# Dinesh Jatav v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 396
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-28
- **Case number:** Application U/S 482 No. 41397 of 2023
- **Bench:** Manoj Baja
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-jatav-v-state-of-u-p-anr-50952
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 156(3), 173(2), 190
& 482 - Indian Penal Code, 1860 -
Sections 279 & 304-A - Application u/s 482 -
challenging the summoning order - accident -
complaint - FIR registered - informant alleged
that his brother died due to a motorcycle
accident caused by the rash driving of accused
applicant - investigation - police submitted final
report - mention that deceased was driving
carelessly with two pillion riders and accidentally
struck a gas cylinder tied to accused's
motorcycle, finding no evidence against accused
and recommending his exoneration - Protest
petition - FR was rejected - summon order -
challenges this order, accused applicant argued
that the Magistrate erred in law by not following
the procedure under Chapter XV Cr.P.C. and
cites precedent to support setting aside the
impugned order and accepting the final report -
court finds that, the impugned order was based
solely on investigation material, not on any
additional documents from the complainant,
making the precedent cited by the applicant
3 All. Dinesh Jatav Vs. State of U.P. & Anr.
397
inapplicable - held - under Section 190 Cr.P.C., a
Magistrate has broad powers to take cognizance
of offences based on the material in the police
report and is not bound by the Investigating
Officer's conclusions - hence, despite the final
report exonerating accused the Magistrate
rightly took cognizance based on witness
St.ments and medical evidence suggesting his
involvement - Consequently, Court does not find
any merit, therefore, the application fails and
stands dismissed.
(Para - 13, 14, 15, 16)

Application Dismissed. (E-11)

List of referred Cases: -

## Text

396 INDIAN LAW REPORTS ALLAHABAD SERIES
applicants herein, thereafter summoned the
applicants herein. In the present case
perusal of the impugned summoning order
clearly shows that the Magistrate has
recorded his satisfaction and applied his
mind and after considering the statements
of the complainant and the witnesses has
passed the impugned summoning order,
which requires no interference by this
Court.

22. From perusal of complaint as
well as the statement under Section 200 and
202 Cr.P.C., recorded by the Magistrate in
terms of Section 202 Cr.P.C. the court is of
the considered opinion that prima facie a
case is made out against the applicants
under Section 406 I.P.C. Section 202
Cr.P.C.
does
not
mandate
that
the
Magistrate should conduct any enquiry to
collect the material which was not before
him. On the basis of material available
before him a prima facie satisfaction has
been recorded and a prima facie case is
made out against the applicants herein
which is sufficient for compliance of an
enquiry under Section 202 Cr.P.C. What is
prohibited in terms of the judgment of
Apex Court in Birla Corporation Limited
(supra) that the Magistrate could not pass
any order mechanically and he has to apply
his mind to the material available before
him and on the basis of scrutiny of the
material he should record his satisfaction,
which has been categorically recorded in
the instant case. So for as the submissions
of learned counsel for the applicants with
regard to his claim that no dowry etc. was
given by opposite party no.2 and her
family
members
and
the
marriage
between the parties had taken place out of
their interaction through Facebook, that is
defence of the applicants, which has to be
established during trial of the applicants.

23. In view of the above, the instant
application is devoid of merit and is hereby
dismissed.
---------
(2024) 3 ILRA 396
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2023

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Application U/S 482 No. 41397 of 2023

Dinesh Jatav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajesh Kumar Patel, Sri Ashutosh
Kumar Gautam

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 156(3), 173(2), 190
& 482 - Indian Penal Code, 1860 -
Sections 279 & 304-A - Application u/s 482 -
challenging the summoning order - accident -
complaint - FIR registered - informant alleged
that his brother died due to a motorcycle
accident caused by the rash driving of accused
applicant - investigation - police submitted final
report - mention that deceased was driving
carelessly with two pillion riders and accidentally
struck a gas cylinder tied to accused's
motorcycle, finding no evidence against accused
and recommending his exoneration - Protest
petition - FR was rejected - summon order -
challenges this order, accused applicant argued
that the Magistrate erred in law by not following
the procedure under Chapter XV Cr.P.C. and
cites precedent to support setting aside the
impugned order and accepting the final report -
court finds that, the impugned order was based
solely on investigation material, not on any
additional documents from the complainant,
making the precedent cited by the applicant
3 All. Dinesh Jatav Vs. State of U.P. & Anr.
397
inapplicable - held - under Section 190 Cr.P.C., a
Magistrate has broad powers to take cognizance
of offences based on the material in the police
report and is not bound by the Investigating
Officer's conclusions - hence, despite the final
report exonerating accused the Magistrate
rightly took cognizance based on witness
St.ments and medical evidence suggesting his
involvement - Consequently, Court does not find
any merit, therefore, the application fails and
stands dismissed.
(Para - 13, 14, 15, 16)

Application Dismissed. (E-11)

List of referred Cases: -

1. Minu Kumari & anr.Vs The St. of Bihar & ors.,
(2006) 4 SCC 359,

2. Abhinandan Jha & ors.Vs Dinesh Mishra, AIR
1968 SC 117,

3. Wakil Ahmad & ors.Vs St. of U.P. & anr.-
Application U/S 482 No. 14314/2006 Decided on
06.03.2020.

(Delivered by Hon'ble Manoj Bajaj, J.)

