# Sansveer v. State of U.P. and others

- **Citation:** (2007) 1 ILRA 24
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-09
- **Case number:** Criminal Misc. Writ Petition No. 13177 of 2006
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sansveer-v-state-of-u-p-and-others-40843
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 190
(1)(b)-Power
of
Magistrate
after
receiving the final report-either drop the
proceeding agreeing with conclusion
investigation or take cognigence u/s 190
(1)(b) issue process straight way or may
order for further investigation or can
take
congnigence
upon
original
complaint or protect petition.

Held: Para 4
It is settled law that whenever final
report is submitted by the police for
dropping
the
proceeding
following
courses are open to the Magistrate and
he may adopt any of the fact 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,
he shall give an opportunity of
hearing to the complainant;
(II) He may take cognizance under
Section 190(1)(b) and issue process
straight
away
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;
(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."

2001 (43) ACC-1096
2000 (56) ACC-113
2006 (55) ACC-1
2006 Cr.L.J.-2602

## Text

24 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
19. In case any order is passed
following the notice and reply and the
parties feel aggrieved, they can file an
appeal under Section 6 of the Act.
Therefore, in that case also, no order can
be passed by this Court. If any body
wants to get the appeal expedited, he can
also make prayer before the appropriate
authority to such extent.

20. Hence, in view of the above
observations, the writ petition stands
dismissed. Interim orders, if any, stand
vacated.

However, no order is passed as to
costs.

 Petition dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.11.2006

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Writ Petition No. 13177 of 2006

Sansveer

...Petitioner
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Petitioner:
Sri M.K. Srivastava

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

Code of Criminal Procedure-Section 190
(1)(b)-Power
of
Magistrate
after
receiving the final report-either drop the
proceeding agreeing with conclusion
investigation or take cognigence u/s 190
(1)(b) issue process straight way or may
order for further investigation or can
take
congnigence
upon
original
complaint or protect petition.

Held: Para 4
It is settled law that whenever final
report is submitted by the police for
dropping
the
proceeding
following
courses are open to the Magistrate and
he may adopt any of the fact 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,
he shall give an opportunity of
hearing to the complainant;
(II) He may take cognizance under
Section 190(1)(b) and issue process
straight
away
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;
(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."

2001 (43) ACC-1096
2000 (56) ACC-113
2006 (55) ACC-1
2006 Cr.L.J.-2602

(Delivered by Hon'ble Mrs. Poonam Srivastav, J.)

1.

Heard
Sri
Manoj
Kumar
Srivastava,
learned
counsel
for
the
petitioner and learned A.G.A. for the
State.
1 All] Sansveer V. State of U.P. and others
25
2. The petitioner lodged a first
information report under Section 324
I.P.C. which was registered at case Crime
No. 30 of 2004. Subsequently the case
was converted into an offence under
Section 307 I.P.C. The injuries of the
injured were examined on 22.1.2004 and
according to Xray report grievous injury
was received by the injured. After
completing
the
investigation,
the
Investigating
Officer
submitted
final
report on the basis of compromise. The
petitioner preferred a protest petition. The
learned
Chief
Judicial
Magistrate,
Ghaziabad vide order dated 4.1.2006
rejected the final report and directed that
the protest petition be registered as a
complaint case fixing 26.10.2004 for
statement of the complainant under
Section 200 Cr.P.C. This order was
challenged in criminal revision which was
dismissed vide order dated 14.9.2006.

3. The grievance of the petitioner is
that once the final report was rejected, the
Magistrate should have taken cognizance
after perusing the case diary under
Section 190(1) (b) Cr.P.C. Counsel for the
petitioner has placed reliance on a number
of decisions. The first decision is
Pakhando & others Vs. State of U.P. and
another 2001 (43) ACC, 1096. The
submission is that since the evidence
available in the case diary against the
accused was sufficient, the court should
have
straight
away
summoned
the
accused for trial. The procedure adopted
by the learned Magistrate treating the
protest petition as a complaint is illegal
and liable to be quashed. The other
decision relied upon is, Kamal Saini and
others Vs. State of U.P. and another,
2006(56) ACC, 113. In the said case, the
complainant
had
filed
affidavits
in
support of the protest petition and in all
those
affidavits,
the
witnesses
had
repeated what had been stated in the
application under Section 156(3) Cr.P.C.
In the circumstances, when there was no
new material, the Magistrate should have
proceeded and taken cognizance under
Section 190(1)(b) Cr.P.C. which was
exactly done by the Magistrate in the said
case.
The
Magistrate
had
taken
cognizance
under
Section
190(1)(b)
Cr.P.C. which was challenged in the case
of Kamal Saini and others and this Court
upheld the order of the Magistrate. A
Misc. Application was preferred at the
instance of the accused and they had
challenged the order of the Magistrate
taking
cognizance
under
Section
190(1)(b) Cr.P.C. straight away. This is
not the fact of the present case. In fact the
present writ petition is at the instance of
the complainant with a grievance that the
Magistrate
proceeded
under
Section
190(1)(a) Cr.P.C. whereas the contention
of the learned counsel for the petitioner is
that the Magistrate should have taken
cognizance straight away and summoned
the accused without calling for the
complainant and witnesses to give their
statements under Section 200 and 202
Cr.P.C.

