# Revisionist v. State of U.P and others 600 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

- **Citation:** (2008) 2 ILRA 599
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-22
- **Case number:** Criminal Revision No. 3431 of 2007
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-and-others-600-indian-law-reports-allahabad-series-41026
- **Pages:** 5

## Headnote

Code of Criminal Procedure-397-Offence
under Section 409/504/506 I.P.C.-final
report
submitted-Magistrate
after
hearing
informant-summoned
the
accused
persons
to
face
the
trailchallenged
before
High
Courtsummoning
order
set-a
side
with
direction to pass fresh order on protest
application-Magistrate
again
by
impugned order rejected the application
due to want of material-held-magistrate
ought
to
have
treated
the
protest
application as complaint case-by giving
opportunity to the complainant to lead
evidence-order of Magistrate without
following procedures under chapter XV
of the Code held unsustainable.

Held: Para 8 & 9
In
the
instant
case,
the
revisionist/complainant has already filed
objections against final report which
have been rejected by the learned
magistrate vide impugned order dated
13.08.2007
without
following
the
procedure laid down in Chapter XV
Cr.P.C. as directed by the learned lower
Revisional Court in its judgment dated
07.10.2006 passed in Crl. Revision No.
27 of 2006.

Consequently, the revision is partly
allowed. The impugned order dated
13.08.2007 rejecting the objections of
the complainant against final report is
set aside and the case is sent back to the
court of judicial magistrate Rampur with
the
direction
to
decide
the
objections/protest
petition
of
the
complainant afresh, treating the same as
complaint and following the procedure
laid down in Chapter XV Cr.P.C.
Case law discussed:
(2001(43) ACC 1096), (2001(43) ACC 1096),
(2003 (46) ACC 182 (S.C.)

## Text

2 All] Shahid V. State of U.P.
599
of 490 gram charas comes 3 and 1⁄2
years-appellant already undergone 3
years
9
month
R.I.
with
fine
of
Rs.30,000/-held-entitled for releasedAppeal allowed.

(Delivered by Hon'ble Barkat Ali Zaidi, J.)

1. Appellant-accused Shahid has
been convicted in S.S.T. No. 73 of 2004,
under Section 20 (B)(ii)(b) of The
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 (hereinafter referred
to as N.D.P.S. Act) by Addl. Sessions
Judge,
Fast
Track
Court
No.
1,
Saharanpur by judgment and order dated
18.6.2005 and sentenced to 6 year R.I.
and a fine of Rs.30,000/-, in default,
further imprisonment for one year.

2. He has sent this appeal from jail.

3. Heard Sri Shiv Shanker Yadav,
Amicus Curiae for the appellant and Sri
Sanjay
Sharma,
Addl.
Government
Advocate for the State.

4. The counsel for the accusedappellant has confined his arguments on
the question of sentence only.

5. It will be seen that the sentence
for small quantity of smack provided
under the 'Act' is maximum 6 months an
a fine of Rs.10,000/-. The proper course
to determine the quantity would be to
enhance the sentence in proposition to the
quantity recovered in excess of the small
quantity. To explain the proposition,
further if 200 gms. Charas is recovered,
the sentence should be similarly enhanced
to one year from 6 months and so on.

6.

In
accordance
with
the
calculation, the sentence which the
accused deserves, on basis of recovery of
490 gms. Charas comes, to two and a half
year Rigorous imprisonment and a fine of
Rs.50,000/-

7. The accused has been awarded a
fine of Rs.30,000/- and the sentence in
default of payment of fine, would come to
seven and a half month because the
sentence in default of payment of fine to
be 1/4th of the substantial sentence.
Accused has, therefore, to undergo speven
and a half month imprisonment, in default
of payment of fine.

8. Calculating in this manner, the
total, sentence which has to be awarded to
the accused comes to two and a half year
plus seven and a half month, which comes
to three year and one and a half month.

9.

The
accused
has
already
undergone a sentence of three year, nine
months and twenty days in jail. He is,
therefore, entitled to be released now.

10. The appeal is accordingly
allowed, and the accused shall now be
released.

11. The fee of the Amicus Curiae Sri
Shiv Shanker Yadav is fixed at rupees
five thousand. Appeal Allowed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.05.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Revision No. 3431 of 2007

Daya Ram

...Revisionist
Versus
State of U.P and others ...Respondents
600 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Counsel for the Revisionist:
Sri M.B. Mathur

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-397-Offence
under Section 409/504/506 I.P.C.-final
report
submitted-Magistrate
after
hearing
informant-summoned
the
accused
persons
to
face
the
trailchallenged
before
High
Courtsummoning
order
set-a
side
with
direction to pass fresh order on protest
application-Magistrate
again
by
impugned order rejected the application
due to want of material-held-magistrate
ought
to
have
treated
the
protest
application as complaint case-by giving
opportunity to the complainant to lead
evidence-order of Magistrate without
following procedures under chapter XV
of the Code held unsustainable.

