# Painters v. Fertilizers & Chemicals

- **Citation:** (2010) 1 ILRA 258
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010
- **Case number:** Criminal Misc. Application No.5023 of 2010
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/painters-v-fertilizers-chemicals-41578
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 190
(1)-against
final
report-protest
Application with affidavit filed-without
following
procedure
prescribed
in
chapter
XV-summoning
order
based
upon
extraneous
affidavit-not
sustainable.

Held: Para 12

In view of the observations made hereinabove, the impugned summoning order
cannot be sustained, as cognizance has
been taken by the learned magistrate
merely on the basis of the affidavits filed
by the complainant in support of the
protest petition against final report.
Therefore, it would be in the interest of
justice to send the case back to the court
below for passing fresh order on the
protest petition filed by the complainant
against the final report.
Case law discussed:
2001 (43) ACC 1096, 2008 (1) ACR 68,
(2001(43) ACC 1096).

## Text

258 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

prior notice before blacklisting any
person. In so far as the contention that
there is no requirement specifically of
giving any notice is concerned, the
respondent is right. But it is an implied
principle of the rule of law that any order
having civil consequence should be
passed only after following the principles
of natural justice. It has to be realised
that blacklisting any person in respect of
business ventures has civil consequence
for the future business of the person
concerned in any event. Even if the rules
do not express so, it is an elementary
principle of natural justice that parties
affected by any order should have right of
being heard and making representations
against the order. In that view of the
matter, the last portion of the order in so
far as it directs blacklisting of the
appellant in respect of future contracts,
cannot be sustained in law. In the
premises, that portion of the order
directing that the appellant be placed in
the blacklist in respect of future contracts
under the Collector is set aside.

8. In the case of M/s Southern
Painters v. Fertilizers & Chemicals
Travancore Ltd., and another AIR
1994 Supreme Court 1277 the Apex
court has observed as under:

9.
The deletion of the appellant's name
from the list of approved contractors on
the ground that there were some vigilance
report against it, could only be done
consistent with and after the compliance
of the principles of natural justice. That
not having been done, it requires to be
held that withholding of the tender form
from the appellant was not justified. In
our opinion, the High Court was not
justified in dismissing the writ petition.
9. The same view has been reiterated
by the Apex Court in the case of
Gronsons Pharmaceuticals (P) Ltd.,
and another v. State of Uttar Pradesh
and others A.I.R. 2001 Supreme Court
3707.

10. Here in the present case,
undisputedly no opportunity of hearing
was given to the petitioner before
cancelling his registration as class 'A'
contractor and passing of an order of
blacklisting. We are therefore of the
considered opinion that before passing the
impugned order the opportunity of
hearing must have been afforded to the
petitioner as the impugned order leads to
civil consequences as this will not only
affect the petitioner's registration with
respondent no.2 but will affect his future
working with various other government
departments, which of course is the means
of livelihood of the petitioner. Hence the
impugned order cannot be sustained in the
eye of law.

11. In the result, the writ petition
succeeds and is allowed. The impugned
order
dated
23.1.2004
passed
by
respondent no.2 as annexure -5 to the writ
petition
is
hereby
quashed.
The
respondents are at liberty to proceed in
accordance with law.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2010

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Application No.5023 of 2010

Vimlesh

...Applicant
Versus
State of U.P. & another ...Opposite Party
1 All] Vimlesh V. State of U.P. and another

259
Counsel for the Applicant:
Sri Dileep Kumar Mishra

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

Code of Criminal Procedure-Section 190
(1)-against
final
report-protest
Application with affidavit filed-without
following
procedure
prescribed
in
chapter
XV-summoning
order
based
upon
extraneous
affidavit-not
sustainable.

Held: Para 12

In view of the observations made hereinabove, the impugned summoning order
cannot be sustained, as cognizance has
been taken by the learned magistrate
merely on the basis of the affidavits filed
by the complainant in support of the
protest petition against final report.
Therefore, it would be in the interest of
justice to send the case back to the court
below for passing fresh order on the
protest petition filed by the complainant
against the final report.
Case law discussed:
2001 (43) ACC 1096, 2008 (1) ACR 68,
(2001(43) ACC 1096).

(Delivered by Hon'ble Vijay Kumar Verma, J.)

1. "Whether after rejection of Final
Report cognizance can be taken on the
basis
of
the
affidavits
and
other
extraneous
material
filed
by
the
complainant in support of protest petition
without following the procedure laid
down under sections 200 and 202 of the
Code of Criminal Procedure (in short,
'the Cr.P.C.')" is the main point that falls
for consideration in this application under
section 482 Cr.P.C., by means of which
the applicant Vimlesh has invoked
inherent jurisdiction of this Court for
setting-aside the order dated 15.06.2009
passed by the Judicial Magistrate, Court
No. 1, Kanpur Dehat in Criminal Misc.
Application No. 278 of 2008 (Indra Vs.
State) arising out of case crime no. 215 of
2008 under section 436 IPC, P.S.
Rasoolabad, District Kanpur Dehat.

2. By the impugned order, the
applicant
named
above
has
been
summoned to face the trial under section
436 IPC after rejecting final report.

3. Shorn of unnecessary details, the
facts emerging from the record leading to
the filing of this application, in brief, are
that an FIR was lodged on 02.06.2008 by
the complainant Inder s/o Sri Sardar Beria
(opposite party No. 2 herein) at P.S.
Rasoolabad, District Kanpur Dehat, where
a case under section 436 IPC was
registered at crime no. 215 of 2008
against Vimlesh (applicant herein). After
investigation, final report was submitted
by the investigating officer. On getting
notice of the final report, the complainant
Inder filed protest petition, in support
whereof, certain affidavits were also filed.
The learned Magistrate vide impugned
order summoned the applicant to face the
trial after rejecting the final report. Hence,
the applicant has invoked the inherent
jurisdiction of this court to quash the
impugned summoning order.

4. I have heard Shri Dilip Kumar
Mishra, Advocate appearing for the
applicant and AGA for the State.

5. The only submission made by
learned counsel for the applicant was that
the impugned summoning order is wholly
illegal,
as
the
applicant
has
been
summoned by the learned magistrate on
the basis of the affidavits, which have
been filed by the complainant in support
of the protest petition against final report.
260 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

The contention of the learned counsel was
that cognizance under section 190 (1) (b)
Cr.P.C. on the final report can be taken
only, if there is material in the case diary
to proceed against the accused persons
and for this purpose extraneous material
like affidavits filed by the complainant
with the protest petition cannot be
considered. It was also submitted by
learned counsel that if material in the case
diary is not sufficient to take cognizance
against the accused persons and if any
protest petition has been filed by the
complainant against final report, then in
that case, the procedure laid down under
Chapter XV Cr.P.C. has to be followed by
the magistrate after treating the protest
petition
as
complaint.
For
these
submissions, reliance has been placed on
the observations made by Division Bench
of this Court in the case of Pakhando &
others vs. State of U.P. & another 2001
(43) ACC 1096.

6. The learned AGA, on the other
hand, submitted that the impugned order
does not suffer from any illegality, as on
filing of the protest petition against the
final report with affidavits, cognizance
can be taken by the magistrate under
section 190 (1) (b) Cr.P.C., if the
magistrate is satisfied that there is
sufficient ground to proceed and since in
the present case on the basis of the
affidavits filed by the complainant in
support of his protest petition against final
report, prima facie case is made out
against the applicant, hence the learned
magistrate was fully justified in taking
cognizance against the applicant.

7. Having given my thoughtful
consideration to the rival submissions
made by the learned counsel for the
parties, I find force in the submission of
the learned counsel for the applicant that
cognizance
under
section
190(1)(b)
Cr.P.C. cannot be taken on the basis of
the extraneous material like affidavits
filed in support of the protest petition
against final report and if the material in
the case diary is not sufficient for
summoning the accused person, then the
procedure laid down in Chapter XV Cr.
P.C. has to be followed by the magistrate
after treating the protest petition as
complaint, as held by the Division Bench
of this Court in Pakhando case (supra).

8. In the present case, the record
shows that certain affidavits were filed by
the complainant with his protest petition
which he has filed against final report.
The learned Magistrate on the basis of
that
protest
petition
and
affidavits
summoned the applicant to face the trial
under section 436 IPC, which in my
opinion is not permissible in law, as
cognizance
under
section
190(1)(b)
Cr.P.C. after rejecting the final report can
not be taken on the basis of the extraneous
material like affidavits, which are filed in
support of the protest petition against final
report and if the material in the case diary
is not sufficient to take cognizance and
summon the accused to face the trial, then
in such case the protest petition should be
registered
as
complaint,
taking
cognizance
under
section
190(1)(a)
Cr.P.C. and after following the procedure
laid down in Chapter XV Cr.P.C., order
under section 203 or 204 Cr.P.C. should
be passed.

9. This court has held in the case of
Mohammad Yusuf & others vs. State of
U.P. and another 2008 (1) ACR 68 that
the magistrate cannot take cognizance
under section 190 (1) (b) Cr.P.C. on the
basis of the protest petition and affidavits
1 All] Vimlesh V. State of U.P. and another

261
filed in support thereof without following
the procedure laid down under Chapter
XV Cr.P.C. the following observations
made in para 11 are worth mentioning:-

"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
impugned order is vitiated."

10. The Division Bench of this
Court in the case of Pakhando and others
Vs. State of U.P. and another (2001(43)
ACC 1096) had the occasion to consider
the matter regarding the procedure to be
adopted by the Magistrate/Court on
submission of the final report by the
police. Having taken various authorities
into
consideration,
the
following
observations have been made by the
Division Bench in para 15 of the
judgement at page 1100 of the report:-

"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."

11. As would appear from the
observations made by this Court in
Mohammad
Yusuf
case
(supra),
cognizance under section 190 (1) (b)
Cr.P.C. cannot be taken on the basis of
the affidavits filed in support of the
protest petition against final report and if
material in the case diary is not sufficient
262 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

to take cognizance, then the procedure
laid down under Chapter XV Cr.P.C.
should be followed by the magistrate after
treating the protest petition as complaint,
as held by Division Bench of this Court in
Pakhando case (supra). Therefore, in
present case also, if the material in the
case
diary
was
not
sufficient
for
summoning the accused to face the trial,
then after taking cognizance under section
190(1)(a) Cr.P.C., the protest petition
filed by the complainant against the final
report ought to have been registered as
complaint and following the procedure
laid down under section 200 and 202
Cr.P.C., the learned magistrate should
have decided whether the complaint
should be dismissed or process should be
issued. 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.

12. In view of the observations made
herein-above, the impugned summoning
order cannot be sustained, as cognizance
has been taken by the learned magistrate
merely on the basis of the affidavits filed
by the complainant in support of the
protest petition against final report.
Therefore, it would be in the interest of
justice to send the case back to the court
below for passing fresh order on the
protest petition filed by the complainant
against the final report.

13. Consequently, the application
under section 482 Cr.P.C. is allowed.
Setting aside the impugned summoning
order dated 15.06.2009 and quashing
further proceedings of Criminal Misc.
Application No. 278 of 2008 (Inder Vs.
State), pending in the court of Judicial
Magistrate, Court No. 1, Kanpur Dehat,
the learned magistrate is directed to pass
fresh order on the protest petition filed by
the complainant against final report, in
case crime No. 215 of 2008 of P.S.
Rasoolabad,
District
Kanpur
Dehat,
treating the same as complaint and
following the procedure laid down under
section 200 and 202 Cr.P.C.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 5676 of 2002

Naseem Ahmad

...Petitioner
Versus
Union of India Thru' Secy. Ministry of
Home Affairs and others ...Respondents

Counsel for the Petitioner:
Sri R.P. Tripathi
Sri Ashutosh Tripathi

Counsel for the Respondents:
Sri S.N. Srivastava/SSC,
Sri U.N. Sharma
Sri Devi Shanker Shukla
C.S.C.

Constitution of India, Art. 226-Practice &
Procedure-against the dismissal orderstatutory appeal allowed-matter send
back before disciplinary authority to
proceed further-on failure of joining on
the date fixed by authority-appellate
authority cancelled its earlier order-held-