# Ashok Kumar Tyagi & Anr. Revisionists v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 1 ILRA 955
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-08
- **Case number:** Appeal No.260 of 2008
- **Bench:** Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-tyagi-anr-revisionists-v-state-of-u-p-anr-opp-parties-46144
- **Pages:** 11

## Headnote

A. Criminal Law - Rejection of final report
submitted by investigating officer - Indian
Penal Code 467, 468, 471, 420, 120-B;
Code of Criminal Procedure: Section 190 -
It is well settled law that Magistrate is not
bound by the final report submitted by
Investigating Officer, rather S. 190 Cr.P.C.
956 INDIAN LAW REPORTS ALLAHABAD SERIES
empowered the Magistrate to make the
different view and proceed accordingly.
There is no obligation on the Magistrate to
accept the final report and if from the material
on the case diary, he found that offence has
been committed, the Magistrate can take
cognizance u/s 190(1)(b) of Cr.P.C. (Para 12,
13)

Section
190
of
Cr.P.C.
empowered
the
Magistrate to take cognizance of any offence
firstly upon receiving a complaint, secondly
upon
a
police
report
and
thirdly
upon
information received from any person other
than a police officer or upon his own
knowledge.
The
impugned
order
dated
13.1.2014
has
been
passed
by
learned
Magistrate exercising his power u/s 190(1)(b) of
Cr.P.C. (Para 9)

In the present case the learned Magistrate had
taken cognizance after carefully perusing the
case diary and after prima facie satisfaction that
there is ample evidence against the accused
persons for summoning them. The cognizance
order has not been passed merely on the
protest petition or any affidavit filed in support
of it. The findings have been recorded by the
learned Magistrate that after perusal of case
diary and after prima facie satisfaction on the
basis of material available in the case diary the
cognizance has been taken. (Para 11, 12)

B. The Magistrate is empowered to take
cognizance if the material on record
makes out the case against the accused
persons and at this stage the Magistrate has to
be satisfied whether there is sufficient ground
for proceeding and not whether there is
sufficient ground for conviction. It is also laid
down that while issuing the process the
Magistrate is not required to record reasons.
(Para 14)

The order passed by the learned Magistrate
clearly indicates that he carefully examined the
material
and
evidence
collected
during
investigation which are part of the case diary
and after prima-facie satisfaction had rejected
the final report and taken cognizance under
Section 190(1)(b). Cr.P.C. and as such there is
no illegality or irregularity committed by learned
Magistrate, while passing the order dated
13.1.2014. (Para 17)

C. Civil suit and criminal case can proceed
simultaneously - It is, well-settled that in a
given case, civil proceedings and criminal
proceedings
can
proceed
simultaneously.
Whether
civil
proceedings
or
criminal
proceedings shall be stayed depends upon the
fact and circumstances of each case. (Para 18)

Criminal Revision dismissed. (E-3)

Precedent followed:

## Text

1 All. Ashok Kumar Tyagi & Anr. Vs. State of U.P. & Anr.
955
pending for years. If there is no suitable
post for appointment supernumerary post
should be created to accommodate the
applicant."

11. In the case of Canara Bank vs. M.
Mahesh Kumar, arising out of Civil
Appeal
No.260
of
2008
and
other
connected matters decided on 15.05.2015,
the Court held as under:

"14. It is also pertinent to note that
2005 Scheme providing only for ex-gratia
payment
in
lieu
of
compassionate
appointment stands superseded by the
Scheme of 2014 which has revived the
scheme
providing
for
compassionate
appointment. As on date, now the scheme in
force
is
to
provide
compassionate
appointment. Under these circumstances,
the appellant- bank is not justified in
contending
that
the
application
for
compassionate
appointment
of
the
respondent cannot be considered in view of
passage of time."

12. The Hon'ble Apex Court in the
aforesaid case, has also observed that the
monetary benefit would not be replacement
of the bread-earner, but that would
undoubtedly bring some solace in the given
situation.

13. It is also pertinent to note that
2005 Scheme provides only for ex-gratia
payment
in
lieu
of
compassionate
appointment, which stands superseded by
the Scheme of 2014 which has revived the
scheme
providing
for
compassionate
appointment. Thus, I find that after policy
decision dated 05.04.2014 taken by Bank
of India in respect of compassionate
appointment, the case of the petitioners can
be considered in light of the letter dated
05.04.2014 issued by Government of India.

