# Saleem Khan @ Saleem Master (Mama) Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 12 ILRA 104
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-22
- **Case number:** Criminal Revision No. 1915 of 2020
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saleem-khan-saleem-master-mama-revisionist-v-state-of-u-p-anr-opp-parties-49452
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 173, 173(3),
190(1)(a), 190(1)(b),200, 202 & 397 -
Indian Penal Code, 1860 - Section - 120-B,
12 All. Saleem Khan @ Saleem Master (Mama) Vs. State of U.P. & Anr.
105
316, 376 & 452 - The Protection of
Children from Sexual Offences (POCSO)
Act, 2012 - Sections 3, 4, 16 & 17-Criminal
Revision - challenging the judgment of the
Special Judge (POCSO Act) - FIR - allegations of
repeated sexual assault by the accused,
resulting in pregnancy and forced abortion -
investigation conducted - charge-sheet filed
against the main accused under relevant
provisions of IPC and POCSO Act - final report -
protest petition - no evidence found against the
other
named
accused,
who
were
exonerated - however, the trial court
summoned
them
without
assigning
sufficient reasons - revisionists contended
that no offence under Sections 316 and
120-B IPC was made out and that the
order lacked legal justification - St. argued
that the trial court could take cognizance
independently under Section 173 Cr.P.C. -
Court finds that, the trial court did not
inform the complainant about the closure
report in favour of the revisionists and
failed to record reasons for summoning
them - noted that a non-speaking order is
legally unsustainable - citing Supreme
Court
precedent
on
the
Magistrate's
discretion while dealing with police reports
-
hence,
court
allowed
the
criminal
revisions - set aside the impugned order
against the revisionists - and remanded
the matter to the trial court for a fresh
consideration with a reasoned order after
hearing both the prosecutrix and the
prosecution officer - Revision is allowed.
(Para - 9, 11, 12, 13, 15)

Revision Allowed. (E-11)

List of Cases cited:

## Text

104 INDIAN LAW REPORTS ALLAHABAD SERIES
Broadly stated, the Act distinguishes
offenders below 21 years of age and those
above that age, and offenders who are
guilty of having committed an offence
punishable with death or imprisonment for
life and those who are guilty of a lesser
offence. While in the case of offenders who
are above the age of 21 years absolute
discretion is given to the court to release
them after admonition or on probation of
good conduct, subject to the conditions laid
down in the appropriate provisions of the
Act, in the case of offenders below the age
of 21 years an injunction is issued to the
court not to sentence them to imprisonment
unless it is satisfied that having regard to
the circumstances of the case; including the
nature of the offence and the character of
the offenders, it is not desirable to deal with
them under Sections 3 and 4 of the Act."

33. As far as the conviction part is
concerned, this Court does not find any
illegality, perversity or infirmity in the
order passed by the courts below but
keeping in view the discussion made above,
the sentence inflicted on the accusedrevisionist requires modifications.

Order

34. The revision is partly allowed
with the following modifications:-

The
conviction
of
the
accusedrevisionists by courts at District level is
upheld.
The
sentence
of
accusedrevisionists is modified to the tune that they
are provided benefit of Section 4 of the UP
Probation of Offenders Act and are
released on probation on the condition that
they will keep peace and good conduct for
two years from today and shall file two
sureties to the tune of Rs.10,000/- each
along with their personal bond before the
district probation officer, Varanasi and also
an undertaking to the effect that they shall
maintain peace and good behaviour during
the period of two years from today. In case
of breach of any of the conditions
mentioned above, the revisionists will be
subjected to undergo the sentence as
directed by the appellate court. The bonds
aforesaid will be filed by the revisionistsaccused within one month from today,
before the District Probation Officer,
Varanasi, U.P., under the intimation to the
concerned court.

