# Atique Ahmad Revisionist v. State of U.P. Opp. Party

- **Citation:** (2023) 2 ILRA 1004
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-19
- **Case number:** Crl. Revision No. 65 of 2023
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atique-ahmad-revisionist-v-state-of-u-p-opp-party-49692
- **Pages:** 7

## Headnote

Sri Chandrakesh Mishra, Sri Abhishek Kumar
Mishra, Sri Shadab Ali (Sr. Advocate). Sri Daya
Shanker Misra (Sr. Adv.)

Counsel for the Opp. Party
G.A.

Criminal
Law
-
Criminal
Procedure
Code, 1973 - Sections 82, 83, 195, 309,
340, 362, 397(1) & 401 - Indian Penal
Code, 1860 - Sections 147, 148, 174-A,
323, 341, 364, 504 & 506 - Criminal
Law Amendment Act - Section - 7 -
Criminal Revision - Order of remand & order
of cognizance was void ab initio and remand
would no longer be accorded and application
for remand was rejected - being aggrieved,
St. filed a Criminal Revision - there is a
specific bar for reviewing its order by the
criminal court, it would be a nullity and
without jurisdiction - Order taking cognizance
or issuing process is not an interlocutory
order as held by Supreme Court in case of
Adalat Prasad Vs Roopal Jindal & ors. - In the
said case, Hon'ble Supreme Court held that,
view taken by this Court in case of K.M.
Mathew Vs St. of Kerala, that it would be
open to court issuing summons to recall same
on being satisfied that issuance of summons
was not in accordance with law and order of
issuing process is an interim order and not a
judgement and, therefore, it can be varied or
recalled, is not a correct view - It is evident
that order of taking cognizance is a final order
and whether it is erroneous order or not, can
be
looked
into
by
superior
court
in
appropriate proceedings and not by same
court, which has taken cognizance - thus,
order under challenged does not suffer from
any illegality or error of jurisdiction or law -
hence, Revision dismissed.(Para - 17, 21, 22)

Revision Dismissed. (E-11)

List of Cases cited: -

## Text

1004 INDIAN LAW REPORTS ALLAHABAD SERIES
to consider is whether the cumulative effect
of the circumstances establishes the guilt of
the accused beyond the "shadow of doubt".
In the first place, "shadow of doubt", even
in cases which depend on direct evidence is
shadow of "reasonable" doubt. Secondly, in
its practical application, the test which
requires the exclusion of other alternative
hypotheses is far more rigorous than the
test of proof beyond reasonable doubt."

[Emphasis supplied]

xxx xxx xxx

117. Thus, none of the pieces of
evidence relied on as incriminating by the
courts below, can be treated as incriminating
pieces of circumstantial evidence against the
accused.
Realities
or
truth
apart,
the
fundamental and basic presumption in the
administration of criminal law and justice
delivery system is the innocence of the alleged
accused and till the charges are proved beyond
reasonable doubt on the basis of clear, cogent,
credible or unimpeachable evidence, the
question of indicting or punishing an accused
does not arise, merely carried away by heinous
nature of the crime or the gruesome manner in
which it was found to have been committed.
Though the offence is gruesome and revolts the
human conscience but an accused can be
convicted only on legal evidence and if only a
chain of circumstantial evidence has been so
forged as to rule out the possibility of any other
reasonable hypothesis excepting the guilt of the
accused. In Shankarlal Gyarasilal (supra), this
Court cautioned -"human nature is too willing,
when faced with brutal crimes, to spin stories
out of strong suspicions". This Court has held
time and again that between "may be true" and
"must be true" there is a long distance to travel
which must be covered by clear, cogent and
unimpeachable evidence by the prosecution
before an accused is condemned a convict. [See
Ashish Batham v. State of M.P., (2002) 7 SCC
317]."

24. Keeping in mind the above
proposition of law, facts and circumstances of
the present case, we are of the view that the
appellants are entitled for the benefit of doubt
and, therefore, they are acquitted of all the
charges.

