# /Revisionist v. State of U.P.and others

- **Citation:** (2011) 1 ILRA 160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-25
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-and-others-41818
- **Pages:** 5

## Headnote

order
passed
by
Magistrate-offence
under
Section 219, 342 IPC-being satisfied by
Advocate Commissioner's report to verify
allegations regarding wrongful detention
under
Police
Lock
Up-set-a-side
by
Session Judge taking very technical
ground- No such provision in Cr.P.C. To
take cognigence can such report-held
not proper-by appointing Commission
the Magistrate simply collected the
materials to verify the truth-view taken
by Session Judge-not tenable.

Held: Para 10

It appears that the learned Magistrate
while
deputing
an
Advocate
Commissioner for verifying truth of the
allegations, had merely acted to collect
relevant evidence in support of the
allegations made by the revisionist No.3.
in her applications. As such the decision
of the learned Magistrate in appointing
the aforesaid Advocate as Commissioner
was perfectly correct, therefore, the
observations of the learned Sessions
Judge are not tenable in law.

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

## Text

160 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
benefit is confined to payment of ex gratia
amount in lump sum to the tune of
Rs.2,50,000/-(Two Lacs fifty thousand only)
which shall be paid to the petitioner within a
period of three months from today. In the
event of failure in payment of compensation
within three months, the petitioner shall be
entitled for payment of interest at the rate of
8% with effect from November 1994. The
amount shall be paid through cross bank
draft.

11. The writ petition is allowed
accordingly.

12. Mr. P.K. Sinha, learned counsel for
the petitioner shall inform the corporation
accordingly.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Revision No. - 1409 of 2001

Ram Vilash Chauhan and others

 ...Applicants/Revisionist
Versus
State of U.P.and others

 ...Opposite Parties.

Counsel for the Revisionists:
Sri C.K. Parekh

Counsel for the Opposite Parties:
G.A.

Criminal
Revision-Summoning
order
passed
by
Magistrate-offence
under
Section 219, 342 IPC-being satisfied by
Advocate Commissioner's report to verify
allegations regarding wrongful detention
under
Police
Lock
Up-set-a-side
by
Session Judge taking very technical
ground- No such provision in Cr.P.C. To
take cognigence can such report-held
not proper-by appointing Commission
the Magistrate simply collected the
materials to verify the truth-view taken
by Session Judge-not tenable.

Held: Para 10

It appears that the learned Magistrate
while
deputing
an
Advocate
Commissioner for verifying truth of the
allegations, had merely acted to collect
relevant evidence in support of the
allegations made by the revisionist No.3.
in her applications. As such the decision
of the learned Magistrate in appointing
the aforesaid Advocate as Commissioner
was perfectly correct, therefore, the
observations of the learned Sessions
Judge are not tenable in law.

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

1. Heard Mr. C.K. Parekh for the
revisionists and learned A.G.A. for the
respondents and perused the record.

2. The respondent No.3 Ram Bali
Yadav, Sub-Inspector, has filed counter
affidavit on behalf of all the respondents
and is represented through the learned
A.G.A. Therefore, it is not necessary to
hear respondent No.3 personally.

3. By this revision, the revisionists
have challenged the impugned judgment
and order dated 10.05.2001 rendered by
the Sessions Judge, Chandauli in Criminal
Revision NO. 40 of 2001, Ram Bali
Yadav Vs. State, whereby the learned
Sessions Judge quashed the order dated
27.03.2009 passed by Mr. Manoj Kumar
Shukla, Judicial Magistrate/Civil Judge
(Jr. Div.), Chandauli on the application
dated 26.03.2001 moved on behalf of the
revisionist No.3.
1 All] Ram Vilash Chauhan and others V. State of U.P. and others
161