35. A certified copy of the order be
also be sent to the court concerned and
District Probation Officer, Varanasi, U.P.,
for compliance.
----------
(2023) 12 ILRA 104
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 1915 of 2020
With
Criminal Revision No. 1926 of 2020

Saleem Khan @ Saleem Master (Mama)
 ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Ganesh Shanker Srivastava

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 173, 173(3),
190(1)(a), 190(1)(b),200, 202 & 397 -
Indian Penal Code, 1860 - Section - 120-B,
12 All. Saleem Khan @ Saleem Master (Mama) Vs. State of U.P. & Anr.
105
316, 376 & 452 - The Protection of
Children from Sexual Offences (POCSO)
Act, 2012 - Sections 3, 4, 16 & 17-Criminal
Revision - challenging the judgment of the
Special Judge (POCSO Act) - FIR - allegations of
repeated sexual assault by the accused,
resulting in pregnancy and forced abortion -
investigation conducted - charge-sheet filed
against the main accused under relevant
provisions of IPC and POCSO Act - final report -
protest petition - no evidence found against the
other
named
accused,
who
were
exonerated - however, the trial court
summoned
them
without
assigning
sufficient reasons - revisionists contended
that no offence under Sections 316 and
120-B IPC was made out and that the
order lacked legal justification - St. argued
that the trial court could take cognizance
independently under Section 173 Cr.P.C. -
Court finds that, the trial court did not
inform the complainant about the closure
report in favour of the revisionists and
failed to record reasons for summoning
them - noted that a non-speaking order is
legally unsustainable - citing Supreme
Court
precedent
on
the
Magistrate's
discretion while dealing with police reports
-
hence,
court
allowed
the
criminal
revisions - set aside the impugned order
against the revisionists - and remanded
the matter to the trial court for a fresh
consideration with a reasoned order after
hearing both the prosecutrix and the
prosecution officer - Revision is allowed.
(Para - 9, 11, 12, 13, 15)

Revision Allowed. (E-11)

List of Cases cited:

1. Dev Narayan Vs St. of U.P. (2001 CrLJ
357(All),

2. Rajendra Kumar Sitaram Pande & ors. Vs
Uttam & anr.(1999 vol.3 SCC 134),

3. Zunaid Vs St. of U.P. & ors. (Criminal Appeal
No. 2628-2629/2023 decided on 29.08.2023.

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
revisionists, learned AGA for the State and
perused the material placed on record.

2. Despite service of notice, none
appeared on behalf of the opposite party
No.2.

3. Instant criminal revision has been
preferred against the impugned judgement
and order dated 16.9.2020, passed by
learned Additional District and Session
Judge/Special
Judge
(POCSO
Act),
Bulandshahr in Special Session Trial
No.1493 of 2020, arising out of Case Crime
No.236 of 2020, under Section 316, 120-B
IPC and 16/17 POCSO Act, Police Station
Khurja Dehat, District Bulandshahar.

4. As both the criminal revisions have
arising out of same impugned order passed
by
Special
Judge
(POCSO
Act),
Bulandshahr, hence, both the revisions are
being disposed of by this common
judgement.

5. The factual matrix relevant for the
present criminal revisions, in brief, are that
first information report in present case was
lodged at the instance of prosecutrix at
police station concerned at 15:26 hours,
stating that her date of birth is 14.5.2002.
She visited the place of her phupi (bua)
situated at Village Bhatwara, Police Station
Khurja Dehat, District Bulandshahr in year
2019 where accused Aakil, the nephew of
her phuphi, committed rape on her finding
her alone in her house. He used to commit
rape on her frequently by keeping her in
fear, due to which she got pregnant in the
January, 2020 and when she told this fact to
Aakil, he continued to commit rape on her
on pretext of solemnizing marriage with
her. She told this fact to family members
when she got pregnant for six months and
106 INDIAN LAW REPORTS ALLAHABAD SERIES
thereafter family members including her
uncle Sageer, Zaheer, Doctor Nazeer,
maternal uncle Salim Master came at her
place on 29.6.2020 in Bulandshahar and
took her to Khurja on same day on pretext
of solemnizing her marriage with Aakil
where they took her to the clinic of Dr.
Geeta and got her fetus aborted. Accused
persons also threatened her with life. In
FIR, these accused persons are named
alongwith accused Aakil. The police
investigated the case and got the statement
of prosecutrix recorded under Section 161
and 164 Cr.P.C. She was brought before
medical
witness
for
medico
legal
examination but she refused to get her
internal examination done by the Doctor,
but the prosecutrix in her statement under
Section
164
Cr.P.C.
made
specific
allegations against Aakil, his elder brother
Khursheed, his father and uncle. In
statement under Section 161/164 Cr.P.C,
prosecutrix referred these persons as
relatives of Aakil.

