# Mahendra Pal Sharma and others v. State of U.P. and another

- **Citation:** (2002) 3 ILRA 863
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-25
- **Case number:** Criminal Misc. Application No. 8422 of 2002
- **Bench:** U.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pal-sharma-and-others-v-state-of-u-p-and-another-40024
- **Pages:** 5

## Headnote

Code of Criminal Procedure- Section 190
(1) (b) the cognizance of the case was
taken under section 190 (1) (b) Cr.P.C.
and therefore provisions contained in
proviso to Section 202 Cr.P.C. is not
applicable in this case.

Held in para 19

The learned Magistrate was also not
justified while recalling the order dated
8.1.1999 on the ground that since the
case was exclusively triable by the Court
of Sessions, all the witnesses have to be
examined. The above observation was
probably in view of proviso to Section
202 Cr.P.C. But the above procedure has
to be adopted in complaint case. As held
above cognizance of the case was taken
under section 190 (1) (b) Cr.P.C. and
therefore provisions contained in proviso
to Section 202 Cr.P.C. is not applicable in
this case. Therefore, the Revisional Court
rightly held that the order of the
Magistrate dated 23.10.2000 by which
he recalled the order dated 8.1.1999 was
not in accordance with law.
Case law referred:
(1995) 6 SCC P. 194
1993 (3) ACC P. 665

## Text

http://www.allahabadhighcourt.nic.in
3 All] Mahendra Pal Sharma and others V. State of U.P. and another 863
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.9.2002

BEFORE
THE HON'BLE U.S. TRIPATHI, J.

Criminal Misc. Application No. 8422 of
2002

Mahendra Pal Sharma and others

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

Counsel for the Applicants:
Sri Sunil Kumar

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure- Section 190
(1) (b) the cognizance of the case was
taken under section 190 (1) (b) Cr.P.C.
and therefore provisions contained in
proviso to Section 202 Cr.P.C. is not
applicable in this case.

Held in para 19

The learned Magistrate was also not
justified while recalling the order dated
8.1.1999 on the ground that since the
case was exclusively triable by the Court
of Sessions, all the witnesses have to be
examined. The above observation was
probably in view of proviso to Section
202 Cr.P.C. But the above procedure has
to be adopted in complaint case. As held
above cognizance of the case was taken
under section 190 (1) (b) Cr.P.C. and
therefore provisions contained in proviso
to Section 202 Cr.P.C. is not applicable in
this case. Therefore, the Revisional Court
rightly held that the order of the
Magistrate dated 23.10.2000 by which
he recalled the order dated 8.1.1999 was
not in accordance with law.
Case law referred:
(1995) 6 SCC P. 194
1993 (3) ACC P. 665
(Delivered by Hon'ble U.S. Tripathi, J.)

1. This application under Section
482 Cr.P.C. has been filed for quashing
the entire proceedings of Criminal Case
No. 1255 of 2002 Yogendra versus
Mahendra and others under Sections 323,
307, 452 and 504 IPC P.S. Pahasu, district
Bulandshahr pending in the court of
Additional Civil Judge (Junior Division), l
Khurja (Bulandshahr) and for setting
aside the order dated 2.2.2002 passed by
Additional Sessions Judge, Court No. 4,
Bulandshahr in Criminal Revision No. 77
of 2001.

2. The facts giving rise to this
application, briefly narrated, are that on
2.4.1998 Rakesh Kumar Sharma applicant
no. 2 lodged a report against Yogendra
opposite party no. 2 and three other
persons under Sections 323, 504 and 427
IPC with the allegations that on 1.4.1998
at about 6 p.m. while he was returning to
his house from his duties and reached in
front of house of Suresh Chandra, the
accused of the said case namely Suresh
Chandra, Pintoo and Yograj caused
injuries on him with lathi danda and also
extended threats. During marpit a sum of
Rs.6,000/- which he was keeping in his
pocket had fallen down and could not be
traced. On the basis of above report a non
cognizable report under Sections 323,
504, 427 IPC was written at P.S. Pahasu.
Subsequently, the case was altered under
Section 308 and 325 IPC and registered at
crime no. 64 of 1998 on 28.4.1998 and
was
investigated.
The
police
after
investigation
submitted
charge
sheet
against Suresh Chandra and Devraj on
13.5.1998 and latter on supplementary
charge sheet was submitted against
Yogendra opposite party no. 2 and Pintoo
on 14.6.1998.
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864 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
3. On 2.4.1998 the opposite party
no. 2 moved an application before the
Superintendent of Police for registering a
case against the applicants with the
allegations that on 2.4.1998 when he was
taking his food in his house about 9 a.m.
the applicants armed with knife, sariya
and lathi came to his house and started
abusing him on his objection caused
injuries on him with knife, sariya and
lathi. The Superintendent of Police
ordered registration of case on the above
application. Accordingly, an F.I.R., was
lodged and a case at Crime no. 58 of 1998
under Sections 452, 307, 323, 504 IPC
was registered against the applicants on
13.4.1998. After investigation, the police
submitted final report in the said crime
no. 58 of 1998.

4. On the receipt of the final report,
the learned Magistrate issued notice to the
complainant opposite party no. 2, who
filed
protest
petition.
The
learned
Magistrate on considering the evidence
collected during investigation and the
protest petition, allowed the protest
petition, rejected the final report and
summoned the applicants for trial under
Sections 307, 323, 452 and 504 IPC, vide
order dated 8.1.1999.

5. Thereafter, the applicants moved
protest petition under Section 204 Cr.P.C.
for recalling the order dated 8.1.1999 on
the ground that only two affidavits were
filed from the side of complainant and
witnesses and doctor were not examined.
The learned Magistrate on considering the
above application held that affidavit of
only two witnesses were filed, the other
witnesses and the doctor were not
examined. The case was triable by Court
of Sessions and therefore all the witnesses
were to be examined. With these finding
he allowed the above petition and recalled
summoning order dated 8.1.1999, vide
order dated 23.10.2000.

6. Aggrieved with the above order
dated 23.10.2000, the opposite party no. 2
filed Criminal Revision No. 77 of 2001.
The learned Additional Sessions Judge,
Court No. 4 who decided the revision held
that by order dated 8.1.1999 the learned
Magistrate had taken cognizance of the
case under Section 190 (1) (b) Cr.P.C.
rejecting the final report and therefore he
was not required to adopt the procedure of
complaint case, to examine all the
witnesses of fact, as required by proviso
to Section 202 Cr.P.C. and therefore, the
learned Magistrate wrongly set aside the
order dated 8.1.1999. With these findings
he allowed the revision by order dated
2.2.2000 and set aside the order dated
23.10.2000 passed by the Magistrate.

7. The above order of the Revisional
Court has been challenged in this
application under Section 482 Cr.P.C. and
further relief has been sought for quashing
the criminal proceeding.

8. Heard Sri Sunil Kumar, learned
counsel for the applicant, learned A.G.A.
and perused the record.

9. The learned counsel for the
applicant contended that the F.I.R. lodged
by opposite party no. 2 was mala fide as
counter blast of report lodged by applicant
no. 2 and to save his liability in the said
case. That on submission of final report,
the Magistrate was empowered to take
cognizance only under Section 190 (1) (a)
Cr.P.C. after adopting procedure of
complaint case and recording evidence
under Section 200 and 202 Cr.P.C. He
further contended that on receipt of final
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3 All] Mahendra Pal Sharma and others V. State of U.P. and another 865
report
notice
was
issued
to
the
complainant which indicated that the
Magistrate was not satisfied with the
evidence collected during investigation
and that cognizance could not be taken on
protest petition, as there is no such
provision in the Cr.P.C. He further
contended that protest petition comes
under the definition of complaint as given
in Section 2 (d) of Cr.P.C., therefore,
before taking cognizance on it, the
Magistrate
had
to
adopt
procedure
contained in Chapter XV of the Cr.P.C.
and that the Revisional Court wrongly
allowed the revision without issuing
notice to applicants.

10. On the other hand, the learned
A.G.A.
contended
that
the
learned
Magistrate had jurisdiction to summon the
applicants after taking cognizance under
Section
190
(1)
(b)
Cr.P.C.
and
subsequent protest petition filed by the
applicants was not maintainable in view
of Full Bench decision of this Court in
Ranjeet Singh and others vs. State of UP
and another, 2000 (40) ACC 342.

11. I have thoroughly considered the
contentions of the learned counsel for the
applicants.

12. The learned Magistrate on
receiving final report submitted in the
case issued notice to the opposite party
no. 4, the complainant of the case in view
of decision of the Apex Court in
Abhinandan Jha Vs. Dinesh Misra, AIR
1985 SC, 1285 though no such specific
provision is contained in the Cr.P.C. The
question as to what is the position when
the Magistrate is dealing with the report
submitted by the police under section 173
Cr.P.C. has been answered by the Apex
Court in the case of Abhinandan Jha vs.
Dinesh Misra (supra) and it was held that
the Magistrate on receiving of such report
may accept the final report and close the
proceeding. But there may be instances
when the Magistrate may take a view on
consideration of the final report, that the
opinion formed by the police is not based
on full and complete investigation in
which case the Magistrate will have
ample jurisdiction to give directions to the
police under Section 156 (3) Cr.P.C. i.e. if
the Magistrate feels after considering the
final report that the investigation is
unsatisfactory or incomplete or that there
is scope for further investigation, it will
be open to the Magistrate to decline to
accept the final report and direct police to
make further investigation under section
156 (3) Cr.P.C. The police after such
further investigation may submit a charge
sheet or again submit a final report,
depending upon the further investigation
made
by
them.
If
ultimately,
the
Magistrate forms opinion that the facts set
out in the final report constitute an
offence he can take cognizance of the
offence, under section 190 (1) (b) Cr.P.C.,
notwithstanding the contrary opinion of
the police expressed in the final report. It
was further held in the said case that it is
open to the Magistrate to treat the
respective protest petitions as complaint
and take further proceedings according to
law.

13. The above view of Apex Court
was again reiterated in the case of Rupan
Deol Bajaj (Mrs.) and another versus
Kanwar Pal Singh Gill and another,
(1995) 6SCC, 194 and held as below :-

"In Abinandan Jha v. Dinesh Misra
(supra) the question arose whether a
Magistrate to whom a report under
Section 173 (1) Cr.P.C. had been
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866 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
submitted to the effect that no case had
been made out against the accused , could
direct the police to file a charge sheet on
his disagreeing with that report. In
answering the question this Court first
observed that the use of the words 'may
take cognizance of any offence' in sub
section (1) of Section 190 Cr.P.C. imports
the exercise of 'judicial discretion' and the
Magistrate who receives the report under
Section 173 Cr.P.C. will have to consider
the said report and judicially take a
decision
whether
or
not
to
take
cognizance of the offence. The Court then
held, in answering the question posed
before it, that the Magistrate had no
jurisdiction to direct the police to submit
a charge sheet but it was open to the
Magistrate to agree or disagree with the
police report, if he agreed with the report
that there was no case made out for
issuing process to the accused he might
accept the report and close the
proceedings. If he came to the conclusion
that further investigation was necessary
he might make an order to that effect
under section 156 (3). It was further held
that if ultimately the Magistrate was of
the opinion that the facts set out in the
police report constituted an offence he
could
take
cognizance
thereof
notwithstanding contrary opinion of the
police expressed in the report."

14. Thus, it is settled view that the
Magistrate on receipt of final report is not
debarred from taking cognizance under
section 190 (1) (b) of Cr.P.C. and he has
not to adopt procedure of complaint case.
Therefore, the contention of the learned
counsel for the applicants that on receipt
of final report, the Magistrate can only
take cognizance after adopting procedure
of complaint case under Section 190 (1)
(a) Cr.P.C. is not correct.
15. The next contention of the
learned counsel for the applicants that the
protest petition is complaint as defined
under Section 2 (d) of the Cr.P.C. has also
no force, as a complaint should contain
the allegation made orally or in writing to
a Magistrate, with a view to his taking
action under this Code, that some person,
whether
known
or
unknown,
has
committed an offence, but does not
include a police report. It is true that there
is no specific provision in the Cr.P.C. for
filing protest petition. As per direction of
the Apex Court, the Magistrate had to
issue a notice to the complainant on
receipt of final report and may pass order
after considering the protest petition. The
best precedence on the permissibility of
preferring protest petition is reported in
the decision in Abhinandan Jha, (supra)
wherein the practice of filing protest
petition against Final Report has been
specifically noted and countenanced by
the Hon'ble Supreme Court.

16. The notice to the complainant
before accepting final report has been
made mandatory by the direction of the
Apex Court and therefore it is fallacious
to say that issuance of notice indicated
that the Magistrate was not satisfied that a
prima facie case was made out.

17. In these circumstances, the
Magistrate vide order dated 8.1.1999 had
rightly taken cognizance rejecting the
final report, under Section 190 (1) (b)
Cr.P.C. i.e. on police report and not on
complaint and he was not required follow
the procedure of complaint case.

18. After passing of the order dated
8.1.1999 the applicants/accused filed
protest petition probably in view of the
Division Bench decision of this Court in
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3 All] Abdul Kafi V. District Magistrate, Allahabad and another 867
Kailash Chaudhary vs. State of U.P. and
another, 1993 (3) ACC, 665. But the
above decision in Kailash Chaudhary's
case was not found correct in Full Bench
decision of this Court in Ranjeet Singh
and others vs. State of U.P. and another
(supra) and therefore the applicants had
no right to file protest petition on
summoning them rather they had to wait
to the stage of charge to show that no
offence was made out against them.

19. The learned Magistrate was also
not justified while recalling the order
dated 8.1.1999 on the ground that since
the case was exclusively triable by the
Court of Sessions, all the witnesses have
to be examined. The above observation
was probably in view of proviso to
Section 202 Cr.P.C. But the above
procedure has to be adopted in complaint
case. As held above cognizance of the
case was taken under Section 190 (1) (b)
Cr.P.C.
and
therefore
provisions
contained in proviso to Section 202
Cr.P.C. is not applicable in this case.
Therefore, the Revisional Court rightly
held that the order of the Magistrate dated
23.10,.2002 by which he recalled the
order
dated
8.1.1999
was
not
in
accordance with law.

20. The next contention of the
learned counsel for the applicants that the
Revisional Court wrongly allowed the
revision without issuing notice to the
applicants is also not supported by the
record, as the revisional order itself shows
that notices were issued to the applicants
(opposite parties to the said revision) but
despite
of
service
of
notice
none
appeared, (vide paragraph 3 of the
judgment of the Revisional Court).

21. In view of the above discussions
and observations I find that the impugned
orders as well as Criminal proceedings in
the Criminal Case are not liable to be
quashed.

22. The applicants, therefore, has no
force and is, accordingly, rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.9.2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 31573 of 1999

Abdul Kafi

...Petitioner
Versus
District
Magistrate,
Allahabad
and
another

 ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh
Sri Islam Ahmad

Counsel for the Respondents:
S.C.

Constitution of India, Article 226- Gun
licence- Licencing Authority rejected the
application - due to lack of information
about particulars of the person for
apphrension to life- can not be rejected.

Held- Para 6

The Scheme of the Arms Act does not
contemplate that a licence of fire arm
shall be granted only when somebody
has
apprehension
of
his
life
from
someone. In this view of the matter,
learned counsel for the petitioner has
submitted that the view taken by the
licensing authority, as stated above, that
since the petitioner has not mentioned
as to who are the persons from whom he
has apprehension to his life and property
and further there is no police report to