# Namdev Sharma v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 328
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-01
- **Case number:** Crl. Misc. Writ Petition No. 10162 of 2020
- **Bench:** Pankaj Naqvi, Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/namdev-sharma-v-state-of-u-p-ors-47091
- **Pages:** 5

## Headnote

Ms. Katyayini, Ms. Manju Thakur, A.G.A.

Respondent lodged an FIR against Petitionerfinal report submitted-protest filed-rejecteddirected-treated
as
complaint-meanwhile
Petitioner lodged two FIR for irregularities and
forgeries commited by Respondent in respect of
trust
properties-chargesheet
submitted-On
respondent
Application
-all
three
cases
transfered to Crime branch-challenged-If it
appears that police investigation is also in
progress in same offence-complaint proceeding
s shall be stayed and both cases shall be tried
together as a police case.-W.P. dismissed.

Held, as a complaint case and a police
investigation against 5 the petitioner are being
proceeded in respect of same offence, the
provisions of Section 210 are squarely attracted
and thus the contention of the learned Senior
Counsel for the petitioner that provision of
Section 210 would not be attracted as the
proceedings had originally not arisen on a
complaint rather on an FIR is liable to be
rejected outrightly as the cognizance of the
offence was taken on a protest now treated as a
complaint. To attract the applicability of Section
210 of the Code, the case before the Magistrate
is to be instituted on a complaint.(para 9) (E-7)

List of Cases cited:

## Text

328 INDIAN LAW REPORTS ALLAHABAD SERIES

11. The perusal of section 156 (3)
Cr.P.C. shows the power of the Magistrate
to send the matter for investigation. The
jurisdiction can be exercised by the
Magistrate empowered Section 190 Cr.P.C.
to
order
for
such
investigation
as
mentioned in sub section (1) and (2) of
Section 156 Cr.P.C. Since a reference of
Section 190 Cr.P.C. has been given in
Section 156(3) Cr.P.C., it would be gainful
to refer even Section 190 Cr.P.C. which is
quoted thus:

190. Cognizance of offences by
Magistrates.-- (1) Subject to the provisions
of this Chapter, any Magistrate of

the first class, and any Magistrate
of the second class specially empowered in
this behalf under sub-section (2), may

take cognizance of any offence--

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that

such offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under

sub-section (1) of such offences
as are within his competence to inquire into
or try.

12. Section 190 Cr.P.C. provides for
filing of the complaint on such facts which
constitute an offence. The Magistrate
empowered under Section 190 Cr.P.C. can
pass an order under Section 156 (3) Cr.P.C.
to send the matter for investigation. Section
156(3) Cr.P.C. does not provide for an
application
but
gives
power
to
the
Magistrate empowered under Section 190
Cr.P.C. to direct for investigation.

13. It would be gainful to refer even
chapter XII in which section 156 Cr.P.C.
exist. Chapter XII is about information to
the police and their powers to investigate.
Section 156 (3) Cr.P.C. falls under Chapter
XII which is basically in regards to power
of the police to investigate the matter.

14. In the light of aforesaid, we are of the
opinion that for invocation of power under
Section 156(3) Cr.P.C. the compliance of
section 154 (3) Cr.P.C. is not mandatory though
even after exhausting aforesaid provision, FIR
is not lodged, one can invoke Section 190
Cr.P.C. Therein an order can be passed under
Section 156(3) Cr.P.C. The perusal of the FIR
however reveals invocation of Section 154(3)
Cr.P.C. The complainant first approached the
station officer and thereafter the S.P. of the
district.

15. Taking into consideration the
discussion made above, we do not find a case
for quashing of the FIR. The writ petition is,
accordingly, dismissed.

16. It is, however, made clear that the
investigation in the matter would not be guided
by any observations made by us rather it would
be made independently on merits of the case.
----------

(2021)07ILR A328
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE VIVEK AGARWAL, J.