6. Police submitted the chargesheet
against accused Aakil for charge under
Section 452, 376 IPC and 3/4 of POCSO
Act but concluded that charge under
Section 316, 120-B IPC, which was
attributed to other named accused persons
namely, Sageer, Zaheer, Dr. Nazeer, Salim
Master and Dr. Geeta was not substantiated
and
their
naming
was
found
false.
Therefore, the charge under Section 316
and
120-B
IPC
is
dropped
after
investigation. Learned Special Judge has
passed the impugned order on 16.6.2020.
Feeling aggrieved by said order, the
revisionist has preferred present criminal
revision before this court.

7. Learned counsel for the revisionist
submitted that the impugned order is not
speaking order. The Investigating Officer,
on conclusion of investigation has given
finding that no offence under Section 316,
120-B IPC has been made out and he filed
chargesheet only against accused Aakil for
other charges. The Magistrate or criminal
court has jurisdiction to issue process
against the proposed accused only if there
is sufficient material available to issue
process against them and they are sent up
for trial by the Investigating Officer on
conclusion of investigation. The course left
to the Magistrate after submission of final
report by the police, further investigation in
the matter without taking cognizance or
deal with the protest petition, if any, filed
by the complainant but in the instant case,
neither any further investigation was
ordered or any protest petition was filed by
the complainant. Even, no tentative finding
of guilt of the accused revisionist ha been
recorded by the Special Judge.

8. Per contra, learned AGA submitted
that there is no illegality, infirmity or
perversity in the impugned order passed by
learned trial court while taking cognizance
of the offence against revisionist and
issuing process to them for facing trial for
charge under Section 316, 120-B IPC and
16/17 of POCSO Act. Her date of birth is
mentioned as 14/5/2002, in school record.
It is settled principle of law that the
Magistrate or criminal court is not bound
by the police report submitted under
Section 173(2) of Cr.P.C. after completion
of investigation but the court has to travel
bounds of law and without recording its
subjective satisfaction with regard to, prima
facie, case against accused to put him on
trial, on the basis of material collected
during investigation, he cannot straight way
issue
process
against
the
accused.
Although, the impugned order is not a
speaking order yet, so far as co-accused
Aakil is concerned, the Investigating
12 All. Saleem Khan @ Saleem Master (Mama) Vs. State of U.P. & Anr.
107
Officer has given a finding on the basis of
material collected during investigation that
sufficient evidence has been found against
him for his prosecution on said charges
levelled against him in first information
report as well as statement of the witnesses
recorded during investigation.

9. Inasmuch as accused Aakil has not
assailed
the
cognizance
taking
and
summoning order issued against him in
impugned order, however, so far as the
present revisionists are concerned, the
Investigating Officer has not found their
complicity in the offence on the basis of
material collected during investigation and
their name have been dropped after
investigation
and
they
are
not
chargesheeted.

10. This Court in Dev Narayan vs.
State of U.P., 2001 Cr.L.J. 357 (All) and
Hon'ble Apex Court in Rajendra Kumar
Sitaram Pande and others vs. Uttam and
Another, (1999) 3 SCC 134 held that an
order, taking cognizance on a police report,
is not an interlocutory order and revision
against such order lies under Section 397
Cr.P.C.

11. On perusal of impugned order, it
appears that this is a mixed order, wherein
accused Aakil has been chargesheeted and
present revisionist, who are also named in
FIR and are exonerated after investigation
and a final/closure report is deemed to have
been
filed
in
their
favour
by
the
Investigating Officer. However, learned
court below has not issued any notice to the
complainant/ prosecutrix with regard to
final report filed in favour of the
revisionist.

