# Padam @ Aasif Raza v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1590
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-11
- **Case number:** Application U/S 482 No. 45539 of 2019
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/padam-aasif-raza-v-state-of-u-p-anr-45198
- **Pages:** 8

## Headnote

A. Criminal law - Code of Criminal
Procedure, 1973 - Section 190 - Affidavits
filed by witnesses , along with the Protest
Petition would not amount to statements
recorded u/s 200 and 202 Cr.Pc- The
Magistrate committed an illegality in rejecting
the Final Report submitted by the police and in
summoning the applicants on the basis of the
affidavits filed by the witnesses with the
Protest Petition, which cannot be termed as '
statements" within the meaning of Section 200/
202 of the Cr.pc.

B. Criminal law - Code of Criminal Procedure,
1973- Section 190 (1)- The use of the words
`may take cognizance of any offence' in sub-section
(1) of Section 190 Cr.P.C. imports the exercise of
`judicial discretion' and the Magistrate, who receives
the report under Section 173 Cr.P.C., will have to
consider the said report and judicially take a decision
whether or not to take cognizance of the offence . If
ultimately the Magistrate is of the opinion that the
facts set out in the police report constituted an
offence
he
can
take
cognizance
thereof,
notwithstanding contrary opinion of the police
expressed in the report.

It is open to the Magistrate to exercise his judicial
discretion and ignore the police report if he arrives at
the conclusion that the facts in the police report
make out an offence against the accused but in case
a protest petition is accompanied by affidavits of
witnesses the recourse open to the Magistrate would
be to proceed under Chapter XV of the Cr.Pc.

Magistrate
has
not
referred
to
any
material/documents
and
oral
as
well
as
documentary evidence collected by the Investigating
Officer during the course of the investigation and the
same has been placed before the concerned
Magistrate - No reasons recorded while rejecting the
final report - The Magistrate has failed to appreciate
that neither acceptance nor non-acceptance of the
police report can be termed as an administrative
function.

It is incumbent upon the Magistrate to refer to the
evidence collected during the course of the
investigation and assign reasons for rejecting the
final report. ( Para 13, 18)

Criminal Application allowed.

Case Law discussed:-

## Text

1590 INDIAN LAW REPORTS ALLAHABAD SERIES
observations made in the judgment. The
enunciation of the reason or principle on
which a question before a Court has been
decided is alone binding as a precedent.
(See:State of Orissa v. Sudhansu Sekhar
Misra and Ors (AIR 1968 SC 647) and
Union of India and Ors. vs. Dhanwanti
Devi and Ors. (1996 (6) SCC 44). A case
is a precedent and binding for what it
explicitly decides and no more. The words
used by Judges in their judgments are not
to be read as if they are words in Act of
Parliament. In Quinn v. Leathem (1901)
AC 495 (H.L.), Earl of Halsbury LC
observed that every judgment must be read
as applicable to the particular facts
proved or assumed to be proved, since the
generality of the expressions which are
found there are not intended to be
exposition of the whole law but governed
and qualified by the particular facts of the
case in which such expressions are found
and a case is only an authority for what it
actually decides."

Thus,
learned
A.G.A.
has
submitted that the ratio laid down in the
case of Delhi Cloth and General Mills
Company Ltd. (supra) is not applicable
under the present scenario.

19. This Court has keenly perused
the order impugned and found that by
impugned order the file of newly added
accused Pratap Singh Katiyar was ordered
to be segregated. Merely separating the
file of an accused for the reason that he
failed to appear before the Court, is quite
different from separating the case of an
accused for other legal reasons. Former is
a procedural matter while the latter is a
legal one. In the instant case where a
person is being summoned in exercise of
power u/s 319 Cr.P.C., the accused persons
the trial of whom, is at the fag end cannot
claim parallelity with newly impleaded
accused. However, where, to avoid the
delay in trial, caused by continued long
absence of any one or more accused
persons, the file of absconded persons is
separated as a matter of procedural
convenience. Separating the file is not
equivalent to separating the session trial. It
is like two branches coming out of a same
stem and an analogy can be drawn by
following example. Where a person never
appears before the court or has been added
at the later stage, his file is separated, and
therefore, this Court at the loss to
appreciate the unfounded suspicion that
the accused-applicant would suffer a
serious prejudice, if file of the newly
added accused Pratap Singh Katiyar is
separated.

20. After thoroughly marshalling the
law and the facts of the present case, I do
not find any illegality or impropriety in the
order impugned and as such present
application u/s 482 Cr.P.C. being lacks
merit is hereby dismissed.