14. In view of the aforesaid
observations, mandamus is issued to the
respondent-Bank to consider the claim of
the petitioners within a period of three
months from the date of presentation of
copy of this order in light of the Scheme of
compassionate
appointment
in
Public
Sector Bank w.e.f. 05.08.2014 issued vide
its Letter No.F.No.18/2/2013-IR and letter
dated 05.12.2014 issued by Government of
India, Ministry of Finance, Department of
Financial Services as well as judgment
passed by Apex Court in the case of
Canara Bank (supra).

15. The writ petition stands disposed
off.

16. There will be no order as to costs.
----------
(2021)01ILR A955
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2020

BEFORE
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Criminal Revision No. 530 of 2014

Ashok Kumar Tyagi & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri S.S. Shukla, Sri Dharmendra Kumar
Mishra

Counsel for the Opp. Parties:
A.G.A., Sri V.K. Agnihotri

A. Criminal Law - Rejection of final report
submitted by investigating officer - Indian
Penal Code 467, 468, 471, 420, 120-B;
Code of Criminal Procedure: Section 190 -
It is well settled law that Magistrate is not
bound by the final report submitted by
Investigating Officer, rather S. 190 Cr.P.C.
956 INDIAN LAW REPORTS ALLAHABAD SERIES
empowered the Magistrate to make the
different view and proceed accordingly.
There is no obligation on the Magistrate to
accept the final report and if from the material
on the case diary, he found that offence has
been committed, the Magistrate can take
cognizance u/s 190(1)(b) of Cr.P.C. (Para 12,
13)

Section
190
of
Cr.P.C.
empowered
the
Magistrate to take cognizance of any offence
firstly upon receiving a complaint, secondly
upon
a
police
report
and
thirdly
upon
information received from any person other
than a police officer or upon his own
knowledge.
The
impugned
order
dated
13.1.2014
has
been
passed
by
learned
Magistrate exercising his power u/s 190(1)(b) of
Cr.P.C. (Para 9)

In the present case the learned Magistrate had
taken cognizance after carefully perusing the
case diary and after prima facie satisfaction that
there is ample evidence against the accused
persons for summoning them. The cognizance
order has not been passed merely on the
protest petition or any affidavit filed in support
of it. The findings have been recorded by the
learned Magistrate that after perusal of case
diary and after prima facie satisfaction on the
basis of material available in the case diary the
cognizance has been taken. (Para 11, 12)

B. The Magistrate is empowered to take
cognizance if the material on record
makes out the case against the accused
persons and at this stage the Magistrate has to
be satisfied whether there is sufficient ground
for proceeding and not whether there is
sufficient ground for conviction. It is also laid
down that while issuing the process the
Magistrate is not required to record reasons.
(Para 14)

The order passed by the learned Magistrate
clearly indicates that he carefully examined the
material
and
evidence
collected
during
investigation which are part of the case diary
and after prima-facie satisfaction had rejected
the final report and taken cognizance under
Section 190(1)(b). Cr.P.C. and as such there is
no illegality or irregularity committed by learned
Magistrate, while passing the order dated
13.1.2014. (Para 17)

C. Civil suit and criminal case can proceed
simultaneously - It is, well-settled that in a
given case, civil proceedings and criminal
proceedings
can
proceed
simultaneously.
Whether
civil
proceedings
or
criminal
proceedings shall be stayed depends upon the
fact and circumstances of each case. (Para 18)

Criminal Revision dismissed. (E-3)

Precedent followed:

1. Har Prasad & anr. Vs Ranveer Singh & anr.,
(2008) 11 SCC 431 (Para 31)

2. Jagdish Ram Vs St. of Raj. & anr., (2004) 4
SCC 432 (Para 14)

3. Vishnu Kumar Tiwari Vs St. of U.P., (2019) 8
SCC 27 (Para 15)

4. M/s India Carat Pvt. Ltd. Vs St. of Karn. &
anr., (1989) 2 SCC 132 (Para 16)

5. P. Swaroopa Rani Vs M. Hari Narayana,
(2008) (5) SCC 765 (Para 18)

Precedent distinguished:

1. Hari Ram & ors. Vs St. of U.P. & anr.,
2016(2) JIC 513 (All.) (Para 10 (1))

2. Rishipal & ors. Vs St. of U.P. & anr., 2019 (2)
JIC 325 (All) (Para 10 (2))

3. Inder Mohan Goswami & anr. Vs St. of Uttar.
& ors. , 2008 (1) JIC 737 (SC) (Para 10 (3))

Present criminal revision assails order
dated 13.01.2014, passed by Additional
Chief Judicial Magistrate, Ghaziabad.

