# Hari Ram Revisionist v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 1705
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-06
- **Bench:** Sudhir Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-ram-revisionist-v-state-of-u-p-anr-43809
- **Pages:** 10

## Headnote

Paras 1-2: The court is hearing a criminal revision against a 2001 order by the ACJM, Lalitpur, which
rejected a police Final Report and summoned the accused for trial.
Paras 3-4: The case began with a 156(3) Cr.P.C. application alleging crop damage and attempted murder.
The police investigated but submitted a Final Report stating the complaint was incorrect. The Magistrate
rejected this report and summoned the accused.
Para 5: The revisionists argue that the Magistrate illegally relied on external affidavits filed with the Protest
Petition instead of only looking at the police investigation record.
Para 6: The State argues the Magistrate has the power to ignore the police's opinion and can consider
material provided by the complainant to ensure justice.
Paras 7-10: The Court reviews Sections 190, 200-204 of the Cr.P.C., noting the Magistrate's power to take
cognizance or order further investigation.
Paras 11-12: Citing Supreme Court precedents (Tula Ram, India Carat), the Court notes a Magistrate can
ignore a Final Report based on the case diary material or treat the protest as a complaint.
Paras 13-15: The Court clarifies the "Two Paths": (1) If taking cognizance on the police report, the
Magistrate is limited to the case diary; (2) If relying on new material/affidavits, the Magistrate must follow
the Complaint Case procedure (examining witnesses under Sec 200/202).
Paras 16-19: Further citations reinforce that a Magistrate cannot "mix and match" procedures-taking
cognizance under 190(1)(b) while using external affidavits.
1706 INDIAN LAW REPORTS ALLAHABAD SERIES
Para 20: The Court outlines the four specific courses available to a Magistrate upon receiving a Final
Report (The Pakhando rule).
Paras 21-27: The Court cites several High Court rulings emphasizing that summoning accused persons
based solely on affidavits filed with a Protest Petition (without a formal complaint inquiry) is legally "vitiated"
and erroneous.
Para 28: The Finding: In this case, the Magistrate rejected the Final Report and summoned the accused
based on affidavits without following Chapter XV (Complaint) procedure. This is declared illegal.
Paras 29-31: The revision is allowed. The 2001 order is set aside. The Magistrate is directed to pass a fresh
order within three months following the correct legal procedure.
Revision Allowed

Case Laws Cited:-

Case Name
Citation
Tula Ram Vs. Kishore Singh
AIR 1977 SC 2401
M/s India Carat Pvt. Ltd. Vs. State of Karnataka
1989 (26) ACC 280 (SC)
Gangadhar Janardan Mhatre vs. State of
Maharashtra
2004 (7) SCC 768
Minu Kumari Vs. State of Bihar
2006 (4) SCC 359
Sunil Bharti Mittal Vs. CBI
2015 (4) SCC 609
Pakhando and others Vs. State of U.P.
2001 (43) ACC 1096
Mohammad Yusuf Vs. State of U.P.
2007 (9) ADJ 294
Kallu and others Vs. State of U.P.
2010 (69) ACC 780
Mitrasen Yadav Vs. State of U.P.
2010 (69) ACC 540

## Text

5 All. Hari Ram Vs State Of U.P. & Anr.

1705
19. In the case of Smt. Nao Shaba Khanam vs. Ishtiaq Khan and Ors. Passed in Criminal
Revision No. 1571 of 1988, it has been observed that if approach of trial court to the evidence is
wholly perverse, revisional court can interfere with the finding of fact.

20. In these circumstances, I do not find it a fit case for interference. Revision is liable to
be dismissed and is accordingly dismissed.
-------------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2016

BEFORE

THE HON'BLE SUDHIR AGRAWAL, J.

