# Mohammed Yusuf & others v. State of U.P. & another

- **Citation:** (2007) 3 ILRA 893
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-07
- **Case number:** Criminal Revision No. 1105 of 2001
- **Bench:** Mrs.) Saroj Bala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammed-yusuf-others-v-state-of-u-p-another-41143
- **Pages:** 5

## Headnote

894 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Code of Criminal Procedure Section 190
(1)(b)-Power
of
Magistrate-after
receiving the final report-in the event of
ignoring the report submitted by I.O.-
can
act
only
upon
the
statements
recorded
by
the
I.O.
and
material
collected
in
case
diary-but
the
consideration should not based upon
protest application and affidavit filed by
the prospective accused.

Held: Para 11

Where the Magistrate decides to take
cognizance under Section 190 (1) (b)
ignoring the conclusions reached at by
the Investigating Officer and applying
his mind independently, he can act only
upon the statements of the witnesses
recorded by the police in the case-diary
and
material
collected
during
investigation. It is not, permissible at
that stage to consider any material other
than that collected by the investigation
Officer.
In
the
instant
case
the
cognizance was taken on the basis of the
protest
petition
and
accompanying
affidavits. The Magistrate should have
adopted the procedure of complaint case
under Chapter XV of the Code of Criminal
Procedure and recorded the statements
of the complainant and the witnesses
who had filed affidavits under Sections
200 and 202 Cr.P.C. The Magistrate could
not take cognizance under Section 190
(1)(b) Cr.P.C. on the basis of protest
petition and affidavits filed in support
thereof. The Magistrate having taken
into account extraneous material i.e.
protest petition and affidavits while
taking cognizance under Section 190 (1)
(b)
Cr.P.C.
the
impugned
order
is
vitiated.
AIR 1968 SC-117
1981 (18) ACC-146 (S.C.)
1989 (26) ACC (S.C.)-280
2001 (43) ACC-1096

## Text

3 All] Mohd. Yusuf and others V. State of U.P. and another
893
Since
the
writ
petitioner
was
not
approaching the Court in regard to
deemed industrial Dispute under Section
2-A of the U.P. Industrial Dispute Act,
1947, sending him before the Labour
Authorities
was
not
an
adequate
alternative remedy. The complaint of the
writ petitioner was against withholding of
promotion. As such, the matter is
remanded for a consideration on merits."

9. It appears that the Division Bench
was mislead by the fact that the matter
falls under Section 2-A of the U.P.
Industrial Disputes Act, 1947 which
pertains to which pertains to dismissal etc.
of an individual workman to be deemed to
be an Industrial dispute. Section 2-A of
the Act is as under:- .

"2-A Dismissal etc, of an individual
workman to be deemed to be an industrial
dispute- Where any employer discharges,
dismisses,
retrenches
or
otherwise
terminates the services of an individual
workman any dispute or difference
between that workman and his employer
connected with or arising out of such
discharge, dismissal, retrenchment or
termination shall be deemed to be an
industrial notwithstanding that no other
workman nor any union of workman is a
party to the dispute."

10. The matter in that case was not
of dismissal from service falling under
Section 2-A of the Act but was a case of
promotion. That matter could be referred
under Section 4-K of the Act.

11. It is clear from perusal of item 6
of the First Schedule and item no.7 of the
Second Schedule appended to the U.P.
Industrial Disputes Act, 1947 that U.P.
Industrial Disputes Act, 1947 not only
govern the dispute relating to dismissal,
discharge or termination but also covers
adjudication of dispute mentioned therein
including promotion, classification of
grade or promotion or payment of higher
pay.

12. In my opinion, the question
whether the petitioner was unfit or not for
promotion and whether respondent nos.
4,5 and 6 were qualified for being
promoted or not, are disputed questions of
fact which require adjudication on the
basis of oral and documentary evidence
by the Labour Court as it is not feasible
for this Court to record oral and
documentary evidence under Article 226
of the Constitution and give findings of
facts thereafter.

