# Dost Mohammad & Anr v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 942
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-11
- **Case number:** Application U/S 482. No. 2274 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dost-mohammad-anr-v-state-of-u-p-anr-51717
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 420, 467, 468, 471, 504 & 506 -
Petitioners contended that application u/s
156(3) Cr.P.C. filed by opposite party no. 2
was counter-blast to F.I.R. on petitioners'
side - It is urged that when Magistrate, by
order dated 11.11.2021, treating said
application as complaint, fixed matter for
St.ment of complainant u/s 200 Cr.P.C.,
opposite party no. 2 ought not to have
challenged said order before revisional
court on ground that only recourse
available was to direct lodging of F.I.R -
Revisional court, set aside Magistrate's
order dated 11.11.2021 and directed
lodging of F.I.R., pursuant to which
Magistrate, by order dated 20.02.2024,
directed registration of F.I.R - Held, it is
settled law that before issuing summons
3 All. Dost Mohammad & Anr. Vs. State of U.P. & Anr.
943
against prospective accused on complaint,
Magistrate must comply with mandate of
Section 202(1) Cr.P.C - If, upon such
inquiry,
Magistrate
considers
proper
adjudication requires registration of F.I.R.,
he may direct at that stage - However, in
instant case, such stage had not arisen, as
immediately after order dated 11.11.2021,
opposite party no. 2 preferred revision - It
is undisputed that treating application u/s
156(3) Cr.P.C. as complaint case and
directing
recording
of
St.ment
of
complainant is interlocutory order, and
revisional court could not set aside
Magistrate's order dated 11.11.2021 -
While allegations, including those of loot,
are indeed serious and cognizable, it
remains
for
Magistrate
to
determine
appropriate
course
before
proceeding
further, as settled law on subject cannot
be disregarded by subordinate courts -
Thus, impugned order and consequential
order, quashed. (Para 3, 4, 8)

Application allowed. (E-13)

List of Cases cited:

## Text

942 INDIAN LAW REPORTS ALLAHABAD SERIES
direction, it can take cognizance of the
offence under Section 31-A also.

16. Therefore, the law requires that a
Magistrate may take cognizance of any
offence upon a police report of the facts
constituting an offence. Although the
police report may not allege commission of
any specific offence, in case the Magistrate
is satisfied that the facts stated in the police
report make out commission of any
offence, the Magistrate can take cognizance
of that offence.

17. A perusal of the impugned order
indicates that from the material placed
before the trial court it found that the
material clearly established commission of
offences under Section 323, 504, 506 &
308 IPC and, accordingly, the trial court
has taken cognizance of the aforesaid
offences. However, the trial court found
that the Investigating Officer has recorded
in the case diary that the injury no. 1 was
caused by some sharp edged object but he
did not make any effort to ascertain as to
what was the object used and he did not
make any attempt to recover the same. The
Investigating Officer formed an opinion
merely being influenced by the fact that no
fracture was caused in the incident. The
trial Court found that the Investigating
Officer has submitted the charge sheet in
respect of the offences which are less
serious under influence of extraneous
reasons. The trial court observed that it was
necessary to make efforts for recovery of
the sharp edged object used in the offence
and has directed further investigation on
this point only.

18. In these circumstances, the trial
court has not committed any error in taking
cognizance of the offence when from the
material placed before the trial, a case for
taking cognizance of offences was made
out.

19. Therefore, there is no error or
illegality in the impugned order dated
08.12.2023 passed by the trial court.

20. The application lacks merit and
the same is dismissed.
----------
(2024) 3 ILRA 942
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.03.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482. No. 2274 of 2024

Dost Mohammad & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Dinesh Kumar Singh (D.K. Singh)

