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

- **Citation:** (2012) 3 ILRA 1458
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mansha-ram-and-ors-v-the-state-of-u-p-and-others-42464
- **Pages:** 3

## Text

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
3 All] Mansha Ram and Ors V. The State of U.P. and others

1459
Cr.P.C. No prescribed form or format is
available
in
the
Cr.P.C.
for
taking
cognizance of offence and issue of process
against accused. The Magistrate took
cognizance after considering the material
available on record and if the Magistrate is
satisfied that the material available on
record is sufficient to proceed against the
accused he by passing the order for
summoning the accused to face the trial
either by way of summon or by warrant as
the case may be for the attendance of
accused to face the trial.

10. Admittedly, no procedure is
prescribed in Cr.P.C., in what manner the
Magistrate has to pass an order in all three
contingencies.
Therefore,the
Magistrate
may adopt the procedure similar to all three
contingencies contained in Section 190 of
Cr.P.C.

11. From perusal of the impugned
order of taking cognizance of offence and
issuing process, it is clear that Magistrate
after satisfying with the material on record
issue process to the accused person. True,
that the Magistrate has not mentioned in his
order that he is taking cognizance under
Section 190(1)(a) or (b) or ( c) of Cr.P.C.
but for this simple reason it could not be
assumed
that
the
Magistrate
took
cognizance under Section 190 (b) and not
under section 190(a).

12. As stated earlier that precognizance stage had already been over and
cognizance has taken. So far the precognizance stage is concerned, in case of
written complaint made by a government
servant his examination and examination of
witnesses under Section 200 Cr.P.C. is not
at all required. Admittedly, in this case in
view of Section 2(d) of the Cr.P.C. the
police inspector submitted the charge-sheet
under Section 323, 504 IPC before
Magistrate so in view of the first proviso of
Section 200 Cr.P.C, the Magistrate need not
go back to pre-cognizance stage and the
Magistrate would be competent enough to
pass an order taking cognizance of offence
and to issue process against the accused.
However, after taking cognizance and issue
of process against the accused it would be
incumbent upon the Magistrate to adopt the
procedure meant for trial of accused in a
complaint case.

13. In view of the aforesaid facts and
circumstances the cognizance taken by the
Magistrate shall deemed to have been taken
under section 190(a) and not under section
190(b) of Cr.P.C. Thus, in the opinion of
this Court the impugned order of the
Magistrate neither have any illegality nor
suffer from any jurisdictional error. Of
course, it would be better if Magistrate
clarifies it in the impugned order by
describing it that cognizance is taken in the
light of provisions contained in explanation
of section Section 2(d) or taken under
section 190(a) of Cr. P.C. But Only due to
absence of it would not vitiate the order of
taking cognizance specially when no
prejudice shown to have been caused to
petitioners. More over this act of the
Magistrate does not fall in any of the clause
(a) to (q) of Section 461of Cr.P.C.,therefore
on this score too , the order of taking
cognizance in the case in hand shall not be
void and and
will not vitiate the
proceedings.

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,
1460 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

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:-

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)
?

15. It has been submitted by the
learned counsel for the petitioners that in
this case the Magistrate has issued the
warrant against the petitioners. It is not
borne out from the record whether the
summon has ever been served upon the
accused persons or not. Therefore, no
coercive steps shall be taken against the
petitioner and further proceedings of
Criminal case No. 1497 of 2012, State vs.
Mansa Ram and others , under section
323,504I.P.C.,
P.S.
Taroon
District
Faizabad relating to crime No.219A of 2010
shall remain suspended till further orders of
this Court or till receipt of answers of the
referred questions by the larger Bench of
this Court,which ever is earlier.

16. The office is directed to send the
record of this case through Registrar of this
court to place the same before Hob'ble
Chief Justice for appropriate orders.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.11.2012

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Bail No. 5146 of 2012

Rajendra Shukla

 ...Applicant
Versus
State Of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri Pawan Kumar Mishra

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure, Section 439grant of Bail-applicant is son of license
holder-while driving Zeep hit the Indica
car of excise inspector-with intention to
kill-other co-accused already granted
bail-applicant spent more than 5 months
in jail-considering law as developed by
Apex Court in State of Kerela Vs. Raneefdelay in conclusion of Trial-so many
years
spent
in
custody-violation
of