25. For the foregoing reasons, we have no
hesitation to hold that the prosecution has failed
to prove the charges against the appellants
beyond reasonable doubt and, therefore, the
judgment and order of the court below is liable
to be set aside.

26. The judgment and order of the trial
court is set aside. The appeal of the appellants is
allowed. The appellants shall be set free
forthwith from the jail, unless wanted in any
other case.

27. We appreciate the assistance offered
by the learned counsel for the parties including
the Amicus Curiae, who would be entitled to
receive fee as per Rules.

28. Let a copy of this order along with the
record be sent to the court below for
information and compliance.
----------
(2023) 2 ILRA 1004
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.01.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Crl. Revision No. 65 of 2023

Atique Ahmad ...Revisionist
Versus
State of U.P. ...Opp. Party
2 All. Atique Ahmad Vs. State of U.P.
1005
Counsel for the Revisionist:
Sri Chandrakesh Mishra, Sri Abhishek Kumar
Mishra, Sri Shadab Ali (Sr. Advocate). Sri Daya
Shanker Misra (Sr. Adv.)

Counsel for the Opp. Party
G.A.

Criminal
Law
-
Criminal
Procedure
Code, 1973 - Sections 82, 83, 195, 309,
340, 362, 397(1) & 401 - Indian Penal
Code, 1860 - Sections 147, 148, 174-A,
323, 341, 364, 504 & 506 - Criminal
Law Amendment Act - Section - 7 -
Criminal Revision - Order of remand & order
of cognizance was void ab initio and remand
would no longer be accorded and application
for remand was rejected - being aggrieved,
St. filed a Criminal Revision - there is a
specific bar for reviewing its order by the
criminal court, it would be a nullity and
without jurisdiction - Order taking cognizance
or issuing process is not an interlocutory
order as held by Supreme Court in case of
Adalat Prasad Vs Roopal Jindal & ors. - In the
said case, Hon'ble Supreme Court held that,
view taken by this Court in case of K.M.
Mathew Vs St. of Kerala, that it would be
open to court issuing summons to recall same
on being satisfied that issuance of summons
was not in accordance with law and order of
issuing process is an interim order and not a
judgement and, therefore, it can be varied or
recalled, is not a correct view - It is evident
that order of taking cognizance is a final order
and whether it is erroneous order or not, can
be
looked
into
by
superior
court
in
appropriate proceedings and not by same
court, which has taken cognizance - thus,
order under challenged does not suffer from
any illegality or error of jurisdiction or law -
hence, Revision dismissed.(Para - 17, 21, 22)

Revision Dismissed. (E-11)

List of Cases cited: -

1. Sunil Tyagi Vs Government of NCT of Dehi,
(2021) 0 Supreme (Del) 831,

2. Pepsi Foods Ltd. & anr. Vs Special Judicial
Magistrate & ors., (1998) 5 SCC 749,
3. Dhariwal Tobacco Products Ltd. & ors. Vs St.
of Mah. & anr., (2009) 2 SCC 370,

4. Vishnu Agarwal Vs St. of U.P. & anr., (2011)
14 SCC 813,

5. Madhu Limaye & ors. Vs Unknown, (1969) 1
SCC 292,

6. Inder Mohan Goswami & anr. Vs St. of
Uttaranchal, (2007) 12 SCC 1,

7. Adalat Prasad Vs Roopal Jindal & ors., (2004)
7 SCC 338,

8. K.M. Mathew Vs St. of Ker., (1992) 1 SCC 217,

9. Mohd. Zakir Vs Shabana & ors., (2018 Vol. 15
SCC 316),

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

1. The present criminal revision under
Section 397 (1) read with Section 401
Cr.P.C. has been instituted by Atique
Ahmad, revisionist against the order dated
17.11.2022 passed by the Additional
Sessions Judge/Special Judge(MP/MLA),
Allahabad in Criminal Revision No.249 of
2008, whereby the learned revisional court
allowed the criminal revision filed by the
State against the order dated 7.3.2008
passed
by
the
Additional
Civil
Judge/Judicial Magistrate, Court No.6,
Allahabad.