4. Mr. C.K. Parekh submitted that
rervisionist No.3 Smt. Shakuntala Devi
moved an application on 26.03.2001 in
Case Crime No. 33/2001 of P.S. Chakia,
District Chandauli with the allegations
that the revisionist No.1 Ram Vilash
Chauhan and one Madhav had been taken
into custody from their houses by the
police of police station Chakia on
25.03.2001 and had been kept in the lock
up of the police station. The Magistrate
was requested to call for a report from the
concerned police station. In pursuance of
the order of the Magistrate, the police of
police station Chakia submitted its report
dated 27.03.2001 to the effect that the
aforesaid Ram Vilash Chauhan and
Girdhar Chauhan (revisionist Nos. 1 and
2) were accused in the aforesaid crime
no.33/2001 and requested the Court to
take them into custody. The revisionist
No.3 moved another application dated
27.03.2001 informing the Magistrate that
her husband (Ram Vilash Chauhan) and
father-in-law (Madhav) had been taken
into custody on 25.03.2001 at about 12
noon form their houses and had been
detained illegally in the lock up of the
police station. Therefore, she requested
that an Advocate Commissioner may be
appointed to verify the allegations made
in the application. Accordingly, the
learned Magistrate appointed one Mr.
Bachhan Singh, Senior Advocate, and
required him to visit to the police station
and
submit
report
regarding
the
allegations made in the application. Mr.
Bachhan Singh visited the police station
Chakia and after verifying the facts
submitted his report dated 27.03.2001
(Annexure No.6). According to the report
of Mr. Bachhan Singh, on 27.03.2001 at
about 1:10 PM the aforesaid Ram Vilash
Chauhan and Girdhar Chauhan were
found in the police lock up of the
aforesaid police station.

5. Keeping in view the report
submitted
by
Mr.
Bachhan
Singh,
Advocate, the learned Magistrate took the
cognizance of the matter in exercise of his
power under section190(1)(c) of the Code
of
Criminal
Procedure
(hereinafter
referred to as the 'Code') and issued
process to the respondent No.3 in regard
to the offences under sections 219 and
342 I.P.C. as the learned Magistrate was
of the view that due to illegal detention of
the aforesaid two persons in the police
lock up and registration of a false case
against them, the offences under sections
219 and 342 I.P.C were made out against
the respondent No.3. The respondent No.3
preferred the aforesaid Criminal revision
in the Court of the learned Sessions
Judge, who allowed the revision and set
aside the order of the Magistrate. The
learned Sessions Judge was of the view
that
there
was
no
provision
for
appointment
of
an
Advocate
Commissioner for verifying the facts
stated in the application dated 26.03.2001.
Therefore, the order passed by the learned
Magistrate was not proper.

6. Mr. C.K.Parekh further submitted
that when the Magistrate received the
information that the revisionist No.1 and
his father had been illegally arrested by
the
police
from
their
houses
on
25.03.2001
and
had
been
illegally
detained in the police lock up, it was open
to the Magistrate to take cognizance of
the matter and to appoint an advocate or
any other person for verifying the facts
stated in the application. Therefore, the
learned Sessions Judge was not justified
in allowing the revision on that technical
ground.
Mr.
C.K.
Parekh
further
162 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
submitted that in fact the Case Crime No.
33/2001 had been cooked up by the police
against the revisionist No. 1 and his father
and other accused by way of creating a
defence against the illegal detention of the
revisionist No.1 and his father. Therefore,
the order passed by the learned Magistrate
was perfectly correct and the learned
Sessions Judge was not justified in
quashing the same. Mr. C.K. Parekh lastly
submitted that a Single Judge of this
Court (Hon'ble R.K. Das, J) took note of
the illegal detention of the revisionist
No.1 and his father and passed the order
dated 24.04.2001 in petition No. 1962 of
2001 (Annexure No.15) and directed the
Chief Judicial Magistrate, Chandauli to
decide the bail prayer as expeditiously as
possible. Therefore, the allegations made
by the revisionist No.3 in her application
dated 26.03.2001 were not in anyway
baseless.

