# I.P.S. Yadav v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1515
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-08
- **Case number:** Application U/S 482 No. 22966 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/i-p-s-yadav-v-state-of-u-p-anr-45530
- **Pages:** 4

## Headnote

A. Criminal law - Code of Criminal
Procedure,1973- Section 204- Though
Magistrate need not to pass an elaborate and
reasoned order, while passing summoning
order u/s 204 Cr.P.C. but it is also there that it
must appear that there is application of judicial
mind and upon this application a prima-facie
commission of offence for which cognizance is
to be taken and summoning is to be made, is
made out.

Although the Learned Magistrate treated the
Protest Petition as a Complaint but the order
taking
cognizance
of
the
offences
and
summoning
the
accused
must
reflect
application of judicial mind to the facts of the
case.

B. Criminal law - Code of Criminal
Procedure, 1973- Section 197- A court is
1516 INDIAN LAW REPORTS ALLAHABAD SERIES
precluded from entertaining a complaint or
taking notice of it or exercising jurisdiction if it
is in respect of a public servant who is accused
of an offence alleged to have committed during
discharge of his official duty.

It is settled law that prior sanction from the
competent authority under section 197 Cr.Pc, in
respect of a Public Servant having committed the
alleged offence in the purported exercise of his
official duty, is a sine qua non for taking cognizance
of the offence, in absence of which the very
cognizance is barred. (Para 6,7)

Application u/s 482 Cr.Pc allowed.

Case law discussed:-

## Text

2 All. I.P.S. Yadav Vs. State of U.P. & Anr.
1515
denied in the order of the Civil Judge
(Senior Division) in disposal of interim
injunction application, which order has
been upheld up to Apex Court. In this
proceeding u/s 482 Cr.P.C. learned counsel
for applicants has vehemently argued and
has written in the application that this
agreement to sell, which was not a
registered one, was got executed in
between. But upon request this sale
consideration was shown to be Rs. 50 lacs
and this was with a view to have saving
from
objections
from
Income
Tax
Department and other formalities and this
agreement was got registered. Meaning
thereby knowing this fact that this
contention in the agreement to sell was
against fact, but it was presented as a
factual one and this was got registered
with knowledge and belief that it was a
sham document. The real consideration to
be paid and the real agreement entered in
between was an unregistered document.
According
to
which
remaining
sale
consideration was to be given i.e. the
registry officials were deceived for getting
the deed registered, which was with
incorrect mention of consideration and
getting the same registered to be believed
to be true and correct one. This offence
will amount deception apparently fulfilling
the ingredients of a cognizable offence
punishable u/s 420 I.P.C. It will be against
both the would be vendee and the would
be vendor i.e. the parties to above
agreement including applicant no. 1. This
aspect was also required to be inquired
under section 202 Cr.P.C. then after
summoning order, if any, against accused,
against whom offences were made out,
was to be passed.

20. Accordingly, application u/s 482
Cr.P.C. is allowed. Impugned summoning
order is being set aside. The file is
remanded
back
to
the
Magistrate
concerned for making adequate and proper
enquiry under sections 200 and 202
Cr.P.C. for hearing complainant and
passing order, if any, within the parameter
of law and precedents showing prima-facie
application of judicial mind.
----------
(2020)02ILR A1515

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 22966 of 2019

I.P.S. Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Pradeep Kumar, Sri Rajnish Kumar Rai,
Sri Shri Krishan Yadav

Counsel for the Opposite Parties:
A.G.A., Deepti Tiwari, Ms. Monica Vaish

A. Criminal law - Code of Criminal
Procedure,1973- Section 204- Though
Magistrate need not to pass an elaborate and
reasoned order, while passing summoning
order u/s 204 Cr.P.C. but it is also there that it
must appear that there is application of judicial
mind and upon this application a prima-facie
commission of offence for which cognizance is
to be taken and summoning is to be made, is
made out.

Although the Learned Magistrate treated the
Protest Petition as a Complaint but the order
taking
cognizance
of
the
offences
and
summoning
the
accused
must
reflect
application of judicial mind to the facts of the
case.

B. Criminal law - Code of Criminal
Procedure, 1973- Section 197- A court is
1516 INDIAN LAW REPORTS ALLAHABAD SERIES
precluded from entertaining a complaint or
taking notice of it or exercising jurisdiction if it
is in respect of a public servant who is accused
of an offence alleged to have committed during
discharge of his official duty.

