# Bihar v. Chandra Bhushan Singh (supra)

- **Citation:** (2008) 2 ILRA 607
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-16
- **Case number:** Crl. Misc. Application No. 5660 of 2008
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bihar-v-chandra-bhushan-singh-supra-41031
- **Pages:** 5

## Headnote

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

Held: Para 9

The order dated 06.06.2006 passed by
the Judicial Magistrate/2nd Additional
Civil Judge(J.D.), Rampur in criminal
misc. case no. 523 of 2007 (State Vs.
Safdar)
shows
that
the
learned
Magistrate did not apply his mind to the
facts of the case and even the case diary
was not perused by him at the time of
passing this order and the final report
has been accepted merely on the ground
that the complainant is absent and a
report under Section 182 Cr.P.C. has
been submitted by the police for taking
608 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
action against the complainant. The
learned Magistrate was required to go
through the case diary and the final
report could be accepted only if there
was
no
evidence
at
all
to
take
cognizance and issuance of process
against the accused. It is well settled
principle of law that if there is evidence
in the case diary to take cognizance and
to summon the accused for trial, then
the Magistrate is not bound to accept the
final report, even if the complainant is
absent or has not filed any protest
petition/objections
against
the
final
report.
Case Law discussed:
1985 Cri. L. J. 437, AIR 2002 Supreme Court
483, 2003 (46) ACC 182 (S.C.)

## Text

2 All] Safdar V. State of U.P. and others
607
criminal case no. 5513 of 2006 pending in
the Court of Judicial Magistrate 1st
Jaunpur on the basis of the summoning
order dated 28.09.2006 are not liable to be
quashed.

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

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

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

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

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.05.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Crl. Misc. Application No. 5660 of 2008

Safdar

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

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

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

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

Held: Para 9

The order dated 06.06.2006 passed by
the Judicial Magistrate/2nd Additional
Civil Judge(J.D.), Rampur in criminal
misc. case no. 523 of 2007 (State Vs.
Safdar)
shows
that
the
learned
Magistrate did not apply his mind to the
facts of the case and even the case diary
was not perused by him at the time of
passing this order and the final report
has been accepted merely on the ground
that the complainant is absent and a
report under Section 182 Cr.P.C. has
been submitted by the police for taking
608 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
action against the complainant. The
learned Magistrate was required to go
through the case diary and the final
report could be accepted only if there
was
no
evidence
at
all
to
take
cognizance and issuance of process
against the accused. It is well settled
principle of law that if there is evidence
in the case diary to take cognizance and
to summon the accused for trial, then
the Magistrate is not bound to accept the
final report, even if the complainant is
absent or has not filed any protest
petition/objections
against
the
final
report.
Case Law discussed:
1985 Cri. L. J. 437, AIR 2002 Supreme Court
483, 2003 (46) ACC 182 (S.C.)

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

1. "Can a Magistrate even after
accepting the final report filed by the
police still take cognizance of an offence
upon a protest petition or complaint on
the same or similar allegations of fact?"
is
the
main
point
that
falls
for
consideration in this proceeding under
Section 482 of the Code of Criminal
Procedure (in short, "the Cr.P.C.), by
means of which, the applicant has
invoked inherent jurisdiction of this
Court, praying for quashing of the order
dated 17.09.2007 passed by the then
Sessions Judge, Rampur in criminal
revision no. 149 of 2007 (Safdar Vs. State
of U.P.) and order dated 19.06.2007
passed by the Judicial Magistrate/ 2nd
Additional Civil Judge/(J.D.) Rampur in
criminal misc. case no. 523 of 2007.

2. Shorn of unnecessary details, the
facts leading to the filing of the
application under Section 482 Cr.P.C., in
brief, are that an application under
Section 156(3) Cr.P.C. was moved by the
applicant in the Court of Judicial
Magistrate, Rampur on 12.12.2005, which
was allowed. Pursuant to the order passed
on that application by the learned
Magistrate, an F.I.R. was lodged on
23.12.2005 and a case under Section 323,
504, 506, 452 and 307 of Indian Penal
Code
(in
short,
"the
I.P.C.")
was
registered against Yaseen S/o Pyare and
Guddu S/o Ahmad Navi (opposite parties
no. 2 and 3 herein) at P.S. Bhot (Rampur).
After investigation, final report was
submitted by the police and a report under
Section 182 I.P.C. was also sent for taking
action against the applicant/complainant.
Notice of the final report and application
under Section 182 I.P.C. was sent to the
complainant on 20.02.2006. On getting
information, the complainant appeared in
the Court of Magistrate concerned and
sought time to file objections against the
final
report.
On
06.06.2006,
the
complainant did not appear in the Court
and
hence,
the
learned
Magistrate
accepted the final report and adjourned
the case for taking action under Section
182 I.P.C. against the complainant.
Thereafter, the complainant filed protest
petition against the final report on
01.08.2006. After hearing the counsel of
the complainant, the learned Judicial
Magistrate/2nd Additional Civil Judge
(J.D.), Rampur vide his order dated
19.06.2007 dismissed the protest petition
holding that since the final report has
already been accepted on 06.06.2006,
hence
the
protest
petition
is
not
maintainable. Order dated 19.06.2007
passed by the learned Magistrate was
challenged by the complainant/applicant
in the Court of Sessions Judge, Rampur
by means of criminal revision no. 149 of
2007, which has been dismissed by the
then learned Sessions Judge, Rampur vide
his order dated 17.09.2007. Both these
orders have been challenged in this
proceeding under Section 482 Cr.P.C.
2 All] Safdar V. State of U.P. and others
609