(Delivered by Hon'ble Vipin Chandra Dixit, J.)

1. This criminal revision has been
filed against the order dated 13.01.2014
passed
by Additional
Chief
Judicial
Magistrate, Court No.5, Ghaziabad in
1 All. Ashok Kumar Tyagi & Anr. Vs. State of U.P. & Anr.
957
Criminal Case No.373 of 2010 (Baleshwar
Dayal Vs. Ashok and others), under
Sections 420, 467, 468, 471 I.P.C., P.S.
Kavi Nagar, District Ghaziabad, by which
final report no.439 of 2011 dated 29.6.2011
was rejected and the revisionist no.1 Ashok
Kumar Tyagi, revisionist no.2 Smt. Reena
Tyagi
and
Ram
Nath
Tyagi
were
summoned.

2. The brief facts of the case are that
the opposite party no.2 Baleshwar Dayal
Tyagi is residing in Canada for last 32 years
having nationality of Canada. The opposite
party no.2 had purchased a plot on
28.6.1991 bearing no.R-9/4 area 1266.66
square yard situated in Raj Nagar Colony,
Ghaziabad. Since the opposite party no.2
was residing at Canada, he executed a
power of attorney and will deed on
1.1.1991 in favour of revisionist no.1, who
is brother-in-law (Sala) of opposite party
no.2, to look after his property. Since the
revisionist no.1 is close relative of opposite
party no.2 as such the opposite party no.2
had full faith on him but in the year 2007
opposite party no.2 knew that revisionist
no.1 is going to misappropriate his property
and as such he cancelled the power of
attorney as well as the will deed on
6.3.2007 which was earlier executed in
favour of revisionist no.1. The information
regarding cancellation of power of attorney
and will deed was sent on 16.3.2007
through U.P.C. as well as by registered post
and revisionist no.1 was also informed on
telephone by the opposite party no.2.
Opposite party no.2 had also informed to
the Sub Registrar, Ghaziabad as well as
Secretary,
Ghaziabad
Development
Authority on 19.3.2007 to the effect that he
had already cancelled the power of attorney
which was executed in favour of revisionist
no.1 and now revisionist no.1 has no
authority to sell out his property through
power of attorney. In spite of cancellation
of power of attorney the revisionist no.1
executed a sale deed in favour of M/s Karb
Constructions Pvt. Ltd. on 20.3.2007 in
which Ram Nath Tyagi, father-in-law of
revisionist no.1 was the director. The
opposite party no.2 had lodged a F.I.R.
against revisionist no.1 Ashok Kumar Tyagi
as well as against Ram Nath Tyagi (fatherin-law of the revisionist no.1) on 31.1.2008
and the case was registered as Case Crime
No.96 of 2008, under Sections 467, 468,
471, 420 I.P.C. in P.S. Kavi Nagar, District
Ghaziabad.

3. During investigation the opposite
party no.2 alleged that his bank account
was
fraudulently
re-opened
by
the
revisionist no.2 who is wife of revisionist
no.1 and as such the revisionist no.2 was
also implicated as accused in the aforesaid
case. The
Investigating
Officer
after
investigating the matter had submitted the
final report on 30.5.2009 which was
rejected by the court below on the
objections of opposite party no.2 and
direction was issued for re-investigation.
The
Investigating
Officer
again
had
submitted the final report on 29.6.2011 on
the ground that no offence was found
against the accused persons and disputes
between the parties are of civil nature and
already a civil suit being O.S. No.162 of
2008 is pending between the parties.
Aggrieved with the final report dated
29.6.2011 the opposite party no.2 had filed
protest petition on 18.1.2012 stating therein
that power of attorney was cancelled much
prior to execution of sale deed and the
accused persons have committed fraud to
misappropriate the property of the opposite
party no.2. There are ample evidence
against the accused persons and they are
guilty to commit offence under Sections
467, 468, 471, 420, 465, 466 I.P.C. The
958 INDIAN LAW REPORTS ALLAHABAD SERIES
learned
Magistrate
vide
order
dated
13.1.2014 had accepted the protest petition
and the final report no.439 of 2011 dated
29.6.2011 was rejected and had taken
cognizance under Section 190(1)(b) of
Cr.P.C. and summoned the accused persons
Ashok Kumar Tyagi, Ram Nath Tyagi and
Smt. Reena Tyagi under Sections 420, 467,
468, 471, 120-B I.P.C. The order of learned
Magistrate dated 13.1.2014 is challenged
by Ashok Kumar Tyagi and Smt. Reena
Tyagi through present criminal revision.