12. This is settled law that even after
receipt of final report, the Magistrate can
exercise its discretion by treating protest
petition as complaint case after rejecting
final report as held by Hon'ble Apex Court
recently in Zunaid vs. State of U.P. and
Others, in Criminal Appeal No.26282629 of 2023 decided on 29.8.2023.
Hon'ble Apex Court held that there
remains no shadow of doubt that on the
receipt of the police report under Section
173 Cr.P.C., the Magistrate can exercise
three options. Firstly, he may decide that
there is no sufficient ground for proceeding
further and drop action. Secondly, he may
take cognizance of the offence under
Section 190(1)(b) on the basis of the police
report and issue process; and thirdly, he
may take cognizance of the offence under
Section 190(1)(a) on the basis of the
original complaint and proceed to examine
upon oath the complainant and his
witnesses under Section 200. It may be
noted that even in a case where the final
report of the police under Section 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 on the same
or similar allegations even after the
acceptance of the final report. A Magistrate
is not debarred from taking cognizance of a
complaint merely on the ground that earlier
he had declined to take cognizance of the
police report. No doubt a Magistrate while
exercising his judicial discretion has to
apply his mind to the contents of the
Protest Petition or the complaint as the case
may be. The Magistrate can ignore the
conclusion arrived at by the investigating
officer and independently apply his mind to
the facts emerging from the investigation
and take cognizance of the case, if he
thinks fit, exercise his powers under
Section 190(1)(b) and direct the issue of
process to the accused. The Magistrate is
not bound in such a situation to follow the
108 INDIAN LAW REPORTS ALLAHABAD SERIES
procedure laid down in Sections 200 and
202 of the Code for taking cognizance of a
case under Section 190(1)(a) though it is
open to him to act under Section 200 or
Section 202 also.

13. On the basis of foregoing
discussion, no doubt can be expressed on
jurisdiction of the criminal court or
magistrate to take cognizance of alleged
offence on the basis of Section 190(1)(b)
Cr.P.C.
in
a
case,
even
though
a
final/closure report has been filed by the
investigating Officer in favour of the
concerned accused without adopting the
procedure prescribed under Chapter XVI of
the Code and court below has adopted the
procedure in present case by taking
cognizance of the offence alleged against
present revisionists and issuing process to
them to face trial for alleged offences.
However, on perusal of impugned order, it
cannot be comprehended that learned court
below has applied its judicial mind while
exercising his discretion in issuing process
against those accused persons who are not
chargesheeted by the Investigating Officer
for the alleged offences. The existence of
powers is one thing and due exercise of
power is other thing. The impugned order
is not a speaking order alteast in respect of
present revisionists. Undoubtedly, the trial
court was well within its bound to issue
process to present revisionists neglecting or
rejecting final report submitted by the
Investigating Officer in their favour but the
order must be reasoned which could
disclose judicial mind of the court while
exercising its power to take cognizance and
issuing process to such an accused who has
not been chargesheeted by the Investigating
Agency. However, the impugned order is a
criptic order and the learned court below
has not expressed any reason or discuss any
material on the basis of which the court
proceeded to take cognizance of the
offence against the present revisionist and
issued summon to them to face trial.
Therefore, the impugned order which is
devoid of any reason cannot be sustained
under law and the revision is liable to be
allowed.

14. In view of aforesaid, present
revisions stand allowed and the impugned
order passed by the court below is set aside
in respect of present revisionists.

15. The matter is remanded back to
court below with direction to pass a
reasoned order in respect of present
revisionists, in the light of judicial authority
cited above, after giving opportunity of
hearing to the prosecutrix, if it deemed fit,
as well as the prosecuting officer in charge
of the case.
----------
(2023) 12 ILRA 108
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.11.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Criminal Revision No. 4956 of 2023

Vaseem Ahmad ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Pradeep Kumar

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section - 452 - U.P. Prevention of
Cow Slaughter Act, 155 - Sections 2(a), 3,
5, 5-A, 5-A(1), 5-A(7), 5-A(11), 8 & 10 -
U.P. Prevention of Cow Slaughter Rules,