# Irshad Khan & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 531
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-03
- **Case number:** Criminal Revision No. 5132 of 2022
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/irshad-khan-ors-revisionists-v-state-of-u-p-anr-50372
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Sections 107, 116 & 151 -
Challan by local police , Section 111 -
issuance
of
notice
,
Section
193
-
Cognizance of offences by Courts of
Session, Section 207 - Supply to the
accused of copy of police report and other
documents, Indian Penal Code, 1860 -
Sections 147, 148, 149, 307, 336, 332,
353, 420, 447, 504, 506 , Criminal Law
Amendment Act - Section 7 - In cases
triable by court of session as provided in
schedule of the Code - Magistrate has no
power to try the case - he is required to
commit the case before the court of
session where trial may take place -
Magistrate
is
empowered
to
take
cognizance
of
any
offence
unless
otherwise provided including the offence
exclusively
triable
by
the
court
of
sessions. (Para -13)
Accused persons (revisionists) filed 24kha
discharge application - dismissed by court
(C.J.M.) - charged under various sections of
Criminal Law Amendment Act - not heard by
Court of Session - issued bailable warrant
against absentee accused - criminal revision
filed - against order of C.J.M. (Para - 4,5,6,7)

HELD:- Magistrate committed legal error while
deciding
discharge
application
moved
by
accused persons inter-alia under section 307
IPC, which is triable by court of session. Proper
course was to commit the case to Court of
Session, quoting court orders. Magistrate court
instructed to commit case to Court of Session
after ensuring compliance with section 207
Cr.P.C. Court of session to hear and dispose of
discharge application under section 227 Cr.P.C.
after hearing both sides. (Para -19,20,21)

Revision allowed. (E-7)

List of Cases cited:

## Text

7 All. Irshad Khan & Ors. Vs. State of U.P. & Anr.
531
coupled with the provisions of Section 362
Cr.P.C., I am not inclined to recall my order
dated 28.9.2022 disposing of the revision.

18.

Accordingly,
this
recall
application is rejected.
----------
(2023) 7 ILRA 531
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.07.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 5132 of 2022

Irshad Khan & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists:
Mohammad Sadab Khan

Counsel for the Respondents:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Sections 107, 116 & 151 -
Challan by local police , Section 111 -
issuance
of
notice
,
Section
193
-
Cognizance of offences by Courts of
Session, Section 207 - Supply to the
accused of copy of police report and other
documents, Indian Penal Code, 1860 -
Sections 147, 148, 149, 307, 336, 332,
353, 420, 447, 504, 506 , Criminal Law
Amendment Act - Section 7 - In cases
triable by court of session as provided in
schedule of the Code - Magistrate has no
power to try the case - he is required to
commit the case before the court of
session where trial may take place -
Magistrate
is
empowered
to
take
cognizance
of
any
offence
unless
otherwise provided including the offence
exclusively
triable
by
the
court
of
sessions. (Para -13)
Accused persons (revisionists) filed 24kha
discharge application - dismissed by court
(C.J.M.) - charged under various sections of
Criminal Law Amendment Act - not heard by
Court of Session - issued bailable warrant
against absentee accused - criminal revision
filed - against order of C.J.M. (Para - 4,5,6,7)

HELD:- Magistrate committed legal error while
deciding
discharge
application
moved
by
accused persons inter-alia under section 307
IPC, which is triable by court of session. Proper
course was to commit the case to Court of
Session, quoting court orders. Magistrate court
instructed to commit case to Court of Session
after ensuring compliance with section 207
Cr.P.C. Court of session to hear and dispose of
discharge application under section 227 Cr.P.C.
after hearing both sides. (Para -19,20,21)

Revision allowed. (E-7)

List of Cases cited:

1. Dharampal Vs St. of Har., (2014) 3 SC 306

2. Sukhbir Singh Vs St. of U.P. & anr., Section
482 No. 21859 of 2021

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
revisionists and learned AGA for the State.

2. None appeared on behalf of
respondent no. 2 to contest this criminal
revision today.

3. Counter affidavit has already been
filed by respondent no. 2 in this case.
Learned counsel for the revisionists has
submitted that he is not inclined to file
rejoinder affidavit and prayed for hearing
the matter on merits.

4. The present criminal revision is
filed against the order dated 4.11.2022
passed by learned C.J.M., Jalaun at Orai in
532 INDIAN LAW REPORTS ALLAHABAD SERIES
Misc. Case no. 327 of 2019 (State vs.
Irshad Khan and others) arising out of Case
Crime no. 162 of 2018 under Sections 147,
148, 149, 307, 336, 332, 353, 420, 447,
504, 506 IPC and Section 7 of Criminal
Law Amendment Act, P.S. Kotwali Kalpi,
District Jalaun. By the impugned order,
learned C.J.M. has dismissed the discharge
application 24 kha moved by the accused
persons and issued bailable warrant against
absentee accused Nausad.

5. The brief facts of the case is that
the informant lodged an FIR on the basis of
written report on 18.7.2018 stating that he
is Lekhpal of Kasba Kalpi and plot no. 38/4
area 0.170 and plot no. 38/6 area 0.210
hectare, total area 0.380 hectare come
under his area (Halka) and are recorded in
the column of Banjar in the revenue record,
out of which, some portion has been
encroached by Irshad Khan and others
without any authority regarding which a
report has been given to SDM Kalpi on
18.7.2018; Upziladhikari and other officials
of the department accompanied by SHO
concerned visited the spot with police force
and
tried
to
remove
the
illegal
encroachment by JCB Machine. In the
meanwhile at 12:00 hours said Irsad and
others, who had encroached a portion of
land, engaged in abusing and marpeet with
the official team and engaged in brick
bating in which some persons received
injuries. Inasmuch as Irshad exhorted his wife
to tear her clothes so that he could implicate
the persons, who had come to remove the
encroachment in false case of molestation.
The accused persons Irshad and four persons
filed an application under Section 482 No.
4289 of 2021 before this Court with prayer to
quash the charge-sheet filed by the IO in
aforesaid sections which was disposed of by
this Court vide order dated 23.3.2021 with
observation that Court did not find any
grounds to quash the charge-sheet and
cognizance taking order passed by the
learned Magistrate, therefore, prayer for
quashing the same is refused. However, if the
applicants appear and move an application
under Section 239 Cr.P.C. for discharge
through counsel before the court below
within two weeks from the date of receipt of
certified copy of the order then the
application for discharge shall be considered
and decided within a period of three months
from the date of filing of application in
accordance with law. No coercive action shall
be taken against the applicants till disposal of
said application or for a period of four
months from the date of receipt of the order
or whichever is earlier; applicants were
permitted to file discharge application
through counsel.

6. In compliance of the order of this
Court, accused persons filed discharge
application before the court of first instance,
which was dismissed by the impugned order
passed by learned C.J.M. with observation
that on the basis of evidence collected by the
I.O. during investigation, charges under
Sections 147, 148, 149, 307, 336, 332, 353,
420, 447, 504, 506 IPC and Section 7 of
Criminal Law Amendment Act are made out
against the applicants accused for which
charge-sheet has been filed and cognizance
has already been taken by the court in said
criminal case on the basis of charge-sheet. As
the matter is triable by the court of session,
this court did not have jurisdiction to hear the
discharge application, therefore, the said
discharge application 24kha is dismissed,
case was fixed for committal / appearance of
the accused persons.

7. The accused persons have filed
present revision feeling aggrieved by the
aforesaid order passed by the learned
C.J.M. under Section 397/401 Cr.P.C.
7 All. Irshad Khan & Ors. Vs. State of U.P. & Anr.
533

8. Learned counsel for the revisionists
submitted that on 6.4.2021 revisionist has
filed discharge application in the court
below in pursuance of the order of this
Court and a copy of said application is filed
as annexure-12 to the revision on the
ground that civil suit no. 62 of 2018 has
been filed before the Civil Judge, Jalaun at
Orai with regard to the plot in question
with
prayer
to
issue
a
prohibitory
injunction against the defendants from
interfering in possession of the applicant
no. 1 and his three brothers and the court
below passed the order for maintaining
status quo over the plot in question vide
order
dated
26.4.2019.
However,
on
8.4.2018 applicant nos. 1 and 3 others, who
were challaned by local police under
sections 107, 116, 151 Cr.P.C. and challan
report was submitted by him before the
court of SDM, Kalpi and on the same day,
SDM concerned passed an order with
regard to issuance of notice under section
111 Cr.P.C. against the applicant nos. 1 and
3 others with observations that there was
apprehension to commit breach of peace
and disturbance of public tranquility, they
must be sent to jail; they were directed to
execute two sureties, which are to be
verified by the Tehsildar Kalpi but they
were sent to jail due to pending verification
of surety bond.

9. The revisionists filed a application
under section 482 No. 13535 of 2018 before
this Court in which interim order was passed
on 20.4.2018 and notices were issued to
SDM and Tehsildar Kalpi on 4.5.2018 and
SDM was directed to comply with the order
dated 20.4.2018 to appear in person before
the Court on the next date. In view of passing
the order dated 20.4.2018 by this Court the
SDM and Tehsildar, Kalpi had became
inimical to the revisionists and at their behest,
the present FIR has been lodged by Lekhpal
Pramod Kumar Dubey on false and
fabricated facts; the petitioner's shop was not
constructed over the plot no. 38/4 and 38/6 as
alleged in the FIR but same was constructed
over the plot no. 38/1 and 17/1 and thus the
SDM and Tehsildar had got said shop
demolished only to take revenge from the
revisionists and iron scrap worth of Rs. 50
lakhs was removed by them with help of
police personnel.

10. No notice was served on
revisionists regarding alleged unauthorized
occupation; the revisionists had not interfered
in the work of government officials, therefore
no offence under section 353 IPC is made out
against them; plot no. 38/4 and 38/6 are away
about 300 metre from the plot no. 38/1 and
17/1 Mauza Alampur, Kalpi but false
allegation is made in the FIR that the
applicants had occupied plot no. 38/4 and
38/6; revisionists had never caused any
unlawful assembly or any use of force or
violation;
they
had
not
caused
any
obstruction in performance of public duty of
public servant. He further submitted that
impugned order passed by learned C.J.M. is
manifestly error on the face of record and
deserves to be set aside by this Court as the
impugned order is devoid of any reasoning
and finding and has been passed in
mechanical
routine
manner
without
application of judicial mind. On the basis of
materials on record, no offence as alleged in
the charge-sheet, is made out against the
applicants, who has committed no offence; all
the proceedings in this case, were initiated at
the behest of SDM and Tehsildar, therefore, it
is prayed for that this revision be allowed and
impugned order passed by learned C.J.M. be
set aside.

11.

Per
contra,
learned AGA
submitted that as in penal sections in the
case include inter-alia charge under section
534 INDIAN LAW REPORTS ALLAHABAD SERIES
307 IPC which is triable by the court of
session therefore learned Magistrate was
not empowered to discharge the accused
applicant in such case and only course open
to him was that to commit case before the
court
of
session
where
discharge
application could be legally moved.

12. For the purposes of deciding
present revision, certain provisions of
Criminal Procedure Code are relevant to be
reproduced hereinunder:-

Section 193-Cognizance of offences
by Courts of Session. Except as otherwise
expressly provided by this Code or by any
other law for the time being in force, no
Court of Session shall take cognizance of
any offence as a Court of original
jurisdiction unless the case has been
committed to it by a Magistrate under this
Code..

207. Supply to the accused of copy of
police report and other documents. In any
case where the proceeding has been
instituted on a police report, the Magistrate
shall without delay furnish to the accused,
free of cost, a copy of each of the
following:-

(i) the police report;

(ii)
the
first
information
report
recorded under section 154;

(iii) the statements recorded under
sub- section (3) of section 161 of all
persons whom the prosecution proposes to
examine
as
its
witnesses,
excluding
therefrom any part in regard to which a
request for such exclusion has been made
by the police officer under sub- section (6)
of section 173;

(iv) the confessions and statements, if
any, recorded under section 164;

(v) any other document or relevant
extract thereof forwarded to the Magistrate
with the police report under sub- section (5)
of section 173: Provided that the Magistrate
may, after perusing any such part of a
statement as is referred to in clause (iii) and
considering the reasons given by the police
officer for the request, direct that a copy of
that part of the statement or of such portion
thereof as the Magistrate thinks proper,
shall be furnished to the accused: Provided
further that if the Magistrate is satisfied that
any document referred to in clause (v) is
voluminous, he shall, instead of furnishing
the accused with a copy thereof, direct that
he will only be allowed to inspect it either
personally or through pleader in Court.

209. Commitment of case to Court of
Session when offence is triable exclusively
by it. When in a case instituted on a police
report or otherwise, the accused appears or
is brought before the Magistrate and it
appears to the Magistrate that the offence is
triable exclusively by the Court of Session,
he shall-

(a) 1 commit, after complying with the
provisions of section 207 or section 208, as
the case may be, the case to the Court of
Session, and subject to the provisions of
this Code relating to bail, remand the
accused to custody until such commitment
has been made;]

(b) subject to the provisions of this
Code relating to bail, remand the accused
to custody during, and until the conclusion
of, the trial;

(c) send to that Court the record of the
case and the documents and articles, if any,
which are to be produced in evidence;

(d) notify the Public Prosecutor of the
commitment of the case to the Court of
Session.

13. From the perusal of above
provisions, it is obvious that in cases triable
7 All. Irshad Khan & Ors. Vs. State of U.P. & Anr.
535
by court of session as provided in schedule
of the Code, the Magistrate has no power to
try the case and he is required to commit
the case before the court of session where
trial may take place. However, Magistrate
is empowered to take cognizance of any
offence
unless
otherwise
provided
including the offence exclusively triable by
the court of sessions.

14. In Dharampal vs. State of
Haryana reported in (2014) 3 SC 306, the
Hon'ble
Apex
Court
has
held
that
cognizance under Section 193 Cr.P.C. has
been related to cognizance of offence and
not to commitment order passed by the
Magistrate. For offence exclusively triable
by the court of session; the court of session
is competent for arraignment of such
persons as accused from and during
cognizance as such itself under section 193
(upon committal of Magistrate) and then
during course of inquiry and trial, under
section 319 Cr.P.C.

15. This Court in Sukhbir Singh vs.
State of U.P. and another in application
under Section 482 No. 21859 of 2021
decided on 22.7.2022 held that in view of
Section 209 Cr.P.C. there is no ambiguity
that "who is trial court". In the present case,
since the offence is triable by the Session
court, the trial court is session court. While
hearing the application of discharge, the
Magistrate committed error by assuming
the jurisdiction of session court. The
session court has to apply its mind whether
applicant is liable to be discharged or
whether application is liable to be rejected.
The Magisterial court committed error by
deciding the case itself.

16. In present case learned Magistrate
has committed legal error while dismissing
the discharge application moved by the
accused revisionists on assumption of
jurisdiction, although it has not decided the
discharge
application
on
merits
and
observed that court has no jurisdiction to
hear the case as the case was triable by the
court of session.

17. From perusal of the record it
appears that discharge application was filed
by the revisionists pursuant to order of this
court passed in application u/s 482 No.
4289 of 2021 where they were given liberty
to move an application of discharge before
the court below under section 239 Cr.P.C.
and permitted to appear through counsel
before the court below or till disposal of the
discharge application or for a period of four
months from the date of passing of order
whichever is earlier.

18. In session triable of cases the
discharge application is maintainable under
section 227 Cr.P.C. which provides that in a
trial before the court of session, if upon
considering record of the case and
documents submitted therewith and after
hearing the submission of accused and
prosecution in this behalf, the Judge
considers that there is no sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his
reasons for doing so.

19. In view of the aforesaid factual
and legal discussions, I am of the opinion
that learned Magistrate committed legal
error
while
deciding
the
discharge
application moved by the accused persons
inter-alia under section 307 IPC, which is
triable by the court of session; the proper
course before the learned Magistrate was to
commit the case before the court of session
after quoting the orders of this Court passed
in application u/s 482 as stated aforesaid,
through counsel as accused persons were
536 INDIAN LAW REPORTS ALLAHABAD SERIES
given liberty to appear before the court
below for filing discharge application. On
committal of case by learned Magistrate
through counsel, without insisting personal
appearance of the accused persons as they
are not enlarged on bail as yet, the
discharge application was liable to be
decided by the court of session and all
pleas taken in discharge application were to
be taken before the court of session.

20. Consequently present revision is
allowed. The impugned order passed by
learned
Magistrate
dated
4.11.2022
dismissing discharge application 24kh
moved by the accused persons is set aside.

21. Learned Magistrate court is
directed to commit the case before the court
of session after ensuring compliance of
provision under section 207 Cr.P.C. and
discharge
application
moved
by
the
accused persons before the court below in
pursuance of the direction of this Court will
be taken up by the court of session as if
filed under section 227 Cr.P.C. and same
will be disposed of after giving opportunity
of hearing to accused applicants as well as
prosecution side.

22. Keeping in view of the delay
already occasioned in the case learned
Magistrate will commit the case as for as
possible within one month from the date of
production of certified copy of this order
and after committal of the case learned
session court will hear and decide the said
discharge application in the light of the
above observations within a period of three
months
provided
there
is
no
legal
impediment. If the discharge application is
dismissed then accused revisionists will be
directed to surrender and will be taken into
custody and their bail application will be
decided in accordance with law.
----------
(2023) 7 ILRA 536
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Crl. Misc. Writ Petition No. 4947 of 2023
connected with
Crl. Misc. Writ Petition No. 4949 of 2023

Jaya Jain ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rohan Gupta

Counsel for the Respondents:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 274, 275 & 276, The
Drugs - and Cosmetics Act, 1940 -
Sections 17, 17(a), 17(b) & 32 - No first
information
report
can
be
lodged
regarding a non-cognizable offence and
that prosecution is permissible only by
means of a complaint before a Magistrate
or a competent court. (Para -21, 23)

FIR lodged by a Drug Inspector - Test Analysis
Report - offences under Indian Penal Code are
non-cognizable offences - offences alleged
under provisions of Drugs and Cosmetics Act -
can be prosecuted only by means of a complaint
and not an FIR.(Para -22)

HELD:-Apex Court's direction prevents quashing
the FIR, stating that petitioners cannot be
prosecuted or arrested unless they have been
convicted under Chapter IV. First information
report will only be acted upon if the petitioners
have already been convicted. Drug Inspector can
proceed by filing a complaint with the appropriate
forum for prosecution.(Para - 24)

Petition disposed of. (E-7)