Criminal Revision No.- 695 Of 2001

Hari Ram ...Revisionist
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Shri S.P. Sharama

Counsel for the Opposite Parties:
Govt. Advocate

Held -

Paras 1-2: The court is hearing a criminal revision against a 2001 order by the ACJM, Lalitpur, which
rejected a police Final Report and summoned the accused for trial.
Paras 3-4: The case began with a 156(3) Cr.P.C. application alleging crop damage and attempted murder.
The police investigated but submitted a Final Report stating the complaint was incorrect. The Magistrate
rejected this report and summoned the accused.
Para 5: The revisionists argue that the Magistrate illegally relied on external affidavits filed with the Protest
Petition instead of only looking at the police investigation record.
Para 6: The State argues the Magistrate has the power to ignore the police's opinion and can consider
material provided by the complainant to ensure justice.
Paras 7-10: The Court reviews Sections 190, 200-204 of the Cr.P.C., noting the Magistrate's power to take
cognizance or order further investigation.
Paras 11-12: Citing Supreme Court precedents (Tula Ram, India Carat), the Court notes a Magistrate can
ignore a Final Report based on the case diary material or treat the protest as a complaint.
Paras 13-15: The Court clarifies the "Two Paths": (1) If taking cognizance on the police report, the
Magistrate is limited to the case diary; (2) If relying on new material/affidavits, the Magistrate must follow
the Complaint Case procedure (examining witnesses under Sec 200/202).
Paras 16-19: Further citations reinforce that a Magistrate cannot "mix and match" procedures-taking
cognizance under 190(1)(b) while using external affidavits.
1706 INDIAN LAW REPORTS ALLAHABAD SERIES
Para 20: The Court outlines the four specific courses available to a Magistrate upon receiving a Final
Report (The Pakhando rule).
Paras 21-27: The Court cites several High Court rulings emphasizing that summoning accused persons
based solely on affidavits filed with a Protest Petition (without a formal complaint inquiry) is legally "vitiated"
and erroneous.
Para 28: The Finding: In this case, the Magistrate rejected the Final Report and summoned the accused
based on affidavits without following Chapter XV (Complaint) procedure. This is declared illegal.
Paras 29-31: The revision is allowed. The 2001 order is set aside. The Magistrate is directed to pass a fresh
order within three months following the correct legal procedure.
Revision Allowed

Case Laws Cited:-

Case Name
Citation
Tula Ram Vs. Kishore Singh
AIR 1977 SC 2401
M/s India Carat Pvt. Ltd. Vs. State of Karnataka
1989 (26) ACC 280 (SC)
Gangadhar Janardan Mhatre vs. State of
Maharashtra
2004 (7) SCC 768
Minu Kumari Vs. State of Bihar
2006 (4) SCC 359
Sunil Bharti Mittal Vs. CBI
2015 (4) SCC 609
Pakhando and others Vs. State of U.P.
2001 (43) ACC 1096
Mohammad Yusuf Vs. State of U.P.
2007 (9) ADJ 294
Kallu and others Vs. State of U.P.
2010 (69) ACC 780
Mitrasen Yadav Vs. State of U.P.
2010 (69) ACC 540

(Delivered by Hon'ble Sudhir Agrawal, J.)

1. Heard Sri S.P. Sharma, learned counsel for revisionist, learned A.G.A. for Staterespondent, and, perused the record.

2. This Criminal Revision under Section 397 read with 401 Cr.P.C. has been preferred
against the order dated 31.01.2001 passed by Sri Laxmi Narain, Additional Chief Judicial
Magistrate, Mahrauni, District Lalitpur rejecting Final Report in Case No. 42 of 2000, under
5 All. Hari Ram Vs State Of U.P. & Anr.