2. The facts of the case, in brief, are
that on 5.7.2007 Sri Ompal, a member of
the Zila Panchayat, Allahabad lodged FIR
No.270 of 2007, under Sections 147, 148,
323, 341, 342, 364, 504 and 506 IPC and
Section 7 Criminal Law Amendment Act
against the revisionist, a sitting Member of
Parliament and others. The investigation of
the said offence was conducted by Sri K.K.
Mishra, Station House Officer.
1006 INDIAN LAW REPORTS ALLAHABAD SERIES

3. During the course of investigation,
efforts were made by the Investigating
Officer to arrest the accused-revisionist,
however, the accused could not be arrested
nor they surrendered before the trial court.
Warrants were issued against the accused
and, thereafter, proceedings under Section
82/83 Cr.P.C. were undertaken. However,
the accused could not be arrested nor they
surrendered before the trial court within the
prescribed time. In view thereof, an FIR
under Section 174A IPC was registered on
26.8.2007.

4. The Investigating Officer after
investigating
the
offence,
filed
an
application for submitting the charge sheet
and prosecuting the accused, including the
revisionist. Learned Magistrate granted
permission for submitting the charge sheet
and, thereafter, charge sheet was submitted
on 13.9.2007 by the Investigating Officer in
the court. One application was also filed
along with the charge sheet stating that as
per the provisions of Section 195 Cr.P.C.
read with Section 340 Cr.P.C., the court
may send the charge sheet in its signature
to
the
competent
court
for
taking
cognizance.
The
trial
court
without
deciding the application dated 13.11.2007
filed by the Investigating Officer, took
cognizance
of
the
charge
sheet
on
16.1.2008 and ordered for preparing the
copies of the documents.

5.

co-accused
Aizaz
Akhtar
surrendered before the trial court and filed
an application for bail. The said accused
was taken into custody and his application
for bail was rejected. Thereafter, his bail
application was allowed by the Sessions
Court. The present revisionist was arrested
by the police and he was sent to judicial
custody. Co-accused Ashraf @ Kale was
still absconding.

6. It appears that an application came
to be filed after change of the presiding
officer in the court of Additional Civil
Judge/Judicial
Magistrate,
Allahabad
against the order dated 6.1.2008 and the
presiding officer as siting in appal against
its own order, held that the objection could
be entertained on behalf of the accused
against the cognizance taken by the court
when the objection would go at the bottom
of the jurisdiction of the court. Learned
Magistrate has held that provisions of
Section 195 Cr.P.C. could not have been
evaded and the order of taking cognizance
dated 16.1.2008 was without jurisdiction
and void ab initio.

7. It was further held that since the
order of cognizance was void ab initio and
remand under Section 309 Cr.P.C. would no
longer be accorded and the application for
remand was rejected vide order dated
7.3.2008.

8. Aggrieved by the said order, the
State has filed Criminal Revision No.249 of
2008 and the learned revisional court has
held that vide impugned order, the learned
Magistrate had reviewed its own order of
taking cognizance. It is well settled that the
criminal court does not have power to
review its own order. Learned revisional
court had set aside the order dated 7.3.2008
impugned in the present revision.

9. Heard Sri Daya Shanker Mishra,
learned Senior Advocate assisted by S/Sri
Abhishek Kumar Mishra and Shadab Ali,
learned counsel for the revisionist and Sri
Manish
Goyal,
learned
Additional
Advocate General assisted by Sri Sanjay
Kumar Singh, learned AGA for the State.

