# Har Dayal and others v. State of U.P. & another

- **Citation:** (2009) 2 ILRA 497
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-27
- **Case number:** Criminal. Misc. Application No. 10811 of 2009
- **Bench:** R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/har-dayal-and-others-v-state-of-u-p-another-41642
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 460with permission of magistrate under
section 155(2)-Police submitted charge
sheet
in
non
cognizable
offencescognizance taken by magistrate-under
498 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
challenge-held -submissions of report by
Police to be treated as complaintprocedure of complaint case shall be
adopted
during
trial-argument
that
cognizance taken by magistrate on such
report in NCR case-misconceived in view
of provisions contained in section 460
Cr.P.C.

Held: Para 8:

Sub section E of Section 460 Cr.P.C. goes
to this extent that even if cognizance is
taken, clause (a) or (b) or sub-section
1of section 90 Cr.P.C. by a magistrate
not being empowered to do so, even
then it will not vitiate the proceedings.
In the present case with the permission
case before me, the police investigated
the
non-cognizable
case
with
the
permission of Magistrate under section
155(2) Cr.P.C. And submitted charge
sheet, therefore, cognizance taken was
under
Section
190
sub-section
1,
clause(b), Cr.P.C., for which the learned
Magistrate was empowered. No where
in section 460 Cr.P.C. It has been given
that such procedural mistake will vitiates
the proceedings.

## Text

2 All] Har Dayal and others V. State of U.P. and another
497
statements of fact made in writ petition
have not been denied by the respondents,
therefore, I have no option but to assume
them as correct. In this view of the matter,
I am of the considered opinion that the
petitioner is entitled to be considered for
compassionate appointment on account of
death of Triveni Prasad as his son under
Dying in Harness Rules 1974, unless his
adoption is disproved and registered
adoption deed is cancelled or declared
null and void and inoperative. The
aforesaid view taken by me also finds
support from several decisions of this
Court rendered in Sunil Saxena Vs. State
of U.P. and others 1994 (68) F.L.R. 283,
Singhasan Gupta Vs. State of U.P. and
another (1996) 1 U.P.L.B.E.C. 4 and
Ravindra Kumar Dubey Vs. State of
U.P. and others 2005 (4) E.S.C. (All)
2706.

18. Now coming to the case of Sri
Mohan Prasad son of Jaipati, it is clear
that he is brother's son of deceased
Government servant and does not come
within the definition of family under the
said rule even if inclusive definition of
family is applied, therefore, he can not
claim compassionate appointment on
account of death of Late Triveni Prasad
irrespective of the fact that he has
instituted a suit for declaration that he
may
be
declared
heir
and
legal
representative of deceased employee. In
my opinion, even on such declaration also
he
can
not
claim
compassionate
appointment on account of death of
Triveni Prasad. Therefore, on account of
pendency of aforesaid suit instituted by
the respondent no.3 the action of
respondent
no.2
deferring
the
consideration of claim of compassionate
appointment of the petitioner can not be
held to be justified. Accordingly the
impugned order/letter dated 23.2.2008
passed by respondent no.2 cannot be
sustained and the same is hereby quashed,
in the result writ petition succeeds and is
allowed.

19. The respondent no.2 is directed
to consider the claim of compassionate
appointment of the petitioner within two
months from the date of production of
certified copy of this order before him by
ignoring the pendency of suit referred
hereinbefore filed by the respondent no.3
and offer him appointment if he is found
otherwise eligible for any Class-III or
Class-IV post under Dying in Harness
Rules 1974.

20. With the aforesaid observation
and
direction,
writ
petition
stands
allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2009

BEFORE
THE HON'BLE R.N. MISRA, J.

Criminal. Misc. Application No. 10811 of
2009

Har Dayal and others
....Applicants

Versus
State of U.P. & another ...Opposite Party

Counsel for the Applicants:
Sri Pramod Dwivedi

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

Code of Criminal Procedure-Section 460with permission of magistrate under
section 155(2)-Police submitted charge
sheet
in
non
cognizable
offencescognizance taken by magistrate-under
498 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
challenge-held -submissions of report by
Police to be treated as complaintprocedure of complaint case shall be
adopted
during
trial-argument
that
cognizance taken by magistrate on such
report in NCR case-misconceived in view
of provisions contained in section 460
Cr.P.C.