3. Since no adverse order has been
passed
against
the
accused/opposite
parties, hence notices of the proceeding
have not been issued to them.

4. I have heard Sri Haji S. Kamal
Akhtar Khan, learned counsel for the
applicant, learned A.G.A. for the State
and perused the record.

5. It was vehemently contended by
the learned counsel for the applicant that
the order dated 19.06.2007 passed by the
Judicial Magistrate/ 2nd Additional Civil
Judge (J.D.), Rampur in criminal misc.
case no. 523 of 2007 and order dated
17.09.2007 passed by the Sessions Judge,
Rampur in criminal revision no. 149 of
2007 are wholly illegal, as even after
acceptance of the final report by the
Magistrate, the complainant has right to
file protest petition and cognizance still
can be taken by the Magistrate upon the
protest petition.

6. The learned A.G.A. on the other
hand contended that there is no illegality
in
the
impugned
orders,
as
after
acceptance of the final report by the
Magistrate,
protest
petition
of
the
complainant was not maintainable and
hence the same was rightly dismissed by
the learned Magistrate and the learned
Sessions Judge also did not commit any
illegality in affirming the order of
Magistrate dismissing the protest petition.

7. Having given my thoughtful
consideration to the rival submissions
made by the learned counsel for the
parties, I find force in the above
mentioned contention of the learned
counsel for the applicant. The matter of
maintainability of the protest petition after
acceptance of the final report by the
Magistrate
was
considered
by
the
Division Bench of Patna High Court in
the case of Munilal Thakur and others
Vs. Naval Kishore Thakur and another
(1985 Cri.L.J. 437). After considering
various authorities, it has been held by the
Division Bench that a Magistrate even
after accepting the final report can still
take cognizance of the offence upon a
complaint or a protest petition on the
same or similar allegations of fact. This
matter came before the Hon'ble Apex
Court in the case of Kishore Kumar
Gyanchandani Vs. G. D. Mehrotra
(AIR 2002 Supreme Court 483). In that
case also, final report was submitted after
investigation by the police, which was
accepted by the Magistrate. Thereafter,
the complainant had filed a protest
petition, which was treated as complaint
by the Magistrate and after holding
inquiry under Section 202 Cr.P.C.,
summoning order was passed, which was
challenged by the accused in the High
Court. In exercise of its inherent power,
the High Court had set-aside the order of
taking cognizance and issuance of process
in the complaint proceeding. When appeal
against the order of High Court was
preferred in the Hon'ble Apex Court, the
following observations have been made in
para 4 of the judgement:-

"........ 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
610 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
is not taken away and in fact on such a
complaint being filed the Magistrate
follows the procedure under Section 202
of the Code and takes cognizance if the
materials produced by the complainant
make out an offence.

With these observations, the appeal was
allowed and order of the High Court was
set-aside by the Hon'ble Apex Court.