7. Learned A.G.A., instead of
supporting the reasoning adopted by the
learned Sessions Judge submitted that the
summoning order was passed by the
learned Magistrate without collecting
adequate materials, therefore, the matter
has to go back to the learned Magistrate
for
collecting
relevant
materials
in
support of the allegations.

8. Section 190 of the Code provides
as to how cognizance of the offences is to
taken by the Magistrates. Relevant of
portion of Section190 of Code may be
reproduced as follows:-

"190. Cognizance of offences by
Magistrates.

(1) Subject to the provisions of this
Chapter, any Magistrate of the first
class, specially empowered in this behalf
under sub- section (2), may take
cognizance of any offence-

(a) Upon receiving a complaint of
facts which constitute such offence;

(b) Upon a police report of such
facts;

(c) Upon information received from
any person other than a police officer, or
upon his own knowledge, that such
offence has been committed.

2) The Chief Judicial Magistrate
may empower any Magistrate of the
second class to take cognizance under
sub-section (1) of such offences as are
within his competence to inquire into or
try."

9. A perusal of the aforesaid
provisions
clearly
reveals
that
the
Magistrate may take cognizance of any
offence by adopting any of the aforesaid
three modes. He has power to take
cognizance of any offence on a complaint
containing facts constituting the offence.
He has power to take cognizance on a
police report of such facts. Apart from
complaint
and
police
report,
the
Magistrate has further power to take
cognizance of an offence under section
190(1)(c) of the Code upon information
received from any person other than a
police officer or upon his own knowledge
that such offence has been committed.
Therefore, the Magistrate has wide power
under section 190(1)(c) of the Code to
take cognizance of any offence on any
information may be written or oral or
even on his own knowledge regarding
commission of the offence. In this view of
the
matter,
the
application
dated
26.03.2001 and 27.03.2001 moved by the
1 All] Ram Vilash Chauhan and others V. State of U.P. and others
163
revisionist No. 3 were nothing except an
information given to the Magistrate
regarding commission of the offences
under sections 219 and 342 I.P.C by the
respondent No. 3. Therefore, the learned
Magistrate was fully justified in taking
cognizance of the offences under section
219 and 342 I.P.C. on such information
under section 190(1)(c) of the Code and
to that extent the order of the learned
Magistrate was not only perfectly correct
but was also within the ambit of section
190(1)(c) of the Code.

10. So far as passing of the
summoning order is concerned, the
provisions of section 204 of the Code
ought to have been kept in mind.
Therefore, before passing a summoning
order, the Magistrate has to see whether
or not there is sufficient ground for
proceeding with the matter.. If the
Magistrate is of the opinion that there is
sufficient ground to proceed with the
matter, it is open to him to pass the
summoning order under section 204 of the
Code. In order to decide the question
whether or not there is sufficient ground
to proceed with the matter, the Magistrate
has to consider the materials (evidence)
placed in support of the information
received by him. Therefore, before
passing the summoning order, it was
obligatory on the learned Magistrate to
hold an inquiry for finding out truth in the
allegations made by the revisionist No.3
and the relevant materials in support of
such allegations. Therefore, passing of the
summoning
order
without
obtaining
relevant materials in support of the
information, was not proper. So far as the
relevancy of the report of the Advocate
Commissioner is concerned it cannot be
contended that it had no relevancy. The
Advocate
Commissioner
visited
the
concerned police station on 27.03.2001
and found that revisionist Nos.1 and 2 and
father of the revisionist No.1 were in the
police lock up and reported that fact to the
Magistrate. In this way, the aforesaid
Advocate
Commissioner
was
an
important witness of the alleged detention
of the aforesaid persons in the police lock
up. As such the view of the learned
Sessions Judge that the report of the
learned Advocate Commissioner was
irrelevant, does not appear to be correct.
What was required from the learned
Magistrate before acting upon the report
of the Advocate Commissioner, was to
record the statement of the Advocate
Commissioner and to find out prima facie
truth in such report. Without doing so, the
learned Magistrate was not justified in
placing reliance on the report of the
Advocate Commissioner and passing the
summoning order. The report of the
Advocate Commissioner being a material
piece of evidence of the case could not be
discarded on the ground that there was no
provision for appointment of an Advocate
Commissioner. It appears that the learned
Magistrate while deputing an Advocate
Commissioner for verifying truth of the
allegations, had merely acted to collect
relevant evidence in support of the
allegations made by the revisionist No.3.
in her applications. As such the decision
of the learned Magistrate in appointing
the aforesaid Advocate as Commissioner
was perfectly correct, therefore, the
observations of the learned Sessions
Judge are not tenable in law.