4. Heard Sri S.S. Shukla, learned
counsel for the revisionists, Sri Raj Kamal
Srivastava,
learned
A.G.A.
for
the
State/opposite
party
no.1,
Sri
V.K.
Agnihotry, learned counsel for opposite
party no.2 and perused the record.

5. It is submitted by learned counsel
for the revisionists that order passed by
court below is against the material evidence
on record collected by Investigating Officer
during investigation. It is further submitted
that
Investigating
Officer
after
due
investigation had submitted final report that
no offence is made out against the
revisionists but the court below has
committed
jurisdictional
error
by
exercising
of
power
under
Section
190(1)(b) of Cr.P.C. It is further submitted
that the court below has failed to consider
that there is civil litigation between the
parties and the suit being O.S. No.162 of
2008 for cancellation of agreement to sale
deed is pending in the court of Civil Judge
(S.D.) and the final report was rightly
submitted that no offence is made out
against the revisionists.

6. On the other hand, learned A.G.A.
appearing for the State has submitted that
the order impugned has been passed by
learned Magistrate on the basis of materials
which are available on record and there is
no illegality in any manner and the criminal
revision is liable to be dismissed with costs.

7. Learned counsel appearing for
opposite party no.2 has submitted that
power of attorney had already been
cancelled by the opposite party no.2 and
the revisionist no.1 has no right or authority
under the law to execute the sale deed in
favour of his father-in-law. The revisionist
no.2 who is wife of revisionist no.1 had
operated the dead bank account of opposite
party no.2 after re-opening the same and all
the accused persons manipulated the papers
only for the purposes to grab the property
of the opposite party no.2. It is further
submitted that there are sufficient evidence
in the case diary to submit the charge-sheet
against the accused persons but the
Investigating Officer in collusion with
accused persons had submitted the final
report in favour of accused persons. It is
further submitted by learned counsel for
opposite party no.2 that learned Magistrate
found that there are enough material
against the accused persons for committing
offence, has rightly summoned them by the
impugned order. The order dated 13.1.2014
was passed by the learned Magistrate
relying on the evidence which were
available in the case diary. After primafacie satisfaction it was concluded by the
learned Magistrate that the accused persons
had committed offence and as such they
have rightly been summoned, and the
criminal revision has no force and is liable
to be dismissed.

8. The powers of Magistrate for
taking cognizance is provided in Chapter
XIV of Cr.P.C. and Section 190 is relevant
for the purposes of controversy involved in
the present case which reproduced herein
below:-
1 All. Ashok Kumar Tyagi & Anr. Vs. State of U.P. & Anr.
959

"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-
section
(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.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub- section
(1) of such offences as are within his
competence to inquire into or try."

9. Section 190 of Cr.P.C. empowered
the Magistrate to take cognizance of any
offence firstly upon receiving a complaint,
secondly upon a police report and thirdly
upon information received from any person
other than a police officer or upon his own
knowledge. The impugned order dated
13.1.2014 has been passed by learned
Magistrate exercising his power under
Section 190(1)(b) of Cr.P.C.

10. Learned counsel for revisionists
had relied on following case laws:-

(1) 2016 (2) JIC 513 (All) Hari
Ram and others Vs. State of U.P. and
another.

(2) 2019 (2) JIC 325 (All)
Rishipal and others Vs. State of U.P. and
another.

(3) 2008 (1) JIC 737 (SC) Inder
Mohan Goswami and another Vs. State of
Uttaranchal and others.

11. It is submitted by learned counsel
for revisionists on relying the aforesaid
judgments that the Magistrate has erred in
relying the facts stated in protest petition as
well as affidavits filed along with protest
petition. It is further submitted that the
impugned order is against the law as the
Magistrate has not referred to any material
collected by Investigating Officer and the
final report was rejected in the light of
affidavits placed before him along with
protest petition.