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 420, 467, 468, 471, 504 & 506 -
Petitioners contended that application u/s
156(3) Cr.P.C. filed by opposite party no. 2
was counter-blast to F.I.R. on petitioners'
side - It is urged that when Magistrate, by
order dated 11.11.2021, treating said
application as complaint, fixed matter for
St.ment of complainant u/s 200 Cr.P.C.,
opposite party no. 2 ought not to have
challenged said order before revisional
court on ground that only recourse
available was to direct lodging of F.I.R -
Revisional court, set aside Magistrate's
order dated 11.11.2021 and directed
lodging of F.I.R., pursuant to which
Magistrate, by order dated 20.02.2024,
directed registration of F.I.R - Held, it is
settled law that before issuing summons
3 All. Dost Mohammad & Anr. Vs. State of U.P. & Anr.
943
against prospective accused on complaint,
Magistrate must comply with mandate of
Section 202(1) Cr.P.C - If, upon such
inquiry,
Magistrate
considers
proper
adjudication requires registration of F.I.R.,
he may direct at that stage - However, in
instant case, such stage had not arisen, as
immediately after order dated 11.11.2021,
opposite party no. 2 preferred revision - It
is undisputed that treating application u/s
156(3) Cr.P.C. as complaint case and
directing
recording
of
St.ment
of
complainant is interlocutory order, and
revisional court could not set aside
Magistrate's order dated 11.11.2021 -
While allegations, including those of loot,
are indeed serious and cognizable, it
remains
for
Magistrate
to
determine
appropriate
course
before
proceeding
further, as settled law on subject cannot
be disregarded by subordinate courts -
Thus, impugned order and consequential
order, quashed. (Para 3, 4, 8)

Application allowed. (E-13)

List of Cases cited:

1. Sukhwasi Vs St. of U.P. : 2007(59) ACC 739

2. Mangalsen Vs St. of U.P., Criminal Misc.
Application No. 7651 of 2009

3. Lalita Kumari Vs St. of U.P.& ors..: 2014 (2)
SCC 1

4. Madhu Limaye Vs St. of Mah. : AIR 1978
Supreme Court 47

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Dinesh Kumar Singh,
learned counsel for the petitioners, Ms.
Nusrat Jahan, learned AGA for the State
and Sri R.B.S. Rathaur, Advocate who has
filed 'Vakalatnama' on behalf of opposite
party no. 2, same is taken on record.

2. By means of this petition the
petitioners have prayed following relief :

"Set aside the impugned judgment
and order dated 07.02.2024 passed by the
learned Additional Session Judge Court
No. 1 Faizabad in Criminal Revision No.
187/2021 (Mohammad Ahmad Vs. State
and others). contained as Annexure No. 1
to
the
present
petition,
with
all
consequential benefits.

It is further prayed that this
Hon'ble Court may kindly be pleased to set
aside
the
consequential
order
dated
20.02.2024
passed
by
the
Judicial
Magistrate-II,
Faizabad/Ayodhya
in
complaint case no 1217/2021 (Mohammad
Ahmad Vs. Dost Mohammad and others),
contained as Annexure No. 2 to the present
petition."

3. The precise contention of learned
counsel for the petitioners is that though the
complaint / application filed by the
opposite party no. 2 u/s 156(3) Cr.P.C. on
28.9.2021 is a counter-blast to the F.I.R.
bearing No. 0346 of 2021 u/s 420, 467,
468, 471, 504, 506 IPC, P.S. Kotwali
Rudauli, District Ayodhya lodged from the
side of the petitioners on 30.7.2021 but
when on such application the Magistrate
passed an order on 11.11.2021 (Annexure
no. 5) referring the decision of Division
Bench of this Court in re: Sukhwasi vs.
State of U.P. : 2007(59) ACC 739 to treat
such application as complaint fixing the
date for the statement of the complainant
u/s 200 Cr.P.C., the opposite party no. 2
who is applicant of that application should
have not challenged that order before the
revisional court saying that on those
allegations which have been leveled against
the petitioners the only recourse was to
issue direction to lodge F.I.R. inasmuch as
this is a trite law that after recording the
statement u/s 200 and 202 Cr.P.C. it is
incumbent upon the learned Magistrate to
make inquiry or direct investigation u/s
944 INDIAN LAW REPORTS ALLAHABAD SERIES
202(1) and if in any case the learned court
concerned finds that the allegation may not
be adjudicated on the basis of proceedings
of complaint case, the magistrate may very
well direct to lodge F.I.R. In the present
case the revisional court cited the decision
of this Court at Allahabad in re: Mangalsen
vs. State of U.P. passed in Criminal Misc.
Application No. 7651 of 2009 and the
Apex Court in re: Lalita Kumari vs. State
of Uttar Pradesh and others : 2014 (2)
SCC 1 to set aside the order dated
11.11.2021 passed by the Magistrate court
directing the magistrate to issue direction
for lodging the F.I.R. Pursuant thereto the
Magistrate
has
passed
order
dated
20.2.2024
referring
the
decision
of
Mangalsen
(supra)
to
lodge
F.I.R.
pursuant to the aforesaid application filed
u/s 156(3) Cr.P.C.