21. It is given to understand that the
trial of accused persons, namely, Ashutosh
Singh @ Ashu and Kailash Singh is at the
pinnacle and it is expected from the
learned Trial Judge to conclude the same
within a period of two months (maximum)
from the date of production of certified
copy of this order.
----------
(2020)02ILR A1590

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 45539 of 2019
2 All. Padam @ Aasif Raza Vs. State of U.P. & Anr.
1591
Padam @ Aasif Raza ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Aditya Vardhan Singh

Counsel for the Opposite Parties:
A.G.A.

A. Criminal law - Code of Criminal
Procedure, 1973 - Section 190 - Affidavits
filed by witnesses , along with the Protest
Petition would not amount to statements
recorded u/s 200 and 202 Cr.Pc- The
Magistrate committed an illegality in rejecting
the Final Report submitted by the police and in
summoning the applicants on the basis of the
affidavits filed by the witnesses with the
Protest Petition, which cannot be termed as '
statements" within the meaning of Section 200/
202 of the Cr.pc.

B. Criminal law - Code of Criminal Procedure,
1973- Section 190 (1)- The use of the words
`may take cognizance of any offence' in sub-section
(1) of Section 190 Cr.P.C. imports the exercise of
`judicial discretion' and the Magistrate, who receives
the report under Section 173 Cr.P.C., will have to
consider the said report and judicially take a decision
whether or not to take cognizance of the offence . If
ultimately the Magistrate is of the opinion that the
facts set out in the police report constituted an
offence
he
can
take
cognizance
thereof,
notwithstanding contrary opinion of the police
expressed in the report.

It is open to the Magistrate to exercise his judicial
discretion and ignore the police report if he arrives at
the conclusion that the facts in the police report
make out an offence against the accused but in case
a protest petition is accompanied by affidavits of
witnesses the recourse open to the Magistrate would
be to proceed under Chapter XV of the Cr.Pc.

Magistrate
has
not
referred
to
any
material/documents
and
oral
as
well
as
documentary evidence collected by the Investigating
Officer during the course of the investigation and the
same has been placed before the concerned
Magistrate - No reasons recorded while rejecting the
final report - The Magistrate has failed to appreciate
that neither acceptance nor non-acceptance of the
police report can be termed as an administrative
function.

It is incumbent upon the Magistrate to refer to the
evidence collected during the course of the
investigation and assign reasons for rejecting the
final report. ( Para 13, 18)

Criminal Application allowed.

Case Law discussed:-

1. Mohammed Yusuf Son of Muzaffar Vs. St. of
U.P. & Zeeshan , (2008) CriLJ 493;

2. Subhash Singh & ors. Vs. St. of U.P. & anr.
(2011) 2 JIC 827 (All)(LB);

3. Hari Ram Vs. St. of U.P. & anr. (Crl. Revision
No. 695 of 2001, decided on 06.05.2016)
2016 Lawsuit (All) 1359

4. 4. Ramji Lal Vs. St. of U.P. & Ors. (Crl. Misc.
Writ Petition No. 6485 of 2004, decided on
15.03.2019).

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Aditya Vardhan Singh,
learned counsel for the applicant and Mr.
Prashant Kumar, learned A.G.A. for the State.

2. This application under Section 482
Cr.P.C. has been filed with a prayer to allow
this application and direct the learned
Additional Chief Judicial Magistrate, Court
No. 02, Moradabad to register the case, arising
out of Case Crime No. 199(c) of 2016, under
Sections 452, 323, 504, 506 I.P.C., Police
Station - Behjoi, District Moradabad as a
complaint case.

3. Brief facts of the case are that
opposite party no. 2, namely, Sabir lodged
an F.I.R. on 13.03.2016 against the present
applicant and five other accused persons
under Sections 395, 397 I.P.C., with
1592 INDIAN LAW REPORTS ALLAHABAD SERIES
allegations that on 24.01.2016, at about
07:00 p.m., when the informant was
having dinner at his house, the accused
persons, namely, Sachin, Padam (applicant
herein), Virendra, Kiran, Bhagwan and
Narayandas armed with lathi, stick and
country-made pistol entered into the house
of the informant stating that he had lodged
a case against them and started beating
him, hurling abuses. They also threatened
to kill him and hit him by the butt of the
country made pistol due to which
informant's teeth were broken. They also
snatched thousand rupees from his pocket.
After hearing the informant's screaming,
Jogendra Singh and Jogesh Sharma as also
other villagers came to rescue the
informant. It has also been alleged that
about 8 months prior, the aforesaid
persons had beaten the informant and his
son Harun and has also taken away cash
and goods from his house.