10. Sri Daya Shankar Mishra, learned
Senior advocate for the revisionist has
2 All. Atique Ahmad Vs. State of U.P.
1007
submitted that cognizance for an offence
under Section 174A IPC could not be taken
without complying the provisions of
Section 195 Cr.P.C. He has further
submitted that the charge sheet was filed in
the court on a police report and the
Investigating Officer filed an application
for forwarding the said report to the
concerned
court.
However,
learned
Magistrate did not take decision on the
application of the Investigating Officer and
took cognizance himself and ordered for
issuing copies of the documents. He has
further submitted that the remand under
Section 309 Cr.P.C. in such a case where
the order of cognizance on the face of
record is void and could not have been
passed. He has, therefore, submitted that
the learned Magistrate has not committed
any error of jurisdiction or law which
required the revisional court to interfere
with the well reasoned order dated 7.3.2008
refusing the remand of the accusedrevisionist.

11. Learned Senior Advocate for the
revisionist has further submitted that the order
of cognizance is not a final order and on an
application,
the
court
concerned
can
cancel/recall the said order. Learned trial court
on the application of the accused-revisionist
has recalled the order finding that the order of
taking cognizance was void ab initio as it was
passed in violation of Section 195 Cr.P.C. He
has also submitted that the revisionist was not
given opportunity of hearing by the revisional
court and, therefore, the order impugned is bad
in law inasmuch as the accused-respondent
was required to be heard as provided in
Section 401 Cr.P.C. and it is in violation of
principles of natural justice.

12. Sri Daya Shanker Mishra in
support of his contention has placed
reliance on the following judgements:-

"1.Sunil Tyagi Vs. Government of
NCT of Dehi, (2021) 0 Supreme (Del) 831 ;

2. Pepsi Foods Ltd. & Another
Vs. Special Judicial Magistrate & other,
(1998) 5

3. Dhariwal Tobacco Products
Ltd. and Ors. v. State of Maharashtra and
another; (2009) 2 SCC 370 : and

4. Vishnu Agarwal Vs. State of
U.P. and another, (2011) 14 SCC 813.

5. Madhu Limaye and others Vs.
Unknown, (1969) 1 SCC 292.

6. Inder Mohan Goswami and
another vs. State of Uttaranchal, (2007) 12
SCC 1"

13. On the other hand, Sri Manish
Goyal, learned Additional Advocate General
has submitted that the order of taking
cognizance is a final order. Under Section 362
Cr.P.C. there is a specific bar for reviewing its
own order by the criminal court. He has
further submitted that the learned trial court
has not only refused remand of the accusedrevisionist under Section 309 Cr.P.C., but also
reviewed the order passed by the same court
(however by another presiding officer) and
held that the order of taking cognizance was
void ab initio. It has been further submitted
that such a course was not opened to the
learned Magistrate inasmuch as he is not
empowered to review its earlier order. It has
also been submitted that the order taking
cognizance and issuing process is a final order
and it is not an interlocutory order, which can
not be recalled or reviewed by the same court.

14. Learned Additional Advocate
General has further submitted that the
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order itself would show that the
accused-revisionist
was
given
several
opportunities for making submissions.
However, the accused avoided to address
the arguments. He has, therefore, submitted
that the revisional court has not committed
any error of jurisdiction or law in setting
aside the order passed by the learned
Magistrate inasmuch as the order passed by
the learned Magistrate would amount to an
order in appeal or reviewing its own order,
which is not permissible under the law. He
has submitted that in view thereof, the
present revision has no merit, which is
liable to be dismissed.

15. I have considered the submissions
advanced on behalf of the learned counsel
for the parties and perused the record.

16. For the sake of argument, Section
362 Cr.P.C. reads a under:-

"362.
Court
not
to
after
judgement. 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."

17. Thus, there is a specific bar for
reviewing its own order by the criminal
court. The power of review is a statutory
power and if the court reviews its own
order, then it would be a nullity and without
jurisdiction.

