# Prabhakar Pandey Revisionist v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 1088
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-09
- **Case number:** Civil Misc. Application No.48 of 2019
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhakar-pandey-revisionist-v-state-of-u-p-ors-48630
- **Pages:** 5

## Headnote

Law

-
Code
of
Criminal
Procedure, 1973 - Magistrate rejected the
final report and cognizance order was passedRevisional court quash cognizance order- on the
plea of alibi raised by accused raised on the
basis of affidavits-Plea of alibi must not be
looked at the stage of investigation and inquiryexamined during the Trial at the stage of
defence-impugned order not sustainable-

Revision allowed. (E-9)
6 All. Prabhakar Pandey Vs. State of U.P. & Ors.
1089
List of Cases cited:

## Text

1088 INDIAN LAW REPORTS ALLAHABAD SERIES
time, as the orders of the Special
Commissioner have been challenged.

This report is, accordingly, submitted
to bring on record the position with regard
to the disposal of the claims filed before the
Special Commissioner."

18. Thereafter, on account of death of
Sri Justice R.A. Sharma, by order of the
Division Bench this Court Sri Justice
R.R.K. Trivedi (Retd.) was appointed as a
Special Commissioner on 06.08.2013 to
carry out the orders of Hon'ble Court. A lot
of amount has been collected which are
kept in three bank accounts and details of
which have been given by Sri Justice
R.R.K. Trivedi (Retd.) in his application
dated June 10, 2020. The amounts is
available in the bank in the form of FDRs.
are about 1.25 crores.

9. The facts as briefly noted above
clearly indicates that such steps have
already been taken which are irreversible.
Therefore, in terms of the provisions of
Section 434 (c) of the Companies Act, 2013
read with Rule 5 of the Transfers Rules,
2016, the transfer applications in question
filed by the applicants/respondent no.12
deserve to be rejected.

20. In the case of Action Ispat and
Power Private Limited Vs. Shyam
Metalics and Energey Limited (2021) 2
SCC 641 (para 14 to 26) Hon'ble Supreme
Court considered the provisions of Section
434(c) of the Companies Act, 2013 and the
Transfer Rules 2016 and held that transfer
of petition pending in High Court to NCLT
can be made when no irreversible steps
towards winding up of the Company have
otherwise taken place. Therefore, even in
view of the law laid down by Hon'ble
Supreme Court the present company
petition need not to be transferred to the
NCLT.

21. For all the reasons aforestated, the
Civil Misc. Application No.48 of 2019
dated 09.09.2019, Civil Misc. Application
No. 49 of 2019 dated 30.11.2019 and Civil
Misc. Application No.52 of 2020 dated
30.07.2020,
filed
by
the
applicants/
respondent No.12 are hereby rejected.

22. The matter is released and be
listed on 25.03.2022 before the appropriate
court.
----------
(2022)06ILR A1088
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 2341 of 2001

Prabhakar Pandey ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Shashank Shekhar Singh, Sri Anil
Bhushan, Sri Siddharth Kumar Mishra

Counsel for the Opposite Parties:
Govt. Advocate

Criminal
Law

-
Code
of
Criminal
Procedure, 1973 - Magistrate rejected the
final report and cognizance order was passedRevisional court quash cognizance order- on the
plea of alibi raised by accused raised on the
basis of affidavits-Plea of alibi must not be
looked at the stage of investigation and inquiryexamined during the Trial at the stage of
defence-impugned order not sustainable-

Revision allowed. (E-9)
6 All. Prabhakar Pandey Vs. State of U.P. & Ors.
1089
List of Cases cited:

1. Gangadhar Janardan Mhatre Vs St. of Mah. &
ors. 2004 (7) SCC 768,

2. Pakhando & ors. Vs St. of U.P. reported in
2001 SCC Online All 967

3. Mohammad Yusuf Vs St. of U.P. 2007 (9) ADJ
294
(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Anil Bhushan, learned
senior counsel assisted by Sri Siddharth
kumar Mishra, learned counsel for the
revisionist and Sri Suresh Bahadur Singh,
learned A.G.A. for the State-opposite party
No.1. Even in the revised list none
appeared on behalf of the opposite party
nos.2 to 4 nor any counter affidavit has
been filed on their behalf, this court
proceed to hear the matter finally.

2. This revision is directed against the
order dated 26.07.2001 passed by learned
District and Sessions Judge, Kannauj by
which he has accepted the final report
submitted by the Investigating Officer and
set aside the order dated 25.04.2001 passed
by the Judicial Magistrate, Chhibramau by
which he has summoned the opposite party
no.2 under Section 379 I.P.C.

3. The brief facts of the present case
is that the revisionist has constructed a
house in the property in dispute and also
there are 32 trees of Mango and one tree of
Neem. On 06.09.2000 respondent No.2
along with some unsocial elements has
broken the lock of the house of the
revisionist and took possession on the same
and also take away the goods of Rs. 8000/-.
The revisionist tried to lodge F.I.R. by
approaching the concerned Police Station
and by sending Fax message to the
Superintendent of Police, but no F.I.R. has
not been lodged. Thereafter, revisionist
filed an application under Section 156 (3)
Cr.P.C. before the Judicial Magistrate on
02.12.2000 and on the application of the
revisionist on the same day the Judicial
Magistrate, First Class has passed an order
directing the Police Station of concerned
Police to lodge an F.I.R. and inform the
Court. Pursuant to the order passed by the
Judicial Magistrate an F.I.R. has been
lodged by the police on 07.12.2000, under
Sections 147, 504, 506, 427, 448, 379
I.P.C. and the same was registered as Case
Crime No. 454 of 2000 and after
investigation the Investigating Officer in a
mechanical manner submitted final report
in favour of the opposite party no.2 without
considering the evidence on record.

The
revisionist
has
again
approached to the Police Authority for
again re-investigation and also filed protest
petition before the Judicial Magistrate and
on the protest petition of the revisionist the
learned
Magistrate
vide
order
dated
25.04.2001 have issued summons to the
opposite party no.2 under Section 379
I.P.C.

4. Feeling aggrieved by the order
dated 25.04.2001 the opposite party no.2
filed a criminal revision before the learned
District and Sessions Judge, Kannauj and
the revisional court vide impugned order
dated 26.07.2021 set aside the summoning
order dated 25.04.2001 and also accepted
the final report without considering the
evidence on record.

5. After hearing the learned counsel
for the revisionist and learned A.G.A. for
the State and on perusal of the record it
reveals that the F.I.R. was registered by the
revisionist against opposite party no. 2
under Sections 147, 504, 506, 427, 448,
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
379 I.P.C. and after investigating final
report was submitted by the Investigating
Officer in a mechanical manner. Thereafter,
the learned Magistrate after considering the
protest petition and perusing the record
summoned the accused under Section 379
Cr.P.C. vide order dated 25.04.2001,
expressing his judicial power.

6. In Gangadhar Janardan Mhatre
vs. State of Maharashtra and others 2004
(7) SCC 768, the Court reiterating above
view said as under:

"The Magistrate can ignore the
conclusion arrived at by the Investigating
Officer and independently apply his mind
to the facts emerging from the investigation
and take cognizance of the case, if he
thinks fit, exercise of his powers under
Section 109(1)(b) and direct the issue of
process to the accused."
 (emphasis added)"

7. In Pakhando and others Vs. State
of U.P. reported in 2001 SCC Online All
967 a Division Bench of this Court after
considering Section 190 Cr.P.C. has held
that if upon investigation Police comes to
conclusion that there was no sufficient
evidence or any reasonable ground of
suspicion to justify forwarding of accused
for trial and submits final report for
dropping proceedings, Magistrate shall
have following four courses and may adopt
any one of them:

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

(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 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(I)(b)
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.

8. 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
6 All. Prabhakar Pandey Vs. State of U.P. & Ors.
1091
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." (emphasis added).

9. In the instant case, after submission
of final report under Section 173 Cr.P.C.
against opposite party no. 2, the learned
Magistrate after considering the protest
petition rejected the final report and arrived
at conclusion that case is made out against
opposite party under Sections 379 I.P.C.
and cognizance order was also passed on
25.04.2001
and
summoned
the
accused/opposite party. Contention of the
counsel for the revisionist is perfectly
correct that the Magistrate has power
straightway
disagreeing
with
the
conclusion arrived at by the Investigating
Officer. Being aggrieved with the order
dated 25.04.2001, opposite party No.2 filed
revision in the court of District and
Sessions Judge, Kannau. Sessions Court
considered the plea of alibi of the accused
only on the basis of affidavit submitted by
opposite party and quash the order of
cognizance passed by Magistrate against
the opposite party under Sections 379
I.P.C. vide order dated 26.07.2001 and
accepted the final report submitted by
investigating officer. Revisional Sessions
Court has allowed the revision of opposite
party no.2 on the basis of plea of alibi filed
on affidavit of witness. But it is a settled
principal of law that plea of alibi must not
be looked at the stage of investigation and
inquiry. Plea of alibi of accused shall be
examined only during the trial at the stage
of defence. Order of learned Revisional
Sessions Court is totally based on plea of
alibi of accused-oppposite parties on the
basis of affidavit submitted by witness
before the Sessions Court. So the order of
the lower revisional court is not sustainable
in the eyes of law. On exercising the
revisional power, learned Sessions Court
cannot
quash
the
cognizance
and
summoning
order
passed
by
the
Magistrate, in exercising its revisional
power, jurisdiction of Sessions Court is
very limited and the Sessions Court can
only examine the illegality, irregularity
and impropriety of the order passed by
the Magistrate. If the Sessions Court find
any
illegality,
irregularity
or
jurisdictional error then Sessions Court
cannot quash the proceedings but the
revisional court have only power to issue
direction by pointing out the error
regarding the order passed by the
Magistrate. Therefore, order of learned
Sessions Court, is wholly erroneous and
against the set principles of law.

10. In view of the aforesaid
discussion this Court is of the view the
present revision of revisionist is liable to be
allowed and the order dated 26.07.2001
passed by learned District and Session
Judge, Kannauj is hereby quashed.

11. The District and Session Judge,
Kannauj is directed to pass a fresh order in
accordance with law in view of the
observation of this Court after hearing the
aggrieved parties.

12. Accordingly, the revision is
allowed.
1092 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The office is directed to transmit
back the lower court record, if any, with a
copy of the judgment and order of this
Court before the court below for its
compliance.
----------
(2022)06ILR A1092
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision Defective No. 273 of 2016

Laxman Prasad ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Anurag Pathak, Sti Rajesh Kumar
Pandey

Counsel for the Opposite Parties:
Govt. Advocate, Sri Shri Prakash Dwivedi

Limitation Act - Section 5-Revision filed
after delay of 756 days -no sufficient causecomplete
careless
and
reckless-virtually
unexplained-Application
and
revision
dismissed. (E-9)

List of Cases cited:

1. Collector, Land Acquisition Vs Katiji, 1987(2)
SCC 107

2. P.K. Ramachandran Vs St. of Kerala, AIR 1998
SC 2276

3. Shakuntala Devi Jain Vs Kuntal Kumari, AIR
1969 SC 575

4. Brij Indar Singh Vs Kanshi Ram ILR (1918) 45
Cal 94

5. St. of Nagaland Vs Lipok AO & ors., AIR 2005
SC 2191

6. Vedabai @ Vaijayanatabai Baburao Vs
Shantaram Baburao Patil & ors., JT 2001(5) SC
608

7. Pundlik Jalam Patil (dead) by LRS. Vs
Executive Engineer, Jalgaon Medium Project &
anr. (2008) 17 SCC 448

8.
Maniben
Devraj
Shah
Vs
Municipal
Corporation of Brihan Mumbai, 2012 (5) SCC
157
(Delivered by Hon'ble Shamim Ahmed, J.)

(Criminal Misc. Delay Condonation
Application No. 135146 of 2016)

1. This revision has been filed
challenging the judgment and order dated
21.10.2015 passed by Principal Judge,
Family Court, Mirzapur in Misc. Case No.
39 of 2014, by which application of
revisionist filed under Section 126(2)
Cr.P.C. was rejected, which was preferred
by the revisionist against the judgment and
order dated 01.01.2014 passed by Principal
Judge, Family Court, Mirzapur in Misc.
Case No. 102 of 2013, Smt. Meera Devi
Vs. Laxman Prasad, whereby the court
below has allowed the application undr
Section 125 Cr.P.C. moved on behalf of
wife (opposite party No. 2 herein) and
directed the revisionist to pay maintenance
allowance to his wife at the rate of Rs.
5,000/- per month from the date of
application and remaining balance amount
be paid in four equal installments in every
three months within a period of one year.

2. Heard learned counsel for the
revisionist and learned counsel for the
opposite party no.2 and learned A.G.A. for
the State.

3. This revision is barred by limitation
and has been filed with a delay of 756 days.