4. After investigation, a final report
was submitted on 21.03.2016. Thereafter,
respondent no. 2 filed a protest petition on
08.11.2016 against the aforesaid final
report with a prayer to summon the
accused persons. In support of the protest
petition, affidavits of Jogendra Singh and
his wife Musrin were also filed. It has
been submitted by learned counsel for the
applicant that vide order dated 18.08.2017,
learned Magistrate has rejected the final
report and has summoned the accused
persons and further directed the case to be
registered as a state case.

5. It has been argued by learned
counsel
for
the
applicant
that
the
Magistrate after considering the protest
petition and the affidavits had the option to
proceed in the following manner:

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

(ii) He may take cognizance
under Section 190(I)(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 by the
police, there is sufficient ground to
proceed; or

(iii) He may order further
investigation; or

(iv) He may decide to take
cognizance under Section 190(I)(b) upon
the protest petition treating the same as
complaint and proceed under Sections 200
and 202 Cr.P.C. and thereafter, decide
whether complaint should be dismissed or
process should be issued.

6. It has been submitted that in the
instant case, cognizance was taken on the
basis of protest petition and accompanying
affidavits.
However,
the
learned
Magistrate should have adopted the
procedure of complaint case as referred to
in Chapter XV of Code of Criminal
Procedure and should have recorded the
statements of complainant and witnesses
who had filed their submissions in support
of the protest petition.

7. In support of his case learned
counsel for the applicant has placed
reliance upon the following judgments :

1. Mohammed Yusuf Son of
Muzaffar.....Vs. State of Uttar Pradesh
and Zeeshan reported in 2008 CriLJ 493;
2 All. Padam @ Aasif Raza Vs. State of U.P. & Anr.
1593

2. Subhash Singh & Ors. Vs.
State of U.P. & Anr. reported in 2011(2)
JIC 827 (All)(LB);

3. Hari Ram Vs. State of U.P.
and another (Criminal Revision No. 695
of 2001, decided on 06.05.2016) reported
in 2016 Lawsuit (All) 1359 ;

4. Ramji Lal Vs. State of U.P.
And Others (Criminal Misc. Writ Petition
No. 6485 of 2004, decided on 15.03.2019).

8. Per contra, Mr. Prashant Kumar,
learned
A.G.A.
for
the
State
has
vehemently opposed the submissions made
by the learned counsel for the applicant by
submitting that the learned Magistrate on
the basis of the complaint, protest petition
filed by the complainant against the final
report as well as the affidavits of
witnesses, has rightly directed the present
case to be registered as a state case. There
is no illegality and infirmity in the order
passed by the concerned Magistrate,
therefore, the same cannot be interfered
with by this Court and the present
application is liable to be rejected.

9. Before coming to the merits of the
submissions made by the learned counsel
for the parties it would be worthwhile to
reproduce Section 190 Cr.P.C., which is
quoted hereinbelow:

"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."

10. Thus, cognizance can be taken by
the Magistrate upon (a)receipt of a
complaint disclosing facts constituting
commission of an offence (b)upon a police
report disclosing such facts or (c)on his
own knowledge.

11. A bare perusal of Clause (b)
above, would show that the Magistrate can
take
cognizance
of
any
offence,
irrespective of whether it is a cognizable
offence or a non-cognizable offence upon
a police report disclosing such facts as
would
constitute
commission
of
an
offence. The foundation of the jurisdiction
of the Magistrate for taking cognizance of
an offence does not depend upon the
validity or otherwise of an investigation
carried out by the police. It depends only
upon the set of facts and circumstances
placed before the Court, from which the
Court comes to a conclusion that they
constitute commission of an offence.

12. If the primary requirement is
satisfied, an FIR is to be registered and the
criminal law is set in motion and the
officer-in-charge of the police station takes
up the investigation.

13. Further perusal of the aforesaid
provisions it is clear that a Magistrate to
1594 INDIAN LAW REPORTS ALLAHABAD SERIES
whom a report under Section 173 (1)
Cr.P.C. had been submitted to the effect
that no case has been made out against the
accused, can not direct the police to file a
charge-sheet on his disagreeing with that
report. The use of the words `may take
cognizance of any offence' in sub-section
(1) of Section 190 Cr.P.C. imports the
exercise of `judicial discretion' and the
Magistrate, who receives the report under
Section 173 Cr.P.C., will have to consider
the said report and judicially take a
decision whether or not to take cognizance
of the offence. It is also clear that the the
Magistrate has no jurisdiction to direct the
police to submit a charge-sheet but it was
open to the Magistrate to agree or disagree
with the police report. If he agrees with the
report that there is no case made out for
issuing process to the accused he may
accept
the
report
and
close
the
proceedings. If he comes to the conclusion
that further investigation is necessary he
may make an order to that effect under
Section 156(3) Cr.P.C. It is further clear
that if ultimately the Magistrate is of the
opinion that the facts set out in the police
report constituted an offence he can take
cognizance
thereof,
notwithstanding
contrary opinion of the police expressed in
the report.