Held: Para 8 & 9
In
the
instant
case,
the
revisionist/complainant has already filed
objections against final report which
have been rejected by the learned
magistrate vide impugned order dated
13.08.2007
without
following
the
procedure laid down in Chapter XV
Cr.P.C. as directed by the learned lower
Revisional Court in its judgment dated
07.10.2006 passed in Crl. Revision No.
27 of 2006.

Consequently, the revision is partly
allowed. The impugned order dated
13.08.2007 rejecting the objections of
the complainant against final report is
set aside and the case is sent back to the
court of judicial magistrate Rampur with
the
direction
to
decide
the
objections/protest
petition
of
the
complainant afresh, treating the same as
complaint and following the procedure
laid down in Chapter XV Cr.P.C.
Case law discussed:
(2001(43) ACC 1096), (2001(43) ACC 1096),
(2003 (46) ACC 182 (S.C.)

(Delivered by Hon'ble Vijay Kumar Verma, J.)

1. Challenge in this revision
preferred under section 397 of the Code
of Criminal Procedure (in short the
'Cr.P.C.') is to the order dated 13.08.2007,
passed by Sri Susheel Kumar, the then
Judicial Magistrate Rampur, in Case No.
19 of 2008 (Daya Ram vs. Shanti Prasad
& others), whereby accepting the final
report submitted by the police of P.S.
Milak Khanam, District Rampur, in case
crime
No.
81/2005,
under
sections
409/504/506 IPC, the objections filed by
the revisionist/complainant Daya Ram
have been rejected.

2. Shorn of unnecessary details, the
facts leading to the filing of this revision,
in brief, are that the revisionist Daya Ram
had lodged an FIR on 01.04.2005 at P.S.
Milak Khanam, District Rampur, where a
case under section 409/504/506 IPC was
registered at crime No. 81/05 against
Shanti
Prasad
and
Mohd.
Ahmad
(respondents no.2 & 3 herein). It appears
that after investigation, final report was
submitted by the police. When notice of
that final report was issued to the
complainant, he filed objections in the
court
of
Magistrate
concerned
on
04.01.2006. After hearing the counsel for
the complainant and going through the
case diary, the then judicial magistrate
Rampur rejected the final report and
summoned the accused Shanti Prasad and
Mohd Ahmad to face the trial under
section 409/504/506 IPC vide order dated
06.01.2006 passed in case No. 118/12 of
2005. That order was challenged by the
accused persons in the court of Sessions
Judge Rampur by means of Criminal
Revision No. 27 of 2006, which was
decided on 07.10.2006 by the Additional
Sessions Judge, Court No. 5, Rampur,
2 All] Daya Ram V. State of U.P. and others
601
whereby revision was allowed and after
setting aside the order dated 06.01.2006,
the case was sent back to the court of
magistrate concerned for passing fresh
order on the final report and objections of
the complainant keeping in view the
observations made in the judgement.
Thereafter, the impugned order has been
passed on 13.08.2007, which has been
challenge in this revision.

3. I have heard Sri M.B. Mathur,
learned counsel for the revisionist, learned
AGA for the State and perused the record
carefully. Since the accused persons have
no right to contest the revision against the
impugned order, hence notices have not
been issued to them.

4. It was vehemently contended by
the learned counsel for the revisionist that
the impugned order has been passed by
the learned magistrate in utter disregard of
the order dated 07.10.2006 passed in Crl.
Revision No. 27 of 2006, and hence the
said order is liable to be quashed on this
ground alone. It was also submitted that if
in the opinion of the learned magistrate,
the material in the case diary was not
adequate to take cognizance against the
accused and to summon them to face the
trial, then the objections/ protest petition
filed by the complainant against the final
report ought to have been registered as
complaint and after affording opportunity
to the complainant to lead evidence under
section 202 Cr.P.C., further order either
under section 203 or 204 Cr.P.C. should
have been passed. In support of these
contentions, the learned counsel for the
revisionist has placed reliance on the case
of Pakhando and others Vs. State of U.P.
and another (2001(43) ACC 1096).

5. The learned AGA on the other
hand submitted that impugned order does
not suffer from any illegality, as the
magistrate
can
disagree
with
the
conclusion drawn by the police after
investigation and it was not obligatory for
the magistrate to treat the objections
against final report as complaint.

