# Ram Shiromani Pandey & Anr v. Manoj Tiwari @ Manoj Brahmchari & Anr

- **Citation:** (2024) 9 ILRA 959
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-24
- **Case number:** Matter Under Article 227 No. 4278 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shiromani-pandey-anr-v-manoj-tiwari-manoj-brahmchari-anr-52553
- **Pages:** 9

## Headnote

Civil Law - The Constitution of India,
1950-Article
227-The
Code
of
Civil
Procedure, 1908-Sections 91 & 92 - The
Religious Endowments Act, 1863-Section
2- Admission is a matter between the plaintiff
and the Court and the defendants have no right
to oppose admission of a suit- Suit under
Section 92 C.P.C. can be filed in the case of any
alleged breach of any express or constructive
trust created for public purposes of a charitable
or religious nature- Court cannot refuse to admit
the suit only because of absence of a trustdeed- Suit under Section 92 C.P.C. and Section
2 of the Religious Endowments Act, 1863 in the
St. of Uttar Pradesh can only be filed in the
Court of the Principal Civil Court of original
jurisdiction, that is the Court of the District
Judge, and not in any other Court-Liberty
granted to file a fresh suit in the Principal Civil
Court of original jurisdiction in the District, i.e.
the Court of the District Judge. (Para 14, 16,
29 & 33)

Petition allowed. (E-15)

List of Cases cited:

## Text

9 All. Ram Shiromani Pandey & Anr. Vs. Manoj Tiwari @ Manoj Brahmchari & Anr.
959
given on lease to the petitioner under an
oral agreement, the entire leased premises
was always treated as a single tenement and
a single rent was payable for the entire
tenanted premises. Therefore, the facts of
the present case are entirely different from
the facts of Idandas (Supra) and the
principle laid down in Idandas case will not
apply to the facts of the present case.

24. In Paul Rubber Industries
(P) Ltd. v. Amit Chand Mitra: 2023 SCC
OnLine SC 1216, the Hon'ble Supreme
Court referred to a precedent on the point
and held that: -

"In
the
case
of G.
Mackertich v. Steuart
and
Co.
Ltd. [(1971) 3 SCC 39], it has been
held that burden of proving that the
lease was
for
manufacturing
purpose lies on the party who
claims it to be so. In the present
appeal, it would have been for the
defendant (appellant before us) to
discharge this burden, as held by
the High Court. In the case
of Shivaji
Balaram
Haibatti v. Avinash
Maruthi
Pawar [(2018) 11 SCC 652] as
also in a judgment of the Calcutta
High Court in the case of Shree
Nursing Timber Works and Shree
Nursing Electric Stores v. Sm. Amala
Bala Dassi [1973 CWN 522], it has
been held that on this ground, there
must be pleading supported by
evidence to prove that the lease was
for manufacturing purpose."

25. There is neither any pleading
nor any evidence in the present case that
the terms or oral lease agreement were
different from those of the lease agreement
dated 30.07.1980. Therefore, the petitioner
has failed to discharge his burden to prove
that his tenancy was an year-to-year
tenancy.

26. There is nothing on record to
substantiate the contentions of the learned
counsel for the petitioner that the rent was
payable in respect of the tenanted premises
on an yearly basis. Even if rent was paid on
yearly basis on some occasions, it would not
make the lease an yearly lease.

27. In view of the foregoing
discussions, this Court finds itself unable to
accept the contention of learned counsel for
the petitioner that the petitioner was holding
the premises in question under an yearly lease
and it could not have been terminated by a 30
days' notice.

28. There appears no illegality in the
impugned orders passed by the Judge Small
Causes Court and the Revisional Court
warranting any interference by this Court in
exercise of its supervisory jurisdiction under
Article 227 of the Constitution of India.

29. Accordingly, the petition lacks
merit and is dismissed at the admission
stage.
----------
(2024) 9 ILRA 959
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 4278 of 2024

Ram Shiromani Pandey & Anr.
 ...Petitioners
Versus
Manoj Tiwari @ Manoj Brahmchari & Anr.
 ...Respondents
960 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Saurabh Srivastava, Girish Chandra Sinha

