# Hargyan v. State of U.P. and another

- **Citation:** (2011) 3 ILRA 1183
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-10-11
- **Bench:** S.C. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hargyan-v-state-of-u-p-and-another-42061
- **Pages:** 3

## Headnote

Code
of
Criminal
Procedure-Section
397/401-criminal Revision-against the
Summoning
order
by
Magistrate-by
criticizing the Investigation Officer for
not recording the statements of victimand fail to possess the clothes-adopted
novel method by passing summoning
order on affidavit of complainant and the
witness-complete go-by to the directions
of Division Bench in case of Pakhandoheld-can not sustained-set-a-side.

Held: Para 8

In the instant case, neither cognizance
was taken on the basis of the material
available in the case diary nor the
protest
petition
was
treated
as
a
complaint. The cognizance cannot be
taken on the basis of affidavits of the
complainant or the witnesses, therefore,
the order passed by the Magistrate
cannot be sustained and is liable to be
set-aside.
Case law discussed:
2001 (43) ACC 1096

## Text

3 All] Hargyan V. State of U.P. and another
1183

10. Learned Addl. Sessions Judge
is directed to summon the case property
in Court and in presence of both the
parties, Court shall direct taking up of a
proper representative sample, which
shall be sealed with the seal of the Court
and shall be sent to Director, Central
Food Laboratory for analysis. For this
purpose, all steps shall be taken and all
fees shall be paid by the revisionist in
accordance with law and the rules.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.10.2011

BEFORE
THE HON'BLE S.C. AGARWAL,J.

Criminal Revision No. - 4207 of 2011

Hargyan

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri L.S. Yadav

Counsel for the Respondent:
Govt. Advocate

Code
of
Criminal
Procedure-Section
397/401-criminal Revision-against the
Summoning
order
by
Magistrate-by
criticizing the Investigation Officer for
not recording the statements of victimand fail to possess the clothes-adopted
novel method by passing summoning
order on affidavit of complainant and the
witness-complete go-by to the directions
of Division Bench in case of Pakhandoheld-can not sustained-set-a-side.

Held: Para 8

In the instant case, neither cognizance
was taken on the basis of the material
available in the case diary nor the
protest
petition
was
treated
as
a
complaint. The cognizance cannot be
taken on the basis of affidavits of the
complainant or the witnesses, therefore,
the order passed by the Magistrate
cannot be sustained and is liable to be
set-aside.
Case law discussed:
2001 (43) ACC 1096

(Delivered by Hon'ble S.C. Agarwal, J. )

1. Heard learned counsel for the
revisionist and learned A.G.A. for the
State and perused the material available
on record.

2. No notice is issued to private
opposite party in view of the order
proposed to be passed today, however,
liberty is reserved for private opposite
party
to
apply
for
variation
or
modification of this order if he/she feels
so aggrieved.

3. This revision under section
397/401 Cr.P.C. is directed against
order dated 6.7.2011 passed by Judicial
Magistrate, Moradabad in criminal case
no.1394 of 2010 (Smt. Sudha Rani Vs.
Hargyan and others) arising out of case
crime no.524 of 2008, P.S. Behjoi,
District Moradabad, whereby the final
report submitted by the police was
rejected, cognizance was taken and the
revisionist Hargyan was summoned to
face trial under sections 376, 506 IPC.

4. Learned counsel for the
revisionist submitted that the Magistrate
has neither taken cognizance on the
basis of material available in the case
diary nor the procedure prescribed for
complaint cases was adopted, but a
novel method was adopted by the
Magistrate and cognizance has been
taken on the basis of affidavits of the
1184 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
complainant and the witnesses Chandra
Pal and Guljari.

5. A perusal of the impugned order
reveals that the Magistrate has criticized
the
investigating
officer
for
not
recording the statement of witness
Guljari, not getting the statement of the
victim recorded under section 164
Cr.P.C.
and
for
not
taken
into
possession the clothes of the victim and
not sending them for analysis to public
analyst.

6. A Division Bench of this Court
in the case of Pakhando and others Vs.
State of U.P. and another, 2001 (43)
ACC 1096, held that on receipt of a
final report submitted by the police and
a protest petition being filed by the
complainant,
the
Magistrate
has
following four courses opened to him :-

(1) He may agreeing with the
conclusions arrived at by the police,
accept
the
report
and
drop
the
proceedings. But before so doing, he
shall give an opportunity of hearing to
the complainant ; or

(2) He may take cognizance under
Section 190 (1) (b) and issue process
straightway to the accused without
being bound by the conclusions of the
investigating agency, where he is
satisfied that upon the facts discovered
or unearthed by the police, there is
sufficient ground to proceed ; or

(3)
he
may
order
further
investigation, if he is satisfied that the
investigation was made in a perfunctory
manner ; or

4) he may, without issuing process
or dropping the proceedings decide to
take cognizance under Section 190 (1)
(a) upon the original complaint or
protest petition treating the same as
complaint and proceed to act under
Sections 200 and 202 Cr.P.C. and
thereafter decide whether complaint
should be dismissed or process should
be issued.