1707
Sections 352, 427, 504, 506 I.P.C. read with 3(1)(X) SC/ST Act, Police Station Mahrauni, District
Lalitpur.

3. The facts in brief, as borne out from record, are that, on 31.03.2000, applicantrespondent no. 2 filed an application in the Court of Additional Chief Judicial Magistrate,
Mahrauni, District Lalitpur with the allegation that on 26.03.2000, at about 4.00 P.M., accusedrevisionists damaged her crop through their cattle grazing. When applicant and her husband
protested, revisionists tried to kill them. Thereafter, applicant-respondent no. 2 moved an
application dated 31.03.2000 under Section 156(3) Code of Criminal Procedure (hereinafter
referred to as "Cr.P.C.") in the Court below whereupon learned Magistrate directed Police to
register First Information Report vide order dated 31.03.2000.

4. Pursuant to the aforesaid order, First Information Report was registered being Case
Crime No. C-9/2000, under Sections 352, 427, 504, 506 I.P.C. read with 3(1)(X) SC/ST Act at
Police Station Mahrauni, District Lalitpur. Investigation was entrusted to Circle Officer, Mahrauni
who, after investigation took a view that complaint is not correct, submitted final report. It is this
Final Report, which has not been accepted by learned Magistrate and accused-revisionists have
been summoned to face trial.

5. It is contended that along with Protest Petition filed by complainant against Final Report,
submitted by Investigating Officer, some affidavits were filed which have been considered by
Magistrate and thereafter final report has been rejected. The argument is that no external evidence
can be seen by Magistrate for accepting or rejecting final report. Reliance is placed on Pakhando
and others Vs. State of U.P. and another 2001 (43) ACC 1096 and Harkesh and others Vs.
State of U.P. and another 2001 (43) ACC 720.

6. Learned A.G.A., on the contrary, submitted that it is open to Magistrate to accept or not,
final report submitted by Police, and Magistrate can examine the matter himself. If it finds
expedient on the basis of material available, can summon the accused. He said that in the present
case, Magistrate has recorded his opinion on the basis of affidavits placed before him along with
Protest Petition by complainant, and, therefore, it cannot be said that Magistrate has not applied his
mind. He also contended that there is no bar for Magistrate to consider material placed before him
by complainant along with Protest Petition.

7. I have heard learned learned counsels for parties and perused the record.

8. Chapter XIV, Cr.P.C. deals with conditions requisite for initiation of proceedings and
also the powers of cognizance of a Magistrate. Section 190, relevant for our purpose, is reproduced
as under:

"190. (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-
1708 INDIAN LAW REPORTS ALLAHABAD SERIES
(a) upon receiving a complaint of facts which constitute such offence;

(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."

9. Chapter XV, thereafter has four Sections, i.e., Section 200 to 203, which deal with
complaint to Magistrate. Chapter XVI deals with commencement of proceedings before Magistrate
and Section 204 empowers a Magistrate to issue summons or a warrant, as the case may be, to
secure attendance of an accused, if in the opinion of Magistrate, there is sufficient ground to
proceed and take cognizance of offence.

10. If magistrate finds that Police has not made proper investigation and submitted final
report, it can direct police to make further investigation in the matter, or, if there is sufficient
material, he can pass order taking cognizance and summoning accused.

11. As long back as in 1977, Supreme Court in Tula Ram Vs. Kishore Singh AIR 1977
SC 2401 said that Magistrate can ignore a final report submitted by Police including the conclusion
and take cognizance of case under Section 190(1)(b) on the basis of material collected during
investigation and issue process, or in the alternative, he may take cognizance of original complaint,
examine the complainant and his witnesses and thereafter issue process to accused, if he is of
opinion that case should be proceeded with.

12. In M/s India Carat Pvt. Ltd. Vs. State of Karnataka 1989 (26) ACC 280 (SC),
Supreme Court has observed in para 16 of judgment that Magistrate can take into account
statements of witnesses examined by Police during investigation, take cognizance of offence
complained of, order to issue a process to 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 of
making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating
Officer, independently applying his mind to the facts emergent from investigation and can take
cognizance of case or in alternative he can take cognizance of original complaint and examine
complainant and his witness and thereafter issue process to accused, if he is of opinion that the case
should proceed. Following observations of Court fortify what is observed above:

 "16. 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
5 All. Hari Ram Vs State Of U.P. & Anr.

