# Monu@ Vaibha Singh & Ors v. The State of U.P. & Anr Opp. Parties

- **Citation:** (2014) 1 ILRA 182
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-21
- **Case number:** U/S 482/378/407 No. 7018 of 2013
- **Bench:** ARVIND KUMAR TRIPATHI (ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/monu-vaibha-singh-ors-v-the-state-of-u-p-anr-opp-parties-42755
- **Pages:** 10

## Headnote

Cr.P.C.-Section 482-Application challenging
summoning order-after availing revisionsecond revision by same party or application
under 482-held-not maintainable.

Held: Para-31
In the instant case, there was a remedy
available to the petitioners in the form of
criminal
revision
and
they
have
exhausted it and the criminal revision
was
dismissed.
Code
of
Criminal
Procedure bars second revision by the
same party too, hence after exhausting
the right of revision, power under
Section 482 Code of Criminal Procedure,
cannot be exercised by this Court.

Cr.P.C.-Section 37(i)-Direction for same day
disposal of bail application-based upon
Amrawati
case-considering
subsequent
amendment-in
provision
437(i)-after
Amrawati case-no such direction-can be
given.

Held: Para-35-
So far as direction to Magistrate is
concerned, such direction cannot be given
to
Magistrate
considering
relevant
amendment and addition of fourth proviso
of Section 437(1)of Code of Criminal
Procedure, which was added by legislature
after the decision of Amarawati's Case.

Case Law discussed:
(2006) 7 SCC 296; (2006) 4 SCC 359; (2013) 3
SCC 330; (2013) 9 SCC 293; (2009) 4 SCC
1 All] Monu @ Vaibha Singh & Ors. Vs. The State of U.P. & Anr.
183
437; Crl. Law Journal 2275; 1978 Crl. L.J.
1575; AIR 1968 Supreme Court 117; [(2006) 2
SCC (Crl.)272]; AIR 1989 SC 885(890); AIR
1977 SC 2401; AIR 2013 SC 2248.

[Delivered by Hon'ble Arvind Kumar
Tripathi (II), J.]

(1) Heard Sri H.G.S.Parihar, Senior
Advocate assisted by Sri Shashank
Shekhar Parihar, learned counsel for the
petitioners, Sri Jyotindra Mishra, Senior
Advocate assisted by Sri Vaibhav Kallia
learned counsel for respondents and
learned AGA for the State.

(2) This petition under Section 482
Cr.P.C. has been filed by Monu alias
Vaibhav Singh, Ajit Singh, Rana Pratap
Singh & Vijai Pratap Singh alias Tirpan
Singh for quashing the order dated
30.04.2013 passed by Chief Judicial
Magistrate, Gonda in Case No. 883 of
2013 (Dr. Rajesh Pandey vs. Deceased
Sonu alias Gaurav Singh and others ) and
order dated 25.06.2013 passed by the
Incharge Session Judge, Gonda in Crl.
Revision No. 335 of 2013 (Monu alias
Vaibhav Singh and others vs. State of
U.P. and Ors.).

(3) From perusal of the record, it is
evident that a first information report was
registered, on a written report dated
9.5.2012 of Dr. Rajesh Kumar Pandey at
Police Station- Kotwali Nagar, District-
Gonda on 15.05.2012, in which one Sonu
Singh was named as accused and it was
mentioned that five-six unknown persons
were with him. This case was registered
as case crime no.559-A of 2012 under
Section-147/148/149/307/504/506 & 427
IPC. During investigation, some intense
legal battle was fought in the court room
and a final report was submitted by the
Investigating
Officer
on
10.01.2013,
which is annexed as Annexure 11 of this
petition. A protest petition was filed by
the complainant and after hearing the
complainant and after perusal of the case
diary,

## Text

182 INDIAN LAW REPORTS ALLAHABAD SERIES
Another, (2001) 4 SCC 280, Ram Govind
Upadhyay Vs. Sudarshan Singh and Others,
(2002) 3 SCC 598 and in Prasanta Kumar
Sarkar Vs. Ashis Chatterjee, (2010) 14 SCC
496.

16. In this case, the applicant has a
criminal history of eight cases as per the
contents of paragraph 14 of the counter
affidavit. Out of eight cases, in three
cases, the applicant is acquitted in which
one is of Section 302 IPC and in two
cases, the applicant is on bail. In Case
Crime No.273 of 1982, under Section 302
IPC the applicant was convicted and
against which the applicant filed an
appeal and he is on bail. The said appeal
is pending before this Court.

17. From a perusal of investigation of
the present case, it reveals from the statement
of Ganga Prasad that the witnesses are afraid
with the present applicant because he has been
convicted twice (out of which in one case he
was acquitted in appeal) and this incident was
also occurred to put pressure to withdraw the
case relating to land in question and relinquish
the claim by the complainant over the
property in question. In view of this, it cannot
be said that apprehension in the mind of the
prosecution witnesses that in case, the accused
applicant is released on bail, he will influence
and tamper the prosecution witnesses not to
give evidence against him, is not reasonable.

18. In view of the aforesaid facts
and circumstances of the case, I do not
find that it is a fit case for grant of bail.
Hence, the bail application of the
applicant stands rejected.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.01.2014

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI (ii), J.

U/S 482/378/407 No. 7018 of 2013

Monu@ Vaibha Singh & Ors.... Applicants
Versus
The State of U.P. & Anr..... Opp. Parties

Counsel for the Applicants:
Sri Shashank Shekhar Parihar
Meenakshi Singh

Counsel for the Respondents:
Govt. Advocate.

Cr.P.C.-Section 482-Application challenging
summoning order-after availing revisionsecond revision by same party or application
under 482-held-not maintainable.

Held: Para-31
In the instant case, there was a remedy
available to the petitioners in the form of
criminal
revision
and
they
have
exhausted it and the criminal revision
was
dismissed.
Code
of
Criminal
Procedure bars second revision by the
same party too, hence after exhausting
the right of revision, power under
Section 482 Code of Criminal Procedure,
cannot be exercised by this Court.

Cr.P.C.-Section 37(i)-Direction for same day
disposal of bail application-based upon
Amrawati
case-considering
subsequent
amendment-in
provision
437(i)-after
Amrawati case-no such direction-can be
given.

Held: Para-35-
So far as direction to Magistrate is
concerned, such direction cannot be given
to
Magistrate
considering
relevant
amendment and addition of fourth proviso
of Section 437(1)of Code of Criminal
Procedure, which was added by legislature
after the decision of Amarawati's Case.

Case Law discussed:
(2006) 7 SCC 296; (2006) 4 SCC 359; (2013) 3
SCC 330; (2013) 9 SCC 293; (2009) 4 SCC
1 All] Monu @ Vaibha Singh & Ors. Vs. The State of U.P. & Anr.
183
437; Crl. Law Journal 2275; 1978 Crl. L.J.
1575; AIR 1968 Supreme Court 117; [(2006) 2
SCC (Crl.)272]; AIR 1989 SC 885(890); AIR
1977 SC 2401; AIR 2013 SC 2248.

[Delivered by Hon'ble Arvind Kumar
Tripathi (II), J.]

(1) Heard Sri H.G.S.Parihar, Senior
Advocate assisted by Sri Shashank
Shekhar Parihar, learned counsel for the
petitioners, Sri Jyotindra Mishra, Senior
Advocate assisted by Sri Vaibhav Kallia
learned counsel for respondents and
learned AGA for the State.

(2) This petition under Section 482
Cr.P.C. has been filed by Monu alias
Vaibhav Singh, Ajit Singh, Rana Pratap
Singh & Vijai Pratap Singh alias Tirpan
Singh for quashing the order dated
30.04.2013 passed by Chief Judicial
Magistrate, Gonda in Case No. 883 of
2013 (Dr. Rajesh Pandey vs. Deceased
Sonu alias Gaurav Singh and others ) and
order dated 25.06.2013 passed by the
Incharge Session Judge, Gonda in Crl.
Revision No. 335 of 2013 (Monu alias
Vaibhav Singh and others vs. State of
U.P. and Ors.).

