# Krishna Kumar & Ors v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2023) 1 ILRA 700
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-24
- **Case number:** Application u/s 482 No. 677 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-ors-v-state-of-u-p-ors-opp-parties-49676
- **Pages:** 8

## Headnote

A. Criminal Law - Criminal Procedure
Code,
1973
-
Sections
190(1)
-
Cognizance of offence - Summoning order
was passed by the Magistrate on the
printed proforma - Legality challenged No
judicial mind applied - Effect - Held, the
conduct of the judicial officers concerned
in passing orders on printed proforma by
filling up the blanks without application of
judicial
mind
is
objectionable
and
deserves
to
be
deprecated
-
The
summoning of an accused in a criminal
case is a serious matter and the order
must reflect that Magistrate had applied
his mind to the facts as well as Law
applicable thereto, whereas the impugned
summoning
order
was
passed
in
mechanical manner without application of
judicial mind. (Para 12 and 23)
B. Constitution of India,1950 - Article 21
- Fundamental right - Right of fair
investigation and speedy trial - Held, fair
and proper investigation is the primary
duty of the Investigating Officer. No
investigating agency can take unduly long
time in completing investigation. There is
implicit right under Article 21 for speedy
trial which in turn encompasses speedy
investigation, inquiry, appeal, revision and
retrial. (Para 14)
Application allowed. (E-1)
List of Cases cited:-

## Text

700 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 28.07.2021 had called for a
report
from
the
Jail
Superintendent
regarding the conduct and behaviour of the
accused-appellant. The said report has been
placed by the office in a sealed cover which
we have not opened as we have already
taken a decision to acquit the appellant.

80. Let the lower court record be sent
along with certified copy of the order to the
trial court for compliance.
----------
(2023) 1 ILRA 700
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.01.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application u/s 482 No. 677 of 2023

Krishna Kumar & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicants:
Siddharth Shankar Dubey

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,
1973
-
Sections
190(1)
-
Cognizance of offence - Summoning order
was passed by the Magistrate on the
printed proforma - Legality challenged No
judicial mind applied - Effect - Held, the
conduct of the judicial officers concerned
in passing orders on printed proforma by
filling up the blanks without application of
judicial
mind
is
objectionable
and
deserves
to
be
deprecated
-
The
summoning of an accused in a criminal
case is a serious matter and the order
must reflect that Magistrate had applied
his mind to the facts as well as Law
applicable thereto, whereas the impugned
summoning
order
was
passed
in
mechanical manner without application of
judicial mind. (Para 12 and 23)
B. Constitution of India,1950 - Article 21
- Fundamental right - Right of fair
investigation and speedy trial - Held, fair
and proper investigation is the primary
duty of the Investigating Officer. No
investigating agency can take unduly long
time in completing investigation. There is
implicit right under Article 21 for speedy
trial which in turn encompasses speedy
investigation, inquiry, appeal, revision and
retrial. (Para 14)
Application allowed. (E-1)
List of Cases cited:-
1. DiLawar Vs St. of Har.; (2018) 16 SCC 521
2. Menka Gandhi Vs U.O.I.; AIR 1978 SC 597
3. Hussainara Khatoon (I) Vs St. of Bihar;
(1980)1 SCC 81
4. Abdul Rehman Antulay Vs R.S. Nayak; (1992)
1 SCC 225
5. P. Ramchandra Rao Vs St. of Karn.; (2002) 4
SCC 578
6. H.N. Rishbud Vs St. of Delhi; AIR 1955 SC
196
7. Bhushan Kumar & anr. Vs St. (NCT of Delhi)
& anr.; AIR 2012 SC 1747
8. Basaruddin & others Vs St. of U.P. & ors.;
2011 (1) JIC 335 (All)(LB)
9. Bhushan Kumar & anr. Vs St. (NCT of Delhi)
& anr.; AIR 2012 SC 1747
10. Sunil Bharti Mittal Vs Central Bureau of
Investigation; AIR 2015 SC 923
11. Darshan Singh Ram Kishan Vs St. of Mah.;
(1971) 2 SCC 654
12. Application U/S 482 No.19647 of 2009;
Ankit Vs St. of U.P. & anr. decided on
15.10.2009
13. Criminal Revision No. 3209 of 2010; Kavi
Ahmad Vs St. of U.P. & anr.
14. Abdul Rasheed & ors. Vs St. of U.P. & anr.;
2010 (3) JIC 761 (All)
1 All. Krishna Kumar & Ors. Vs. State of U.P. & Ors.
701
(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Siddharth Shanker
Dubey, learned counsel for the applicants
as well as Smt Jan Laxmi Tiwari Senanai,
learned A.G.A. for the State and perused
the record.

2. The instant application under
Section 482 Cr.P.C. has been filed by the
applicants with a prayer to quash the entire
criminal proceedings of Case No. 21 of
2019: State of U.P. Versus Krishna Kumar
and other under Section 363, 366 I.P.C. and
Sections 16 and 17 of Protection of
Children from Sexual Offences Act, 2012,
pending before the court of ASJ/POCSO-II
Raibareli and also for quashing of the
charge-sheet
No.101/2019
dated
05.02.2019 and quashing of summoning
order dated 08.02.2019.

3. As per the prosecution version of
the F.I.R., on 13.11.2018 at 08.40 A.M. the
complainant went to drop off his daughter
to her school and after the end of school
hours, the complainant found out that his
daughter did not attend the school that day.
The complainant went home and checked
his household trunk and found that the
daughter had fled with Rs.20,000/- along
with her. That complainant's house is
nearby to one neighbour Krishna Kumar
Nayi's house who lives with his son
Avinash alias Shivam wife Shrimati,
daughter Shivani and second son Abhishek
as a family. The complainant states that
Avinash alias Shivam was living in some
city for purpose of earning his livlihood.
Furthermore, as per the allegations levelled
by complainant on 13.11.2018 at about 8.40
AM in the morning Shivani and Abhishek
dropped off the victim from school to
station
where
accused Avinash
alias
Shivam
was
already
present,
who
manipulated the victim in running away
with him. Also, it is alleged in the F.I.R.
that Krishna Kumar Nayi was connected
throughout on the phone and hence Krishna
Kumar Nayi mother Shrimati sister Shivani
and brother Abhishek all are involved in the
said crime.

4. Learned counsel for the applicants
further submits that the entire prosecution
story is false. No such incident took place
and the applicants have been falsely
implicated in the present case.

5. Learned counsel for the applicants
further submits that before arguing the case
on merits, he wants to draw attention of this
Court on the charge-sheet dated 05.02.2019
submitted by the Investigating Officer in
mechanical manner under Sections 363,
366 I.P.C. and Section 16 and 17 of
Protection
of
Children
from
Sexual
Offences Act, 2012, copy of the same is
filed as Annexure No.1 to the affidavit,
whereas he further submits that on the
charge-sheet, the learned Magistrate had
taken
cognizance
and
passed
the
summoning order on 08.02.2019. The
cognizance was taken on the printed
proforma by filling the sections of IPC,
dates and number and in the said proforma
the learned Magistrate without assigning
any reason has summoned the applicants
for facing trial. Copy of the cognizance
order is also annexed as Annexure No.2 to
the affidavit.

6.

Learned
counsel
for
the
applicants further submits that by the
order dated 08.02.2019 cognizance taken
by the learned Magistrate on printed
proforma without assigning any reason is
abuse of process of law and the same was
without application of mind and was in a
routine manner.
702 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Learned counsel for the applicants
further submits that after submission of
charge sheet and cognizance order on
printed proforma, the applicants have been
summoned mechanically by order dated
08.02.2019 and the court below while
summoning the applicants has materially
erred and did not follow the dictum of law
as propounded by the Hon'ble Supreme
Court in various cases that summoning in
criminal case is a serious matter and the
court below without dwelling into material
and visualizing the case on the touch stone
of probability should not summon accused
person to face criminal trial. It is further
submitted that the court below has not
taken into consideration the material placed
before the trial court along with charge
sheet and, therefore, the trial court has
materially
erred
in
summoning
the
applicant. The court below has summoned
the applicant through a printed order, which
is wholly illegal.

8. It is vehemently urged by learned
counsel
for
the
applicants
that
the
impugned cognizance/summoning order
dated 08.02.2019 is not sustainable in the
eye of law, as the same has been passed in
mechanical manner without applying the
judicial mind, because on the face of record
itself
it
is
apparent
that
impugned
cognizance/summoning
order
dated
08.02.2019 has been passed by the
Magistrate concerned on printed proforma
by filling up the gaps, therefore the same is
liable to be quashed by this Court.

9. Learned counsel for the applicants
has given much emphasis that if the
cognizance has been taken on the printed
proforma, the same is not sustainable.

10. Per contra, learned A.G.A. for the
State
submitted
that
considering
the
material evidences and allegations against
the applicants on record, as on date, as per
prosecution case, the cognizable offence
against the applicants is made out,
therefore, application is liable to be
dismissed but has not denied that the leaned
Magistrate has taken cognizance on the
printed proforma. Accordingly, this case is
being finally decided at this stage without
issuing notice to opposite party no.2 and
without calling for a counter affidavit.

11. I have heard the learned counsel
for the parties and perused the record.

12. The main issue for consideration
before this Court is that whether the learned
Magistrate may summon the accused
person on a printed proforma without
assigning any reason and take cognizance
on police report filed under Sections 173 of
Cr.P.C. In this regard, it is relevant to
mention here that a Court can take
cognizance of an offence only when
condition
requisite
for
initiation
of
proceedings before it as set out in Chapter
XIV of the Code are fulfilled. Otherwise,
the Court does not obtain jurisdiction to try
the offences under section 190 (1) of the
Cr.P.C. provided that "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-

(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
1 All. Krishna Kumar & Ors. Vs. State of U.P. & Ors.
703
class to take cognizance under sub-section
(1) of such offences as are within his
competence to inquire into or try."

13. At this juncture, it is fruitful to
have a look so far as the law pertaining to
summoning of the accused persons, by
taking cognizance on a police report filed
under section 173 of the Cr.P.C., is
concerned and the perusal of the case law
mentioned herein below would clearly
reveal that cognizance of an offence on
complaint is taken for the purpose of
issuing process to the accused. Since, it is a
process of taking judicial notice of certain
facts which constitute an offence, there has
to be application of mind as to whether the
material collected by the Investigating
Officer results in sufficient grounds to
proceed further and would constitute
violation of law so as to call a person to
appear before the criminal court to face
trial. This discretion puts a responsibility
on the magistrate concerned to act
judiciously keeping in view the facts of the
particular case as well as the law on the
subject and the orders of Magistrate does
not suffers from non-application of judicial
mind while taking cognizance of the
offence.

14. Fair and proper investigation is
the primary duty of the Investigating
Officer. No investigating agency can take
unduly
long
time
in
completing
investigation. There is implicit right under
Article 21 for speedy trial which in turn
encompasses speedy investigation, inquiry,
appeal, revision and retrial. There is clear
need
for
time
line
in
completing
investigation for having in-house oversight
mechanism wherein accountability for
adhering to lay down timeline, can be fixed
at different levels in the hierarchy, vide
Dilawar vs. State of Haryana, (2018) 16
SCC 521, Menka Gandhi vs. Union of
India, AIR 1978 SC 597, Hussainara
Khatoon (I) vs. State of Bihar, (1980)1
SCC 81, Abdul Rehman Antulay vs. R.S.
Nayak, (1992) 1 SCC 225 and P.
Ramchandra Rao vs. State of Karnatka,
(2002) 4 SCC 578.

15. For the purposes of investigation,
offences are divided into two categories
"cognizable" and "non-cognizable". When
information of a cognizable offence is
received or such commission is suspected,
the proper police officer has the authority
to enter in the investigation of the same but
where the information relates to a noncognizable offence, he shall not investigate
it without the order of the competent
Magistrate. Investigation includes all the
proceedings under the Cr.P.C. for the
collection of evidence conducted by a
police officer or by any person other than a
Magistrate (who is authorised by a
Magistrate in his behalf). Investigation
consists of steps, namely (i) proceeding to
spot, (ii) ascertainment of the facts and
circumstances of the case, (iii) discovery
and arrest of the suspected offender, (iv)
collection of evidence relating to the
commission of the offence and (v)
formation of opinion as to whether on the
material collected therein to place the
accused before a Magistrate for trial and if
so to take necessary steps for the same by
filing a charge sheet under Section 173,
Cr.P.C., vide H.N. Rishbud vs. State of
Delhi, AIR 1955 SC 196. Thereafter, the
learned Magistrate has to take cognizance
after application of judicial mind and by
reasoned order and not in mechanical
manner.

16. In the case of Bhushan Kumar
and Anr. v. State (NCT of Delhi) and
Anr., AIR 2012 SC 1747, the Hon'ble
704 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court was pleased to observe that
section 204 of the Code does not mandate
the Magistrate to explicitly state the
reasons for issuance of summons. It clearly
states that if in the opinion of a Magistrate
taking cognizance of an offence, there is
sufficient ground for proceedIn the case of
Basaruddin & others Vs. State of U.P.
and others, 2011 (1) JIC 335 (All)(LB),
the Hon'ble Court was pleased to observed
as under:-

"From a perusal of the impugned
order, it appears that the learned Magistrate
on the complaint filed by the complainant
has summoned the accused in a mechanical
way filling the date in the typed proforma.
Learned
Magistrate
while
taking
cognizance of the offence on complaint was
expected to go through the allegations
made in the complaint and to satisfy
himself as to which offences were prima
facies, being made out against the accused
on basis of allegations made in the
complaint. It appears that the learned
Magistrate did not bother to go through the
allegations made in the complaint and
ascertain as to what offences were, prima
facie, being made out against the accused
on the basis of allegations made in the
complaint. Apparently, the impugned order
passed by the learned Magistrate suffers
from non-application of mind while taking
cognizance of the offence. The impugned
order is not well reasoned order, therefore,
the same is liable to be quashed and the
petition deserves to be allowed and the
matter may be remanded back to the
learned
Chief
Judicial
Magistrate,
Lakhimpur Kheri with direction to him to
go through the allegations made in the
complaint and ascertain as to what offences
against the accused were prima facie being
made out against the accused on the basis
of allegations made in the complaint and
pass fresh order, thereafter, he will proceed
according to law."

17. In the case of Bhushan Kumar
and Anr. v. State (NCT of Delhi) and
Anr., AIR 2012 SC 1747, the Hon'ble
Apex Court was pleased to observe that
section 204 of the Code does not mandate
the Magistrate to explicitly state the
reasons for issuance of summons. It clearly
states that if in the opinion of a Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding, then the
summons may be issued. This section
mandates the Magistrate to form an opinion
as to whether there exists a sufficient
ground for summons to be issued but it is
nowhere mentioned in the section that the
explicit narration of the same is mandatory,
meaning thereby that it is not a prerequisite for deciding the validity of the
summons issued.

18. In the case of Sunil Bharti Mittal
v. Central Bureau of Investigation, AIR
2015 SC 923, the Hon,ble Apex Court was
pleased to observe in paragraph no.47 of
the judgment as under:

"47. However, the words "sufficient
grounds for proceeding" appearing in the
Section are of immense importance. It is
these words which amply suggest that an
opinion is to be formed only after due
application of mind that there is sufficient
basis for proceeding against the said
accused and formation of such an opinion
is to be stated in the order itself.."

19. In the case of Darshan Singh
Ram Kishan v. State of Maharashtra ,
(1971) 2 SCC 654, the Hon'ble Court was
pleased to observe that the process of
taking cognizance does not involve any
formal action, but it occurs as soon as the
1 All. Krishna Kumar & Ors. Vs. State of U.P. & Ors.
705
Magistrate
applies
his
mind
to
the
allegations and, thereafter, takes judicial
notice of the offence. As provided by
Section 190 of the Code of Criminal
Procedure,
a
Magistrate
may
take
cognizance of an offence either, (a) upon
receiving a complaint, or (b) upon a police
report, or (c) upon information received
from a person other than a police officer or
even
upon his
own
information
or
suspicion that such an offence has been
committed. As has often been held, taking
cognizance does not involve any formal
action or indeed action of any kind but
occurs as soon as a Magistrate applies his
mind to the suspected commission of an
offence. Cognizance, therefore, takes place
at a point when a Magistrate first takes
judicial notice of an offence. This is the
position whether the Magistrate takes
cognizance of an offence on a complaint, or
on a police report, or upon information of a
person
other
than
a
police
officer.
Therefore,
when
a
Magistrate
takes
cognizance of an offence upon a police
report, prima facie he does so of the
offence or offences disclosed in such
report."

20. In the case of Ankit Vs. State of
U.P. And another passed in Application
U/S 482 No.19647 of 2009 decided on
15.10.2009, this Court was pleased to
observe in paragraph No.8 of the judgment
as under:-

"8. In the beginning, the name of the
court, case number, state vs. ....... under
section ......... P.S. ......... District ......... case
crime No. ........ /2009 also have been
printed and blanks have been filled up by
mentioning the case number, name of the
accused, section, P.S. District etc. by some
employee. Below afore cited printed matter,
the following sentence has been mentioned
in
handwriting
"अग्रभयुक्त
अोंग्रकत
की
ग्रगरफ्तारी मा0 उच्च न्यायायल द्वारा Crl. Writ
No. 19559/08 अोंग्रकत बनाम राज्य में पाररत
आदेश ग्रदनाोंक 5.11.08 द्वारा आर प पत्र प्राप्त
ह ने तक थथग्रगत थी।"

Below aforesaid sentence, the seal of
the court containing name of Sri Talevar
Singh, the then Judicial Magistrate-III, has
been affixed and the learned magistrate has
put his short signature (initial) over his
name. The manner in which the impugned
order has been prepared shows that the
learned magistrate did not at all apply his
judicial mind at the time of passing this
order and after the blanks were filled up by
some employee of the court, he has put his
initial on the seal of the court. This method
of passing judicial order is wholly illegal. If
for the shake of argument, it is assumed
that the blanks on the printed proforma
were filled up in the handwriting of learned
magistrate, even then the impugned order
would be illegal and invalid, because order
of taking cognizance of any other judicial
order cannot be passed by filling up blanks
on the printed proforma. Although as held
by this Court in the case of Megh Nath
Guptas & Anr V State of U.P. And Anr,
2008 (62) ACC 826, in which reference has
been made to the cases of Deputy Chief
Controller
Import
and
Export
Vs
Roshan Lal Agarwal, 2003 (4) ACC 686
(SC), UP Pollution Control Board Vs
Mohan Meakins, 2000 (2) JIC 159 (SC):
AIR 2000 SC 1456 and Kanti Bhadra Vs
State of West Bengal, 2000 (1) JIC 751
(SC): 2000 (40) ACC 441 (SC), the
Magistrate is not required to pass detailed
reasoned order at the time of taking
cognizance on the charge sheet, but it does
not mean that order of taking cognizance
can be passed by filling up the blanks on
printed proforma. At the time of passing
any judicial order including the order
706 INDIAN LAW REPORTS ALLAHABAD SERIES
taking cognizance on the charge sheet, the
Court is required to apply judicial mind and
even the order of taking cognizance cannot
be passed in mechanical manner. Therefore,
the impugned order is liable to be quashed
and the matter has to be sent back to the
Court below for passing fresh order on the
charge sheet after applying judicial mind."

21. In the case of Kavi Ahmad Vs.
State of U.P. and another passed in
Criminal Revision No. 3209 of 2010,
wherein order taking cognizance of offence
by the Magistrate under Section 190(1)(b)
on printed proforma without applying his
judicial mind towards the material collected
by the Investigating Officer has been held
illegal.

22. In the case of Abdul Rasheed
and others Vs. State of U.P. and another
2010 (3) JIC 761 (All). The relevant
observations and findings recorded in the
said case are quoted below:-

"6. Whenever any police report or
complaint is filed before the Magistrate, he
has to apply his mind to the facts stated in
the report or complaint before taking
cognizance. If after applying his mind to
the facts of the case, the Magistrate comes
to the conclusion that there is sufficient
material to proceed with the matter, he may
take cognizance. In the present case, the
summoning order has been passed by
affixing a ready made seal of the
summoning order on a plain paper and the
learned Chief Judicial Magistrate had
merely entered the next date fixed in the
case in the blank portion of the ready made
order. Apparently the learned Magistrate
had not applied his mind to the facts of the
case before passing the order dated
20.12.2018, therefore, the impugned order
cannot be upheld.

7. Judicial orders cannot be allowed to
be passed in a mechanical manner either by
filling in blank on a printed proforma or by
affixing a ready made seal etc. of the order
on a plain paper. Such tendency must be
deprecated and cannot be allowed to
perpetuate. This reflects not only lack of
application of mind to the facts of the case
but is also against the settled judicial
norms. Therefore, this practice must be
stopped forthwith."

23. In view of the above, this Court
finds and observes that the conduct of the
judicial officers concerned in passing
orders on printed proforma by filling up
the blanks without application of judicial
mind is objectionable and deserves to be
deprecated.
The
summoning
of
an
accused in a criminal case is a serious
matter and the order must reflect that
Magistrate had applied his mind to the
facts as well as law applicable thereto,
whereas the impugned summoning order
was passed in mechanical manner without
application of judicial mind and without
satisfying himself as to which offence
were prima-facie being made out against
the applicants on the basis of the
allegations made by the complainant. the
impugned cognizance order passed by the
learned Magistrate is against the settled
judicial norms.

24. In light of the judgments referred
to above, it is explicitly clear that the order
dated
08.02.2019
passed
by
the
ASJ/POCSO-II,Raibareli is cryptic and
does not stand the test of the law laid down
by the Hon'ble Apex Court. Consequently,
the cognizance/summoning order dated
08.02.2019 cannot be legally sustained, as
the Magistrate failed to exercise the
jurisdiction vested in him resulting in
miscarriage of justice.
1 All. Madan Pal Singh Vs. State of U.P. & Anr.
707

25. Accordingly, the present Criminal
Misc. Application U/S 482 Cr.P.C succeeds
and is allowed. The impugned summoning
order dated 08.02.2019 passed in Case No.
21 of 2019: State of U.P. Versus Krishna
Kumar and others under Section 363, 366
I.P.C. and Sections 16 and 17 of Protection
of Children from Sexual Offences Act,
2012, pending before the ASJ/POCSO-II
Raibareli is hereby quashed.

26. The matter is remitted back to
ASJ/POCSO-II Raibareli directing him to
decide
afresh
the
issue
for
taking
cognizance and summoning the applicants
and pass appropriate orders in accordance
with law keeping in view the observations
made by this Court as well as the direction
contained in the judgments referred to
above within a period of two months from
the date of production of a copy of this
order.

27. The party shall file certified copy
or computer generated copy of such order
downloaded from the official website of
High Court Allahabad or certified copy
issued from the Registry of the High Court,
Allahabad.

28.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2023) 1 ILRA 707
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.
Application u/s 482 No. 7151 of 2022

Madan Pal Singh ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Santosh Kumar Rai, Sri V.P. Srivastava(Sr.
Advocate)

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code, 1973 - Sections 190()(b), 200, 202
& 204 - Final report was submitted and no
protest petition against it was filed -
Power of Magistrate to treat it as the
criminal complaint case, how far lie -
Held, in case of police report that no case
is
made
out
against
accused,
the
Magistrate can ignore the conclusion
drawn by police and take cognizance
under Section 190(1)(b) Cr.P.C. and issue
process or in the alternative he can take
cognizance of original complaint and
examine
the
complainant
and
his
witnesses
and
thereafter
can
issue
process to accused, if he is of opinion that
there are sufficient ground to proceed
against accused - India Carat Pvt. Ltd.'s
case relied upon. (Para 14)
B. Criminal Procedure Code, 1973 -
Sections 197 - Protection of prior sanction
- Claim by the police personnel while
performing official work - Taking the
deceased to the hospital by the police
personnel after arrest, will it be defined as
the official duty - Held, the act of
applicant was connected with official duty
- Further held, there was a bar under
Section 197 Cr.P.C. to proceed against
applicant,
a
police
personnel,
when
alleged offence was committed by him
while acting or purporting to act in
discharge of official duty, no Court shall
take cognizance of such offence except
with
previous
sanction
-
Criminal
proceedings initiated against applicant
was held erroneous and illegal. (Para 19,
20 and 21)