1709
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, in 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 Section 200 and 202 of the Code for taking
cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or
Section 202 also. The High Court was, therefore, wrong in taking the view that the Second
Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case
against the second respondent and order the issue of summons to him.

 17. The fact that in this case the investigation had not originated from a complaint
preferred to the Magistrate but had been made pursuant to a report given to the police would not
alter the situation in any manner. Even if the appellant had preferred a complaint before the
learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police
would have had to submit a report under Section 173(2). It has been held in Tula Ram and others
Vs. Kisohre Singh 1978 (1) SCR 615 that if the police, after making an investigation, send a
report that no case was made out against the accused, the Magistrate could ignore the
conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue
process or in the alternative he can take cognizance of the original complaint and examine the
complainant and his witnesses and thereafter issue process to the accused, if he is of opinion
that the case should be proceeded with."

 (emphasis added)

13. The observations made in para 16 and 17 in M/s India Carat Pvt. Ltd. Vs. State of
Karnataka (supra) make it very clear that Magistrate if proceeds to take cognizance on Police
report, material which can be examined by him would be such which has been collected during
investigation. If Magistrate finds that Police has not properly made investigation and appropriate
material has not been collected, it is always open to him to direct Police for further investigation
but if Magistrate finds fault with investigation made by Police and still finds justification to
proceed with the matter taking into account complaint made by complainant, in such case he has to
examine complainant and his witness and thereafter issue process.

14. In Gangadhar Janardan Mhatre vs. State of Maharashtra and others 2004 (7)
SCC 768, the Court reiterating above view said as under:

"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 119(1)(b) and direct the issue of
process to the accused." (emphasis added)
1710 INDIAN LAW REPORTS ALLAHABAD SERIES
15. Having said so, Court has also made it clear that while proceeding to issue process
considering facts emergent from investigation and taking a different view than what has been
reported by Police, Magistrate need not apply procedure laid down in Section 200 and 202.
However, if Magistrate finds lack of material with investigation of Police, option available to him
is to take into account original complaint and if that is adopted by Magistrate, he is bound to follow
procedure prescribed in Section 200 and 202 for taking cognizance, but he can not mix-up the
material placed by complainant along with Protest Petition to take cognizance after rejecting Police
Report but without following the procedure prescribed under Chapter 15.

16. A similar view has also been expressed in Rakesh and another Vs. State of U.P. And
another 2014 (13) SCC 133 where Court referred to and relied on the decision in H.S. Bains Vs.
State (UT of Chandigarh) 1980 (4) SCC 631.

17. In Minu Kumari and another Vs. State of Bihar and others 2006 (4) SCC 359,
Court said as under:

"11. 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."

18. In Sunil Bharti Mittal Vs. Central Bureau of Investigation 2015 (4) SCC 609, Court
said:
5 All. Hari Ram Vs State Of U.P. & Anr.

1711
"... even if a person is not named as an accused by the police in the final report
submitted, the Court would be justified in taking cognizance of the offence and to summon the
accused if it feels that the evidence and material collected during investigation justifies prosecution
of the accused (See Union of India v. Prakash P. Hinduja and Anr. 2003 (6) SCC 195. Thus, the
Magistrate is empowered to issue process against some other person, who has not been chargesheeted, but there has to be sufficient material in the police report showing his involvement. In that
case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer
and apply his mind independently on the facts emerging from the investigation and take cognizance
of the case. At the same time, it is not permissible at this stage to consider any material other than
that collected by the investigating officer."

19. This Court has also followed a similar line and some authorities, relevant in this regard,
may be noticed for reference.