4. Sri D.K. Singh has stated that the
impugned order dated 20.2.2024 (supra) is
in-fact the compliance order making
compliance of the order of the revisional
court dated 7.2.2024 inasmuch as at the
first instance and at the very instance the
learned Magistrate has passed order dated
11.11.2021 (supra). Sri Singh has further
submitted that the judgment so cited by the
revisional court are not applicable in the
present case inasmuch as the direction of
Court in re: Mangalsen (supra) passed by
this Court has been diluted by this Court in
Sukhwasi (supra). In the judgment of
Sukhwasi (supra) the reference has been
indicated in para 1 and its answer has been
indicated in para 23 which read as under :

"Whether the Magistrate is bound
to pass an order on each and every
application under Section 156(3) Criminal
Procedure Code containing allegations of
commission of a cognizable offence for
registration
of
the
F.I.R.
and
its
investigation by the police even if those
allegations, prima-facie, do not appear to
be genuine and do not appeal to reason, or
he can exercise judicial discretion in the
matter and can pass order for treating it as
'complaint' or to reject it in suitable
cases"?

"23. The reference is, therefore,
answered in the manner that it is not
incumbent upon a Magistrate to allow an
application under Section 156(3) Criminal
Procedure Code and there is no such legal
mandate. He may or may not allow the
application in his discretion. The second
leg of the reference is also answered in the
manner
that
the
Magistrate
has
a
discretion to treat an application under
section 156(3) Criminal Procedure Code as
a complaint."

5. He has further submitted that in the
judgment of Lalita Kumari (supra) there is
no specific direction of the Apex Court in
respect of section 156(3) but it was relating
to section 154 Cr.P.C., however, as an
obiter dicta, some reference has been given
in respect of section 156(3) Cr.P.C.
Therefore, Sri Singh has stated that the
impugned order of the revisional court is
liable to be set aside.

6. Sri Singh has also referred the
dictum of Apex Court in re: Madhu
Limaye vs. State of Maharashtra : AIR
1978 Supreme Court 47 to state that taking
cognizance of the application of the
opposite party no. 2 treating the same as
complaint case directing to record the
statement u/s 200 Cr.P.C., vide order dated
11.11.2021, is an interlocutory order and
interlocutory order may not be assailed
before the revisional court, therefore, in
that way too the order passed by the
revisional
court
is
unwarranted
and
uncalled for.
3 All. Dost Mohammad & Anr. Vs. State of U.P. & Anr.
945

7. Sri R.B.S. Rathaur, learned counsel
for the private opposite party as well as
learned AGA have at the very outset taken
objection regarding maintainability of this
petition by submitting that the present
petitioners have got no locus to file this
petition inasmuch as neither the magistrate
had further proceeded pursuant to the order
dated 11.11.2021 issuing summons to them
nor any F.I.R. has been lodged against
them in compliance of the order of the
revisional court as well as the subsequent
order of the magistrate. Therefore, this
petition may be dismissed on the aforesaid
count alone. They have further submitted
that serious allegations have been leveled
in an application filed u/s 156(3) Cr.P.C.
wherein besides some other allegations the
allegation of loot has been leveled against
the applicant, therefore, on such allegation
the magistrate would not be able to decide
the issue on the basis of complaint case as
in that case the F.I.R. must have been
registered. Therefore, the opposite party no.
2 has rightly filed revision before the
revisional court and revisional court has not
erred in setting aside the order dated
11.11.2021 passed by the magistrate
directing the magistrate to issue direction to
lodge F.I.R. However, so far as the
submission of Sri D.K. Singh is concerned
to the effect that the opposite party no. 2
might have not approached the revisional
court by filing revision against the
interlocutory order inasmuch as the order
dated 11.11.2021 was an interlocutory
order, in view of the decision of Apex
Court in re: Madhu Limaye (supra) they
have stated that they may be given some
time to address on the aforesaid legal point.

