complaint
on the basis of material produced by the
first informant/complainant. But if the
Magistrate after giving opportunity of
hearing to first informant passed a
detailed order accepting the final order
by discussing the case on merit then this
order
will
amount
to
final order
disposing the case so far as the
cognizance on the basis of material of the
case diary is concerned. Therefore, same
cannot be recalled being barred by
Section 362 Cr.P.C.

18. It is also clear from the above
analysis that if the final report was
accepted by the concerned court after
considering the protest petition of the first
informant on merit then cognizance
cannot be taken on the basis of second
protest petition/complaint if contents of
second protest petition or complaint is
almost same as of the protest petition.

19.
From
the
legal
position
discussed above, it is clear that the court
concerned may take cognizance on the
material
produced
by
the
first
informant/complainant without recalling
the order accepting the final report. But in
case, the court on the application of the
first informant filed along with protest
petition recalls the order accepting the
final order and takes cognizance on the
basis of material of case diary then such
recall of the order will be affected by the
Section
362
Cr.P.C.
(corresponding
Section
403
of
BNSS).
However,
procedural/ review/recall of the order
accepting the final report is permissible as
per judgement of Apex Court in Ganesh
Patel's case (supra) like those cases where
no notice was served upon the first
informant
despite
being
statutory
mandate.

20. Coming back to the present case,
it is clear from the perusal of order dated
19.10.2023, same was passed after serving
notice upon the opposite party no.4 but that
was recalled by the impugned order dated
25.01.2024 without giving any reasoning
that
the
case
was
of
procedural
recall/review and not the substantive
recall/review, despite the fact that the order
dated 19.10.2023 accepting the final report
was a final order disposing the case
regarding cognizance on the basis of
material available in the case diary.
Therefore, same is barred by Section 362
Cr.P.C., though, there is no illegality in
registering the protest petition of the
opposite party no.4 as complaint case.

21. In view of the above, the order
dated 25.01.2024 deserves to be set aside and
matter is remanded back to the court of
Additional District & Sessions Judge/Special
Judge, POCSO Act, Prayagraj to pass a fresh
order, after hearing both the parties, in light
of the observations made hereinabove.

22.
Accordingly,
the
present
application is allowed.
---------
180 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 2 ILRA 180
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2025

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ C No. 6041 of 2024
Connected with
Writ C No. 8447 of 2024

M/S Arena Superstructures Pvt. Ltd. &
Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Ami Tandon

Counsel for the Respondents:
C.S.C., Kaushalendra Nath Singh

A. Civil Law-Constitution of India,1950Article 226- Insolvency and Bankruptcy
Code,2016- Sections 31 & 238-M/s Arena
and a homebuyer challenged the refusal
by NOIDA Authority to revalidate the
layout map of the "Lotus Arena-I" housing
project in Noida Sports City-The dispute
centered
on
Noida's
reliance
on
an
internal
board
resolution
pending
direction from the State Government,
despite an approved resolution plan under
Code,2016
mandating
Noida's
cooperation-The petitioners argued that
the resolution plan, sanctioned by NCLT
and upheld by NCLAT, binds NOIDA under
section 31 and 238 of the Code,2016Noida's refusal violated its obligations
under the sub-lease deed and IBC-The
court examined irregularities highlighted
by the CAG report, Noida's objections in
insolvency proceedings, and the rights of
homebuyers, noting that NOIDA had
actively participated in the CIRP and its
claims were considered-emphasizing the
binding nature of the resolution plan and
the prejudice caused to homebuyers, the
Court quashed NOIDA's rejection letter
dated
01.11.2023
and
directed
revalidation of the layout map to enable
project completion in accordance with the
resolution plan.(Para 1 to 195)

The writ petition is disposed of. (E-6)

List of Cases cited:
1. Salomon Vs A. Salomon & Co. Ltd.(1897) AC
22
2. Nand Kishore Gupta & ors.Vs St. of U.P. &
ors.(2010)1 SCC 282
3. Littlewoods Stores Vs I.R.C.(1969)1 WLR
1241
4. St. of U.P. & ors.Vs Renusagar Power Co.&
ors.(1988) 4 SCC 59
5. Balwant Rai Saluja Vs Air Indian Ltd.(2014) 9
SCC 407
6. DDA Vs Skipper Cons. Co. & anr.(1996) 4 SCC
622
7. St. of Raj. & ors.Vs Gotan Lime Stone Khanij
Udyog Pvt Ltd & anr.(2016) 4 SCC 469
8. Arcelormittal India Pvt Ltd. Vs Satish Kr.
Gupta & ors.(2019) 2 SCC 1
9. Subhra Mukherjee & anr. Vs Bharat Coking
Coal Ltd & anr.(2003) 3 SCC 312
10. Asia Foundation & Cons. Ltd. Vs St. of Guj.
& anr.(1985) SCC Online Guj. 93
11. Hytone Merchants Pvt. Ltd. Vs Satabdi
Investment Consultants Pvt. Ltd. Co. Appl No.
258 of 2021
12. Vidarbha Indus. Power Ltd Vs Axis Bank
Ltd.(2022) 8 SCC 352
13. Raster Images Pvt. Ltd. Vs St. of UP(2023)
SCC Online 3594
14. Calcutta Chromotype Ltd. Vs Collr. of Central
Excise Kolkata (1998)AIR SC 1631