Held: Para 8:

Sub section E of Section 460 Cr.P.C. goes
to this extent that even if cognizance is
taken, clause (a) or (b) or sub-section
1of section 90 Cr.P.C. by a magistrate
not being empowered to do so, even
then it will not vitiate the proceedings.
In the present case with the permission
case before me, the police investigated
the
non-cognizable
case
with
the
permission of Magistrate under section
155(2) Cr.P.C. And submitted charge
sheet, therefore, cognizance taken was
under
Section
190
sub-section
1,
clause(b), Cr.P.C., for which the learned
Magistrate was empowered. No where
in section 460 Cr.P.C. It has been given
that such procedural mistake will vitiates
the proceedings.

(Delivered by Hon'ble R. N. Misra, J.)

1. By way of this petition, under
Section 482 Cr.P.C., the applicants have
challenged the entire proceedings of
Criminal Case No. 1406 of 2008, under
Section 323 I.P.C. pending in the court of
Chief Judicial Magistrate, Hathras.

2. I have heard Sri Pramod Dwivedi,
learned counsel for the applicants and
learned A.G.A. for the State.

3. It transpires from the record that
on the application of respondent no.2
Malkhan Singh, the Sasni police of
district
Hathras
registered
a
noncognizable case on crime no, 143 of 2008,
under Section 323 I.P.C. As is evident
from Annexure 1 and the police officer
got the permission from the Magistrate
concerned under Section 155(2) Cr.P.C.
and after investigation, submitted charge
sheet (Annexure 3) against the accusedapplicants. The learned Chief Judicial
Magistrate vide order dated 11.4.2008
(Annexure 4) took cognizance and
proceeded as State case. The accusedapplicants moved application (Annexure
5) before the learned Magistrate to recall
order dated 11.7.2008 taking cognizance.
In that application, the procedure adopted
by the trial court was also challenged. The
learned
Magistrate
rejected
that
application vide order dated 11.9.2008
(Annexure 6) and aggrieved by the same
this petition, under Section 482 Cr.P.C.
has been preferred.

4.

As
regards
rejection
of
application of accused-applicants for
recalling order taking of cognizance is
concerned that is legal and correct.
Learned counsel for the applicants has
also conceded this legal position during
his argument but as regard objection
regarding procedure is concerned that has
force.

5. It has been contended by learned
counsel for the applicants that when noncognizable case is investigated by the
police after getting permission, under
Section 155(2) Cr.P.C. and submitted
charge sheet, the procedure of complaint
case should be followed. The word
"complaint" has been defined under
Section 2(d) of Cr. P.C. which rules as
under:

2(d):- "Complaint" means any
allegation made orally or in writing to a
Magistrate, with a view to his taking
action under this Code, that some person,
2 All] Har Dayal and others V. State of U.P. and another
499
whether
known
or
unknown,
has
committed an offence, but does not
include a police report.

6. From the above definition, it is
clear that when after investigation, the
commission of non-cognizable offence is
disclosed and police officials conducting
investigation submit charge sheet under
Section 190 (b) Cr. P.C., that police report
has to be treated as complaint and the
police officer submitting report shall be
treated as complainant. Naturally when
the police report has been treated as
complaint, the procedure for complaint
case shall be adopted for trial of the
offence. No doubt, when on such police
report, the cognizance is taken, it is not
necessary for the Magistrate concerned to
examine the complainant under section
200 Cr.P.C. because it will be treated as
complaint by the public servant acting in
discharge of his official duty. His
personal attendance on each and every
date can also be dispensed with by the
learned Magistrate as has been given
under
section
256
Cr.P.C.
Similar
provision has been given under section
249 Cr. P.C. and the discretion has been
given to the Magistrate for dismissing or
not dismissing the complaint in absence
of complainant. This argument of learned
counsel for the applicants has no force
that the cognizance taken by the learned
Magistrate on the charge sheet I n noncognizable case is bad and vitiates the
entire proceedings. In this connection I
would like to refer provision of Section
460 Cr.P.C. which runs as under:

7. "460-Irregularities which do not
vitiate proceedings- If any Magistrate
not empowered by law t do any of the
following things, namely:-

(a) to issue a search warrant under
section 94;
(b) to order, under section 155, the
police to investigate an offence;
(c) to hold an inquest under section 176;
(d) to issue process under section 187 for
the apprehension of a person within his
local jurisdiction who has committed an
offence outside the limits of such
jurisdiction;
(e) to take cognizance of an offence
under clause (a) or clause (b) of sub
section (1) of section 190;
(f) to make over a case under subsection (2) of section 192;
(g) to tender a pardon under section 306;
(h) to recall a case and try it himself
under section 410; or
(i) to sell property under section 458 or
section 459,
erroneously in good faith does that thing,
his proceedings shall not be set aside
merely on the ground of his not being so
empowered.

8. Sub section E of Section 460
Cr.P.C. goes to this extent that even if
cognizance is taken, clause (a) or (b) or
sub-section 1of section 90 Cr.P.C. by a
magistrate not being empowered to do so,
even then it will
not vitiate the
proceedings. In the present case with the
permission case before me, the police
investigated the non-cognizable case with
the permission of Magistrate under
section 155(2) Cr.P.C. And submitted
charge sheet, therefore, cognizance taken
was under Section 190 sub-section 1,
clause(b), Cr.P.C., for which the learned
Magistrate was empowered. No where in
section 460 Cr.P.C. It has been given that
such procedural mistake will vitiates the
proceedings.
500 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

9. In view of above, the petition
under section 482 Cr.P.C. Is partly
dismissed and partly allowed. Learned
Magistrate is directed to adopt procedure
of complaint for the trial. The cognizance
taken by him is not erroneous.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Bail Application No.7444 of
2008

Hari Shankar

...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri V.S. Parmar

Counsel for the Opposite Party:
Sri Dinesh Kumar Gupta
A.G.A.

Code of Criminal Procedure -Section439-Bail
Application-offence
under
section 363/366/376/506 IPC readwith
3 (I) (XII) SC/ST Act-gang rape by
different
person
on
different
timeheinous anti social crime-selling by one
person to other-does not deserve for
bail-rejected

Held: Para 6

I have carefully gone through the
statement of the prosecutrix recorded
under section 164 Cr. P.C. although the
prosecutrix did not support the case of
the
prosecution
in
her
statement
recorded under section 161 Cr. P.C., but
when her statement was recorded before
the Magistrate under section 164 Cr. P.C.
She has fully supported the case of the
prosecution.
Therefore,
without
expressing any opinion on merit of the
case, in this heinous anti social crime of
gang rape and selling the prosecutrix
from one person to other person, the
applicant does not deserve bail.

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

1. Heard Sri V.S. Parmar, Advocate
appearing for the applicant, Sri Dinesh
Kumar Gupta, learned counsel for the
complainant and AGA for the State and
also perused the record.

2. An FIR was lodged on
27.06.2007 by the complainant Chottey
Lal @ Babloo at P.S. Khanna District
Hamirpur, where a case under section
363,366,376,506 IPC and section 3
(1)(XII) SC/ST Act was registered against
Parasram, Pankaj, Dilip, Ram Kishore,
Dhiru @ Dhiraj and Harishankar.

3. The allegations made in the FIR
in brief, are that on 01.02.2007 at about
4.00 p.m. The prosecutriz (name not
disclosed as per the direction of the
Hon'ble Apex Court), daughter of the
complainant, was going to Khanna market
for purchasing goods. She was caught by
the accused Parasram, Pankaj, Dilip, Ram
Kishore and one other person and they all
committed rape on her after keeping her
in the house of Prem Narayan @ Lal
Vishwakarma. Thereafter, she was sold to
Hari Shankar Vishwakarma (applicant
herein), who also committed rape with
her. After that she was sold to Banda
Vishwakarma, aged about 65 years from
where she was recovered by the police.

4. It is submitted by the learned
counsel for the applicant that in her
statement recorded under section 161 Cr.
P.C., prosecutrix did not support the case
of the prosecution and from the statement,
it transpires that she was consenting party