8. Having heard learned counsel for
the parties and having perused the material
available on record and also having regard
of the judgments of the constitutional
courts, undisputedly, it is a trite law that
before
issuing
summons
against
the
prospective accused on the complaint the
mandatory exercise u/s 202(1) Cr.P.C. must
be adhered to by the Magistrate and if the
learned court of magistrate finds on the
basis of such aforesaid inquiry that for
proper adjudication of the allegation in
question the appropriate recourse would be
to lodge F.I.R., the magistrate may very
well direct to register F.I.R. at that stage
but admittedly such stage had not arrived
by now because immediately after passing
the order dated 11.11.2021 the opposite
party no. 2 has filed the revision. Further, it
may not be disputed that registering a
complaint case treating the application u/s
156(3) Cr.P.C. as a complaint case and
directing to record the statement of
complainant
u/s
200
Cr.P.C.
is
an
interlocutory order as it has not attained the
finality, therefore, in view of the dictum of
Apex Court in re: Madhu Limaye (supra)
the revisional court may not set aside the
order of the magistrate dated 11.11.2021. It
is also true that the allegations are serious
wherein the allegation of loot has also been
made and as per various decisions of this
Court and Apex Court, in the cases wherein
the allegation of cognizable offences are
there including the allegation of loot etc.,
the appropriate recourse must be decided
by the learned magistrate before proceeding
further inasmuch as the trite law on the
subject may not be ignored by any
subordinate court.

9. Therefore, in view of the above, the
impugned order dated 7.2.2024 passed by
the learned Sessions Judge, Court no. 1,
Faizabad
in
Criminal
Revision
No.
187/2021 (Mohammad Ahmad vs. State
and others) and the consequential order
20.2.2024
passed
by
the
Judicial
Magistrate-II, Faizabad / Ayodhya in
946 INDIAN LAW REPORTS ALLAHABAD SERIES
Complaint
Case
no.
1217/2021
(Mohammad Ahmad vs. Dost Mohammad
and others) are hereby quashed and set
aside with the expectation that while
proceeding further pursuant to the order
dated 11.11.2021, which has been revived
by this order, the learned magistrate shall
carefully follow the mandatory compliance
of section 202(1) Cr.P.C. and shall follow
the settled proposition of law on the subject
which shall be placed by the respective
counsel and the observations of this order
may not
influence
and
the
learned
magistrate shall pass appropriate order
strictly in accordance with law. Further, the
magistrate shall take independent decision
on the basis of provision of law and the
settled position on the subject.

10. It is made clear that the quashing
of the impugned revisional order and
consequential order of the magistrate may
not be treated as if the learned court of
magistrate should only treat the application
filed by the opposite party no. 2 only as a
complaint but the magistrate court shall
ensure that the appropriate justice is done
with the parties strictly in accordance with
law.

11. In view of the above, instant
petition is allowed.
----------
(2024) 3 ILRA 946
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.03.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482. No. 2294 of 2024

S. Krishna ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Pranav Agarwal, Anumita Chandra
Counsel for the Respondent:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 205 & 317 -
Rules for Video Conferencing for Courts in
the St. of Uttar Pradesh, 2020 - Rule 11 -
Against issuance of non-bailable warrant -
Petitioner, aged about 85 years and
suffering from age-related ailments, was
unable to appear personally before Court
at
stage
of
framing
of
charges
-
Nevertheless, despite being apprised of
his age and medical condition, Court
proceeded to issue non-bailable warrant
against him - Held, issuance of nonbailable warrant by trial court is wholly
unacceptable and contrary to settled law
laid down in Inder Mohan Goswami
(infra), as every accused is entitled to
protection of Article 21 of Constitution -
Trial courts have been cautioned in earlier
orders to ensure, before issuing nonbailable
warrants,
whether
accused
deliberately evaded proceedings despite
service of summons and bailable warrants
- In instant case, petitioner had been
appearing, but owing to old age and age
related ailments, could not appear on
relevant date, hence, court concerned
should not straightaway issued nonbailable warrant - Under Section 11 of
Rules, proceedings may, in exceptional
circumstances, be conducted virtually, in
consonance with Sections 205 and 317
Cr.P.C - Impugned order, set aside -
Directions accordingly. (Para 3, 8, 9)

Application allowed. (E-13)

List of Cases cited:

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

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Nadeem Murtaza,
learned counsel for the petitioner and Sri