(3) From perusal of the record, it is
evident that a first information report was
registered, on a written report dated
9.5.2012 of Dr. Rajesh Kumar Pandey at
Police Station- Kotwali Nagar, District-
Gonda on 15.05.2012, in which one Sonu
Singh was named as accused and it was
mentioned that five-six unknown persons
were with him. This case was registered
as case crime no.559-A of 2012 under
Section-147/148/149/307/504/506 & 427
IPC. During investigation, some intense
legal battle was fought in the court room
and a final report was submitted by the
Investigating
Officer
on
10.01.2013,
which is annexed as Annexure 11 of this
petition. A protest petition was filed by
the complainant and after hearing the
complainant and after perusal of the case
diary, Chief Judicial Magistrate took
cognizance of the offence under Section
190(1)(b) of Code of Criminal Procedure
and summoned Monu alias Vaibhav
Singh, Ajit Singh, Rana Pratap Singh &
Vijai Pratap Singh alias Tirpan Singh (all
petitioners in this petition) to face trial
under
Section
147/148/149/307/326/427/504/506
IPC.
Feeling aggrieved, a Criminal Revision
No.335 of 2013 was filed by the
petitioners, which was rejected by the
Incharge, Sessions Judge, Gonda vide
order
dated
25.06.2013.
Feeling
aggrieved, this petition under Section 482
Cr.P.C. was filed.

(4) It was submitted by learned
counsel for the petitioner that:-

(i) the learned C.J.M. has taken
cognizance on the basis of the protest
application filed by the informant, in
which he has made request to summon 8
alleged accused for trial in Case Crime
No.559-A/2012,
under-Sections
147,
148,149, 307, 326, 427, 504, 506 IPC and
four accused have been summoned. The
protest application is in form of complaint
for summoning accused, who were not
mentioned in the column of accused
during the investigation as such the
learned magistrate ought to have adopted
procedure for taking cognizance on the
complaint or he ought to have referred to
matter
for
re-investigation/further
investigation.

(ii) The learned Magistrate has
considered the material collected by the
investigating officer Sri Yogendra Nath
184 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh, against whom complaint was made
and he was not found conducting
investigation properly and in fair manner,
and vide order dated 29.12.2012 passed
by the Superintendent of Police Gonda,
the investigation was transferred to Sri
Lallu Ram Diwakar, S.H.O. Colonelganj,
Gonda and the writ petition no.342 M/B
of 2012 was filed by Dr. R.K.Pandey
(Opposite
Party
no.2)
which
was
dismissed by this Hon'ble High Court vide
order dated 15.01.2013.

(iii) Sri Lallu Ram Diwakar had
conducted investigation and recorded
statement of no. of witnesses and also did
spot inspection and collected material
which show that prima facie allegation
made by the informant were not found
correct but the learned C.J.M. has
discarded the material collected by Sri
L.R. Diwakar for no rhyme and reason
and held that it will be proved by the
parties during trial.

(iv) The learned C.J.M. has not
applied its mind properly and discarded
the material available in the case diary
without recording any dissatisfaction,
which was favouring the petitioner.

(5) It was further submitted that
after submission of the final report, the
Magistrate has got three options:- 1) He
should accept the final report. 2) He may
pass orders for re-investigation and 3) He
may take cognizance of the offence
himself. It was further submitted that
when the Magistrate is of the opinion that
he has to take cognizance then the Protest
petition will be treated as complaint. It
was further submitted that in the instant
case, the Court was not able to apply its
judicial mind as prior to his applying the
judicial mind protest petition was filed
and Magistrate had to pass orders. It was
further submitted that Magistrate in the
instant case should have passed orders for
treating the protest petition as a complaint
or for re-investigation.

(6) It was further submitted that
taking of cognizance is a judicial function
and it is the satisfaction of the Magistrate
and his satisfaction should be mentioned
in the order. Learned Magistrate has not
shown his dis-agreement with the finding
of the Investigating Officer. He has
further stated that a revision was filed
against the impugned order, that too, was
dismissed, without applying his mind. It
was further submitted that there are two
stories, first is the application dated
09.05.2012 which was the basis of FIR in
case crime no. 559-A of 2012 and second
is the application sent by complainant
from district jail dated 15.12.2012. It was
further submitted that there are two
versions in these two applications and in
view of this and the report submitted by
the Investigating Officer, the findings
recorded by Investigating Officer while
submitting the final report are based on
evidence and the order taking cognizance
is likely to be quashed and the matter is
likely to be send to the Magistrate for
treating it as a complaint case and pass
orders afresh after recording the statement
under Section 200 and 202 Cr.P.C.

(7) Learned counsel for the applicant
has relied upon the cases of Hon'ble Apex
Court has held under:-

(i) Popular Muthiah Vs. State (2006)
7 SCC 296 , (ii) Minu Kumari & Another
Vs. State of Bihar & Others (2006)4 SCC
359, (iii) Rajiv Thapar & Other Vs.
Madan Lal Kapur (2013)3 SCC 330, (iv)
Prashant Bharti Vs. State of Delhi (2013)
1 All] Monu @ Vaibha Singh & Ors. Vs. The State of U.P. & Anr.
185
9 SCC 293 and (v) Lal Kamlendra Pratap
Singh reported in (2009) 4 SCC 437.

(8) Learned counsel for the opposite
party no.2 submitted that there is no
illegality in the impugned order. The
Magistrate has every right to pass the
orders on the protest petition after going
through the evidence recorded by the
Investigating Officer and he was justified
in taking cognizance under Section
190(1)(b) Cr.P.C. as the Magistrate has
only considered the material and evidence
collected by the Investigating Officer and
Magistrate has not relied upon any other
evidence outside the case diary.

(9) Learned counsel for opposite
party no.2 relied upon case Law of Pooran
Singh & Others Vs. State of U.P. and
Others 2003 Crl.Law Journal 2275, Kuli
Singh and Others Vs. State of Bihar and
Others,
1978
Crl.
L.J,
1575
and
Abhinandan Jha and Others Vs. Dinesh
Mishra AIR 1968 Supreme Court, 117.

(10) In the case of Popular Muthiah
Vs. State (2006) 7 SCC 296; Hon'ble
Apex Court has held that High Court can
exercise its inherent jurisdiction suo moto
in the interest of justice and it can do so
while exercising other jurisdiction such as
appellate or revisional jurisdiction, no
formal application for invoking inherent
jurisdiction is necessary.

(11) Hon'ble Apex Court has further
held that the jurisdiction of the learned
magistrate in the matter of issuance of
process or taking of cognizance depends
upon existence of conditions precedent
therefore. The magistrate has jurisdiction
in the event a final form is filed, (i) to
accept the final form, (ii) in the event,
protest petition is filed, to treat the same
as a complaint petition and if a prima
facie case is made out, to issue process,
(iii) to take cognizance of the evidence
against a person although a final form has
been filed by the police, in the event he
comes to the opinion that sufficient
material exists in the case diary itself and
(iv) to direct re-investigation into the
matter.

(12) In the case of Minu Kumari &
Another Vs. State of Bihar & Others
(supra) has held as under:-

"The Section does not confer any
new power on the High Court. It only
saves the inherent power which the Court
possessed before the enactment of the
Code. It envisages three circumstances
under which the inherent jurisdiction may
be exercised, namely, (i) to give effect to
an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is
neither possible nor desirable to lay down
any inflexible rule which would govern
the exercise of inherent jurisdiction. No
legislative
enactment
dealing
with
procedure can provide for all cases that
may possibly arise. Courts, therefore,
have inherent powers apart from express
provisions of law which are necessary for
proper discharge of functions and duties
imposed upon them by law. That is the
doctrine which finds expression in the
section which merely recognizes and
preserves inherent powers of the High
Courts. All courts, whether civil or
criminal possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a
wrong in course of administration of
justice on the principle "quando lex
aliquid alicui concedit, concedere videtur
186 INDIAN LAW REPORTS ALLAHABAD SERIES
et id sine quo res ipsae esse non potest"
(when the law gives a person anything it
gives him that without which it cannot
exist). While exercising powers under the
section, the court does not function as a
court of appeal or revision. Inherent
jurisdiction under the section though wide
has to be exercised sparingly, carefully
and with caution and only when such
exercise
is
justified
by
the
tests
specifically laid down in the section itself.
It is to be exercised ex debito justitiae to
do real and substantial justice for the
administration of which alone courts
exist. Authority of the court exists for
advancement of justice and if any attempt
is made to abuse that authority so as to
produce injustice, the court has power to
prevent abuse. It would be an abuse of
process of the court to allow any action
which would result in injustice and
prevent promotion of justice. In exercise
of the powers court would be justified to
quash any proceeding if it finds that
initiation/continuance of it amounts to
abuse of the process of court or quashing
of these proceedings would otherwise
serve the ends of justice."

(13) In the case of Rajiv Thapar &
Other Vs. Madan Lal Kapur (supra),
Hon'ble the Apex Court has held, as
under;

"The High Court, in exercise of its
jurisdiction under Section 482 of the Cr.P.C.,
must make a just and rightful choice. This is
not a stage of evaluating the truthfulness or
otherwise of allegations levelled by the
prosecution/complainant against the accused.
Likewise, it is not a stage for determining
how weighty the defences raised on behalf of
the accused are. Even if the accused is
successful in showing some suspicion or
doubt, in the allegations levelled by the
prosecution/complainant,
it
would
be
impermissible to discharge the accused
before trial. This is so, because it would
result in giving finality to the accusations
levelled by the prosecution/complainant,
without allowing the prosecution or the
complainant
to
adduce
evidence
to
substantiate the same. The converse is,
however, not true, because even if trial is
proceeded with, the accused is not subjected
to any irreparable consequences. The
accused would still be in a position to
succeed, by establishing his defences by
producing evidence in accordance with law.
There is an endless list of judgments
rendered by this Court declaring the legal
position, that in a case where the
prosecution/complainant
has
levelled
allegations bringing out all ingredients of the
charge(s) levelled, and have placed material
before the Court, prima facie evidencing the
truthfulness of the allegations levelled, trial
must be held."

(14) In the case of Prashant Bharti
Vs. State of Delhi (supra), the Apex Court
has held that when all the ingredients
mentioned in Hon'ble the Apex Court's
decision in Rajiv Thapar (supra) stands
satisfied then High Court ought to have
persuaded it on the basis of material
available before it, while passing the
impugned order to quash the criminal
proceeding initiated against the appellantaccused, in exercise of the inherent
powers vested with it under Section 482
Cr.P.C.

(15) For ready reference and
convenience Section 482 Cr.P.C. is
quoted below:-

"482. Saving of inherent powers of
High Court. Nothing in this Code shall be
deemed to limit or affect the inherent
1 All] Monu @ Vaibha Singh & Ors. Vs. The State of U.P. & Anr.
187
powers of the High Court to make such
orders as may be necessary to give effect
to any order under this Code, or to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice."

(16) In the case of State of Orissa
Vs. Saroj Kumar Sahoo; [(2006) 2 SCC
(Crl.) 272], Hon'ble the Apex Court has
held as under :-

"When exercising jurisdiction under
Section 482 of the Cr.P.C., the High
Court would not ordinarily embark upon
an enquiry whether the evidence in
question is reliable or not or whether on a
reasonable appreciation of it accusation
would not be sustained. That is the
function of the trial Judge."

(17) Hon'ble the Apex Court in the
same case has further held as under:-

"It would not be proper for the High
Court to analyse the case of the
complainant
in
the
light
of
all
probabilities
in
order
to
determine
whether
a
conviction
would
be
sustainable and on such premises arrive at
a conclusion that the proceedings are to
be quashed. It would be erroneous to
assess the material before it and conclude
that the complaint cannot be proceeded
with."

(18) The same view has been
reiterated by Apex Court in Rajiv
Thapar's Case (supra).

(19) In view of the above settled
legal position, while deciding the instant
petition, all the submission made by
petitioner's counsel mentioned in Para
5(ii)(iii) are not tenable as it will require
discussion and evaluation of evidence
recorded during investigation.

(20) So far as, submission in Para
5(i)(above) is concerned. FIR discloses
that one named accused (now dead) and
some unknown persons were involved in
crime. The names were later mentioned in
statement under Section 161 Cr.P.C.
recorded by investigating officers.

(21) Hon'ble the Apex Court in the
case of Abhinandan Jha Vs. Dinesh
Mishra (supra) has 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 no case is 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 the
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, notwithstanding 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.

(22) The reference to Section
19(1)(c) of the code was a mistake for
Section 190(1)(b) and this has been
pointed out in a later decision of H.S.
Bains Vs. State AIR 1980 S C 1883.

(23) In H. S. Bains case (supra) it
was held by the Supreme 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
188 INDIAN LAW REPORTS ALLAHABAD SERIES
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. In that case it was
observed : "If a complaint states the
relevant facts in his compliant and alleges
that the accused is guilty of an offence
under Section 307, Indian Penal Code the
Magistrate is not bound by the conclusion
of the complainant. He may think that the
facts disclose an offence under Section
324, Indian Penal Code only and he may
take cognizance of an offence under
Section 324 instead of Section 307.
Similarly if a police report mentions that
half a dozen persons examined by them
claim to be eye-witnesses to a murder but
that for various reasons the witnesses
could not be believed, the Magistrate is
not bound to accept the opinion of the
police regarding the credibility of the
witnesses. He 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 statement 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.

(24) In another decision in India
Carat Pvt. Ltd. v. State of Karnataka AIR
1989 SC 885 (890), it was held by Apex
Court 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)(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."

(25) In the case of Tularam v.
Kishore Singh : AIR 1977 SC 2401, it
was held by Apex Court that if the police,
after making an investigation, sent a
report that no case was made out against
the accused, the Magistrate could ignore
the conclusion drawn by the police and
take cognizance of the case under Section
190(1)(b) on the basis of material
collected during investigation and issue
process or in the alternative he could take
1 All] Monu @ Vaibha Singh & Ors. Vs. The State of U.P. & Anr.
189
cognizance of the original complaint and
examine
the
complainant
and
his
witnesses and thereafter issue process to
the accused, if he was of opinion that the
case should be proceeded with.

(26) From the aforesaid decisions, it
is thus clear that where the Magistrate
receives final report the following four
courses are open to him and he may adopt
any one of them as the facts and
circumstances of the case may require :-

(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
straightway 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.

(27) Now, it is settled legal position
that Where the Magistrate decides to take
cognizance of the case under Section
190(1))(b) of the Code ignoring the
conclusions arrived at by the investigating
agency
and
applying
his
mind
independently to the facts emerging from
the investigation records, in such a
situation the Magistrate is not bound to
follow the procedure laid down in
Sections 200 and 202 of the Code and
consequently the proviso to Section
202(2), Cr.P.C. will have no application.
It would however be relevant to mention
that for forming such an independent
opinion the Magistrate can act only upon
the statements of witnesses recorded by
the police in the case diary and other
material collected during investigation. It
is not permissible for him at that stage to
make use of any material other than
investigation records, unless he decides to
take cognizance under Section 190(1)(a)
of
the
Code
and calls
upon the
complainant to examine himself and the
witnesses present if any under Section
200.

(28) In the instant case, a perusal of
the
impugned
order
reveals
that
Magistrate has after considering the
protest petition and considering the
evidence
recorded
by
investigating
officers has found that there is sufficient
evidence to proceed against the accused
persons, namely, Monu @ Vaibha, Ajit
Singh, Rana Pratap Singh and Vijay
Pratap Singh @ Tirpan Singh under
Sections
147,148,149,307,326,427,504,506 IPC. It
is
abundantly
clear
that
no
other
extraneous material except statement of
witnesses
in
case
diary
has
been
considered. In view of this, Magistrate has
not
committed
any
illegality
in
summoning the accused persons under
Section 190(1)(b) of the Code of Criminal
190 INDIAN LAW REPORTS ALLAHABAD SERIES
Procedure. There was no occasion to
adopt the procedure of complaint case.

(29) A part from that in the Case of
Mohit alias Sonu and Anr. vs. State of
U.P. and Anr.[AIR 2013 SC 2248], the
Apex Court has held that So far as the
inherent power of the High Court as
contained in Section 482 of Cr.P.C. is
concerned, the law in this regard is set at
rest by this Court in a catena of decisions.
However, we would like to reiterate that
when an order, not interlocutory in nature,
can be assailed in the High Court in
revisional jurisdiction, then there should
be a bar in invoking the inherent
jurisdiction of the High Court. In other
words, inherent power of the Court can be
exercised when there is no remedy
provided in the Code of Criminal
Procedure for redressal of the grievance.
It is well settled that inherent power of the
court can ordinarily be exercised when
there is no express provision in the Code
under which order impugned can be
challenged. (Para 22)

(30) Hon'ble the Apex Court has
further held as under:-

"16. While we fully agree with the
view taken by the learned Judge that
where a revision to the High Court against
the order of the Subordinate Judge is
expressly barred under sub-section (2) of
Section 397 of the 1973 Code the inherent
powers contained in Section 482 would
not be available to defeat the bar
contained in Section 397(2). Section 482
of the 1973 Code contains the inherent
powers of the Court and does not confer
any new powers but preserves the powers
which the High Court already possessed.
A harmonious construction of Sections
397 and 482 would lead to the irresistible
conclusion that where a particular order is
expressly barred under Section 397(2) and
cannot be the subject of revision by the
High Court, then to such a case the
provisions of Section 482 would not apply.
It is well settled that the inherent powers of
the Court can ordinarily be exercised when
there is no express provision on the subjectmatter. Where there is an express provision,
barring a particular remedy, the Court
cannot resort to the exercise of inherent
powers."(Para 16)