20. In Pakhando and others Vs. State of U.P. (supra), a Division Bench of this Court
after considering Section 190 Cr.P.C. has held that if upon investigation Police comes to conclusion
that there was no sufficient evidence or any reasonable ground of suspicion to justify forwarding of
accused for trial and submits final report for dropping proceedings, Magistrate shall have following
four courses and may adopt any one of them:

(I) 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;

(II) He may take cognizance under Section 190(I)(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

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

(IV) He may, without issuing process or dropping the proceedings decide to take
cognizance under Section 190(I)(b) 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.

21. Thus the "material" which can be examined by Magistrate when Police submitted final
report and upon notice issued to complainant, Protest Petition is filed along with some material by
complainant, is confined to investigation only. When matter has been investigated by Police after
registering a report, Magistrate obviously is not proceeding according to procedure prescribed in
Chapter XV. I find that it would not be appropriate for Magistrate not to follow procedure under
Section 200 and 202 Cr.P.C. but straightway relying on affidavits filed before him by complainant
1712 INDIAN LAW REPORTS ALLAHABAD SERIES
along with Protest Petition, take cognizance and summon accused after rejecting Police Report.
This is not legal and permissible.

22. In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, Police submitted final
report which was not accepted by Magistrate, not on the basis of material collected by Police, but,
relying on Protest Petition and accompanying affidavit Magistrate issued process. Court
disapproved the aforesaid procedure adopted by Magistrate and said:

"Where the magistrate decides to take cognizance under section 190 (1) (b)
ignoring the conclusions reached at by the investigating officer and applying his mind
independently, he can act only upon the statements of the witnesses recorded by the police in the
case-diary and material collected during investigation. It is not permissible at that stage to
consider any material other than that collected by the investigating officer. In the instant case the
cognizance was taken on the basis of the protest petition and accompanying affidavits. The
Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of
Criminal Procedure and recorded the statements of the complainant and the witnesses who had
filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance
under section 190 (1) (b) Cr.P.C. on the basis of protest petition and affidavits filed in support
thereof. The Magistrate having taking into account extraneous material i.e. protest petition and
affidavits while taking cognizance under section 190 (1) (b) Cr.P.C. the impugned order is
vitiated." (emphasis added)

23. In Kallu and others Vs. State of U.P. 2010 (69) ACC 780, Court said:

"Therefore, in present case also, if the material in the case diary was not sufficient
for summoning the accused persons to face the trial, then the protest petition filed by the
complainant against the final report ought to have been registered as complaint and after following
the procedure laid down in section 200 and 202 Cr.P.C."

24. Court further held:

"If after taking evidence under section 200 and 202 Cr.P.C., the magistrate
decides to take cognizance against the accused persons, final report has to be rejected, but in any
case, cognizance cannot be taken merely on the basis of affidavits or other material filed by the
complainant in support of the protest petition against final report without following the
procedure laid down under Chapter XV Cr.P.C., if the material in the case diary is not sufficient
to take cognizance."(emphasis added)

25. In Mitrasen Yadav Vs. State of U.P. 2010 (69) ACC 540, Court said that on the basis
of Protest Petition and documents filed therewith, no cognizance under Section 190(1)(b) Cr.P.C.
can be taken.
5 All. Hari Ram Vs State Of U.P. & Anr.

1713
26. In Criminal Revision No. 1601 of 2015 (Mukeem and 2 others Vs. State of U.P. and
another) decided on 07.08.2015, Court while deprecating procedure followed by Magistrate by
relying on Protest Petition and its documents, without following procedure of complaint, said:

 "The impugned order shows that the Magistrate summoned accused persons
presuming that oral evidence on behalf of first informant was adduced on protest petition, which is
possible only when the protest petition was ordered to be treated as a complaint. The record shows
that neither protest petition was ordered to be registered as complaint nor any oral evidence of
the witnesses was recorded. Summoning of the accused persons on the basis of the oral evidence
indicates that the Magistrate was satisfied with the fact that in evidence collected by the I.O, there
was no sufficient material for taking cognizance. The learned Magistrate has also observed that the
I.O. has committed a mistake in not recording the evidence of other witnesses. Summoning is also
based on facts mentioned in the protest petition and documentary evidence, as mentioned in the
order impugned "प्रस्त त प्रोटेस्ट प्राथवनापत्र ि अलभलेखीय साक्ष्य के आधार पर" which is erroneous in view of
the law cited above." (emphasis added)

27. In Writ Petition- Misc. Single No. 3776 of 2012 (Mohammad Shafiq Khan and others
Vs. State of U.P. and others) decided on 24.03.2014, Court, in para 9, held as under:

 "9. Therefore, it is clear from the above that the Magistrate on the basis of protest
petition can reject the final report, he may treat the protest petition as complaint, he may also
direct for further investigation. But in the facts of this case the Magistrate while rejecting the
final report has also taken into consideration the affidavits filed along with protest petition and
this approach of the Magistrate was not in accordance with law." (emphasis added)

28. Looking to exposition of law, discussed above, I find that in the present case Magistrate
has not referred to any material placed before him or collected by Investigating Officer. Instead it
has rejected final report on the basis of facts stated in Protest Petition and thereafter relying on the
affidavits filed before him along with Protest Petition, proceeded to issue notice. The affidavits
would not amount to a statement recorded by Magistrate under Section 200 and 202 Cr.P.C.
Magistrate has not given any reason for rejecting Police report and nothing has been said in this
regard except that in the light of affidavits placed before him along with Protest Petition, he finds
that final report is liable to be rejected and accused would be summoned. This approach on the part
of Magistrate, I find contrary to what has been laid down in the above authorities and the same
cannot be sustained.

29. In the result, revision is allowed. Impugned order dated 31.01.2001 is hereby set aside.

30. Now Magistrate shall pass fresh order on Final Report and Protest Petition in the light
of observations made above and in accordance with law, expeditiously, and, in any case, within
three months from the date of receipt of certified copy of this order.

31. Certify this judgment to the lower Court immediately.
1714 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 743 Of 1989

Smt. Ahmadunnisa ...Appellant
Versus
Smt. Jubeda ...Respondent

Counsel for the Appellant:
Shri Shashi Nandan

Counsel for the Respondent:
Shri R.C. Singh

Held -

Para 1: The Court heard both parties and examined the records.
Para 2: Plaintiff (Ahmadun Nisha) sued for specific performance based on a 1973 agreement to sell.
Defendant (Jubeda) received half the consideration, agreeing to transfer the property once the government
lifted the ban on urban sales.
Para 3: Defendant denied the intent to sell, claiming the document was meant to be a tenancy agreement and
that the plaintiff committed fraud by misrepresenting the nature of the deed.
Para 4: The Trial Court originally decreed the suit in favor of the plaintiff, ordering the execution of the sale
deed.
Para 5: The Trial Court found the defendant's "tenancy" defense concocted, noting the defendant admitted to
the registered deed and receipt of money.
Para 6: The Trial Court ruled the document was executed with a "conscious mind" in the presence of the
defendant's husband, and the plaintiff was ready and willing to perform.
Para 7: On appeal, the First Appellate Court reversed the decree, dismissing the suit as time-barred because it
was filed years after the government ban was lifted.
Para 8: The plaintiff filed this Second Appeal against the dismissal.
Para 9: Two legal questions were framed: whether limitation started from the date of refusal and whether the
court could dismiss the suit without a specific plea that "time was of the essence."
Para 10: It is admitted the ban was lifted in November 1975. The contract required execution within one
month of that lifting. The suit was only filed in 1986.
Para 11: Appellant argued the suit was timely because the "refusal" only happened in 1986 after a legal
notice.
Para 12: Respondent argued time was the essence; the cause of action arose in 1975, making a 1986 filing
nearly nine years late.