14. In para (21) of Mehmood Ul
Rehman v. Khazir Mohammad Tunda and
others reported in (2015) 12 SCC 420, the
Apex Court has made a fine distinction
between taking cognizance based upon charge
sheet filed by the police under Section
190(1)(b) Cr.P.C. and a private complaint
under Section 190(1)(a) Cr.P.C. and held as
under:-

"Under Section 190(1)(b) CrPC, the
Magistrate has the advantage of a police
report and under Section 190(1)( c) CrPC, he
has the information or knowledge of
commission of an offence. But under Section
190(1)(a) CrPC, he has only a complaint
before him. The Code hence specifies that "a
complaint of facts which constitute such
offence". Therefore, if the complaint, on the
face of it, does not disclose the commission of
any offence, the Magistrate shall not take
cognizance under Section 190(1)(a) CrPC.
The complaint is simply to be rejected."

15. For ready reference, paragraph-11 of
the judgment of this Court in the case of
Mohammed Yusuf (supra) reads as follows:

"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 casediary 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
2 All. Padam @ Aasif Raza Vs. State of U.P. & Anr.
1595
under Section 190(1)(b) Cr.P.C. the
impugned order is vitiated."

16. Paragraphs nos. 3 and 4 of the
judgment of this Court in the case of
Subhash Singh (supra), which is relevant
for deciding the present application is
quoted herein-under:

"3. Upon perusal of the order
impugned
I
find
that
the
learned
Magistrate has considered the record,
protest application, affidavit as well as
case diary and some other documents also,
which may be material of the police report
and thereafter having found investigation
as not proper, he rejected the final report.
It is settled law that once after submission
of the final report, the Magistrate takes
cognizance of offence on the basis of
protest application, keeping in view the
material therein, he has to proceed with
the case as a complaint case.

4.
Since
the
learned
Magistrate has considered the case
diary also and observed that the
Investigating Officer has not recorded
the statement of witnesses properly, I
am of the view that he has considered
the case diary also, whereas the
learned Magistrate has to clear himself
as to whether he has to proceed on the
basis of material available in the case
diary or on the basis of material of the
protest application, because these two
different
mode
of
considerations
provide two different procedure of
trial, therefore, I hereby quash the
order impugned dated 5th of April,
2011 with the direction to the learned
Magistrate, first to clear himself as to
whether he has to proceed on the basis
of protest application or on the basis
of case diary, and then proceed
accordingly. The Magistrate is at
liberty to proceed to his own wisdom".

17. Lastly, paragraph nos. 22 to 28 of
the of the judgment of this Court in the
case of Hari Ram (supra) are also quoted
herein-below:

"22. In Mohammad Yusuf Vs.
State of U.P. 2007 (9) ADJ 294, Police
submitted final report which was not
accepted by Magistrate, not on the basis of
material collected by Police, but, relying
on Protest Petition and accompanying
affidavit Magistrate issued process. Court
disapproved
the
aforesaid
procedure
adopted by Magistrate and said:

"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
investigating 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 Section 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 taking into account
extraneous material i.e. protest petition
and affidavits while taking cognizance
under section 190 (1) (b) Cr.P.C. the
1596 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order is vitiated." (emphasis
added)

23. In Kallu and others Vs. State
of U.P. 2010 (69) ACC 780, Court said:

"Therefore, in present case also,
if the material in the case diary was not
sufficient for summoning the accused
persons to face the trial, then the protest
petition filed by the complainant against
the final report ought to have been
registered
as
complaint
and
after
following the procedure laid down in
section 200 and 202 Cr.P.C."

24. Court further held:

"If after taking evidence under
section
200
and
202
Cr.P.C.,
the
magistrate decides to take cognizance
against the accused persons, final report
has to be rejected, but in any case,
cognizance cannot be taken merely on the
basis of affidavits or other material filed
by the complainant in support of the
protest
petition
against
final
report
without following the procedure laid down
under Chapter XV Cr.P.C., if the material
in the case diary is not sufficient to take
cognizance."(emphasis added)

25. In Mitrasen Yadav Vs. State
of U.P. 2010 (69) ACC 540, Court said
that on the basis of Protest Petition and
documents filed therewith, no cognizance
under Section 190(1)(b) Cr.P.C. can be
taken.