It is settled law that prior sanction from the
competent authority under section 197 Cr.Pc, in
respect of a Public Servant having committed the
alleged offence in the purported exercise of his
official duty, is a sine qua non for taking cognizance
of the offence, in absence of which the very
cognizance is barred. (Para 6,7)

Application u/s 482 Cr.Pc allowed.

Case law discussed:-

1. St. of U.P. Vs. Paras Nath Singh, (2009) 6 SCC
372

2. Crl. Appeal Nos. 1590, 1591 of 2013 (in S.L.P.
Criminal No. 6652, 6653 of 2013), M. K. Ayappa Vs.
State. [ Anil Kumar Vs. M.K.Ayappa, (2013) 10 SCC
705]

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. Heard Sri Pradeep Kumar, learned
counsel for the applicant, Ms. Monica Vaish,
learned counsel for O.P. No. 2 and learned
A.G.A. representing the State. Perused the
records.

2. This application, under Section 482
Cr.P.C., has been filed by applicant I.P.S.
Yadav against State of U.P. and Amit Vaish
with prayer to quash the summoning order
dated 21.2.2019 as well as order issuing
N.B.W. and entire proceedings of Complaint
Case No. 1099 of 2019, Amit Vaish Vs. I.P.S.
Yadav, under Sections 392, 427, 447 I.P.C.,
P.S. Naini, district Prayagraj, pending in court
of A.C.J.M., Court No. 2, Allahabad.

3. Learned counsel, for the applicant,
argued that accused-applicant is an officer in
Indian Railways and was performing his
official duties, in view of letters previously
written to the District Magistrate, Prayagraj, as
well as concerned Station Officer of P.S. Naini,
Prayagraj, regarding encroachment done over
land in question belonging to Indian Railways
and performance of official duties. Above act
was performed in discharge of official duty for
which this F.I.R. was got lodged, wherein a
proceeding u/s 482 Cr.P.C. was filed before
this court, but as final report was submitted in
the above case crime number, hence above
proceeding u/s 482 Cr.P.C. was held to be
infructuous and was dismissed. Subsequently a
protest petition was filed and over this petition,
cognizance was taken, but summoning order
was not there. Rather the Magistrate opined for
proceeding as a complaint case, thereby
recorded statements of complainant u/s 200
Cr.P.C. and of his two witnesses u/s 202
Cr.P.C. Then after by a cryptic order, without
applying judicial mind, passed the impugned
order of summoning, for which, there required
a sanction, as per section 197 Cr.P.C. This was
abuse of process of law and no Public officer
will perform his official duty because of such
threat being given by Land Mafias and others.
Hence this application with above prayer.

4. Learned A.G.A. has vehemently
opposed the above submission.

5. Learned counsel for O.P. No. 2
argued that it was not the land of Indian
Railways.
Rather
it
was
land
of
complainant, purchased vide registered
sale deed from its erstwhile owners and
inherited by the complainant, being
grandson of Late Somnath Vaish. He was
owner in possession having construction
over it and this construction was destroyed
and
damaged
and
belongings
of
complainant were looted by accusedapplicant under his individual capacity, for
which there required no sanction. Even
2 All. I.P.S. Yadav Vs. State of U.P. & Anr.
1517
D.R.M. had not passed any order for such
demolition or taking of property of
complainant. Hence this conclusion of
Investigating Officer for submission of
final report was against fact on record,
because the property was acquired in a
proceeding for which a proceeding by way
of a writ was filed before this court,
wherein a reply was submitted by the
Revenue Department by way of counter
affidavit, wherein it was admitted that
above disputed plot nos. 133 and 134 were
not required. Rather those plots were
released for which a Government Order
was passed and it was filed along with
counter affidavit. Hence, above land was
neither acquired nor belonged to Indian
Railways. Even then this act has been done
by the accused-applicant in his personal
vengeance. Hence this matter may be
raised before the Magistrate, where
applicant is appearing through counsel, for
making appreciation by the Magistrate, for
consideration over discharge, if any, and
sanction may be taken at any stage
subsequent
to
it
also.
Hence
this
proceeding be dismissed.

6. Having heard learned counsel for
both sides and gone through the material
placed on record, it is apparent that
cognizance taking order is on the basis of
final report, submitted by the Investigating
Officer, in above case crime number, after
investigation and then after a decision
regarding proceeding as a complaint case
was there. Hence in above investigation
and in the final report, submitted in above
case crime number, it was specifically
mentioned that the land belonged to Indian
Railways and it was entered in the name of
Indian
Railways
along
with
G.E.C.
Company. A proceeding for declaration of
right before Revenue Court u/s 229B of
U.P.Z.A.L.R. Act, filed by complainant,
was dismissed mentioning therein that it
was a land belonging to Indian Railways.
Nowhere it is apparent that after release
the land was entered in the name of its
erstwhile owners or compensation paid
was returned back and what was the
situation of land?, in possession as well as
title. Though, order of status quo is said to
be in operation granted by Board of
Revenue. Accordingly, this final report
was submitted on the basis of the fact that
the land in dispute belongs to Indian
Railways and alleged occurrence was
committed by an officer of Indian
Railways in performance of his official
duty. Hence this fact was there on record
before the Magistrate concerned and while
considering on protest petition, this final
report was accepted, but cognizance for
offence was taken. The Magistrate did not
summon
accused
on
the
basis
of
cognizance taken by him. Rather he
decided to proceed as a complaint case.
Subsequently, statements u/s 200 and 202
Cr.P.C. were got recorded and then after
impugned summoning order was passed.
But neither reason for absence of sanction
nor ownership of land of Indian Railways
nor performance of official duty by a
public officer in assistance of public force
i.e. R.P.F. was there in the summoning
order. Though Magistrate need not to pass
an elaborate and reasoned order, while
passing summoning order u/s 204 Cr.P.C.
But it is also there that it must appear that
there is application of judicial mind and
upon
this
application
a
prima-facie
commission
of
offence
for
which
cognizance is to be taken and summoning
is to be made, is made out. But in the
present case, there was mention that
property in question and construction
raised there at were an encroachment over
Railways land and it was an act by a
Railway officer in performance of his
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
official duty with assistance of Railway
Police Force and the Magistrate failed to
take note of this circumstance or to make
any discussion over this point in the
summoning order.

7. Apex Court in State of U.P. Vs.
Paras Nath Singh, (2009) 6 SCC 372 by a
three Judges Bench has propounded that
'no court shall take cognizance of such
offence except with the previous sanction'.
Use of the words 'no' and 'shall' make it
abundantly clear that the bar on the
exercise of power of the court to take
cognizance of any offence is absolute and
complete. Very cognizance is barred. That
is the complaint cannot be taken notice of.
According to Black's law Dictionary the
word 'cognizance' means 'Jurisdiction' or
'the exercise of jurisdiction' or 'power to
try and determine causes'. In common
parlance it means taking notice of. A court,
therefore, is precluded from entertaining a
complaint or taking notice of it or
exercising jurisdiction if it is in respect of
a public servant who is accused of an
offence alleged to have committed during
discharge of his official duty. This has
been reiterated by Apex Court in Criminal
Appeal Nos. 1590, 1591 of 2013 (in S.L.P.
Criminal No. 6652, 6653 of 2013), M. K.
Ayappa Vs. State. Hence, in the present
case, all these requirements were needed,
while passing a summoning order and
taking of cognizance. But no iota is there.
Hence it is completely abuse of process of
law.

8. Accordingly, this application
merits to be allowed.

9. This application u/s 482 Cr.P.C. is
allowed and the impugned summoning
order is hereby quashed. The file is being
remanded back to the Magistrate Court
concerned for making an enquiry afresh
u/s 200 and 202 Cr.P.C. and then after pass
a fresh reasoned order in view of
requirement
of
sanction
and
legal
precedents.
----------
(2020)02ILR A1518

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE
THE HON'BLE HARSH KUMAR, J.

Application U/S 482 No. 25818 of 2018

Dr. Sushil Kumar Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajesh Kumar Chitragupt, Sri Kamal
Kishor Mishra

Counsel for the Opposite Parties:
A.G.A., Sri Anil Kumar Mishra, Sri Om
Prakash Pandey, Sri Rajesh Kumar Dubey

A. Criminal Law-Indian Penal Code, 1860Sections 419, 420, 338, 504, 506 and 201
- In order to make out a prima facie offence of
Cheating
,
the
necessary
averments
constituting the said offence have to be made
in the FIR O.P no.2 allegedly operated for
stone
in
gallbladder
and
surgery
was
unsuccessful- Applicant was anaesthesiologist -
No case that after getting the money
deposited, her surgery was not conducted and
money was usurped and thus any fraud was
played on her by applicant, or anybody else.
Hence from averments made in F.I.R., no
prima facie evidence of offence under sections
419 and 420 IPC made out.

B. Criminal Law-Indian Penal Code, 1860-
Section 338 IPC - Merely administering the
required
dosage
of
anaesthesia
without
endangering the life of the patient or causing
any grievous hurt would not make out an