13. For the reasons stated above, the
writ petition dismissed on the ground of
availability of alternative remedy. No
order as to cost.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2007

BEFORE
THE HON'BLE (MRS.) SAROJ BALA, J.

Criminal Revision No. 1105 of 2001

Mohammed Yusuf & others ...Applicants
Versus
State of U.P. & another ..Opposite Parties

Counsel for the Applicants:
Sri Akhtar Husain
Sri Rizwan Ali Akhtar

Counsel for the Opposite Parties:
Sri V.M. Zaidi
Sri A.M. Zaidi
A.G.A.
894 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Code of Criminal Procedure Section 190
(1)(b)-Power
of
Magistrate-after
receiving the final report-in the event of
ignoring the report submitted by I.O.-
can
act
only
upon
the
statements
recorded
by
the
I.O.
and
material
collected
in
case
diary-but
the
consideration should not based upon
protest application and affidavit filed by
the prospective accused.

Held: Para 11

Where the Magistrate decides to take
cognizance under Section 190 (1) (b)
ignoring the conclusions reached at by
the Investigating Officer and applying
his mind independently, he can act only
upon the statements of the witnesses
recorded by the police in the case-diary
and
material
collected
during
investigation. It is not, permissible at
that stage to consider any material other
than that collected by the investigation
Officer.
In
the
instant
case
the
cognizance was taken on the basis of the
protest
petition
and
accompanying
affidavits. The Magistrate should have
adopted the procedure of complaint case
under Chapter XV of the Code of Criminal
Procedure and recorded the statements
of the complainant and the witnesses
who had filed affidavits under Sections
200 and 202 Cr.P.C. The Magistrate could
not take cognizance under Section 190
(1)(b) Cr.P.C. on the basis of protest
petition and affidavits filed in support
thereof. The Magistrate having taken
into account extraneous material i.e.
protest petition and affidavits while
taking cognizance under Section 190 (1)
(b)
Cr.P.C.
the
impugned
order
is
vitiated.
AIR 1968 SC-117
1981 (18) ACC-146 (S.C.)
1989 (26) ACC (S.C.)-280
2001 (43) ACC-1096

(Delivered by Hon'ble (Mrs.) Saroj Bala. J.)

1. This criminal revision is directed
against the order dated 28.2.2001 passed
by the II Additional Civil Judge (Senior
Division)/Additional
Chief
Judicial
Magistrate, Bijnor, in case No. 76 of 2001
Zeeshan Vs. Yusuf & others whereby
summoning
the
revisionists
for
the
offences punishable under Sections 147,
323, 452, 504, 506 I.P.C.

The facts giving rise to the revision
broadly stated are these:

2. An application under 156 (3)
Cr.P.C. was moved by the Opposite Party
No. 2 alleging that on 10.8.98 at about 1
P.M. the accused-revisionists came armed
with lathi and sticks to the house of the
complainant and using abusive language
subjected him to assault with lathi, sticks,
kicks and fists. The S.H.O., Chanadpur
was directed by the A.C.J.M., II to
register and investigate the allegations
made in the application. The First
Information Report was registered on
18.9.1998 as case Crime No. Nil of 1998
under Sections147, 323, 452,504, 506
I.P.C.. After investigation final report was
submitted by the police. Notices were
issued to the complainant. A protest
petition
alongwith
affidavits
of
complainant and witnesses Mehaboob
Raza and Naiyar was filed. By the
impugned order the cognizance under
Section 190 (1)(b) of Code of Criminal
Procedure was taken on the basis of
protest petition and affidavits filed in
support thereof.

3. The contention of the revisionists
is that the Magistrate committed illegality
by summoning the revisionists without
recording statements of the complainant
and witnesses under Sections 200 and 202
Cr.P.C.
3 All] Mohd. Yusuf and others V. State of U.P. and another
895
4. Heard Sri Akhtar Husain, learned
counsel for the revisionists, Sri V.M.
Zaidi and Sri A.M. Zaidi, learned counsel
for the opposite party no. 2, the learned
A.G.A. and have perused the record.