4. The next decision relied upon by
learned counsel for the petitioner is,
Sukhpal and others Vs. State of U.P.
and others, 2006 (55) ACC, 1. In this
case also the Court had concluded that the
Magistrate is not bound to accept the
recommendation
made
by
the
Investigating Officer, that is to say in the
event, a final report is submitted by the
Investigating Officer, the Magistrate can
very well after looking into the case diary
summon the accused straight away. He is
not bound to agree with the conclusion of
the
Investigating
Officer.
The
next
26 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
decision relied upon by the counsel is,
Anand Swaroop and others Vs. State of
U.P. and another, 2006 Cr. L.J. 2602.
This is an order passed in Misc. Recall
Application. A perusal of the facts of the
said case shows that the Magistrate after
hearing the complainant on his protest
petition passed an order for treating it as
complaint and fixed date for recording
statement under Sections 200 and 202
Cr.P.C. Aggrieved with the order, the
complainant preferred a criminal revision
before the learned Sessions Judge who
after hearing the parties, set aside the
order of the Magistrate and remanded the
matter with direction to the Magistrate to
re-examine the final report. After remand,
the Magistrate summoned the accused
straight away under Section 304B and 201
I.P.C. Aggrieved with the second order of
the Magistrate, two criminal revisions
were preferred which were decided by a
common judgment. An application to
recall the earlier order was filed and the
recall application was rejected. It is only
by way of obiter an observation was made
that if there is sufficient material in the
case diary, the Magistrate can very well
straight away summon the accused and
there is no necessity to treat the protest
petition as a complaint and record
statement under Sections 200 and 202
Cr.P.C. In all these cases relied upon by
the learned counsel for the petitioner, it
was the order of the Magistrate which was
under
challenge
taking
cognizance
straight away under Section 190(1)(b)
Cr.P.C.
after
disagreeing
with
the
conclusion of the Investigating Officer.
The courts came to a conclusion that no
illegality has been committed and the
Magistrate was not bound to record the
statement
of
the
complainant
and
witnesses and treat the protest petition as
complaint. Thus the assertion of the
counsel for the petitioner that there was
material and Magistrate should not have
treated the protest petition as complaint
and there is complete bar, is contrary to
what has been held by the courts in the
aforesaid citations. The case of Pakhando
(Supra) is a decision by a Division Bench
of this Court. This again only decides the
question that the magistrate is not bound
to follow the procedure of a complaint
case even if he declines to accept the final
report after perusing the protest petition.
The Magistrate can always proceed to
take cognizance under Section 190(1)(b)
Cr.P.C. if he is satisfied that the material
of the case diary is sufficient to summon
the accused. In none of the cases, there is
a bar imposed on the Magistrate that he
can not take cognizance under Section
190(1)(a) Cr.P.C. The Division Bench had
also held that the proviso to sub section
(2) of 202 of the Code will apply only to a
case where the Magistrate has taken
cognizance
under
Section
190(1)(a)
Cr.P.C. and he has opted to hold inquiry
under
Section
202
Cr.P.C.
after
examining the complainant and witnesses
if any, under Section 200 Cr.P.C. It is thus
absolutely clear that it is the option of the
Magistrate to choose the procedure. It is
settled law that whenever final report is
submitted by the police for dropping the
proceeding following courses are open to
the Magistrate and he may adopt any of
the fact 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,
he shall give an opportunity of
hearing
to
the
complainant;
1 All] P.T.A.A.G.Inter College, Alld. and another V. The State of U.P. and others
27
(II) He may take cognizance under
Section 190(1)(b) and issue process
straight away 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;
(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."

5. In the circumstances, on the basis
of the various verdict of this Court which
has been given following the principle
laid down by the Apex Court, I am not in
agreement with the submission made by
the counsel for the petitioner that the
Magistrate had no other option but to
have taken cognizance under Section 190
(1)(b) Cr.P.C. after perusing the case
diary. A bare perusal of the impugned
order which was confirmed in revision,
shows that the Magistrate has opted to
take cognizance under Section 190 (1)(a)
Cr.P.C. and has fixed the date for
recording statement under Sections 200
and 202 Cr.P.C. before summoning the
accused. The impugned orders does not
suffer any legal infirmity whatsoever. No
good ground for interference is made out.
The writ petition lacks merit and is
accordingly dismissed. Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2007

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.49748 of 2006
With
Civil Misc. Writ Petition No. 26323 of 2005

Parents Teachers Association Adarsh
Gramya Inter College Chakshya Kiraon,
Phoolpur, Allahabad and another

 ...Petitioners
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioners:
Sri Radha Kant Ojha
Sri Satyanshu Ojha

Counsel for the Respondents:
Sri K.S. Kushwaha
S.C.

U.P. Intermediate Education Act 1921Chapter-VII
Regulation-11-read
with
Constitution
of
India
Art.
15
(3)-
Admission of girl student in boy's schoolheld-not proper-restrictions provided in
Regulation 11 applicable only in girls
school where no boys student can be
admitted-D.I.O.S.
misinterpreted
the
provision-impugned
order
can
not
sustained.

Held: Para 6 & 7

At this stage it may be clarified that so
far
as
the
institution
where
only
admission to female students is to be
granted, no boy students may be allowed
to be admitted inasmuch as Article 15
(3) permits the State Government to
make special provisions for women and
children.