# Rakesh and others v. State of U.P. and another

- **Citation:** (2011) 3 ILRA 1099
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-06-01
- **Bench:** S.C. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-and-others-v-state-of-u-p-and-another-42047
- **Pages:** 3

## Headnote

Code of Criminal Procedure-190 (1) (b)-
cognizance taken-on affidavit filed by
complainants-composite consideration of
case diary as well as affidavits filed by
complainant-held-not proper-could have
consider the statements of complainants
and witnesses under Section 200 and
202-summoning order-illegal-quashed

Held: Para 9

The Magistrate has not adopted any of
the courses mentioned above but has
adopted the novel method by combining
the material available in the case diary as
well as affidavits submitted by the
complainant, which was not permissible.
Therefore, the impugned orders cannot be
sustained. Learned Incharge Sessions
Judge has also not considered this aspect
of the case. Therefore, both the impugned
orders are liable to be quashed.
Case law discussed:
2001 (43) ACC 1096
1100 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

## Text

3 All Rakesh and others V State of U.P. and another
1099

5. Learned counsel for the petitioner
has relied on the decision of the Apex
Court in Sakiri Vasu Vs. State of U.P. &
others, 2008 (60) ACC 689, wherein in
para no. 24, the following has been
observed :-

"In view of the abovementioned legal
position, we are of the view that although
section 156(3) Cr.P.C. is very briefly
worded, there is an implied power in the
Magistrate under Section 156 (3) Cr.P.C.
to order registration of a criminal offence
and/or to direct the officer-in-charge of the
concerned police station to hold a proper
investigation and take all such necessary
steps that may be necessary for ensuring a
proper investigation including monitoring
the same. Even though these powers have
not been expressly mentioned in section
156 (3) Cr.P.C., we are of the opinion that
they are implied in the above provision".

6. In view of the aforesaid decision of
the Apex Court, it is obvious that it is a
duty of the Magistrate to ensure that
investigation is done impartially and in a
fair manner. When the complainant alleged
that the statements of the complainant and
the witnesses have not been recorded by
the Investigating Officer, the Magistrate
could have forwarded the affidavits filed
on behalf of the revisionist to the
Investigating Officer. The Magistrate
cannot wash his hands of the case after
passing an order under Section 156 (3)
Cr.P.C.

7. In these circumstances, the order
dated 1.6.2011 passed by the C.J.M.,
Deoria is quashed. Learned Magistrate is
directed to forward the affidavits filed by
the petitioner to the Investigating Officer
and to ensure fair investigation. The
petitioner may also approach the Higher
Police Authorities for redressal of his
grievance.

8. With these directions, the writ
petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2011

BEFORE
THE HON'BLE S.C. AGARWAL,J.

Criminal Misc. Writ Petition No. - 17483 of
2011

Rakesh and others
 ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri G.S. Karatiya

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-190 (1) (b)-
cognizance taken-on affidavit filed by
complainants-composite consideration of
case diary as well as affidavits filed by
complainant-held-not proper-could have
consider the statements of complainants
and witnesses under Section 200 and
202-summoning order-illegal-quashed

Held: Para 9

The Magistrate has not adopted any of
the courses mentioned above but has
adopted the novel method by combining
the material available in the case diary as
well as affidavits submitted by the
complainant, which was not permissible.
Therefore, the impugned orders cannot be
sustained. Learned Incharge Sessions
Judge has also not considered this aspect
of the case. Therefore, both the impugned
orders are liable to be quashed.
Case law discussed:
2001 (43) ACC 1096
1100 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Delivered by Hon'ble S.C. Agarwal,J.)

1. Heard learned counsel for the
petitioners and learned AGA for the State.

2. No notice is issued to private
respondent in view of the order proposed
to be passed today, however, liberty is
reserved for private respondent to apply
for variation or modification of this order
if he feels so aggrieved.

3. This writ petition has been filed
with a prayer to quash the order dated
16.7.2011 passed by Addl. Chief Judicial
Magistrate, Court No. 5, Moradabad in
Case No. 27/12/11, Km. Suman Vs.
Rakesh and order dated 9.8.2011 passed
by learned Sessions Judge in Criminal
Revision No. Nil of 2011, Rakesh &
others vs. Km. Suman and State of U.P.,
P.S. Baniather, District- Moradabad.

4. In crime no. 196 of 2010, under
Section 376 (g) IPC, P.S. baniyather,
police
submitted
final
report.
The
complainant
filed
protest
petition.
Learned
A.C.J.M.
Court
No.
5,
Moradabad, after considering the material
available on record in the case diary and
also on the basis of affidavits of witnesses
submitted by the complainant, took
cognizance and summoned the petitioners
to face trial under Section 376 (g) IPC.

5.

Learned
counsel
for
the
petitioners submitted that while taking
cognizance under Section 190 (1) (b), the
Magistrate could not have taken into
consideration the affidavits filed by the
complainant.

6. I agree with the submissions
advanced by learned counsel for the
petitioners.

7. The Division Bench of this Court
in Pakhando & others Vs. State of U.P.
& another, 2001 (43) ACC 1096 has
held that :-

(1) 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

(2) 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

(3)
he
may
order
further
investigation, if he is satisfied that the
investigation was made in a perfunctory
manner ; or

(4) he may, without issuing process
or dropping the proceedings decide to
take cognizance under Section 190 (1) (a)
upon the original complaint or pretest
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. It is, therefore, clear that the
Magistrate could have taken cognizance
under Section 190 (1) (b) Cr.P.C. if there
was sufficient material in the case diary
but affidavits of the witnesses filed by the
complainant cannot be considered at this
stage. Learned Magistrate has also found
that the Investigating Officer has not
recorded the statements of the witnesses
3 All Kalla @ Jitendra V State of U.P.
1101
mentioned by the complainant. If the
Magistrate was of the opinion that
investigation was not done in a proper
manner, then the Magistrate could have
directed the Investigating Officer to
conduct the further investigation or the
Magistrate could have treated the protest
petition as a complaint and after recording
the statements of complainant and the
witnesses under Sections 200 and 202
Cr.P.C., the Magistrate could have taken
cognizance under Section 190 (1) (a)
Cr.P.C.

9. The Magistrate has not adopted
any of the courses mentioned above but
has adopted the novel method by
combining the material available in the
case diary as well as affidavits submitted
by the complainant, which was not
permissible. Therefore, the impugned
orders cannot be sustained. Learned
Incharge Sessions Judge has also not
considered this aspect of the case.
Therefore, both the impugned orders are
liable to be quashed.

10. The writ petition is allowed. The
impugned orders dated 16.7.2011 and
9.8.2011 are quashed. The matter is
remanded to the Magistrate concerned to
take afresh decision in light of decision in
the case of Pakhandu (Supra) after giving
an
opportunity
of
hearing
to
the
complainant.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.09.2011

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 20472 of 2011

Kalla @ Jitendra

 ...Petitioner
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri V.P. Srivastava
Sri Bharat Bhushan Paul

Counsel for the Respondents:
Sri Satish Mishra
Sri Anil Kumar Shukla
A.G.A.

Code of Criminal Procedure-Section 439Bail Application offence under section
363, 366, 302, 504, 506 IPC-deceased 15
years old girl residing at house of
applicant-killed by applicant and coaccused-to give color of suicide hanged
with
scarf-in
postmortem-four
anti
mortem injury found-considering gravity
of case not entitled for bail.

Held: Para 6

Considering facts and circumstances of
the case submission made by the learned
counsel
for
the
applicants,
learned
A.G.A., counsel for the complainant and
from the perusal of the record, it appears
that the F.I.R. under Sections 363, 366
IPC were lodged against the applicant
and
other
co-accused
persons.
The
deceased was aged about 15 or 16 year
old, she was kidnapped, she was residing
at the house of the applicant but she has
been killed by the applicant and coaccused. According to post mortem
examination report, she had sustained
four ante mortem injuries. The cause of
death was due to strangulation. To give
the colour of suicide, her dead body was