5. The learned counsel for the
revisionists argued that on receipt of the
protest
petition
with
affidavits
the
Magistrate was empowered to take
cognizance only under Section 190 (1) (a)
of the Code of Criminal Procedure
treating the protest petition as a complaint
and adopting the procedure of complaint
case as contained in Chapter XV of the
Code of Criminal Procedure. The learned
Magistrate having not taken cognizance
straightaway
on
final
report,
the
provisions of Section 190 (1) (b) were not
applicable.

6. On the other hand the learned
A.G.A. and learned counsel for the
opposite party No. 2 contended that the
Magistrate had jurisdiction to summon the
revisionists after taking cognizance under
Section 190 (1) (b) of the Code of
Criminal Procedure.

7. The Apex Court in Abhinandan
Jha Vs. Dinesh Misra-AIR 1968 SC 117,
held that on receiving final report it was
not within the powers of the Magistrate to
direct the police to submit a charge-sheet
but it is open to him to agree or disagree
with the police report. If he agrees that
there is no case made out for issuing
process, he may accept the report and
drop the proceedings. He may come to the
conclusion that further investigation is
necessary in that event he may pass an
order to that effect. If ultimately the
Magistrate is of the opinion that the facts
set out in the police report constitute an
offence, he can take cognizance of the
offence, not withstanding the contrary
opinion expressed in the police report. It
was observed therein that the Magistrate
in that event could take cognizance under
Section 190 (1)(c) of the Code. The
reference to Section 190 (1)(c) was a
mistake for Section 190 (1)(b) as pointed
out in a later decision of H.S. Bains V.
State, 1981 (18) ACC 146 (SC).

8. In H.S. Bains (Supra), it was held
by the Apex Court that the Magistrate is
not bound to accept the opinion of the
police regarding the credibility of the
witnesses expressed in the police report
submitted to the Magistrate under Section
173 (2) Cr.P.C.. The Magistrate may
prefer to ignore the conclusions of the
police regarding the credibility of the
witnesses and take cognizance of the
offence. If he does so, it would be on the
basis of the statements of the witnesses as
revealed by the police report. He would
be taking cognizance upon the facts
disclosed by the police report though not
on the conclusions arrived at by the
police.

9. In Mis India Carat Pvt. Vs. State
of Karnataka,- 1989 (26) ACC 280 (SC) it
was held as under:

"The position is, therefore, now well
settled that upon receipt of a police report
under Section 173 (2) a Magistrate is
entitled to take cognizance of an offence
under Section 190 (1) (b) of the Code
even if the police report is to the effect
that no case is made out against the
accused. The Magistrate can take into
account the statements of the witnesses
examined by the police during the
investigation and take cognizance of the
offence complained of and order the issue
of process to the accused. Section 190 (1)
896 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(b) does not lay down that a Magistrate
can take cognizance of an offence only if
the investigating officer gives an opinion
that the investigation has made out a case
against the accused. The Magistrate can
ignore the conclusions arrived at by the
investigation officer and independently
apply his mind to the facts emerging from
the investigation and take cognizance of
the case, if he thinks fit, in exercise of his
powers under Section 190 (1) (b) and
direct the issue of process to the accused.
The Magistrate is not bound in such a
situation to follow the procedure laid
down in Sections 200 and 202 of the Code
for taking cognizance of a case under
Section 190 (1)(a) though it is open to
him to act under Section 200 or-Section
202 also. The High Court was, therefore,
wrong in taking the view that the Second
Additional Chief Metropolitan Magistrate
was not entitled to direct the registration
of a case against the second respondent
and order the issue of summons to him."

10. In Pakhando & others Vs. State
of U.P. & another, 2001 (43) ACC 1096,
a Division Bench of this Court held that
where the Magistrate receives final report
the following four courses are open to
him and he may adopt anyone of them:

(I) He
may
agreeing
with
the
conclusions arrived at by the police,
accept
the
report
and
drop
the
proceedings. But before so doing, he shall
give an opportunity of hearing to the
complainant; or

(II) He may take cognizance under
Section 190 (1)(b) and issue process
straightaway to the accused without being
bound
by
the
conclusions
of
the
investigating agency, where he is satisfied
that
upon
the
facts
discovered
or
unearthed by the police, there is sufficient
ground to proceed; or

(III) he may order further investigation, if
he is satisfied that the investigation was
made in a perfunctory manner; or

(IV) he may, without issuing process or
dropping the proceedings decide to take
cognizance under Section 190 (1)(a) upon
the original complaint or protest petition
treating the same as complaint and
proceed to act under Sections 200 and 202
Cr.P.C. and thereafter decide whether
complaint should be dismissed or process
should be issued.

11. Where the Magistrate decides to
take cognizance under Section 190 (1) (b)
ignoring the conclusions reached at by the
Investigating Officer and applying his
mind independently, he can act only upon
the statements of the witnesses recorded
by the police in the case-diary and
material collected during investigation. It
is not, permissible at that stage to consider
any material other than that collected by
the investigation Officer. In the instant
case the cognizance was taken on the
basis
of
the
protest
petition
and
accompanying affidavits. The Magistrate
should have adopted the procedure of
complaint case under Chapter XV of the
Code of Criminal Procedure and recorded
the statements of the complainant and the
witnesses who had filed affidavits under
Sections 200 and 202 Cr.P.C. The
Magistrate could not take cognizance
under Section 190 (1)(b) Cr.P.C. on the
basis of protest petition and affidavits
filed in support thereof. The Magistrate
having taken into account extraneous
material i.e. protest petition and affidavits
while taking cognizance under Section
3 All] Mohd. Asharaf and another V. A.D.J., Varanasi and others
897
190 (1) (b) Cr.P.C. the impugned order is
vitiated.

12. In view of the above discussion,
the revision succeeds. The impugned
order dated 28.2.2001 is set aside. The
case is remanded to the Magistrate
concern
for
a
decision
afresh
in
accordance with law.

Certify the judgment to the court
below within two weeks.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2007

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

Civil Misc. Writ Petition No. 55427 of 2007

Mohammad Asharaf and another

...Petitioners
Versus
Additional District Judge, Court No. 9,
Varanasi and others
...Respondents

Counsel for the Petitioners:
Sri D.S.P. Singh
Sri Shailendra Kumar Singh

Counsel for the Respondents:
Sri Kripa Shanker Singh
Sri Ateeq Ahmad Khan
Sri R.K. Mishra
Sri Swapnil Kumar
Sri Ajay Kumar
Sri Ajeet Kumar
Sri Manu Saxena
S.C.

(A) U.P. Urban Buildings (Regulation of
Letting Rent and Eviction) Act, 1972Section 20 (4)-Date of first hearing-if the
written statement is filed on first day or
at
the
time
allowed
by
Court-the
adjourned date shall be treated as first
date of hearing-held-petitioner entitled
for benefit of Section 20 (4) of the Act.

Held: Para 5

That if written statement is filed within
the time/extended time granted by the
court then no date prior to the date of
filing of written statement can be taken
to be the date of first hearing. In the
instant case on 4.9.2000 petitioners
were permitted to file written statement
by 19.10.2000 and on 19.10.2000 they
filed
written
statement,
hence
19.10.2000 was the date of first hearing.
Accordingly,
in
my
opinion
the
petitioners were fully entitled to the
benefit of section 20 (4) of the Act.
Case law relied on.
2004 (2) ARC-659

(B) U.P. Urban buildings (Regulation of
letting Rent and Eviction Act, 1972Section 20 (2)(e)-Sub letting-whether
the brother or the son of brother of chief
tenant
working
in
the
same
room
without partition or rent can be treated
as sub tenant?-held- 'No'.

Held: Para 10

The Supreme Court has clarified that in
case tenant completely withdraws his
possession from the entire tenanted
building and allows it to be occupied by
his brother, then it will amount to
subletting. On the same principle, if
petitioner No.1, the tenant allowed his
real brother's son, i.e. petitioner No.2 to
occupy a small portion of the shop in
dispute and do independent business
there from, then it cannot amount to
subletting.
Case law discussed:
ADJ (2) ARC-64
AIR 2002 SC-676

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
petitioner.