Counsel for the Respondents:
--

Civil Law - The Constitution of India,
1950-Article
227-The
Code
of
Civil
Procedure, 1908-Sections 91 & 92 - The
Religious Endowments Act, 1863-Section
2- Admission is a matter between the plaintiff
and the Court and the defendants have no right
to oppose admission of a suit- Suit under
Section 92 C.P.C. can be filed in the case of any
alleged breach of any express or constructive
trust created for public purposes of a charitable
or religious nature- Court cannot refuse to admit
the suit only because of absence of a trustdeed- Suit under Section 92 C.P.C. and Section
2 of the Religious Endowments Act, 1863 in the
St. of Uttar Pradesh can only be filed in the
Court of the Principal Civil Court of original
jurisdiction, that is the Court of the District
Judge, and not in any other Court-Liberty
granted to file a fresh suit in the Principal Civil
Court of original jurisdiction in the District, i.e.
the Court of the District Judge. (Para 14, 16,
29 & 33)

Petition allowed. (E-15)

List of Cases cited:

1. Janki Prasad Vs Kuber Singh: AIR 1963 All
187 = 1962 SCC OnLine All 174

2. Muhammad Ali Khan Vs Ahmad Ali Khan: AIR
1945 All 261

3. Vinod Kumar Vs DM, Mau: AIR 2023 SC 3335
= 2023 SCC OnLine SC 787

4. Gangadeen Vs Kanhaiya Lal, AIR 1972 All 355

5. Sita Ram Das & ors. Vs Ram Chandra Arora &
ors.: 1988 (14) ALR 86 = 1988 AWC 124 All

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Girish Chandra Sinha
Advocate, the learned Counsel for the
petitioner and Sri Hemant Kumar Pandey,
the learned Standing Counsel for the State
of U.P.

2. By means of the instant petition
filed under Article 227 of the Constitution
of India, the petitioners have challenged
validity of an order dated 13.08.2024
passed by the learned Civil Judge (Senior
Division), Pratapgarh in Miscellaneous
Case No.160 of 2024, whereby a suit for
declaration and perpetual injunction filed
under Sections 91 and 92 CPC has been
dismissed at the admission stage as not
maintainable.

3. The plaintiffs - petitioners filed
the aforesaid suit against (1) Manoj Tiwari
and (2) 'The Public-at-Large', praying that
'Sachcha Baba Ashram' situated at village
Barachha,
Majra
Ranjeetpur
Chilbila,
Tahsil Sadar, District Pratapgarh, be
declared
to
be
a
Religious
Public
Endowment, a Committee be formed and
Rules be framed for its management. The
petitioners pleaded that Late Mahabir
Pandey, the father of the plaintif no. 1, was
instrumental in setting up the Ashram,
whose Grand-father Late Ganga Prasad
Pandey had given his land for stay of saints
and pilgrims. A saint who was commonly
called as 'Mauni Baba' came around the
year 1948 and stayed there for quite a long
period. Mauni Baba had several disciples,
including one Smt. Shanti Davi daughter of
Ram Naresh Singh, who was a resident of a
neighboring village Narayanpur. After
death of Mauni Baba, his Samadhi was
made near his Kuti (Hut), which is called
Sachcha Baba Ashram. Accepting a request
made by Smt. Shanti Devi, Sri. Mahabir
Pandey had executed an Izazatnama
(Licence deed) dated 24.05.1958 permitting
use of his bhumidhari land bearing Gata
No. 1330 measuring 11 Biswa, alongwith a
well, kuti and other constructions. Smt.
9 All. Ram Shiromani Pandey & Anr. Vs. Manoj Tiwari @ Manoj Brahmchari & Anr.
961
Shanti Devi died in the year 1993 and the
Ashram
became
uncared
for
and
abandoned. After the plaintiff no. 1 retired
from Government Service, he constructed a
temple from the year 2003 to 2014 after
donating his land adjacent to the land of
Sachcha Ashram and he appointed the
defendant no. 1 Manoj Tiwari as a salaried
priest in the temple. Later on Manoj Tiwari
unauthorizedly constructed a residence for
himself and he indulges in activities not
commensurate with the position of a priest.

4. Admission is a matter between
the plaintiff and the Court and the
defendants have no right to oppose
admission of a suit, yet the Civil Judge
entertained objections of the defendants at
the admission stage of the suit.

5. The opposite party no.1 stated in
his objections that the plaintiff is neither
the trustee nor a beneficiary of the trust
and, therefore, he cannot file a suit under
Section 92 of the Civil Procedure Code as
no cause of action has accrued to him and
he has no locus standi. It was further stated
in the objections that the Civil Court has no
jurisdiction over the suit.