12. The facts of the present case are
entirely different as in the present case the
learned Magistrate had taken cognizance
after carefully perusing the case diary and
after prima-facie satisfaction that there are
ample evidence against the accused persons
for summoning them. The cognizance order
has not been passed merely on the protest
petition or any affidavit filed in support of
it. The findings have been recorded by the
learned Magistrate that after perusal of case
diary and after prima-facie satisfaction on
the basis of material available in the case
diary the cognizance has been taken. It is
well settled law that Magistrate is not
bound by the final report submitted by
Investigating Officer, rather Section 190
Cr.P.C. empowered the Magistrate to make
the different view and proceed accordingly.

13. Hon'ble Apex Court in the case of
Har Prasad and another Vs. Ranveer
Singh and another reported in (2008) 11
SCC 431 has laid down the law that there is
no obligation on the Magistrate to accept
the final report and if from the material on
the case diary he found that offence has
been committed, the Magistrate can take
cognizance under Section 190(1)(b) of
Cr.P.C. The paragraphs 7 & 8 are relevant
for the purpose and are quoted herein
below:-
960 INDIAN LAW REPORTS ALLAHABAD SERIES

"7. Reference may be made to a
judgment of this Court in Abhinandan Jha
and Ors. v. Dinesh Mishra where it was
held as follows: (AIR pp. 120-23, paras 89, 12-13 & 17

"8. It is now only necessary to
refer to Section 190, occurring in Chapter
XV, relating to jurisdiction of Criminal
courts in inquiries and trials. That section
is to be found under the heading
'Conditions requisite for initiation of
proceedings' and sub-section (1) is as
follows:

'190. Cognizance of offences by
Magistrates.- (1) Except as hereinafter
provided,
any
Presidency
Magistrate,
District
Magistrate
or
Sub-divisional
Magistrate, and any other Magistrate
specially empowered in this behalf, may
take cognizance of any offence-

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

(b) upon a report in writing of
such facts made by any police-officer;

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

9. From the foregoing sections,
occurring in Chapter XIV, it will be seen
that very elaborate provisions have been
made for securing that an investigation
does take place into a reported offence and
the investigation is carried out within the
limits of the law, without causing any
harassment to the accused and is also
completed without unnecessary or undue
delay. But the point to be noted is that the
manner and method of conducting the
investigation, are left entirely to the police,
and the Magistrate, so far as we can see,
has no power under any of these
provisions, to interfere with the same. If, on
investigation, it appears to the officer, incharge of a police station, or to the officer
making an investigation, that there is no
sufficient evidence or reasonable grounds
of suspicion justifying the forwarding of an
accused to a Magistrate, Section 169 says
that the officer shall release the accused, if
in custody, on his executing a bond to
appear before the Magistrate. Similarly, if
on the other hand, it appears to the officer,
in-charge of a police station, or to the
officer making the investigation, under
Chapter XIV, that there is sufficient
evidence or reasonable ground to justify the
forwarding of an accused to a Magistrate,
such an officer is required, under Section
170, to forward the accused to a
Magistrate; or, if the offence is bailable to
take security from him for his appearance
before such Magistrate. But, whether a
case comes under Section 169, or under
Section 170 of the Code, on the completion
of the investigation, the police officer has
to submit a report to the Magistrate, under
Section 173, in the manner indicated
therein, containing the various details. The
question as to whether the Magistrate has
got power to direct the police to file a
charge - sheet, on receipt of a report under
Section 173 really depends upon the nature
of
the
jurisdiction
exercised
by
a
Magistrate, on receiving a report.

12. Though it may be that a
report submitted by the police may have to
be dealt with judicially, by a Magistrate,
and although the Magistrate may have
certain supervisory powers, nevertheless,
we are not inclined to agree with the
further view that from these considerations
alone it can be said that when the police
submit a report that no case has been made
out for sending up an accused for trial, it is
open to the Magistrate to direct the police
to file a charge-sheet. But, we may make it
clear, that this is not to say that the
Magistrate
is
absolutely
powerless,
because, as will be indicated later, it is
1 All. Ashok Kumar Tyagi & Anr. Vs. State of U.P. & Anr.
961
open to him to take cognizance of an
offence and proceed, according to law. We
do not also find any such power, under
Section 173(3), as is sought to be inferred,
in some of the decisions cited above. As we
have indicated broadly the approach made
by the various High Courts in coming to
different conclusions, we do not think it
necessary to refer to those decisions in
detail.