Crl. Misc. Writ Petition No. 10162 of 2020

Namdev Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
7 All. Namdev Sharma Vs. State of U.P. & Ors.
329
Counsel for the Petitioner:
Sri Manish Tiwari, Sri Kartikeya Saran, Sri
Anand Bhasker Srivastava

Counsel for the Respondents:
Ms. Katyayini, Ms. Manju Thakur, A.G.A.

Respondent lodged an FIR against Petitionerfinal report submitted-protest filed-rejecteddirected-treated
as
complaint-meanwhile
Petitioner lodged two FIR for irregularities and
forgeries commited by Respondent in respect of
trust
properties-chargesheet
submitted-On
respondent
Application
-all
three
cases
transfered to Crime branch-challenged-If it
appears that police investigation is also in
progress in same offence-complaint proceeding
s shall be stayed and both cases shall be tried
together as a police case.-W.P. dismissed.

Held, as a complaint case and a police
investigation against 5 the petitioner are being
proceeded in respect of same offence, the
provisions of Section 210 are squarely attracted
and thus the contention of the learned Senior
Counsel for the petitioner that provision of
Section 210 would not be attracted as the
proceedings had originally not arisen on a
complaint rather on an FIR is liable to be
rejected outrightly as the cognizance of the
offence was taken on a protest now treated as a
complaint. To attract the applicability of Section
210 of the Code, the case before the Magistrate
is to be instituted on a complaint.(para 9) (E-7)

List of Cases cited:

1. Abhinandan Jha Vs Dinesh Mishra, AIR 1968
SC 117

2. H.S. Bains Vs St. of U.P., AIR 1980 SC 1883,

3. India Carat Pvt. Ltd. Vs St. of Karn., AIR 1989
SC 885

4. Bhagwant Singh Vs Commissioner of Police,
(1985) 2 SCC 537

5. Vishnu Kumar Tiwari Vs St. of U.P., (2019) 8
SCC 27
6. Dharmendra Swami Vs St. of U.P. (2007)
2 JIC 275

7. Harkesh Vs St. of U.P., (2002) Cr.L.J. 285

8. A.R. Antulay Vs R.S. Nayak, AIR 1984 SC 718

9. Suresh Chand Jain Vs St. of M.P., AIR 2001
SC 571

(Delivered by Hon'ble Pankaj Naqvi, J.
&
Hon'ble Vivek Agarwal. J.)

Heard Sri Manish Tiwari, the learned
Senior Counsel assisted by Sri Kartikeya
Saran for the petitioner, Ms. Katyayini,
learned counsel for the informant and Ms.
Manju Thakur, the learned AGA.

1. The dispute between the parties is
essentially relating to maladministration
and misfeasance of the trust properties
situate at Mathura in which both sides are
trading allegations against each other.

2. Sri Swami Gopanand Ban Maharaj
/ respondent no. 4 lodged an FIR against
the petitioner on 9.12.2018 as Case Crime
No.1783/2018,
under
Sections
420/467/468/471/506 IPC in which after
investigation, a final report came to be
submitted on 7.1.2019. Respondent no. 4
filed a protest on 24.4.2019 before the
learned CJM, Mathura who on 23.12.2019
rejected the final report and directed the
matter to be treated as a complaint fixing
dates for statements under Section 200
Cr.P.C. Meanwhile, the petitioner (Namdev
Sharma) lodged two FIR's relating to
forgeries and illegalities committed against
respondent
no.4
on
11.10.2019
and
25.10.2019 as Case Crime Nos.930/2019,
under Sections 420 /467 /468 /471 /504
/506 /120-B IPC & 964/2019, under
330 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 420/406/506 IPC, wherein after
investigation, a charge-sheet came to be
submitted on 20.2.2020 in Case Crime
No.964/2019 against respondent no.4. It
appears that respondent no. 4 not being
satisfied with the investigation, preferred
an application dated 14.9.2020 before the
I.G., Agra Zone in which on the same date,
he directed the S.S.P., Agra to get all the 3
matters investigated by the Crime Branch
and directed to submit a progress report by
30.9.2020. Consequently investigation of
all the 3 cases was handed over to Crime
Branch on 16.9.2020. Challenging the
orders dated 14.9.2020 and 16.9.2020, the
present writ petition has been filed.