6. The defendant no.2 impleaded
in the suit was 'The Public-at-Large', and a
copy of the plaint was served to the District
Government Counsel on behalf of the
Public-at-Large.
The
learned
District
Government Counsel filed objections on
behalf of the State government stating that
the State Government and Nagarpalika,
Belha had not been made parties to the suit
and the suit suffered from non-joinder of
necessary parties.

7. The trial Court recorded that the
plaintiff has filed the suit for a decree of
declaration and perpetual injunction but
neither he has filed any trust-deed nor does
the plaint disclose the identity of the
trustees or the Manager of the trust. No
Bye-laws/Rules of the trust have been filed
and there is no pleading regarding any
public charities being administered by the
property in dispute. Therefore, the Civil
Judge came to a conclusion that the relief
sought by the plaintiff does not fall within
the purview of Sections 91 and 92 C.P.C.
and dismissed the suit as not maintainable
at the admission stage.

8. As the suit has been dismissed at
the admission stage and the defendants
have no right to be heard at this stage, this
petition is being decided finally without
issuing notice to the private opposite party,
who has been arrayed as the defendant no.
1 in the plaint.

9. Assailing the validity of the
aforesaid order, the learned counsel for the
petitioner has submitted that a suit for
administration of any temple/religious
institution can be filed by any worshipper
under Sections 14 and 15 of the Religious
Endowments Act and existence of any
trust-deed is not essential for admission of
the suit.

10. The learned counsel for the
petitioner has submitted that Sachcha
Ashram exists on the land which had been
donated by the petitioner's father and the
petitioner being amongst the founders of
the Ashram and its worshippers are entitled
to file the suit.

11. Sub-sections (1) and (2) of
Section 92 C.P.C., as it applies to the State
of U.P., provide as follows :-

"92. Public charities.-(1)
In the case of any alleged breach of
962 INDIAN LAW REPORTS ALLAHABAD SERIES
any express or constructive trust
created for public purposes of a
charitable or religious nature, or
where the direction of the Court is
deemed
necessary
for
the
administration of any such trust,
the Advocate-General, or two or
more persons having an interest in
the trust and having obtained
the leave
of
the
Court,
may
institute
a
suit,
whether
contentious or not, in the principal
Civil Court of original jurisdiction
or in any other Court empowered
in that behalf by the State
Government within the local limits
of whose jurisdiction the whole or
any part of the subject-matter of the
trust is situate to obtain a decree-
(a) removing any trustee;
(b)
appointing
a
new
trustee;
(bb)
for
delivery
of
possession of any trust property
against a person who has ceased to
be trustee or has been removed.
(c) vesting any property in
a trustee;
(cc) directing a trustee
who has been removed or a person
who has ceased to be a trustee, to
deliver possession of any trust
property in his possession to the
person entitled to the possession of
such property;
(d) directing accounts and
inquiries;
(e)
declaring
what
proportion of the trust property or
of the interest therein shall be
allocated to any particular object
of the trust;
(f) authorising the whole or
any part of the trust property to be
let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further
or other relief as the nature of the
case may require.
(2) Save as provided by
the Religious
Endowments
Act,
1863 (20 of 1863), or by any
corresponding law in force in the
territories
which,
immediately
before the 1st November, 1956,
were comprised in Part B States, no
suit claiming any of the reliefs
specified in sub-section (1) shall be
instituted in respect of any such
trust as is therein referred to except
in conformity with the provisions of
that sub-section.
(3)..."
(Emphasis added)

12. Section 2 of the Religious
Endowments Act,
1863
contains
the
definition clause, which contains a solitary
definition of the phrase 'Civil Court'. It
provides that: -

"In this Act, the words
"Civil
Court"
and
"Court"
shall save as provided in Section 10
mean
the
principal
Court
of
original civil jurisdiction in the
district in which or any other Court
empowered in that behalf by the
State Government within the local
limits of the jurisdiction of which
the mosque, temple or religious
establishment is situate, relating to
which, or
to
the
endowment
whereof, any suit shall be instituted
or application made under the
provisions of this Act."

13.

