# Dr. Kalawati Shukla Revisionist v. State of U.P. & Anr

- **Citation:** (2022) 1 ILRA 579
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-22
- **Case number:** Criminal Revision No. 1238 of 2015
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-kalawati-shukla-revisionist-v-state-of-u-p-anr-47477
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure,
1973-Sections
397/401
&
Indian Penal Code, 1860-Sections 419,
420, 504, 506-challenge to-summoning
order-revisionist committed cheating in
the garb of providing employment to
opposite party-learned Magistrate has
taken cognizance under section 190(1)(a)
by treating the application of section
156(3) Cr.P.C. as a complaint case but
thereafter
he
passed
the
order
for
investigation-Registration of F.I.R. was
not required as the Learned Magistrate
had
already
taken
cognizance
under
section
190(1)(a)
of
the
Cr.P.C.-
in
pursuance of the order of investigation
final report was submitted against which
the complainant filed protest petitionLearned court below could not have
resorted
to
both
the
provisions
simultaneously-the procedure adopted by
the court below is illegal and vitiated in
the eyes of law.(Para 1 to 9)

B. It is settled principle of law that under
section 202 Cr.P.C. the Magistrate either
himself inquire into the matter or direct
that an investigation to be made by police
or such other person he deems fit but he
cannot simultaneously proceed in both the
manners-Learned Magistrate should have
only taken into consideration the evidence
produced u/s 200 and 202 Cr.P.C. ignoring
the final report and protest petition and
then should have passed any order either
to summon the accused or dismiss the
complaint.(Para 6)

The revision is allowed. (E-6)

List of Cases cited:

## Text

1 All. Dr. Kalawati Shukla Vs. State of U.P. & Anr.
579
court and amount of maintenance which
was being paid from the salary of the
revisionist, has been stopped. The O.P. No.
2 has not withdrawn the amount of alimony
and it is lying deposited in the court below
as the O.P. No. 2 has challenged the decree
of divorce in appeal which is pending.
After
March,
2018
no
amount
of
maintenance
is
being
paid
by
the
revisionist. The trial court has already made
provision of adjustment of the amount of
maintenance earlier paid. So there is no
illegality or infirmity on this count also.

15. From the above discussion it is
clear that the impugned order does not
suffer from any infirmity or illegality. It is
also not perverse. There is no sufficient
ground to set-aside the impugned order.
The revision is liable to be dismissed.

16.

Accordingly,
the
Criminal
Revision is dismissed.
----------
(2022)01ILR A579
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 1238 of 2015

Dr. Kalawati Shukla ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sheshhadri Trivedi, Sri Raj Kumar Singh

Counsel for the Opposite Parties:
G.A., Sri Aditya Kumar Yadav, Sri Vishnu Gupta,
Sri D.P. Singh

A. Criminal Law - Code of Criminal
Procedure,
1973-Sections
397/401
&
Indian Penal Code, 1860-Sections 419,
420, 504, 506-challenge to-summoning
order-revisionist committed cheating in
the garb of providing employment to
opposite party-learned Magistrate has
taken cognizance under section 190(1)(a)
by treating the application of section
156(3) Cr.P.C. as a complaint case but
thereafter
he
passed
the
order
for
investigation-Registration of F.I.R. was
not required as the Learned Magistrate
had
already
taken
cognizance
under
section
190(1)(a)
of
the
Cr.P.C.-
in
pursuance of the order of investigation
final report was submitted against which
the complainant filed protest petitionLearned court below could not have
resorted
to
both
the
provisions
simultaneously-the procedure adopted by
the court below is illegal and vitiated in
the eyes of law.(Para 1 to 9)

B. It is settled principle of law that under
section 202 Cr.P.C. the Magistrate either
himself inquire into the matter or direct
that an investigation to be made by police
or such other person he deems fit but he
cannot simultaneously proceed in both the
manners-Learned Magistrate should have
only taken into consideration the evidence
produced u/s 200 and 202 Cr.P.C. ignoring
the final report and protest petition and
then should have passed any order either
to summon the accused or dismiss the
complaint.(Para 6)

The revision is allowed. (E-6)

List of Cases cited:

1. Irshad Khan & ors Vs St. of U.P. & anr.(2013)
LawSuit (All) 3146

2. Ramprabesh Rai Vs Bishun Mandal (1981)
CrLJ 139

3. Vadilal Panchal Vs Dattatraya (1960) AIR SC 1113
580 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
revisionist, learned counsel for the opposite
party no.2 and learned Standing Counsel
for the State-respondent.