18. From perusal of the order dated
7.3.2008 passed by the learned Additional
Civil Judge/Judicial Magistrate, Allahabad,
it is evident that the learned Magistrate
while considering the application filed by
the accused-revisionist against the order of
taking
cognizance,
has
decided
the
application as if he was exercising the
appellate jurisdiction or review jurisdiction.
Learned Magistrate has held the earlier
order taking cognizance dated 16.1.2008
was void ab initio. Such a course is
completely barred under the provisions of
Section 362 Cr.P.C.

19. The order taking cognizance or
issuing process is not an interlocutory order
as held by the Supreme Court in the case of
Adalat Prasad Vs. Roopal Jindal and
others, (2004) 7 SCC 338. In the said
judgement, the Supreme Court held that the
view taken by this Court in the case of
K.M. Mathew Vs. State of Kerala, (1992) 1
SCC 217 that it would be open to the court
issuing summons to recall the same on
being satisfied that the issuance of
summons was not in accordance with law
and order of issuing process is an interim
order and not a judgement and, therefore, it
can be varied or recalled, is not a correct
view. Paragraphs 14, 15 and 16 of the said
judgement, which would be relevant, are
extracted hereunder:-

"14. But after taking cognizance
of the complaint and examining the
complainant and the witnesses if he is
satisfied that there is sufficient ground to
proceed with the complaint he can issue
process by way of summons under Section
204 of the Code. Therefore, what is
necessary or a condition precedent for
issuing process under Section 204 is the
satisfaction of the Magistrate either by
examination of the complainant and the
witnesses or by the inquiry contemplated
under Section 202 that there is sufficient
ground for proceeding with the complaint
hence issue the process under Section 204
of the Code. In none of these stages the
Code has provided for hearing the
summoned accused, for obvious reasons
2 All. Atique Ahmad Vs. State of U.P.
1009
because this is only a preliminary stage and
the stage of hearing of the accused would
only arise at a subsequent stage provided
for in the latter provision in the Code. It is
true as held by this Court in Mathew case
[(1992) 1 SCC 217:1992 SCC (Cri) 88]
that before issuance of summons the
Magistrate should be satisfied that there is
sufficient ground for proceeding with the
complaint but that satisfaction is to be
arrived at by the inquiry conducted by him
as contemplated under Sections 200 and
202, and the only stage of dismissal of the
complaint arises under Section 203 of the
Code at which stage the accused has no
role to play, therefore, the question of the
accused
on
receipt
of
summons
approaching the court and making an
application for dismissal of the complaint
under Section 203 of the Code on a
reconsideration of the material available
on record is impermissible because by then
Section 203 is already over and the
Magistrate has proceeded further to
Section 204 stage.

15. It is true that if a Magistrate
takes cognizance of an offence, issues
process without there being any allegation
against the accused or any material
implicating the accused or in contravention
of provisions of Sections 200 and 202, the
order of the Magistrate may be vitiated, but
then the relief an aggrieved accused can
obtain at that stage is not by invoking
Section 203 of the Code because the
Criminal
Procedure
Code
does
not
contemplate a review of an order. Hence in
the absence of any review power or
inherent power with the subordinate
criminal courts, the remedy lies in invoking
Section 482 of the Code.

16. Therefore, in our opinion the
observation of this Court in the case of
Mathew [(1992) 1 SCC 217 : 1992 SCC
(Cri) 88] that for recalling an erroneous
order of issuance of process, no specific
provision of law is required, would run
counter to the scheme of the Code which
has not provided for review and prohibits
interference
at
interlocutory
stages.
Therefore, we are of the opinion, that the
view of this Court in Mathew case [(1992)
1 SCC 217 : 1992 SCC (Cri) 88] that no
specific provision is required for recalling
an erroneous order, amounting to one
without jurisdiction, does not lay down the
correct law."