11. For the reasons discussed above,
the revision is allowed and revisional
court's order dated 10.05.2001 is quashed.
The summoning order passed by the
learned Magistrate is also quashed.
However, the learned Magistrate is
164 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
directed to hold an inquiry and collect
relevant materials in support of the
applications
dated
26.03.2001
and
27.03.2001 moved by the revisionist No.3
and pass appropriate order afresh in
accordance with law.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.02.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE VEDPAL, J.

Criminal Misc. Case No. 1788 (C) of 2010

State of U.P.

 ...Petitioner
Versus.
Resident Editor, Times of India and
others.

 ...Opposite Parties

Counsel for the Petitioner:
Govt. Advocate

Counsel for the Respondents:
Sri Ramji Das
Sri Vishnu Pad Das
Sri Z.Zilani

Contempts
of
Court
Act-Section
2Criminal Contempt-on suo moto-new
item published in Times of India dated
18.08.2010-regarding
Babri
Masjid
Dispute-interview of Mohd. Hasmi the
plaintiff-by
Ms.
Manjari
MishraLanguage-"I want a proof that India is
Secular
Country
(a
Jamhuriyat)
(Democracy on people's Rule) "Let the
Judges proof it now"---------------------
Black Day in History"-from affidavit of
Contemnor's
clear
beyond
doubt
whatsoever ever stated by Mohd. Ansariaccurately the same was publishedcontempt made out-considering growing
age as well as unconditional apology in
view of law laid down by Apex Court in
Harjai Singh case-with warning to be
conscious in future-apology acceptedfurther proceeding dropped.

Held: Para-26

In Re: Harijai Singh & Anr. [(1996) 6 SCC
466] a similar case had come before
Hon'ble Supreme Court wherein the
Editors, Publisher, and Reporters of
newspaper were held guilty of contempt
of court but all of them had tendered
unconditional apology. The Apex Court
had
accepted
unconditional
apology
tendered by media personnels. In the
present
case
Mohd.
Hashim
Ansari,
interviewee is an old man and is about
90 years of age and he has also tendered
unconditional apology. He should also be
treated alike the media personnels. In
view of above, the apology tendered by
all of them should be accepted with a
warning that each of them should be
careful in future.
Case law discussed:
AIR 2005 SC 2473; [AIR 1954 SC 10]; [1993
Supp. (4) SCC 446]; [(1996) 6 SCC 510];
[(1996) 6 SCC 466]

(Delivered by Hon'ble Rajiv Sharma, J. )

1. These proceedings for contempt of
Court have been initiated by this Court suo
motu on the basis of the news item,
published in the Times of India dated
18.8.2010 with the caption " AYODHYA,
MEMORIES
OF
A
DISPUTED
LIFTTIME" to which the attention of the
Court was invited by certain members of
the Bar.

2. Brief facts leading to these
proceedings for contempt of Court are that
Ram Janma Bhoomi Babri Masjid Title
Suit, being O. S. No.4 of 1989 was
pending before this Court for adjudication
wherein one Sri Mohd. Hashim Ansari was
plaintiff No.7. Sri Mohd. Hashim Ansari
was interviewed by Ms. Manjari Mishra,
Reporter of Times News Network and was
photographed by Sri Ajay Singh. The said
interview was published in Times of India