13. It will be seen that the Code,
as such, does not use the expression
'charge-sheet' or 'final report'. But it is
understood,
in
the
Police
Manual
containing Rules and Regulations, that a
report by the police, filed under Section
170 of the Code, is referred to as a 'chargesheet'. But in respect of the reports sent
under Section 169 i.e. when there is no
sufficient evidence to justify the forwarding
of the accused to a Magistrate, it is termed
variously, in different States, as either
'referred
charge',
'final
report',
or
'summary'.

17. We have to approach the
question, arising for consideration in this
case, in the light of the circumstances
pointed out above. We have already
referred to the scheme of Chapter XIV, as
well as the observations of this Court in
Rishbud and Inder Singh that the formation
of the opinion as to whether or not there is
a case to place the accused on trial before
a Magistrate, is left to the officer in-charge
of the police station. There is no express
power, so far as we can see, which gives
jurisdiction to pass an order of the nature
under attack nor can any such powers be
implied. There is certainly no obligation,
on the Magistrate, to accept the report, if
he does not agree with the opinion formed
by the police. Under those circumstances, if
he still suspects that an offence has been
committed, he is entitled, notwithstanding
the opinion of the police, to take
cognizance, under Section 190(1)(c) of the
Code. That provision in our opinion, is
obviously intended to secure that offences
may not go unpunished and justice may be
invoked even where persons individually
aggrieved are unwilling or unable to
prosecute, or the police, either wantonly or
through bona fide error, fail to submit a
report, setting out the facts constituting the
offence. Therefore, a very wide power is
conferred on the Magistrate to take
cognizance of an offence, not only when he
receives information about the commission
of an offence from a third person, but also
where he has knowledge or even suspicion
that the offence has been committed. It is
open to the Magistrate to take cognizance
of the offence, under Section 190(1)(c), on
the ground that, after having due regard to
the final report and the police records
placed before him, he has reason to suspect
that an offence has been committed.
Therefore, these circumstances will also
clearly negative the power of a Magistrate
to call for a charge-sheet from the police,
when they have submitted a final report.
The entire scheme of Chapter XIV clearly
indicates that the formation of the opinion,
as to whether or not there is a case to place
the accused for trial, is that of the officer
in- charge of the police station and that
opinion determines whether the report is to
be under Section 170, being a 'chargesheet', or under Section 169, 'a final
report'. It is no doubt open to the
Magistrate, as we have already pointed out,
to accept or disagree with the opinion of
the police and, if he disagrees, he is entitled
to adopt any one of the courses indicated
by us. But he cannot direct the police to
submit
a
charge-sheet,
because,
the
submission of the report depends upon the
opinion formed by the police, and not on
the opinion of the Magistrate. The
Magistrate cannot compel the police to
962 INDIAN LAW REPORTS ALLAHABAD SERIES
form
a
particular
opinion,
on
the
investigation, and to submit a report,
according to such opinion. That will be
really encroaching on the sphere of the
police and compelling the police to form an
opinion so as to accord with the decision of
the Magistrate and send a report, either
under Section 169, or under Section 170,
depending upon the nature of the decision.
Such a function has been left to the police,
under the Code."

. As the factual position goes to
show the order passed by the learned
Magistrate was in consideration of the
police report and was not relatable to the
protest petition. That being so, the view of
the High Court does not suffer from any
infirmity and no interference is called for."

14. Similarly in the case of Jagdish
Ram Vs. State of Rajasthan and another
reported in (2004) 4 SCC 432, the Hon'ble
Apex Court laid down the law that the
Magistrate is empowerd to take cognizance
if the material on record makes out the case
against the accused persons and at this
stage the Magistrate has to be satisfied
whether there is sufficient ground for
proceeding and not whether there is
sufficient ground for conviction. It is also
laid down that while issuing the process the
Magistrate is not required to record
reasons. The paragraph 10 is reproduced
herein below:-