7. In the instant case, learned
Magistrate has not adopted any of the
four courses available to him. If there
was sufficient material available in the
case diary, the Magistrate could have
taken cognizance under section 190 (1)
(b) Cr.P.C. on the basis of material
available in the case diary. If the
investigation
was
not
conducted
properly, the Magistrate could have
directed further investigation giving
specific directions on the points on
which
further
investigation
was
required. If the Magistrate was of the
opinion that no case for trial is made
out, he could have accepted the final
report and rejected the protest petition
and lastly the Magistrate could have
treated
the
protest
petition
as
a
complaint and adopted the procedure
prescribed for complaint cases.

8. In the instant case, neither
cognizance was taken on the basis of the
material available in the case diary nor
the protest petition was treated as a
complaint. The cognizance cannot be
taken on the basis of affidavits of the
complainant or the witnesses, therefore,
the order passed by the Magistrate
cannot be sustained and is liable to be
set-aside.

9.

Revision
is
allowed.
3 All] Munna Singh @ Shivaji Singh & others V. State of U.P. and another
1185

10. The impugned order dated
6.7.2011 is set-aside.

11. Learned Magistrate is directed
to take a fresh decision on the final
report in the light of a Division Bench
decision of this Court in case of
Pakhando (supra).
---------

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.10.2011

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE A.P. SAHI, J.
THE HON'BLE SURENDRA SINGH, J.

Criminal Revision No. 4414 of 2004

Munna Singh @ Shivaji Singh & others

 ...Revisionist
Versus
State of U.P. and another ...Opp. Parties

Counsel for the Revisionist:
Sri R.C.Yadav

Counsel for the Opposite Parties:
Sri B.N. Rai
Sri S.B. Singh
Sri N.K. Rai
Govt. Advocate

(A) Code of Criminal Proedure-Section
397 (1)-Criminal revision-against the
order passed under section 145(1) and
146(1)-whether
maintainable
?-held-
"Yes".

Held: Para: 41

Our answer to the question referred
would be therefore in the negative, and
we hold that orders passed under
Sections 145(1) and 146(1) of the Code
are not in every circumstance, orders
simplicitor, and therefore a revision
would be maintainable in the light of the
observations made in this judgment
depending on the facts involved in each
case.

(B)
Criminal
Revision-final
and
interlocutory order-nature defined-and
explained distinctions between the twofinal order-means-nothing more to be
decide
by
Trail
Court-interlocutory
means-which does not decide the rights
and liabilities of parties-a pure interim
measure.

Held: Para 33

The
distinction
between
the
two,
interlocutory and intermediary would be
that the former does not bring about any
consequence of moment and is an aid in
the performance of the final Act. It does
not affect any existing rights finally or to
the disadvantage of either extremes. An
intermediate order can touch upon the
rights of the parties or be an order of
moment so as to affect any of the rival
parties by its operation. Such an order
affecting the rights of a person or
tending to militate against either of the
parties even at the subordinate stage
can be termed as an intermediate or an
intermediary order.
Case law discussed:
2004(48) ACC 579; 1981 (18) ACC 316; 1977
ACC 10; 2002 (2) Allahabad Criminal Ruling
1457; 1978(15)ACC 183 SC; AIR 1980 SC 962;
1985 ACC 45 SC; 2001 (1) JIC 381 SC;
2002(2) ACr.R 1457; 2001 (1) ACr.R 514;
2004 (48) ACC 579; 1999 (39) ACC 649; 1969
Crl.LJ Page 13 (Vol. 75C.N. 4) (SC); 1980 SCC
(Cri) Page 9; 1980 SCC Page 116; A.I.R. 2000
SC 1504; 2001 (1) JIC 381 (S.C.); 1985 A.W.C.
128 S.C.; 2001 All JIC 95 S.C.; 1999 (39) ACC
678; 2004 (48) ACC 579; 1978 (15) ACC 183
(S.C.); 2002 Alld. JIC 378; 2000 (40) ACC 738;
AIR 1980 SC 962; AIR 1978 Supreme Court
47; AIR 1977 Supreme Court 403; AIR 1968
Supreme Court 733; AIR 1977 Supreme Court
2185; 1991 Cri.LJ. 1765; 1985 (1) SCC 427;
(1988) 4 SCC 452; (2000) 4 SCC 440; 1990
Cr.L.J. 1541; AIR 1980 Supreme Court 962;
2004 (48) ACC 579; 1999 (39) ACC 649; 1979
(4) SCC 665; 1990 Cr.L.J. 961