The
phrase
'Religious
endowments' is not defined in the Religious
9 All. Ram Shiromani Pandey & Anr. Vs. Manoj Tiwari @ Manoj Brahmchari & Anr.
963
Endowments Act, 1863. Section 14, 15 and
18 of the Act of 1863 are also relevant for
the present dispute, which provide that: -

"14.
Persons
interested
may singly sue in case of breach
of trust, etc.-Any person or
persons interested in any mosque,
temple or religious establishment,
or in the performance of the
worship or of the service thereof, or
the trusts relating thereto, may,
without joining as plaintiff any of
the
other
persons
interested
therein, sue before the Civil Court
the
trustee,
manager
or
superintendent of such mosque,
temple or religious establishment
or the member of any committee
appointed under this Act, for any
misfeasance, breach of trust or
neglect of duty, committed by such
trustee, manager, superintendent or
member of such committee, in
respect of this trusts vested in, or
confided to, them respectively;
Powers of Civil Court.-
and the Civil Court may direct the
specific performance of any act by
such
trustee,
manager,
superintendent or member of a
committee,
and may decree damages
and costs against such trustee,
manager,
superintendent
or
member of a committee,
and may also direct the
removal of such trustee, manager,
superintendent or member of a
committee.
15. Nature of interest
entitling
person
to
sue.-The
interest required in order to entitle
a person to sue under the last
preceding section need not be a
pecuniary,
or
a
direct
or
immediate, interest or such an
interest as would entitle the person
suing to take any part in the
management or superintendence of
the trusts.
Any person having a right
of attendance, or having been in
the habit of attending, at the
performance of the worship or
service of any mosque, temple or
religious
establishment,
or
of
partaking in the benefit of any
distribution of alms, shall be
deemed to be a person interested
within the meaning of the last
preceding section.
* * *
18. Application for leave to
institute suits.-No suit shall be
entertained under this Act without
a preliminary application being
first made to the Court for leave to
institute such suit.
The Court, on the perusal
of the application, shall determine
whether there are sufficient prima
facie grounds for the institution of
a suit, and, if in the judgment of the
Court there are such grounds, leave
shall be given for its institution.
Costs.-If the Court shall
be of opinion that the suit has been
for the benefit of the trust, and that
no party to the suit is in fault, the
Court may order the costs or such
portion as it may consider just to
be paid out of the estate."

14. A combined reading of the
aforesaid statutory provisions makes it
manifest that a Suit under Section 92 C.P.C.
can be filed in the case of any alleged
breach of any express or constructive trust
created for public purposes of a charitable
964 INDIAN LAW REPORTS ALLAHABAD SERIES
or religious nature. The section includes
constructive trusts created for public
purposes of a religious nature also.

15. In Janki Prasad v. Kuber
Singh: AIR 1963 All 187 = 1962 SCC
OnLine All 174, this Court held that: -

"8. ...The mere absence of
a
written
document
or
mere
absence of the entries is not a
conclusive
proof
of
the
nonexistence of a trust. A valid trust
may be created not only by means
of a written document but also
orally but what is required in the
case of oral trust is that the
property must have been treated to
be an endowed property and it must
have been used towards charitable
and religious purposes for which
the trust was created."

16. Therefore, the Court cannot
refuse to admit the suit only because of
absence of a trust-deed. The section
includes any alleged breach of any
constructive
trust
created
for
public
purposes of a religious nature and,
therefore, admission of the suit cannot be
denied on the ground of absence of
charitable purpose, if the plaintiff claims
that the constructive trust has been created
for religious purposes.

17. Therefore, this Court is of the
considered view that the learned trial Court
has committed a patent illegality in
dismissing the suit at the admission stage
for the reasons that the plaintiff has not
filed any trust-deed, the plaint does not
disclose the identity of the trustees or the
Manager of the trust, no Bye-laws/Rules of
the trust have been filed and there is no
pleading regarding public charities being
administered by the property in dispute and
the relief sought by the plaintiff does not
fall within the purview of Sections 91 and
92 C.P.C.

18. However, the suit could not
have been admitted by the Civil Judge for a
different reason. Section 92 C.P.C. and
Section 2 of the Religious Endowments
Act, 1863 provide that a suit under this
provision can be filed "in the Principal
Civil Court of original jurisdiction or in any
other Court empowered in that behalf by
the State Government", which phrase does
not include a "Civil Judge".

19. Section 3 (17) of the General
Clauses Act provides as under:-

"District
Judge"
shall
mean the Judge of a Principal Civil
Court of Original Jurisdiction, but
shall not include a High Court in
the exercise of its ordinary or
extraordinary
original
civil
jurisdiction."

20. Section 2 (4) of C.P.C. provides
that: -

"(4) "district" means the
local limits of the jurisdiction of a
principal Civil Court of original
jurisdiction (hereinafter called a
"District Court"), and includes the
local limits of the ordinary original
civil jurisdiction of a High Court"

21. Section 3 of the Bengal, Agra
and Assam Civil Courts Act, 1887 provides
for the following classes of Courts: -

"3. Classes of Courts.-
There shall be the following classes
9 All. Ram Shiromani Pandey & Anr. Vs. Manoj Tiwari @ Manoj Brahmchari & Anr.
965
of Civil Courts under this Act,
namely:-
(1) the Court of the District
Judge;
(2)
the
Court
of
the
Additional Judge;
(3)
the
Court
of
the
Subordinate Judge; and
(4)
the
Court
of
the
Munsif."

22. Section 18 of the aforesaid Act
of 1887 provides that: -

"18. Extent of original
jurisdiction
of
District
or
Subordinate
Judge.-Save
as
otherwise
provided
by
any
enactment for the time being in
force, the jurisdiction of a District
Judge
or
Subordinate
Judge
extends, subject to the provisions of
Section 15 of the Code of Civil
Procedure, to all original suits for
the time being cognizable by Civil
Courts."

23. In Muhammad Ali Khan
versus Ahmad Ali Khan: AIR 1945 All
261, a Full Bench of this Court had held
that the decisions of various High Courts in
India appear to establish that the District
Judge as a principal civil court of original
jurisdiction has power of nominating
a mutwalli upon an application, in a
summary manner, but the removal of
a mutwalli can only be done by means of a
suit properly instituted in the civil court. If
the waqf be of a public, religious or
charitable nature the suit would lie either
under sections 14 and 18 of the Religious
Endowments-Act of 1863 or under section
92 of the Civil Procedure Code. If,
however, the waqf be of a private nature,
e.g. a waqf alal-aulad, the proper remedy
would appear to be a regular civil suit
under the general provisions of section 9 of
the Civil Procedure Code.

24. In Vinod Kumar versus DM,
Mau: AIR 2023 SC 3335 = 2023 SCC
OnLine SC 787, while considering the
provisions of Section 3-H (4) of the
 National Highways Authority Act, 1956
which provides that: "(4) If any dispute
arises as to the apportionment of the
amount or any part thereof or to any
person to whom the same or any part
thereof is payable, the competent authority
shall refer the dispute to the decision of the
principal civil court of original jurisdiction
within the limits of whose jurisdiction the
land is situated." The Hon'ble Supreme
Court held that:

"We are of the view that
when it comes to resolving the
dispute relating to apportionment
of the amount determined towards
compensation,
it
is
only
the
Principal Civil Court of original
jurisdiction which can do so.
Principal Civil Court means the
Court of the District Judge."

25.

In
Gangadeen
versus
Kanhaiya Lal, AIR 1972 All 355, this
Court has held that the phrase "Principal
Civil Court of original jurisdiction" used in
Section 92 C.P.C. and Section 2 of the
Religious Endowments Act, 1863, will
include
the
District
Judge
and
the
Additional District Judges and the same
view has been reiterated in Ashok Kumar
Jain versus Gaurav Jain: (2018) 140 RD
579.

26. There is no room to doubt that
the Court of the District Judge is the
Principal Court in the District and it has
966 INDIAN LAW REPORTS ALLAHABAD SERIES
original jurisdiction. Therefore, the Court
of District Judge is the Principal Civil
Court of original jurisdiction. Judicial
powers of an Additional District Judge are
the same as that of a District Judge and,
therefore, the District Judge can transfer a
suit filed before him in the capacity of 'the
Principal
Civil
Court
of
original
jurisdiction' to an Additional District Judge.
A Civil Judge is not the Principal Civil
Court of original jurisdiction and has no
jurisdiction to entertain a suit under Section
92 C.P.C. or Section 2 of the Religious
Endowments Act, 1863 as 'the Principal
Civil Court of original jurisdiction'.

27. Apart from 'the Principal Civil
Court of original jurisdiction' a suit under
Section 92 C.P.C. and Section 2 of the
Religious Endowments Act, 1863 can also
be filed 'in any other Court empowered in
that behalf by the State Government'.

28. In spite of the hearing of the
case having been adjourned to enable the
learned Counsel for the petitioner and the
learned Standing Counsel to inform the
Court as to whether the State Government
has empowered the Civil Judge or any
other Court to entertain suits under Section
92 C.P.C. and Section 2 of the Religious
Endowments Act, 1863, they could not
place any material showing that any Court,
other than the Principal Civil Court of
original jurisdiction has been empowered
by the State Government to entertain such
suits.