8. This matter was again considered
by the three Judges' Bench of the Hon'ble
Apex Court in the case of Mahesh
Chand Vs. B. Janardhan Reddy and
another(2003 (46) ACC 182 (S.C.), in
which it is held that there cannot be any
doubt or dispute that only because the
Magistrate has accepted the final report,
the same by itself would not stand in his
way to take cognizance of the offence on
a protest/complaint petition. From the law
laid down by the Hon'ble Apex Court in
above mentioned rulings, it is crystal clear
that even after acceptance of the final
report by the Magistrate, the complainant
can file protest petition and the said
petition cannot be dismissed holding that
the same is not maintainable. Therefore,
in instant case also, the view of the
learned Magistrate that after acceptance of
the final report, the protest petition is not
maintainable is wholly erroneous. For the
same reasons, the order dated 17.09.2007
passed by the then learned Sessions
Judge, Rampur in criminal revision no.
149 of 2007, whereby the aforesaid view
of the learned Magistrate has been
affirmed is also wholly illegal. Although,
the learned Sessions Judge has made
reference of the case of Mahesh Chand
Vs. B. Janardhan Reddy (supra) in his
impugned order dated 17.09.2007, but it
is very unfortunate that the learned
Sessions Judge could not understand the
principle of law laid down by the Hon'ble
Apex Court in this ruling. In para 11 of
the judgement of this case, the Hon'ble
Apex Court has very clearly held that
only because the Magistrate has accepted
the final report, the same by itself would
not stand in his way to take cognizance of
the
offence
on
a
protest/complaint
petition. Therefore, the protest petition
filed by the complainant/ applicant after
acceptance of the final report could not be
dismissed on the ground that after
accepting the final report, the protest
petition is not maintainable. The learned
Magistrate could treat the protest petition
as complaint and after recording the
statement of the complainant under
Section 200 Cr.P.C. and taking evidence
under Section 202 Cr.P.C., proper order
under Section 203 or 204 Cr.P.C. ought to
have
been
passed,
but
instead
of
following this procedure, the learned
Magistrate dismissed the protest petition
vide his order dated 19.06.2007 holding
that after acceptance of the final report,
protest
petition
is
not
legally
maintainable. As mentioned herein-above,
this view of the learned Magistrate is
wholly erroneous.

9. It was also contended by the
learned counsel for the applicant that
order dated 06.06.2006, whereby the final
report was accepted by the learned
Magistrate is also wholly illegal, because
the learned Magistrate did not apply his
mind to the facts of the case and final
report has been accepted merely due to
absence
of
the
complainant
on
06.06.2006. It was submitted by the
learned counsel for the applicant that the
order dated 06.06.2006 also should be
quashed by this Court in its inherent
jurisdiction under Section 482 Cr.P.C. so
that the Magistrate may pass reasoned
2 All] Kamlesh Kumar V. State of U.P.
611
order on the final report after perusal of
the case diary. This contention of the
learned counsel for the applicant has also
got force. The order dated 06.06.2006
passed by the Judicial Magistrate/2nd
Additional Civil Judge (J.D.), Rampur in
criminal misc. case no. 523 of 2007 (State
Vs. Safdar) shows that the learned
Magistrate did not apply his mind to the
facts of the case and even the case diary
was not perused by him at the time of
passing this order and the final report has
been accepted merely on the ground that
the complainant is absent and a report
under Section 182 Cr.P.C. has been
submitted by the police for taking action
against the complainant. The learned
Magistrate was required to go through the
case diary and the final report could be
accepted only if there was no evidence at
all to take cognizance and issuance of
process against the accused. It is well
settled principle of law that if there is
evidence in the case diary to take
cognizance and to summon the accused
for trial, then the Magistrate is not bound
to accept the final report, even if the
complainant is absent or has not filed any
protest petition/objections against the
final report. Therefore, the order dated
06.06.2006 also is liable to be quashed, so
that a reasoned order after perusing the
case diary may be passed by the learned
Magistrate on the final report.

10. For the reasons mentioned
herein-above, both the impugned orders
as well as the order dated 06.06.2006
passed by the learned Judicial Magistrate
accepting the final report deserve to be
quashed.

11. Consequently, the application
under Section 482 Cr.P.C. is allowed.
Both
the
impugned
orders
dated
19.06.2007 and 17.09.2007 as well as the
order dated 06.06.2006 accepting final
report are hereby quashed. The learned
Magistrate concerned is directed to pass
fresh reasoned order on the final report in
case crime No. C-3/2005 of P.S. Bhot
(Rampur) and protest petition keeping in
view the observations made in this order.

Application Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.04.2008

BEFORE
THE HON'BLE SHIV SHANKER, J.

Crl. Misc. II Bail Application 7049 of 2008

Kamlesh Kumar

...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri. V.P. Srivastava
Sri. Lav Srivastava
Counsel for the Opp. Party:
A.G.A.

Code of Criminal Procedure-Section 439-
Second Bail Application-based on similar
facts those of First Bail Application-no
fresh or new facts brought-cannot be
considered on merit-held-second bail
liable to be rejected.

Held: Para 7

After rejecting the firs bail application,
the new and fresh grounds can only be
considered
and
such
bail
may
be
granted. The rejection order passed in
the first bail application reveals that the
question of locking the door from outside
or inside has already been considered.
The general diary, as contended by
learned counsel for the applicant, was
already in existence at the time of
moving the first bail application even
then this ground cannot be considered in