20. The Supreme Court in the case of
Mohammed Zakir Vs. Shabana and
others, (2018) 15 SCC 316 has held that a
criminal court can not make correction of a
final order on merits howsoever patently
erroneous the earlier order be. Such an
order can only be corrected in the process
known to law and not under Section 362
Cr.P.C. Paragraphs 2 and 3 of the said
judgement are extracted hereunder:-

"2. The appellant is aggrieved
since the High Court passed an order
under Section 362 CrPC dated 28-4-2017
[Mohd. Zakir v. Shabana, 2017 SCC
OnLine Kar 4719] recalling its own order
dated 18-4-2017 [Mohd. Zakir v. Shabana,
2017 SCC OnLine Kar 1000 : (2017) 2
CCC 515 (1)] . The order dated 28-4-2017
[Mohd. Zakir v. Shabana, 2017 SCC
OnLine Kar 4719] reads as under:

"Notwithstanding
Section
362
CrPC the order rendered by this Court
earlier
on
18-4-2017
[Mohd.
Zakir v. Shabana, 2017 SCC OnLine Kar
1000 : (2017) 2 CCC 515 (1)] is found to
be patently erroneous and therefore the
order is withdrawn. The petition is restored
to file and the registry is directed not to
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
webhost the order passed earlier and to
take note of the fact that the order is
withdrawn."

3. The High Court should not
have exercised the power under Section
362 CrPC for a correction on merits.
However patently erroneous the earlier
order be, it can only be corrected in the
process known to law and not under
Section 362 CrPC. The whole purpose of
Section 362 CrPC is only to correct a
clerical or arithmetical error. What the
High Court sought to do in the impugned
order is not to correct a clerical or
arithmetical error; it sought to rehear the
matter on merits, since, according to the
learned Judge, the earlier order was
patently erroneous. That is impermissible
under law. Accordingly, we set aside the
impugned order dated 28-4-2017."

21. From the aforesaid discussion, it
is evident that the order of taking
cognizance is a final order and whether it is
erroneous order or not, can be looked into
by the superior court in appropriate
proceedings and not by the same court,
which has taken cognizance.

22. In view thereof, I am of the view
that the order under challenge in the present
revision does not suffer from any illegality
or error of jurisdiction or law. Learned
Magistrate has no power to review the
earlier
order
dated
16.1.2008
taking
cognizance and, therefore, I find no merit
in the present revision, which is hereby
dismissed.
----------
(2023) 2 ILRA 1010
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2023

BEFORE
THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 472 of 2022

Saud Akhtar & Anr. ...Petitioners
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Malay Prasad. Sri Ramesh Chandra
Agrahari,Sr. Adv., Sri Madhu Shukla, Sri
Piyush Shukla, Ms. Saloni Mathur, Ms.
Tanya Makker

Counsel for the Respondents:
A.S.G.I., Sri Arvind Singh G.A.

Criminal Law - Constitution of India,1950
- Article 21, 22(3)(B), 226, - Criminal
Procedure Code, 1973 - Sections 167 &
167(2)(C), - National Security Act, 1980 -
Sections 3(2) & 3(4) - Representation of
the People Act, 1950 - Sections 123(2) ,
123(3)
&
123(3)(A)
-
Indian
Penal
Code,1860 - Sections 34, 120(B), 147,
148, 149, 302 & 307 - Criminal Law
Amendment Act - Section - 7, - The UP
Gangsters
&
Anti
Social
Activities
(Prevention) Act, - Section - 3(1), -
Preventive Detention Act, 1950 - Sections
3(2), 123 (2), 123 (3) & 123 (3A), - Indian
Evidence Act, 1972: - Writ of Habeas Corpus
- against detention order - representation -
rejected - maintainability - lack of subjective
satisfaction of competent authority - Law and
order & Public order define - court finds that,
the detaining authority has merely mentioned in
grounds of detention that petitioner has filed his
bail application before Court and there was
possibility of petitioner indulging in similar
activities prejudicial to maintenance of public
order on his coming out of jail - she has not
recorded her satisfaction in the impugned order
- there was real possibility of his being released
on bail which omission in our opinion has totally
vitiated impugned order - hence, the detention
of detenu under provisions of Section 3 (2) of
NSA, 1980 is unsustainable - consequential
impugned orders are hereby quashed - Petition