1. Applicant being accused has
approached
this
Court
through
this
application under Section 482 Code of
Criminal Procedure seeking quashing of the
impugned
summoning
order
dated
20.7.2023 passed by Civil Judge (J.D.)/
Judicial Magistrate, Konch, District Jalaun
by disagreeing with the final report under
Section 173(2) Cr.P.C. filed in Criminal
Case No. 925 of 2023, titled Rinku Jatav
Vs. Dinesh Jatav, arising out of Case Crime
No. 57 of 2019, under Sections 279, 304-A
I.P.C., Police Station Kotwali Konch,
District Jalaun.

2. The facts leading to the application
are as under:-

3. The above F.I.R. was
registered on the basis of the complaint
given by complainant Rinku Jatav, who
alleged that he is a resident of village
Unchagaon,
District
Jalaun
and
on
1.2.2019, the date of incident, at around
8:00 AM complainant's brother Mansingh
Jatav s/o Sri Panna Lal was going from his
house at Unchagaon to village Bhed, Police
Station Konch, District Jalaun on his
motorcycle bearing registration no. CG 085
6288. Mansingh Jatav was accompanied by
pillion riders namely, Churaman Jatav and
Parshuram Jatav both sons of Mohan Lal
r/o village Unchagaon. At around 11:00
AM,
when
his
brother's
motorcycle
reached near village Gurawati, Police
Station Konch, District Jalaun near a turn,
then the motorcycle bearing registration no.
U.P. 92 R 7650 driven carelessly by Dinesh
Jatav s/o Ramsiya r/o village Unchagaon,
Police
Station
Kailiya,
struck
the
motorcycle of complainant's brother and it
resulted in serious injuries leading to death
of his brother. Complainant prayed that
lawful action be taken against the accused
persons. On these broad allegations, the
above F.I.R. was registered against the
accused, for the alleged commission of
offences punishable under Sections 279 and
304-A I.P.C.

4. After registration of the case, the
investigation was carried out and through
the final report dated 8.8.2019 (Annexure
No.3), the Investigating Officer concluded
that the victim was driving the vehicle
rashly and carelessly with two pillion riders
and in order to cross the vehicle driven by
Dinesh Jatav, he struck against the gas
cylinder tied with the motorcycle of Dinesh
Jatav and died accidentaly. As per the final
report, the adequate evidence against
Dinesh Jatav was not found, therefore, it
was requested that the report exonerating
the accused-Dinesh Jatav be accepted.

5. Being dissatisfied with the
final report bearing No. 64/2021 dated
8.8.2019 filed under Section 173(2) Cr.P.C.,
398 INDIAN LAW REPORTS ALLAHABAD SERIES
the complainant filed protest petition dated
12.7.2023 (Annexure No.4) and requested
for rejecting the final report and made a
prayer for taking cognizance against
accused-Dinesh
Jatav.
The
Judicial
Magistrate, Konch, Distcit Jalaun vide
impugned order dated 20.7.2023 rejected
the conclusion of the investigator and
summoned
the
accused
for
alleged
commission of offences punishable under
Section 279, 304-A I.P.C. and further
directed to register the case as a State case.
Hence, this application.

6. Learned counsel for applicant has
argued that allegations made by the
complainant were thoroughly looked into
by
the
Investigating
Officer
after
registration of the case and a just
conclusion was drawn that the applicant
was not responsible for causing the death of
victim Mansingh, much less by driving his
two wheeler rashly and negligently. He
submits that trial court while considering
the final report as well as the protest
petition has committed a serious error of
law in taking cognizance against the
applicant by further directing to register the
case as a State case as once the cognizance
is based on the protest petition, the
procedure contained in Chapter XV Cr.P.C.
has to be followed. Learned counsel for
applicant has further drawn the attention of
the Court to the statement of eye witness
namely, Churaman recorded under Section
161 Cr.P.C. to contend that according to the
statement of this witness, it was not a
collision of two wheelers, but the handle of
the motorcycle of Mansingh had touched
the gas cylinder tied with the other two
wheeler, which resulted in accident, and
complainant lodged the false F.I.R.