"10. The contention urged is that
though the trial court was directed to
consider the entire material on record
including the final report before deciding
whether the process should be issued
against the appellant or not, yet the entire
material was not considered. From perusal
of order passed by the Magistrate it cannot
be said that the entire material was not
taken into consideration. The order passed
by the Magistrate taking cognizance is a
well written order. The order not only refers
to the statements recorded by the police
during investigation which led to the filing
of final report by the police and the
statements of witnesses recorded by the
Magistrate under Sections 200 and 202 of
the Code but also sets out with clarity the
principles required to be kept in mind at the
stage of taking cognizance and reaching a
prima facie view. At this stage, the
Magistrate had only to decide whether
sufficient ground exists or not for further
proceeding in the matter. It is well settled
that notwithstanding the opinion of the
police, a magistrate is empowered to take
cognizance if the material on record makes
out a case for the said purpose. The
investigation is the exclusive domain of the
police. The taking of cognizance of the
offence is an area exclusively within the
domain of a Magistrate. At this stage, the
Magistrate has to be satisfied whether there
is sufficient ground for proceeding and not
whether there is sufficient ground for
conviction.
Whether
the
evidence
is
adequate for supporting the conviction, can
be determined only at the trial and not at
the stage of inquiry. At the stage of issuing
the process to the accused, the Magistrate
is not required to record reasons. (Dy.
Chief Controller of Imports & Exports v.
Roshanlal Agarwal).

15. The similar view has also been
taken by the Hon'ble Apex Court in the
case of Vishnu Kumar Tiwari Vs. State of
U.P. reported in (2019) 8 SCC 27. The
paragraph
43
is
relevant
which
is
reproduced herein below:-

"43. It is true that law mandates
notice to the informant/complainant where
the Magistrate contemplates accepting the
final report. On receipt of notice, the
1 All. Ashok Kumar Tyagi & Anr. Vs. State of U.P. & Anr.
963
informant may address the court ventilating
his objections to the final report. This he
usually does in the form of the protest
petition. In Mahabir Prasad Agarwala v.
State, a learned Judge of the High Court of
Orissa, took the view that a protest petition
is in the nature of a complaint and should
be examined in accordance with provisions
of Chapter XVI of the Criminal Procedure
Code. We, however, also noticed that in
Qasim v. State, a learned Single Judge of
the High Court of Judicature at Allahabad,
inter alia, held as follows: (Qasim case,
SCC Online All para 6)

"6. ... In Abhinandan Jha also
what was observed was "it is not very clear
as to whether the Magistrate has chosen to
treat the protest petition as complaint."
This observation would not mean that every
protest petition must necessarily be treated
as a complaint whether it satisfies the
conditions of the complaint or not. A
private complaint is to contain a complete
list of witnesses to be examined. A further
examination of complainant is made under
Section 200 Cr.P.C. If the Magistrate did
not treat the protest petition as a complaint,
the protest petition not satisfying all the
conditions of the complaint to his mind, it
would not mean that the case has become a
complaint case. In fact, in majority of cases
when a final report is submitted, the
Magistrate has to simply consider whether
on the materials in the case diary no case is
made out as to accept the final report or
whether case diary discloses a prima facie
case as to take cognizance. The protest
petition in such situation simply serves the
purpose of drawing Magistrate's attention
to the materials in the case diary and invite
a careful scrutiny and exercise of the mind
by the Magistrate so it cannot be held that
simply because there is a protest petition
the case is to become a complaint case."

16. The similar view has also been
taken by the Hon'ble Apex Court in the
case of M/s India Carat Pvt. Ltd. Vs. State
of Karnataka and another reported in
(1989) 2 SCC 132. The paragraphs 15 & 16
are relevant which are reproduced herein
below:-

"15. In the case of H.S. Bains
(supra) one Gurnam Singh submitted a
complaint to the Judicial Magistrate 1st
Class, Chandigarh alleging that H.S. Bains
trespassed into his house along with two
others on 11-8-1979 at about 8 a.m. and
threatened to kill him and his son. The
Magistrate directed the police under
Section 156(3) of the Code to make an
investigation.
After
completing
the
investigation, the police submitted a report
to the Magistrate under Section 173(2) of
the Code stating that the case against the
accused was not true and that the case may
be
dropped. The
learned Magistrate
disagreed with the conclusion of the police
and took cognizance of the case under
Sections 448 and 506 of the Indian Penal
Code and directed the issue of process to
the accused. Thereupon, the accused moved
the
High
Court
for
quashing
the
proceedings before the Magistrate. As the
High Court declined to interfere, the
accused approached this Court by way of
appeal
by
special
leave.
Various
contentions were advanced on behalf of the
accused and one of them was that the
Magistrate was not competent to take
cognizance of the case upon the police
report since the report was to the effect that
no offence had been committed by the
accused. It was further urged that if the
Magistrate was not satisfied with the police
report, there were only two courses open to
him, viz. either to order a further
investigation of the case by the police or to
take cognizance of the case himself as if
964 INDIAN LAW REPORTS ALLAHABAD SERIES
upon a complaint and record the statements
of the complainant and his witnesses under
Section 200 of the Code and then issue
process if he was satisfied that the case
should be proceeded with. Repelling those
contentions this Court held as follows:

"The Magistrate is not bound by
the conclusions arrived at by the police
even as he is not bound by the conclusions
arrived at by the complainant in a
complaint. 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
congnizance of an offence under Section
324 instead of Section 307. Similarly if a
police report mentions that half a dozen
persons examined by them claim to be eye
witnesses 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 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."

16. 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 conclusion arrived at by the
investigating 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
Magistrate is not bound in such a situation
to follow the procedure laid down in
Section 200 and 202 of the Code for taking
cognizance of a case under Section
190(1)(b) 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
Metropolitan Magistrate was not entitled to
direct the registration of a case against the
second respondent and order the issue of
summons to him."

17. The Magistrate is not bound to the
final report submitted by Investigating
Officer. The Magistrate can have his own
opinion and if after prima-facie satisfaction
he finds that there are sufficient material
and evidence collected by the Investigating
Officer during investigation, he can reject
the final report and can issue process
against the accused persons. The order
passed by the learned Magistrate clearly
indicates that he carefully examined the
material and evidence collected during
investigation which are part of the case
diary and after prima-facie satisfaction had
rejected
the
final
report
and
taken
1 All. Lalaram Vs. State of U.P. & Ors.
965
cognizance under Section 190(1)(b) Cr.P.C.
and as such there is no illegality or
irregularity
committed
by
learned
Magistrate while passing the order dated
13.1.2014.

18. The next submission of learned
counsel for the revisionists is that the
dispute is of civil nature and civil suit is
still pending for cancellation of sale deed
and as such criminal case can not proceed
and the court below has exceeded its
jurisdiction to summon the revisionists in a
criminal case. It is well settled law settled
by the Hon'ble Apex Court in the case of P.
Swaroopa Rani Vs. M. Hari Narayana
reported in 2008 (5) SCC 765 that civil suit
and
criminal
case
can
proceed
simultaneously. The relevant paragraphs 13
and 19 are quoted herein below.

"13. It is, however, well-settled
that in a given case, civil proceedings and
criminal
proceedings
can
proceed
simultaneously. Whether civil proceedings
or criminal proceedings shall be stayed
depends upon the fact and circumstances of
each case. [See M.S. Sheriff v. State of
Madras AIR 1954 SC 397, Iqbal Singh
Marwah v. Meenakshi Marwah (2005) 4
SCC 370 and Institute of Chartered
Accountants of India v. Assn. of Chartered
Certified Accountants (2005) 12 SCC 226].

19. It goes without saying that the
respondent shall be at liberty to take
recourse to such a remedy which is
available to him in law. We have interfered
with the impugned order only because in
law simultaneous proceedings of a civil and
a criminal case is permissible."

19. In view of aforesaid discussions,
there is no illegality or irregularity in the
order passed by learned Magistrate dated
13.1.2014 by which the final report was
rejected and the revisionists were summoned
to face the trial. The revisionists have thus
failed to point out any infirmity, illegality,
irregularity, impropriety or incorrectness in
the order and the present criminal revision
lacks merits and deserves to be dismissed.

20. Accordingly, the criminal revision is
dismissed. No order as to costs.
----------
(2021)01ILR A965
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Criminal Revision No. 1611 of 2020

Lalaram ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Akansha Verma, Sri Deepak Kumar Verma,
Sri Siya Ram Verma

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

A. Criminal Law - Discretion of magistrate
u/s 156(3) CrPC - Code of Criminal
Procedure: Section 156(3), 173(2), 190,
200, 202 (1), 397/401 - It cannot be said
that the Magistrate is bound to order
registration of a First Information Report
in all cases, where a cognizable offence is
disclosed. It is not incumbent upon a
Magistrate to allow an application u/s 156(3)
Cr.P.C. and there is no such legal mandate. The
Magistrate may or may not allow the application
in his discretion. He has a discretion to treat an
application under Section 156(3) Cr.P.C. as a
complaint. (Para 12(i), 27)

Code of Criminal procedure provides for
information to the police and the investigation
by the police, it also provides for the judicial