2. This criminal revision has been
filed against the order dated 13.02.2015
passed
by
learned
Chief
Judicial
Magistrate, Jaunpur in Criminal Case
No.26 of 2014 (Virendra Kumar Yadav Vs.
State), under Sections 419, 420, 504 and
506
I.P.C.,
Police
Station-
Kotwali,
District- Jaunpur. By the impugned order,
the
learned
Magistrate
has
taken
cognizance for the offence under Sections
419, 420, 504 and 506 I.P.C. against the
revisionist/accused Dr. Kalawati Shukla
and has issued summon to her.

3. The facts of the case in brief are
that the opposite party no.2 filed an
application under Section 156(3) Cr.P.C.
alleging therein that the applicant is an
educated unemployed youth. His maternal
uncle- Raj Bahadur Yadav a milkman was
supplying milk at the house of opposite
party- Dr. Kalawati Shukla. She said to Raj
Bahadur Yadav that if there is any
unemployed educated youth in his family
then she can employ him as there are
vacancies in the Family Health Department
and she being Chief Medical Officer
Badaun has influence in the department,
but for this he has to pay Rs.3/- lacs.
Knowing this fact from Raj Bahadur
Yadav, applicant informed his father and
uncle who after selling their land on
24.05.2010 and taking some loan arranged
Rs.3/- lacs and the same was paid on
03.06.2010 at 05 p.m. at the house of Dr.
Kalawati Shukla in presence of witnesses
Ram Chandra, Dev Nath and Raj Bahadur
Yadav.
He
also
appeared
in
the
examination held on 12.06.2010 but could
not get employment. When he asked about
this from Dr. Kalawati Shukla, she
threatened him and refused to pay back the
money. In the manner, she has cheated the
applicant. Learned Magistrate on the
aforesaid application directed that the
matter be treated as a complaint case and
the application was registered as a
complaint. The Statement of applicant was
recorded under Section 200 Cr.P.C. Two
witnesses were examined under Section
202
Cr.P.C..
Thereafter,
the
learned
Magistrate on 10.09.2013 directed the
S.H.O. Kotwali, Janupur to investigate the
matter and submit the report. In pursuance
of that order an F.I.R. bearing Crime
No.1222 of 2013 under Sections 419, 420,
504, 506 I.P.C. was registered at P.S.
Kotwali and matter was investigated by the
police.
After
completion
of
the
investigation a final report was submitted
on 17.12.2013. Applicant filed a protest
petition against the final report. By the
impugned
order,
learned
Magistrate
rejected the final report and taking
cognizance of the offence has summoned
Dr. Kalawati Shukla to face trial for the
offence under Sections 419, 420, 504, 506
I.P.C.

4. Learned counsel for the revisionist
contended that the impugned order is
absolutely illegal, arbitrary and perverse.
Initially, the learned Magistrate passed the
order to register the application under
Section 156(3) Cr.P.C. as a complaint case
and adopted the procedure prescribed under
Sections
200
and
202
Cr.P.C.
but
thereafter, the learned Magistrate adopted a
novel procedure not prescribed anywhere in
the Code of Criminal Procedure. Learned
counsel further contended that Section 202
of the Cr.P.C. contemplates that on receipt
1 All. Dr. Kalawati Shukla Vs. State of U.P. & Anr.
581
of a complaint of an offence the Magistrate
may postpone the issue of process against
the accused and either inquire into the case
himself or direct an investigation by a
police officer. However, in the present
case, the learned Magistrate has first
enquired the matter himself and thereafter
directed for investigation. The learned
Court below could not have resorted to
both the provisions simultaneously and
could have taken recourse only to one of
the provisions. Thus, the procedure adopted
by the learned Court below is illegal and
vitiated in the eyes of law. Learned counsel
further contended that as per the provisions
of Chapter XV of the Code, cognizance of
offence can be taken by the Magistrate only
in accordance with Section 190(1)(a) or
Section 190(1)(b) of the Code. Initially the
learned Magistrate has taken cognizance
under Section 190(1)(a) by treating the
application of Section 156(3) Cr.P.C. as a
complaint case but thereafter he passed the
order
for
investigation.
The
learned
Magistrate on the final report adopting the
procedure
prescribed
under
Section
190(1)(b) has again taken cognizance of the
offence. He committed serious illegality in
placing reliance upon the statement of
witnesses earlier recorded by him under
Sections 200 & 202 Cr.P.C. while taking
cognizance on the final report/protest
petition
and
summoning
the
accused/revisionist.
Learned
counsel
further
contended
that
while
taking
cognizance under Section 190(1)(b) of the
Code, the Magistrate can act only upon the
statements of witnesses recorded by the
police in the case diary and it was not
permissible for him at that stage to make
use of any other material. Learned counsel
placed reliance in the case of Irshad Khan
and others Vs. State of U.P. and another
2013 LawSuit (All) 3146.