26. In Criminal Revision No.
1601 of 2015 (Mukeem and 2 others Vs.
State of U.P. and another) decided on
07.08.2015,
Court
while
deprecating
procedure followed by Magistrate by
relying on Protest Petition and its
documents, without following procedure of
complaint, said:

"The impugned order shows that
the Magistrate summoned accused persons
presuming that oral evidence on behalf of
first informant was adduced on protest
petition, which is possible only when the
protest petition was ordered to be treated
as a complaint. The record shows that
neither protest petition was ordered to be
registered as complaint nor any oral
evidence of the witnesses was recorded.
Summoning of the accused persons on the
basis of the oral evidence indicates that
the Magistrate was satisfied with the fact
that in evidence collected by the I.O, there
was no sufficient material for taking
cognizance. The learned Magistrate has
also observed that the I.O. has committed
a mistake in not recording the evidence of
other witnesses. Summoning is also based
on facts mentioned in the protest petition
and documentary evidence, as mentioned
in the order impugned which is erroneous
in view of the law cited above." (emphasis
added)

27. In Writ Petition- Misc. Single
No. 3776 of 2012 (Mohammad Shafiq
Khan and others Vs. State of U.P. and
others) decided on 24.03.2014, Court, in
para 9, held as under:

"9. Therefore, it is clear from the
above that the Magistrate on the basis of
protest petition can reject the final report,
he may treat the protest petition as
complaint, he may also direct for further
investigation. But in the facts of this case
the Magistrate while rejecting the final
report has also taken into consideration
the affidavits filed along with protest
petition
and
this
approach
of
the
Magistrate was not in accordance with
law." (emphasis added)

28. Looking to exposition of law,
discussed above, I find that in the present
case Magistrate has not referred to any
material placed before him or collected by
Investigating Officer. Instead it has
rejected final report on the basis of facts
stated in Protest Petition and thereafter
relying on the affidavits filed before him
2 All. Sharda Devi Vs. State of U.P. & Anr.
1597
along with Protest Petition, proceeded to
issue notice. The affidavits would not
amount to a statement recorded by
Magistrate under Section 200 and 202
Cr.P.C. Magistrate has not given any
reason for rejecting Police report and
nothing has been said in this regard except
that in the light of affidavits placed before
him along with Protest Petition, he finds
that final report is liable to be rejected and
accused
would
be
summoned.
This
approach on the part of Magistrate, I find
contrary to what has been laid down in the
above authorities and the same cannot be
sustained."

18. In the light of the judgments of
the Apex Court as well as this Court,
referred to above, it is explicitly clear that
the contention raised on behalf of the
applicant has substance. The impugned
order passed by the concerned Magistrate
is cryptic and does not stand the test laid
down by the Apex Court as well as this
Court. In the present case also, the
concerned Magistrate has not referred to
any material/documents and oral as well as
documentary evidence collected by the
Investigating Officer during the course of
the investigation and the same has been
placed before the concerned Magistrate.
Apart from the above, the concerned
Magistrate has rejected the final report
submitted by the Investigating Officer
only on the basis of facts stated in the
protest petition filed by opposite party
no.2 and considering the facts of the
protest petition and affidavits of the
witnesses produced before him, the
concerned Magistrate has issued notice to
the applicant. Such affidavits would not
amount to a statement recorded by the
Magistrate under Section 200 and 202
Cr.P.C. The concerned Magistrate has not
recorded any reasons while rejecting the
final report and he has also not mentioned
anything in that regard. Only in view of
the affidavits produced before him along
with Protest Petition, the concerned
Magistrate has found that the final report
is liable to be rejected and accusedapplicant would be summoned. The
concerned
Magistrate
has
failed
to
appreciate that neither acceptance nor nonacceptance of the police report can be
termed as an administrative function.
Since it is after application of judicial
mind and examination of the material
submitted along with the report under S.
173 Cr.P.C., the Magistrate makes the
order under Section 190 Cr.P.C. Such
lethargic approach of the concerned
Magistrate, as per my view, is contrary to
what has been laid down in the above
authorities and the same cannot be legally
sustained.

19. In view of the above discussion,
the application u/S 482 Cr.P.C. succeeds
and is allowed. The impugned order dated
18.08.2017 is hereby set aside and the
matter is remanded to the concerned
Magistrate to take decision afresh in
accordance with observations made herein
above.
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(2020)02ILR A1597

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2019

BEFORE
THE HON'BLE ANIL KUMAR-IX, J.

Application U/S 482 No. 45657 of 2019

Sharda Devi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant: