# Ram Ayodhya and others v. State of U.P. and another

- **Citation:** (2011) 3 ILRA 1203
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-10-02
- **Case number:** Criminal Misc. Application No. 18183 of 2011
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-ayodhya-and-others-v-state-of-u-p-and-another-42065
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 190
(a) (b)-Power of Magistrate-if Magistrate
not satisfied with investigation officers
report-can direct for re-investigation on
treat
the
Protest
application
as
complainant case-but can not proceed to
summon on extraneous material with
protest application-not the part and
partial
of
investigation
report-heldsummoning order not sustainable.

Held: Para 9

I have perused the impugned order. The
learned Magistrate was of the view that
the statements of the complainant and
1204 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
witnesses were not recorded correctly.
He has referred to various documents in
the impugned order on which basis the
summoning order has been passed and
those documents were filed along with
the
protest
petition,
therefore,
the
summoning order was passed on the
basis
of
extraneous
materials
not
forming part of the case diary. As such it
can not be upheld. The proper course for
the Magistrate was to see as to whether
the
materials
collected
during
the
investigation had made out any case
against the petitioners or not. If the
materials so collected had not made out
any case against the accused and were
sufficient to proceed with the matter, the
proper course for the Magistrate was to
treat the protest petition as complaint
and proceed therewith under Chapter XV
of the Code. The summoning order,
which is based on extraneous materials
filed along with the protest petition and
having no support from the materials
collected during the investigation, can
not be sustained.
Case law discussed:
AIR 1968 SC 117; AIR 1995 SC 231; AIR 2008
SC 207; AIR 1989 S.C. 885; AIR 1980 S.C.
1883; [(2006) 4 SCC 359]; [(2006) 7 SCC
296]; [(2004) 7 SCC 768]

## Text

3 All] Ram Ayodhya and others V. State of U.P. and another
1203
well as learned Standing counsel for
opposite parties no. 1 and 3 only.

2. Issue notice to opposite parties
no. 2, 4, 6 and 7.

3. The petitioner was selected for the
post of 'Shiksha Mitra' in the session
2005-06. She has completed her training
during 2005. The petitioner is discharging
her duties to the satisfaction of the
opposite parties. On 02.10.2010, the
petitioner has submitted an application for
maternity leave. She gave birth to baby
child on 16.10.2010 at Nazreth Hospital,
Allahabad and thereafter she was on leave
until 02.12.2010. It has been further
submitted that she came back to school
for joining and submitted application
before opposite party no. 6, in turn he has
directed opposite party no. 7 for allowing
the petitioner to join her services. Despite,
application the opposite parties have not
allowed the petitioner to join her services.

4. Learned counsel for the petitioner
has drawn the attention of this Court in
paragraph 4 of the Government Order
dated 15.06.2007, as contained annexure6 to the writ petition. The maternity leave
has been sanctioned to 'Shiksha Mitra'
even otherwise the maternity leave is a
right under Article 21 of the Constitution
of India.

5. The lady has a right to live with
dignity and to perform all the duties. As a
mother, she has the fundamental right to
live with dignity is a basic norms to the
petitioner. Such norms cannot be flouted
by the opposite parties in the manner that
they are not allowing the petitioner to join
her service.

6. Learned counsel for the petitioner
prays for and is granted three weeks' time
to file rejoinder-affidavit.

7. Meanwhile, the opposite parties
are directed to allow the petitioner to join
the duties immediately and pay the
honorarium as she was getting prior to
proceeding on leave.

8. List this case after four weeks.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI,J.

Criminal Misc. Application No. 18183 of 2011

Ram Ayodhya and others
...Applicants
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri S.K. Dubey
Sri V.N. Pandey

Counsel for the Respondents:
Govt. Advocate
Sri B.K. Mishra

Code of Criminal Procedure-Section 190
(a) (b)-Power of Magistrate-if Magistrate
not satisfied with investigation officers
report-can direct for re-investigation on
treat
the
Protest
application
as
complainant case-but can not proceed to
summon on extraneous material with
protest application-not the part and
partial
of
investigation
report-heldsummoning order not sustainable.

Held: Para 9

I have perused the impugned order. The
learned Magistrate was of the view that
the statements of the complainant and
1204 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
witnesses were not recorded correctly.
He has referred to various documents in
the impugned order on which basis the
summoning order has been passed and
those documents were filed along with
the
protest
petition,
therefore,
the
summoning order was passed on the
basis
of
extraneous
materials
not
forming part of the case diary. As such it
can not be upheld. The proper course for
the Magistrate was to see as to whether
the
materials
collected
during
the
investigation had made out any case
against the petitioners or not. If the
materials so collected had not made out
any case against the accused and were
sufficient to proceed with the matter, the
proper course for the Magistrate was to
treat the protest petition as complaint
and proceed therewith under Chapter XV
of the Code. The summoning order,
which is based on extraneous materials
filed along with the protest petition and
having no support from the materials
collected during the investigation, can
not be sustained.
Case law discussed:
AIR 1968 SC 117; AIR 1995 SC 231; AIR 2008
SC 207; AIR 1989 S.C. 885; AIR 1980 S.C.
1883; [(2006) 4 SCC 359]; [(2006) 7 SCC
296]; [(2004) 7 SCC 768]

(Delivered by Hon'ble Shri Kant Tripathi,J. )

1. Heard Mr. S.K. Dubey for the
petitioners, Mr. B.K. Mishra for the
respondent no.2 and learned AGA for the
respondent no.1 and perused the record.

2. This is a petition under section
482 of the Code of Criminal Procedure (in
short 'the Code') for quashing the
summoning order dated 30.4.2011 passed
by
the
Additional
Chief
Judicial
Magistrate, Kasaya, district Kushi Nagar
in the case crime no. 599 of 2010 under
section 395 IPC, police station Sevarahi,
district Kushi Nagar.

3. It appears that in the aforesaid
matter the investigating officer submitted
a final report. The respondent no.2 filed a
protest petition against the final report and
submitted that neither his statement nor
statements of his witnesses were recorded
during
the
investigation,
therefore,
submission of the final report was
unjustified. The learned Additional Chief
Judicial Magistrate perused the final
report as well as the protest petition and
other materials filed along with the protest
petition and passed the summoning order
dated 30.4.2011 holding that prima facie a
case under sections 323, 504, 506 and 395
IPC was made against the petitioners,
who are eighteen in number.

4. Mr. S.K. Dubey submitted that
the summoning order has been passed on
the basis of the materials supplied by the
respondent no.2 along with the protest
petition and there was no evidence at all
in the case diary to make out a case
against the petitioners, therefore, the
summoning order, being based on the
materials filed along with the protest
petition, was not proper. The proper
course for the Magistrate was to treat the
protest petition as complaint and to
proceed therewith under Chapter XV of
the Code. He could take the cognizance
only on the basis of the materials, if any,
collected during the investigation and not
otherwise.

5. Mr. B.K. Mishra, on the other
hand, submitted that the investigating
officer had not done the investigation in a
fair manner. Despite there being adequate
evidence,
the
investigating
officer
submitted a final report, therefore, the
materials produced along with the protest
petition could be taken into consideration
3 All] Ram Ayodhya and others V. State of U.P. and another
1205
by the Magistrate while passing the
summoning order.

6. The law with regard to the power
of the Magistrate to agree or not to agree
with the police report is well settled. In
my opinion, the Magistrate is not bound
by the conclusion of the Investigating
Officer. He is competent under law to
form his own independent opinion on the
basis of the materials collected during the
investigation. The Magistrate may or may
not agree with the conclusion of the
Investigating Officer. If the Investigating
Officer submits charge sheet, in that
eventuality the Magistrate may differ
from the charge sheet and refuse to take
cognizance by holding that no case is
made out. In a case where the final report
is submitted the Magistrate may on
perusal of the materials placed in support
of the final report opine that the
conclusion of the Investigating Officer is
not correct and the offence is made out. In
that eventuality, the Magistrate may reject
the final report and take cognizance of the
offence.
In
appropriate
cases,
the
Magistrate, after rejecting the final report
may direct for further investigation/reinvestigation. This preposition has been
settled by the Hon'ble Apex Court in
catena of cases and some of the them are
as follows:

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

2. State of Maharashtra vs Sharad
Chandra Vinayak Dongra & others AIR
1995 SC 231,

3. Sanjay Bansal vs Jawahar Lal
Vats AIR 2008 SC 207,

4. M/s India Carat Private Ltd v
State of Karnataka & another AIR 1989
S.C. 885,

5. H.S. Bains vs State AIR 1980
S.C. 1883,

6. Minu Kumari vs. State of Bihar
[(2006) 4 SCC 359],

7.
Popular Muthiah vs.
State
[(2006) 7 SCC 296],

8.Gangadhar Janardan Mhatre vs.
State of Maharashtra [(2004) 7 SCC
768].

7. The law in regard to the protest
petition is also well settled. If any protest
petition is filed against the final report,
the Magistrate may proceed to examine
the matter on the basis of materials
collected during the investigation and to
see whether or not any case for taking
cognizance of the offence is made out
from the materials collected during the
investigation. If a prima facie case is
made out, the Magistrate may take
cognizance of the offence under section
190 (1) (b) of Code and reject the final
report. But if such materials do not make
out any case for taking cognizance of the
offence, the Magistrate may, in that
situation, treat the protest petition as
complaint. If any protest petition is
treated as complaint, it should be dealt
with in accordance with Chapter XV of
Code.

8. It is also equally well settled that
at the stage of taking cognizance of an
offence, the Magistrate is not required to
examine thoroughly the merits and
demerits of the case and to record a final
verdict. At that stage he is not required to
1206 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
record even reasons, as expression of
reasons in support of the cognizance may
result in causing prejudice to the rights of
the parties (complainant or accused) and
may also in due course result in
prejudicing the trial. However, the order
of the Magistrate must reflect that he has
applied his mind to the facts of the case.
In other words at the stage of taking
cognizance what is required from the
Magistrate is to apply his mind to the
facts of the case including the evidence
collected during the investigation and to
see whether or not there is sufficient
ground (prima facie case) to proceed with
the case. The law does not require the
Magistrate to record reasons for taking
cognizance of an offence.

9. I have perused the impugned
order. The learned Magistrate was of the
view
that
the
statements
of
the
complainant and witnesses were not
recorded correctly. He has referred to
various documents in the impugned order
on which basis the summoning order has
been passed and those documents were
filed along with the protest petition,
therefore, the summoning order was
passed on the basis of extraneous
materials not forming part of the case
diary. As such it can not be upheld. The
proper course for the Magistrate was to
see as to whether the materials collected
during the investigation had made out any
case against the petitioners or not. If the
materials so collected had not made out
any case against the accused and were
sufficient to proceed with the matter, the
proper course for the Magistrate was to
treat the protest petition as complaint and
proceed therewith under Chapter XV of
the Code. The summoning order, which is
based on extraneous materials filed along
with the protest petition and having no
support from the materials collected
during the investigation, can not be
sustained.

10. The petition is allowed. The
impugned
order
is
quashed.
The
Magistrate is directed to reconsider the
matter in accordance with law.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2011

BEFORE
THE HON'BLE RAKESH TIWARI,J.
THE HON'BLE VIJAY PRAKASH PATHAK,J.

Criminal Misc. Writ Petition No. - 18290 of 2011

Smt. Sonam Pandey and others

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Gaurav Kumar Shukla

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Article
226Quashing of FIR-offence under Section
363, 366 IPC-Petitioners are major living
as husband-wife-petition disposed of
with direction-no arrest till submission
of charge sheet U/S 173.

Held: Para 10

The law has to extend protection in the
manner and no harm befalls due to
wrath of the parents who have either
married in their own caste or out side
the caste. Now the society has changed
with the need and time. It is accepting
not only inter-caste marriage but also
live-in-relationship. FIRs. are being used
as weapon by the parents to satisfy their
ego and provide show case in the society
that
they
do
not
accept
such