3. The learned Senior Counsel for the
petitioner assiduously urged that once Case
Crime No.1783/2018 after investigation on
a protest, has been directed to be treated as
a complaint then it was not open for
respondent
no.2
to
transfer
the
investigation relating to the said case to the
Crime Branch. To put it differently once
the learned Magistrate under the order
dated 23.12.2019 decided to take recourse
and proceeded under Chapter XV of the
Code then unless the learned Magistrate at
the stage of Section 202 Cr.P.C itself
directs for investigation to be conducted by
police, the matter cannot be investigated by
the police, the impugned order passed by
respondent no. 2 is not sustainable in law in
the garb of further investigation that too
with no prior permission of the learned
Magistrate.

4. Learned counsel for the informant
and the learned AGA vehemently opposed
the submissions on the premise that the
contentions raised have no force as the
option for the petitioner is to approach the
Magistrate concerned under Section 210 of
the Code.

5. It is well settled that in the event a
police report is submitted disclosing
commission of no offences before the
Magistrate concerned, then such Magistrate
shall have the following options:

(i) He may reject the report and
proceed to take cognizance on available
materials.

(ii) He before accepting the
report shall put the informant to notice as
to why the closure report be not accepted,
who would be at liberty to file a protest.

(iii) He may take cognizance on a
protest as a complaint.

(iv) He may not accept the report
and call for further investigation.

(v) He while rejecting the protest
may accept the final report.

Reference is made to the decisions of
the Apex Court in Abhinandan Jha vs.
Dinesh Mishra, AIR 1968 SC 117, H.S.
Bains vs. State of U.P., AIR 1980 SC
1883, India Carat Pvt. Ltd. vs. State of
Karnataka, AIR 1989 SC 885, Bhagwant
Singh vs. Commissioner of Police, (1985)
2 SCC 537 and Vishnu Kumar Tiwari vs.
State of U.P., (2019) 8 SCC 27.

6. Admittedly petitioner is an accused
in a complaint case which is pending at the
stage of Section 200 Cr.P.C as also
investigation by Crime Branch is pending
against him in Case Crime No.1783/2018
which is the genesis of the said complaint.
The resultant scenario is that in respect of
same offence, petitioner is facing a
complaint case as well as investigation by
police authorities.

7. Section 210 of the Code is a selfcontained provision which provides a
mechanism to deal with such situations
where a complaint case and police
investigation in respect of same offence is
7 All. Namdev Sharma Vs. State of U.P. & Ors.
331
being proceeded. Section 210 of the Code
is extracted hereunder:

210. Procedure to be followed
when there is a complaint case and police
investigation in respect of the same
offence.

(1) When in a case instituted
otherwise than on a police report
(hereinafter referred to as a complaint
case), it is made to appear to the
Magistrate, during the course of the
inquiry or trial held by him, that an
investigation by the police is in progress
in relation to the offence which is the
subject- matter of the inquiry or trial
held by him, the Magistrate shall stay
the proceedings of such inquiry or trial
and call for a report on the matter from
the
police
officer
conducting
the
investigation.

(2) If a report is made by the
investigating police officer under section
173 and on such report cognizance of
any offence is taken by the Magistrate
against any person who is an accused in
the complaint case, the Magistrate shall
inquire
into
or
try
together
the
complaint case and the case arising out
of the police report as if both the cases
were instituted on a police report.

(3) If the police report does not
relate to any accused in the complaint
case or if the Magistrate does not take
cognizance of any offence on the police
report, he shall proceed with the inquiry
or trial, which was stayed by him, in
accordance with the provisions of this
Code.