6. Having given my thoughtful
consideration to the rival submissions
made by learned counsel for the parties, I
find force in the aforesaid contentions
raised by the learned counsel for the
revisionist. From the record it is revealed
that summoning order dated 06.01.2006
passed by the then judicial magistrate
Rampur was challenged by the accused
persons in Crl. Revision No. 27 of 2006,
which was decided on 07.10.2006 by the
Additional Sessions Judge, Court No. 5,
Rampur. While allowing that revision
vide judgment dated 07.10.2006, it was
specifically observed by the learned lower
Revisional Court that if in the opinion of
the learned Magistrate, the evidence in the
case diary is not sufficient, then the
learned
Magistrate
ought
to
have
proceeded further after following the
procedure laid down in Chapter XV
Cr.P.C. while passing the impugned
order, the learned Magistrate has totally
ignored this observation made by the
learned lower Revisional Court in its
judgment dated 07.10.2006 passed in
Criminal Revision No. 27 of 2006. Copy
of this judgement is available on lower
court, being Paper No. 9 Kha/82 to
9Kha/87.It
is
very
surprising
and
unfortunate too that the learned Judicial
Magistrate passing the impugned order
did not care to pursue this judgement of
lower Revisional Court, as there is no
mention
of
this judgement in the
impugned order dated 13.08.2007. The
602 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
objections of the complainant against
final report have not at all been
considered
in
the
impugned
order,
although there was specific direction in
the judgement dated 07.10.2006 of Crl.
Revision No. 27 of 2006 that if the
material in case diary is not sufficient to
take cognizance, then the objections
against the final report ought to have been
treated as complaint and further action
should have been taken after following
the procedure laid down in Chapter XV
Cr.P.C. Therefore, the impugned order
which has been passed ignoring aforesaid
observation,
which
virtually
was
a
direction of the learned lower Revisional
Court, is liable to be set aside.

7. The Division Bench of this Court
in the case of Pakhando and others Vs.
State of U.P. and another (2001(43) ACC
1096) had the occasion to consider the
matter regarding the procedure to be
adopted by the Magistrate/Court on
submission of the final report by the
police. Having taken various authorities
into
consideration,
the
following
observations have been made by the
Division Bench in para 15 of the
judgement at page 1100 of the report:-

"From the aforesaid decisions, it is
thus clear that where the Magistrate
receives final report, the following four
courses are open to him and he may adopt
any one of them as the facts and
circumstances of the case may require:-

(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' or

(II) 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

(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(1)(a)
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.

In view of the observations made by
the Division Bench of this Court in the
case of Pakhando Vs. State (supra), the
objections/protest petition filed by the
complainant against the final report
submitted by the police in Case Crime
No.
81
of
2005,
under
sections
409/504/506 IPC, P.S. Milak Khanam
(Rampur) ought to have been treated as
complaint
and
after
following
the
procedure laid down in Chapter XV
Cr.P.C., further order under section 203 or
204 Cr.P.C., as the case may be, should
have been passed.

8. In the case of Mahesh Chand Vs.
B. Janardhan Reddy and another (2003
(46) ACC 182 (S.C.), the three Judges'
2 All] Ajay @ Sheru and others V. State of U.P. and another
603
Bench of the Hon'ble Apex Court has held
that there cannot be any doubt or dispute
that only because the Magistrate has
accepted the final report, the same by
itself would not stand in his way to take
cognizance
of
the
offence
on
a
protest/complaint petition on the same or
similar allegations. From the law laid
down by the Hon'ble Apex Court in above
mentioned ruling, it is crystal clear that
even after acceptance of the final report
by the Magistrate, the complainant can
file protest petition and such petition can
be
treated
as
complaint
and
after
following the procedure laid down in
Chapter XV Cr.P.C., summoning order
under Section 204 Cr.P.C. can be passed,
if there are sufficient grounds to proceed
against the accused. In the instant case,
the revisionist/complainant has already
filed objections against final report which
have been rejected by the learned
magistrate vide impugned order dated
13.08.2007
without
following
the
procedure laid down in Chapter XV
Cr.P.C. as directed by the learned lower
Revisional Court in its judgment dated
07.10.2006 passed in Crl. Revision No. 27
of 2006.

9. Consequently, the revision is
partly allowed. The impugned order dated
13.08.2007 rejecting the objections of the
complainant against final report is set
aside and the case is sent back to the court
of judicial magistrate Rampur with the
direction to decide the objections/protest
petition
of
the
complainant
afresh,
treating the same as complaint and
following the procedure laid down in
Chapter XV Cr.P.C.

The Office is directed to return lower
court record expeditiously along with a
copy of this judgement for further
necessary action. Revision partly allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.05.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Crl. Misc. Writ Petition 4301 of 2008

Ajay @ Sheru and others
...Applicants
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicants:
Sri. S.K. Dubey

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 482quashing of summoning order-on the
basis
of
FIR-alleged
offence
under
Section 392,323,504 IPC-I.O. submitted
charge sheet for offence under Section
323/504 IPC-Magistrate on the basis of
report
submitted
u/s
173
taken
cognizance
after
due
application of
mind-objection
regarding
following
procedure of chapter XV-not sustainablesubmission
of
investigating
reporttreated
complaint,
the
Investigation
Officer a complainant-being a Police
Officer acted during discharge of public
duty-no need of examination u/s 202held order passed by Magistrate-warrant
no interference.

Held: Para 8

In instant case, the investigating officer
had submitted a report in a case, which
discloses
after
investigation
the
commission of a non-cognizable offence,
which in view of the Explanation to
Section 2(d) Cr.P.C. shall be deemed to
be a complaint and the police officer by
whom the said report was made shall be
deemed to be the complainant. Since the