"The intention of the Legislature
enacting the Code of Criminal Procedure
and the Code of Civil Procedure vis-a-vis
the law laid down by this Court it can
safely be concluded that when there is a
specific remedy provided by way of
appeal or revision the inherent power
under Section 482 Cr.P.C. or Section 151
Cr.P.C. cannot and should not be resorted
to." (Para 23)

(31) In the instant case, there was a
remedy available to the petitioners in the
form of criminal revision and they have
exhausted it and the criminal revision was
dismissed. Code of Criminal Procedure
bars second revision by the same party
too, hence after exhausting the right of
revision, power under Section 482 Code
of
Criminal
Procedure,
cannot
be
exercised by this Court.

(32) Learned counsel for the
petitioner prayed that if the petition is not
going to succeed then they be granted
benefit of the decision of Amrawati Vs.
State 2005 Crl. L.J. 755 (All) as approved
by the Apex Court's decision in Lal
Kamlendra (2009)4 Supreme Court Case
437 and it may also be ordered that
discharge application be considered by
Chief
Judicial
Magistrate.
1 All] Mohammad Aslam Ullah & Ors. Vs. Shravasti Sahkari Chini Mills Ltd & Ors.
191

(33) Chief Judicial Magistrates have
not been given powers of discharge in cases
triable by Sessions Court, as it is the trial
court i.e. Sessions Court, who has to hear
accused before framing of the charge. All the
magistrate can do is to commit the case to
Session's Court after following procedure
under Section 207 of Code of Criminal
Procedure. In view of this legal position,
such direction will be against law and cannot
be issued to Chief Judicial Magistrate.

(34) So far as the direction to consider
the bail application in the light of Amrawati
(supra) and Lal Kamlendra's case (supra) is
concerned, this court has held in Amrawati's
case (supra) that this Court cannot direct
Sessions Judge considering the provision of
first proviso to Section 439(1) of Code of
Criminal Procedure.

(35) So far as direction to Magistrate
is concerned, such direction cannot be given
to
Magistrate
considering
relevant
amendment and addition of fourth proviso
of Section 437(1)of Code of Criminal
Procedure, which was added by legislature
after the decision of Amarawati's Case.

(36) From the above discussion, the
instant petition is liable to be dismissed
and is hereby dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.01.2014

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Writ Petition No.9057 (S/S) of 1990
alongwith W.P. No. 5293(S/S) of 1994

Mohammad Aslam Ullah & Ors.. ..Petitioners
Versus
Shravasti Sahkari Chini Mills Ltd. & Ors.
 Opp. Parties
Counsel for the Petitioners:
Sri Manish Mathur

Counsel for the Opp. Parties:
Sri Anuj Kumar Srivastava

Constitution of India, Art.-226-Scope of
judicial review-termination of daily wagergoverned by cooperative societies-can not
be interfered by Writ Court-by exercising
power either under Art. 226 or 227-petition
dismissed.

Held: Para-12
It is true that the powers of High Court of
judicial review has been discussed in several
authorities. On some of them, the petitioner
relied upon. I do not burden this judgement
by citing and discussing those authorities for
the reason that in view of the fact of this
case the writ petition under article 226 could
not be entertained. It is well settled that if
this Court could not invoke its jurisdiction
under Article 226 or 227 of Constitution of
India, the question of judicial review of the
order or action of authority does not arise as
held by their Lordships of Constitutional
Bench of Supreme Court of India in The
State of Uttar Pradesh Vs. Mohammad Nooh,
AIR 1958 SC 86.

Case Law discussed:
(2003)8 SCC 639; (2007) 11 SCC 756; AIR
1958 SC 86; (2003)8 SCC 639; (1981)1 SCC
722; (1979)3 SCC 489; (2007) 11 SCC 756.

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

1. Petitioners of writ petition No.9057
(S/S) of 1990 including the petitioner of writ
petition No.5293 (S/S) of 1994 are the daily
wagers working in Shravasti Sahkari Chini
Mills Ltd. Nanpara, Baharich. This Mill is a
Cooperative Society under U.P. Cooperative
Societies Act with 100% shares of State Of
Uttar Pradesh.

2. The services of petitioners are
governed by Standing orders of the Mill