8. A perusal of the aforesaid provision
indicates that in a case which is instituted on
a complaint, the Magistrate is made to appear
during the inquiry or trial that a police
investigation is also in progress in respect of
same offence, he shall stay the proceedings of
the complaint case and call for a report from
the Investigating Officer and upon receipt of
such report if he takes cognizance of offence
against a person who is an accused in
complaint case, both the cases shall be tried
together as a police case and if the police
report is not related to the accused in
complaint or no cognizance has been taken
then complaint case shall proceed in
accordance with law.

9. We, in view of above provisions, are
of the considered view that as a complaint
case and a police investigation against the
petitioner are being proceeded in respect of
same offence, the provisions of Section 210
are squarely attracted and thus the contention
of the learned Senior Counsel for the
petitioner that provision of Section 210
would not be attracted as the proceedings had
originally not arisen on a complaint rather on
an FIR is liable to be rejected outrightly as
the cognizance of the offence was taken on a
protest now treated as a complaint. To attract
the applicability of Section 210 of the Code,
the case before the Magistrate is to be
instituted on a complaint. To ascertain as to
whether a protest petition can be treated as
complaint or not, it would be noteworthy to
place reliance on the decision of the Apex
Court in Vishnu Kumar Tiwari (supra)
wherein it is held in paragraph-46 thereof that
if a protest petition fulfills the requirement of
a complaint, the Magistrate may treat the
protest as a complaint and deal with the same
as required under Section 200 read with
Section 202 of the Code.

10. The next submission of the
learned Senior Counsel is that even though
332 INDIAN LAW REPORTS ALLAHABAD SERIES
the matter is pending before the Magistrate
yet police investigation is being carried on
without any approval of the Magistrate which
cannot be countenanced in law. The
submission appears to be attractive but
deserves to be rejected only on the premise
that Section 210 of the Code itself
contemplates such a scenario wherein the
learned Magistrate is vested with the powers
to consolidate and proceed as a police case
while staying the complaint proceedings and
after calling a police report from the
Investigating Officer.

11. We now propose to deal with the
judgments cited by the learned Senior
Counsel for the petitioner. The judgments of
the learned Single Judges in Dharmendra
Swami vs. State of U.P. (2007) 2 JIC 275
and Harkesh vs. State of U.P., (2002)
Cr.L.J. 285 and the decisions of the Apex
Court in H.S. Bains (supra), India Carat
Pvt. Ltd. (supra) essentially rely on
Abhinandan Jha (supra) that Magistrate is
not bound with the conclusion of the police
report, opining that no offence is made out
and that in an appropriate case the Magistrate
can take cognizance under Section 190(1)(a)
on the basis of protest petition, which is an
undisputed position. The decision in A.R.
Antulay vs. R.S. Nayak, AIR 1984 SC 718
deals with an issue involving a private
complaint lodged under Prevention of
Corruption Act, 1947, before a Special Court
wherein the Apex Court inter alia held that
Special Judge was competent to take
cognizance on a private complaint. Lastly
reliance is placed on Suresh Chand Jain vs.
State of Madhya Pradesh, AIR 2001 SC
571 which unfortunately has no relevance
with the fact in issue.

12. We, in the ultimate analysis, are of
the view that the orders impugned relating to
transfer of investigation and handing over the
cases to the Crime Branch do not suffer from
any error apparent on the face of record.

13. The writ petition is dismissed.
----------
(2021)07ILR A332
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Crl. Misc. Writ Petition No. 16806 of 2020

Amit & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rajnish Dubey

Counsel for the Respondents:
A.G.A.

FIR challenged-stating false implication-against
three brothers-FIR has to be looked prima facie
for invoking writ jurisdiction-no case for
interference.

W.P. dismissed. (E-7)

List of Cases cited:

1.Rupan Deol Bajaj Vs K.P.S. Gill, (1995) SCC
(Cri) 1059

2. Rajesh Bajaj Vs State of NCT of Delhi; (1999)
3 SCC 259

3.Medchl Chemicals & Pharma (P) Ltd. v.
Biological E Ltd. & Ors; reported in 2000 SCC
(Cri) 615

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.