7. Learned counsel for applicant in
support of his submissions has placed
reliance upon the decision of this court vide
order dated 6.3.2020 passed in Application
U/S 482 No. 14314 of 2006, titled Wakil
Ahmad and others Vs. State of U.P. and
another, and submitted that in the cited
case as well, the Magistrate had on one
hand rejected the final report submitted by
police under Section 173(2) Cr.P.C., but at
the same time, had proceeded to take
cognizance against the accused as a police
case, and the said order was set aside by
this Court with a direction to proceed from
the stage of consideration of final report
submitted by police, and protest petition by
complainant for passing appropriate orders
in accordance with law. Learned counsel
for applicant submits that case in hand is
squarely covered by the said decision,
therefore, interference is warranted by this
Court and the impugned order dated
20.7.2023 be set aside and the final report
dated 8.8.2019 submitted by the police be
accepted.

8. Learned counsel for the applicant
has been heard and with his assistance, the
case file has been perused carefully.

9. Before adverting to the merits of
the case, this Court deems it appropriate to
have a glance at Section 190 Cr.P.(a)C.,
which contemplates the cognizance of
offences by Magistrate. The Section 190
Cr.P.C. reads as under:-

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;
3 All. Dinesh Jatav Vs. State of U.P. & Anr.
399

(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.

10. A careful reading of the above
would show that this provision empowers
the Magistrate to take cognizance of
offences allegedly committed, and though
the expression cognizance has not been
defined in the Code of Criminal Procedure,
but it would certainly mean the application
of judicial mind. At this stage, the
Magistrate is required to satisfy, if, the
material on record i.e. private complaint/
police report/ information received from
the third person, as the case may be,
discloses commission of a cognizable
offence. Thus, it becomes clear that wide
powers
have
been
vested
with
the
Magistrate through this provision, in order
to commence the criminal proceedings
against the accused.

11. By now, it is well settled law that
at this stage, where the Magistrate is seized
of the police report, he is not bound to
follow the conclusion drawn by the
Investigating Officer, and, if, the material
collected during investigation suggests
commission of cognizable offence, the
Magistrate would be well within his powers
to
disagree
with
the
police
report
exonerating the accused, and further may
proceed to issue process against the
accused based on the police report itself.
The above provision was analysed by the
Hon'ble Apex Court in the case of
Abhinandan Jha and others Vs. Dinesh
Mishra, AIR 1968 SC 117, and the relevant
observations made by the Hon'ble Supreme
Court in the said decision read as under:-

15. Then the question is, what is
the position, when the Magistrate is dealing
with a report submitted by the police, under
section 173, that no case is made out for
sending up an accused for trial, which
report, as we have already indicated, is
called, in the area in question, as a 'final
report'? Even in those cases, if the
Magistrate agrees with the said report, he
may accept the final report and close the
proceedings. But there may be instances
when the Magistrate may take the view, on
a consideration of the final report, that the
opinion formed by the police is not based
on a full and complete investigation, in
which case in our opinion the Magistrate
will have ample jurisdiction to give
directions to the police, under section 156 (
3 ), to make a further investigation. That is,
if the Magistrate feels, after considering the
final report, that the investigation is
unsatisfactory, or incomplete, or that there
is scope for further investigation, it will be
open to the Magistrate to decline to accept
the final report and direct the police to
make further investigation, under section
156 (3). The police, after such further
investigation, may submit a charge-sheet,
or,, again submit a final report, depending
upon the further investigation made by
them. If, ultimately, the Magistrate forms
the opinion that the facts, set out in the
final report, constitute an offence, he, can
take cognizance of the offence under
section 190(1) (c), notwithstanding the
contrary opinion of the police, expressed in
the final report.

16.
In
this
connection,
the
provisions of section 169 of the Code, are
relevant. They specifically provide that
400 INDIAN LAW REPORTS ALLAHABAD SERIES
even though, on investigation, a police
officer, or other investigating officer, is of
the opinion that there is no case for
proceeding against the accused, he is
bound, While releasing the accused,, to
take a bond from him to appear, 'If and.
when required, before a Magistrate. This
provision
is
obviously
to
meet
a
contingency of the Magistrate, when he
considers the report of the investigating
officer, and judicially takes a view different
from the police.

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 XXIV, as
well as the observations of this Court in
Rishbud and Inder Singh's Case(1) 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 tile 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, be 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 'charge-
sheet', 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.

12. The above judgment was further
followed by Hon'ble Apex Court in the
case of Minu Kumari and another Vs. The
State of Bihar and others, (2006) 4 SCC
359, the relevant observations read as
under:-

In Abhinandan Jha and another v.
Dinesh Mishra (AIR 1968 SC 117), this
Court while considering the provisions of
Sections 156(3), 169, 178 and 190 of the
Code held that there is no power, expressly
or impliedly conferred, under the Code, on
a Magistrate to call upon the police to
submit a charge sheet, when they have sent
a report under Section 169 of the Code,
3 All. Dinesh Jatav Vs. State of U.P. & Anr.
401
that there is no case made out for sending
up an accused for trial. The functions of the
Magistracy and the police are entirely
different, and the Magistrate cannot
impinge upon the jurisdiction of the police,
by compelling them to change their opinion
so as to accord with his view. However, he
is not deprived of the power to proceed
with the matter. There is no obligation on
the Magistrate to accept the report if he
does not agree with the opinion formed by
the police. The power to take cognizance
notwithstanding formation of the opinion
by the police which is the final stage in the
investigation has been provided for in
Section 190(1)(c).