5. Learned counsel for the
opposite
party
no.2
supported
the
impugned order and submitted that on the
basis of material available the learned
Magistrate has passed the summoning
order. The revisionist has committed
offence by cheating the opposite party no.2
to pay Rs.3/- lacs in the garb of providing
employment to him. There is no illegality
or infirmity in the impugned order.

6. It is undisputed that the application
under Section 156(3) Cr.P.C. filed by the
opposite party no.2 was treated as a
complaint and the learned Magistrate
directed the complainant to produce his
evidence. Witnesses were examined under
Sections 200 & 202 Cr.P.C.. At this stage,
the learned Magistrate vide order dated
10.09.2013
observed
that
in
the
circumstances of the present case the
investigation by the S.H.O. Kotwali is
required and directed him to investigate the
matter and submit a report.

It is settled principle of law that
under Section 202 Cr.P.C. the Magistrate
either himself inquire into the matter or
direct that an investigation to be made by
by police or such other person he deems fit
but he cannot simultaneously proceed in
both the manners. When the learned
Magistrate has inquired the matter himself
under Section 202 Cr.P.C. he was not
required to order for the investigation. In
pursuance of the order of investigation after
registration of an F.I.R. matter was
investigated and final report was submitted
by
the
police
against
which
the
complainant filed protest petition.

7. It is clear that order of investigation
passed by learned Magistrate was under the
purview
of
Section
202
Cr.P.C.
582 INDIAN LAW REPORTS ALLAHABAD SERIES
Registration of F.I.R. was not required as
the learned Magistrate has already taken
cognizance under Section 190(1)(a) of the
Cr.P.C. It is settled principle of law that
Magistrate
who
has
entrusted
the
investigation under Section 202 Cr.P.C. is
not
bound
by
the
report
of
the
investigation.

It has been held in the Case of
Ramprabesh Rai Vs. Bishun Mandal,
1981 CrLJ 139 by the Division Bench of
Patna High Court that the Magistrate who
entrusted investigation under Section 202
Cr.P.C. may disagree with the report of
investigation and take cognizance.

In
Vadilal
Panchal
Vs.
Dattatraya AIR 1960 SC 1113, it has been
held that this Section does not mean that
the Magistrate is bound to accept the result
of the inquiry or investigation or that he
must accept any plea that is setup on behalf
of the person complained against. The
Magistrate must apply his judicial mind to
the materials on which he has to form his
judgment.

So, the Magistrate was not bound
by the final report submitted by the police
after investigation. Once he has taken
cognizance under Section 190(1)(a) Cr.P.C.
he may have taken into consideration the
evidence under Sections 200 & 202 Cr.P.C.
only which was available on record to pass
any order of summoning. From the
impugned order it appears that the learned
Magistrate while taking cognizance has
taken into consideration all the materials
available on the record i.e. evidence under
Sections 200 & 202 Cr.P.C., the evidence
collected during investigation and objections
of complainant filed against the final report.
He may have ignored the police report and
protest petition submitted against it and
should have only taken into consideration
the evidence produced under Sections 200 &
202 Cr.P.C. and then should have passed
any order either to summon the accused
under Section 204 Cr.P.C. or dismiss the
complaint under Section 203 Cr.P.C.. So,
the impugned order is not sustainable.

8. As the impugned order of
summoning dated 13.02.2015 suffers from
material illegality, it is hereby set aside with
a direction to the learned Magistrate to
proceed in accordance with the procedure
prescribed in Chapter XV of the Code.
Learned Magistrate will give an opportunity
to the complainant to produce any other
evidence under Section 202 Cr.P.C. if he so
desires. After taking into consideration the
evidence and material available on record
under Sections 200 & 202 Cr.P.C., if the
learned Magistrate comes to the conclusion
that a prima facie case is made out then he
may proceed under Section 204 Cr..P.C. and
issue process and if he comes to the
conclusion that there is no sufficient ground,
he may dismiss the complaint under Section
203 Cr.P.C.

9. The criminal revision is allowed,
accordingly. The learned Magistrate to
proceed further in the light of the directions
made in this order.
----------
(2022)01ILR A582
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Revision No. 2632 of 2021

Dhruv Karan Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties