# Mansha Ram and Ors v. The State of U.P and Ors

- **Citation:** (2012) 3 ILRA 1456
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-11-07
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mansha-ram-and-ors-v-the-state-of-u-p-and-ors-42462
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 2 (d)
190 (a) offence under Section 323, 504
I.P.C.-procedure for taking cognizance
by the Magistrate-where charge sheet
submitted
by
Police-disclosed
noncognizance offence-whether such order
be treated to be passed under Section
190 (b)-whether such Police Officer's
statement required under Section 200
Cr.P.C.-question referred to Larger Bench

Held: Para-14

It is evident that in both the above
mentioned Judgments of this Court in
Dhanveer's
case
(Supra)
and
in
Mahatab's
case
(Supra),
wherein
judgments were delivered by Single
Judge of this Court, cited by the learned
counsel for the petitioners the impact of
section 190, 200,204 and section 461
has not been considered while setting a
side the order of taking cognizance. As
this Court differs with the opinion
expressed in aforesaid two judgments by
Single Judge of this Court, therefore, the
record of this case be placed before Chief
justice of this court with a request to
form a larger bench to decide the
controversy in question on the following
formulated
questions:-
3 All] Mansha Ram and Ors V. The State of U.P. and others

1457

## Text

1456 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

like the victim who had come along to
visit various places in our country should
entail exemplary sentence not only
because the foreigners, but because such
Indians tarnishes the lady of our country
and Indian Culture. If such an act is left to
go punished lightly then not only our
international
relations
would
be
deteriorated but being an Indian, we feel a
little in our own eyes.

51. In view of the above discussion
we are of the considered view, that the
prosecution has successfully proved its
case beyond all reasonable doubt against
both the accused and the learned trial
Court has rightly found the accused Mani
Raj Singh and Vinod Kumar Singh guilty
for the offence under section 376 (2) (g)
IPC. Further we are not inclined to reduce
the sentence awarded to the appellants by
the Court below for reasons mentioned
above. We find no merit in both the
appeals which are accordingly dismissed.
Both the appellants are in jail and would
serve out the remaining part of their
sentence. The trial Court has awarded
compensation of Rs. 1.5 lacs to be paid to
the victim out of the amount of fine
realized from the appellants. Since the
victim is a German national, so we direct
that after realization of fine the trial Court
would remit the amount of compensation
to
the
victim
after
getting
her
residence/postal address verified from
German Embassy in India so that she may
not have to visit India after incurring huge
expenses.

Let a certified copy of the Judgment
be sent to the Court concerned for
compliance, which should be reported
within a month.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.11.2012

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

U/S 482/378/407 No. - 4823 of 2012

Mansha Ram and Ors.
 ...Petitioner
Versus
The State of U.P and Ors. ...Respondents

Counsel for the Petitioner:
Sri J.P. Yadav

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section 2 (d)
190 (a) offence under Section 323, 504
I.P.C.-procedure for taking cognizance
by the Magistrate-where charge sheet
submitted
by
Police-disclosed
noncognizance offence-whether such order
be treated to be passed under Section
190 (b)-whether such Police Officer's
statement required under Section 200
Cr.P.C.-question referred to Larger Bench

Held: Para-14

It is evident that in both the above
mentioned Judgments of this Court in
Dhanveer's
case
(Supra)
and
in
Mahatab's
case
(Supra),
wherein
judgments were delivered by Single
Judge of this Court, cited by the learned
counsel for the petitioners the impact of
section 190, 200,204 and section 461
has not been considered while setting a
side the order of taking cognizance. As
this Court differs with the opinion
expressed in aforesaid two judgments by
Single Judge of this Court, therefore, the
record of this case be placed before Chief
justice of this court with a request to
form a larger bench to decide the
controversy in question on the following
formulated
questions:-
3 All] Mansha Ram and Ors V. The State of U.P. and others

1457

1. What procedure ought to have
been adopted by the Magistrate before
taking cognizance of offence and issuing
process against the accused on a report
made by the police officer in a case
which discloses, after investigation, the
commission of a non-cognizable offence
?

2. Whether the Magistrate could
pass an order issuing process against the
accused persons on a report made by the
police officer in a case which discloses,
after investigation, the commission of a
non-cognizable
offence
without
examination of police officer and the
witnesses keeping in view of the provisio
added to section 200 of Cr.P.C. without
mentioning
in
the
order
specifying
section 190(a) of Cr.P.C.?

3. Whether the order passed by the
Magistrate issuing process on a report
made by the police officer in a case
which discloses, after investigation, the
commission of a non-cognizable offence
without
specifying
the
details
as
mentioned
in
question
No.2,
shall
deemed to have been passes under
Section 190(b) ?
Case Law discussed:
2010 (71) ACC 388; Application Under Section
482 No.32940 of 2010 Mahtab and others Vs.
State of U.P. And another

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. Heard learned counsel for the
petitioners and learned AGA.

2. By means of this petition under
section 482 of Code of Criminal Procedure,
1973 (for short 'Cr.P.C.') the petitioners
have
challenged
the
charge
sheet
(Annexure-2) filed by police under Sections
323, 504 IPC against them and order of
taking cognizance there on vide order dated
3.7.2010(Annexure-3).

3. The factual matrix in short for
deciding this petition is that initially under
orders of the Magistrate passed under
Section 156(3) a first information report
was lodged at Case Crime No.218A of
2010, under Sections 147, 323, 504, 394,
307 IPC in Police Station Taroon, District
Faizabad. The matter was investigated by
the police and after investigation it was
found that offences only under Sections
323, 504 IPC are made out and submitted
the charge-sheet on 12.05.2010 against the
petitioners whereupon the court took
cognizance and proceeded against the
accused
by
issuing
summons
vide
impugned order dated 03.07.2010.

4. It has been submitted by learned
counsel for the petitioners on the strength of
judgments of this Court delivered in
Dhanveer and Ors Vs. State of U.P. and
another reported in 2010 (71) ACC 388 and
judgment delivered in Application Under
Section 482 No.32940 of 2010 Mahtab and
others Vs. State of U.P. And another on
1.10.2012 contended that in view of the
provision contained in in Section 2(d) of
Cr.P.C. if police officer submits a report
under Section 173 in respect of a noncognizable offence the procedure prescribed
for conducting the trial of such cases would
be of complaint case. On this score and on
the strength of cited judgments the
cognizance has been assailed on the ground
that the same cannot be treated to be taken
on complaint under section 190 (a) and
would be treated to be taken under section
under Section 190(b) of the Cr.P.C..

5. There could not be any divergence
with the proposition of law as held in
aforesaid cases cited by the learned counsel
for the petitioners. It is not disputed that
police submitted a chargesheet in noncognizable offence after investigation,
1458 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

therefore the chargesheet submitted in this
case shall be treated as complaint as defined
in explanation of section 2(d) of Cr.P.C.
which is reproduced herein below

"2(d).
"complaint"
means
any
allegation ...........

Explanation.-- A report made by a
police officer in a case which discloses,
after investigation, the commission of a
non-cognizable offence shall be deemed to
be a complaint; and the police officer by
whom such report is made shall be deemed
to be the complainant;

6. Therefore the Magistrate is bound
to follow the procedure of a complaint case
for the trial of the accused.

7. Procedure for complaints to
Magistrate is given in Chapter XV of
Cr.P.C. This provides the procedure for
taking cognizance on a complaint, which
contains in Sections 200 to 203 Cr.P.C.
Section 200 of Cr.P.C. is reproduced herein-below:-

"200. Examination of Complainant.--
A Magistrate taking cognizance of an
offence on complaint shall examine upon
oath the complainant and the witnesses
present , if any, and the substance of such
examination shall be reduced in writing and
shall be signed by the complainant and the
witnesses, and also by the Magistrate:

Provided that, when the complaint is
made in writing , the Magistrate need not
examine the complainant and the witnesses-
-

(a) if the public servant acting or
purporting to act in discharge of his official
duties or the Court has made the complaint;
or

(b) if the Magistrate makes over the
case to another Magistrate under section
192:

Provided further that if the Magistrate
makes over case to another Magistrate
under section 192 after examining of
complainant and witnesses, the latter
Magistrate need not re-examine them."

8. First proviso added to Section 200
provides a procedure where a complaint
made in writing by a public servant acting
or purporting to act in discharge of his
official duties the Magistrate need not
examine the complainant and witnesses.
The court can proceed on the basis of
complaint and material annexed with the
complaint in writing. The Magistrate may
either proceed under Section 203 Cr.P.C. if
he satisfies that no sufficient material is
available to proceed against the accused.But
where the Magistrate is of the opinion that
there is sufficient material to proceed
against the accused he will issue process to
the accused in pursuance of Section 204
Cr.P.C.

9. Section 204 Cr.P.C. is in the
chapter XVI of the Cr.P.C which have
heading"COMMENCEMENT
OF
PROCEEDINGS
BEFORE
MAGISTRATE".
Thus
Section
204
Cr.P.C. is not only meant for taking
cognizance
by
issuing
process
upon
complaint under section 190(a) of Cr.P.C.
but this section also apply for taking
cognizance on police reports under section
190(b) and in other contingencies as
mentioned in section 190(c). This is evident
from the provision of sub section 3 of
section 204 and heading of Chapter XVI of