When a report forwarded by the
police to the Magistrate under Section
173(2)(i) is placed before him several
situations arise. The report may conclude
that an offence appears to have been
committed by a particular person or
persons and in such a case, the Magistrate
may either (1) accept the report and take
cognizance of the offence and issue
process, or (2) may disagree with the report
and drop the proceeding, or (3) may direct
further investigation under Section 156(3)
and require the police to make a further
report. The report may on the other hand
state that according to the police, no
offence appears to have been committed.
When such a report is placed before the
Magistrate he has again option of adopting
one of the three courses open i.e., (1) he
may accept the report and drop the
proceeding; or (2) he may disagree with the
report and take the view that there is
sufficient ground for further proceeding,
take congnizance of the offence and issue
process; or (3) he may direct further
investigation to be made by the police
under Section 156(3). 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, 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
Sections 200 and 202 of the Code for
taking cognizance of a case under Section
190(1)(a) though it is open to him to act
under Section 200 or Section 202 also. [See
M/s. India Carat Pvt. Ltd. v. State of
Karnataka and another (AIR 1989 SC
885)].

13. In view of the above decisions by
Hon'ble Apex Court, it emerges that the
final report submitted by the police under
Section 173(2) Cr.P.C. does not bind the
Magistrate and in case, if, the material on
record suggests commission of offence, the
Magistrate would be justified in taking
cognizance of the same.

14. Now, while reverting to the merits
of the case in hand, this Court finds that as
per the prosecution, the victim was the
driver of two wheeler, whereas prosecution
402 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses
namely,
Churaman
and
Parshuram both sons of Late Mohan Lal
were the pillion riders. The statement of
these two witnesses recorded under Section
161 Cr.P.C. suggests the involvement of the
motorcycle driven by accused Dinesh Jatav
and case of the prosecution is further
supported by medical evidence as well.
Thus, the argument that applicant has been
falsely implicate is misconceived at least at
the stage of cognizance by Magistrate
under Section 190 Cr.P.C. Apart from this,
a careful reading of the impugned order
would show that the Magistrate has
minutely examined the final report under
Section 173(2) Cr.P.C. while, refusing to
accept the conclusion and rightly proceeded
to take cognizance of the offences. The
impugned order is based upon the material
collected by the Investigating Officer
during investigation and is not based upon
any other material, much less filed by
complainant along with his complaint/
protest petition.

15. Therefore, in these circumstances,
the decision in Wakil Ahmad's case
(Supra) relied upon by the applicant would
not be applicable, as in the said case, the
Magistrate not only rejected the final report
submitted by police, but also placed
reliance upon two affidavits, which were
filed by complainant along with his protest
petition. It was in this background, this
Court observed that once the cognizance is
based upon the other material, which is not
part of the final report submitted under
Section 173(2) Cr.P.C., therefore, the
Magistrate ought to have followed the
procedure contained under Chapter XV
Cr.P.C. In this case, no doubt the Magistrate
used the expression that the final report is
rejected, but it only means that the
Magistrate has shown his disagreement to
the conclusion drawn by the Investigating
Officer, because in the end the Magistrate
has directed that the case be registered as
the case based on the police report.

16. Resultantly, in view of the above
discussion, this Court does not find any
merit in this case, therefore, the application
fails and is hereby dismissed.
---------
(2024) 3 ILRA 402
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2024
BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
HON'BLE ATTAU RAHMAN MASOODI, J.

Special Appeal No. 36 of 2024

Karmesh Pratap Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Ajay Singh, Sakshi Singh, Sameer Singh

Counsel for the Respondents:
Abhinav Trivedi, Lalta Prasad Misra

A. Service Law - Constitution of India -
Article 14 - Public Recruitment - Basic
principles governing it - Open competition
- Significance - Held, recruitment in the
matter of public employment is founded
on two basic principles. Firstly that the
recruitment agency must have credibility
of the highest order in executing the
principle
of
open
competition
and
secondly, the implementation of rules
applicable
insofar
as
the
process is
concerned must equally stand the tests of
Article 14 of the Constitution of India.
(Para 26)

B. Service law - UP Legislative Assembly
Secretariat (Recruitment and Conditions
of Service) Rules, 1974 - Rule 6 (ii), 49
and 50 - Post of Information Officer -
Recruitment - Academic qualification -