29. Therefore, this Court is of
considered view that a Suit under Section
92 C.P.C. and Section 2 of the Religious
Endowments Act, 1863 in the State of Uttar
Pradesh can only be filed in the Court of
the Principal Civil Court of original
jurisdiction, that is the Court of the District
Judge, and not in any other Court. The
District Judge can decide the Suit himself
or he may transfer it to an Additional
District Judge.

30. As per the provisions contained
in Section 92 C.P.C. and Section 18 of the
Religious Endowments Act, 1863, a suit as
aforesaid can only be filed in the Principal
Civil Court of original jurisdiction after
seeking leave of the Court.

31. In Sita Ram Das and Ors. Vs.
Ram Chandra Arora and Ors.: 1988 (14)
ALR 86 = 1988 AWC 124 All, this Court
held that: -

"There can not be any
doubt that when the court grants
leave the same is in a judicial
proceeding and the order passed by
the District Judge is a judicial
order. However, while granting
leave the rights of the parties are
not adjudicated and at this stage
the court has merely to see whether
there is a prima facie case that
should be allowed to be filed. By
giving consent the court does not
affect the rights of the parties
against whom the suit is filed as
after granting of the leave the
parties will have an opportunity to
present their case before the Court
in which the suit is filed. As at the
time of granting the leave the
District Judge will have to see only
a prima facie case the conclusion
of the District Judge will in no way
affect
or
influence
the
final
decision which will be given in the
suit after the parties had led
evidence. So far as Section 92 Code
of Civil Procedure is concerned, it
does not contemplate of giving any
9 All. Dr. Rajesh Singh & Anr. Vs. State of U.P. & Anr.
967
notice to the proposed defendants
before granting the leave."I

32. In view of the foregoing
discussion, this Court is of the considered
view that the reasons given by the Civil
Judge has no jurisdiction to entertain a suit
filed under Section 92 C.P.C. or under the
provisions of the Religious Endowment
Act, 1863 and, therefore, the observations
made by the Civil Judge in the impugned
order
dated
13.08.2024
are
without
jurisdiction.

33. Accordingly, the petition is
allowed. The observations made by the
Civil Judge regarding admissibility of the
suit
in
the
impugned
order
dated
13.08.2024 passed in Miscellaneous Case
No.160 of 2024 having been made without
jurisdiction, are set aside. The petitioner is
granted a liberty to file a fresh suit in the
Principal
Civil
Court
of
original
jurisdiction in the District, i.e. the Court of
the District Judge, Pratapgarh, after seeking
leave of the Court and the District Judge
shall proceed with the same in accordance
with the law, keeping in view the
observations made in this order. It is
clarified that any observation made in this
order will not affect the decision of the
merits of the claims of rival parties.
----------
(2024) 9 ILRA 967
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482 No. 600 of 2020

Dr. Rajesh Singh & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Ajeet Kumar Singh, Vijendra Kumar Rai

Counsel for the Respondents:
Bhagwan Singh Yadav, G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 173 - Summoning -
After receipt of the police report u/s 173,
the Magistrate has three options: (1) he
may decide that there are no sufficient
grounds for proceeding further and drop
action; (2) he may take cognizance of the
offence u/s 190(1)(b) on the basis of the
police report and issue process; this he
may do without being bound in any
manner by the conclusions arrived at by
the police in their report; (3) he may take
cognizance of the offence u/s 190(1)(a)
on the basis of the original complaint and
proceed
to
examine
upon
oath
the
complainant and his witnesses U/s 200. If
he adopts the third alternative, he may
hold or direct an inquiry under Section
202 if he thinks fit. Thereafter, he may
dismiss the complaint or issue process, as
the case may be - Even in a case where
the final report of the police U/s 173 is
accepted and the accused persons are
discharged, the Magistrate has the power
to take cognizance of the offence on a
complaint or a Protest Petition based on
the same or similar allegations, even after
the acceptance of the final report -
Reasons: To take cognizance and summon
after a final report requires reasons, either
to accept it or reject it, and to take
cognizance and summon, or instead to
direct further investigation or treat it as a
complainant case.

B.
In
this
case,
the
Chief
Judicial
Magistrate has not provided substantial
reasons for rejecting the outcome of the
final report. The reasons for rejecting the
entire investigation, which was conducted
by the police and the Special Investigation
Team,
along
with
the
Scientific
Investigation,
were
missing
in
the
impugned
order.
The
Chief
Judicial
Magistrate
pointed
out
various