# Shamsher Bahadur & Ors v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 938
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-15
- **Case number:** Application U/S 482. No. 2257 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamsher-bahadur-ors-v-state-of-u-p-anr-51716
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 190, 190(1)(b) &
482 - Indian Penal Code, 1860 - Section -
308, 323, 504 & 506 - Application under
Section 482 Cr.P.C. - for quashing of the charge
sheet, taking cognizance and the summoning
order - FIR - offence of assault by the accused
over a land boundary dispute - conflict - injuries
- medical examination - investigation - St.ment
u/s 161 Cr.P.C. - charge sheet - take cognizance
under Section 308 IPC, noting the use of a
sharp
object
and
inadequacies
in
the
investigation - court observed that the law
requires that a Magistrate may take cognizance
of any offence upon a police report of the facts
constituting an offence - although the police
report may not allege commission of any
specific offence, in case the Magistrate is
satisfied that the facts St.d in the report make
out commission of any offence - therefore,
court upheld the Magistrate's power under
Section 190 Cr.P.C. to take cognizance of
offences based on facts in the police report,
3 All. Shamsher Bahadur & Ors. Vs. State of U.P. & Anr.
939
even if not explicitly mentioned, and found no
illegality in the order - consequently, Application
is
dismissed
with
direction
for
further
investigation and summoning the accused.
(Para - 16, 17, 18)

Application Dismissed. (E-11)

List of referred Cases: -

## Text

938 INDIAN LAW REPORTS ALLAHABAD SERIES
considered opinion that any complaint
under Section 138 of the N.I. Act should
have been filed strictly in accordance with
the mechanism so given under Section 138
of the N.I. Act. In the present case, it
appears that the compulsory statutory
period has not been taken care of by the
complainant itself nor by the Court.

12. Notably, as per Section 143 (3) of
N.I. Act, every trial under this Act shall be
conduced and concluded expeditiously as
possible and may be concluded within a
maximum period of six months from the
date of filing of such complaint. Therefore,
I do not find it proper to keep this petition
pending any longer, giving liberty to the
petitioner
appear
before
the
court
concerned on the date fixed i.e. 22.03.2024
and if the petitioner appears/ surrenders
before the court concerned on the date
fixed i.e. 22.03.2024, all coercive steps
including the impugned summoning order
dated 28.03.2023 and the proclamation
order dated 15.02.2024 shall be kept in
abeyance and liberty would be given to the
petitioner to participate in the proceedings.
Thereafter,
the
petitioner
may
file
appropriate application before the court
concerned and such proceedings may be
conducted and concluded with expedition
by fixing short dates and without giving
unnecessary adjournment to any of the
parties concerned. It is needless to say that
ample opportunity of hearing should be
afforded not only the petitioner but the
complainant also.

13. It is made clear that if the
petitioner does not appear before the court
concerned on the date fixed in terms of this
order, the benefit of this order would not be
made available to him and the learned court
below may take appropriate coercive steps,
which are permissible under law, against
the petitioner.

14. In view of the aforesaid
observations and directions, the instant
petition is disposed of finally.
----------
(2024) 3 ILRA 938
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 2257 of 2024

Shamsher Bahadur & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Alok Srivastava

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 190, 190(1)(b) &
482 - Indian Penal Code, 1860 - Section -
308, 323, 504 & 506 - Application under
Section 482 Cr.P.C. - for quashing of the charge
sheet, taking cognizance and the summoning
order - FIR - offence of assault by the accused
over a land boundary dispute - conflict - injuries
- medical examination - investigation - St.ment
u/s 161 Cr.P.C. - charge sheet - take cognizance
under Section 308 IPC, noting the use of a
sharp
object
and
inadequacies
in
the
investigation - court observed that the law
requires that a Magistrate may take cognizance
of any offence upon a police report of the facts
constituting an offence - although the police
report may not allege commission of any
specific offence, in case the Magistrate is
satisfied that the facts St.d in the report make
out commission of any offence - therefore,
court upheld the Magistrate's power under
Section 190 Cr.P.C. to take cognizance of
offences based on facts in the police report,
3 All. Shamsher Bahadur & Ors. Vs. State of U.P. & Anr.
939
even if not explicitly mentioned, and found no
illegality in the order - consequently, Application
is
dismissed
with
direction
for
further
investigation and summoning the accused.
(Para - 16, 17, 18)

Application Dismissed. (E-11)

List of referred Cases: -

1. India Carat (P) Ltd. Vs St. of Karn. - 1989
vol. 2 SCC 132,

2. Nahar Singh Vs St. of U.P., 2022 (5) SCC 295.

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

1. Heard Sri Alok Srivastava-II, the
learned counsel for the applicant and Ms.
Charu Singh, the learned AGA for the State
and perused the records.

2. By means of the instant application
filed under Section 482 Cr.P.C., the
applicant has sought quashing of charge
sheet no 1 of 2023 dated 01.04.2023, under
Sections 323, 504, 506 IPC, submitted in
furtherance of FIR No. 120/2023, the order
dated 08.12.2023 passed by the Additional
Chief Judicial Magistrate, Court No. 16,
Barabanki, taking cognizance of offences
under Sections 323, 504, 506 & 308 IPC
and summoning the accused persons to face
trial of the offence and at the same time
issuing an order for further investigation
and calling for an explanation from the
Investigating
Officer
as
to
why
recommendation be not made for initiating
departmental inquiry and action against
him for not conducting the investigation
properly.

3. The opposite party no. 2 had
lodged FIR No. 120/2023 on 28.03.2023
against the applicants, stating that the
agricultural lands of the complainant and
the accused persons are adjoining each
others' land. The accused persons had
damaged Med (boundary) dividing the two
fields in the morning of 28.03.2023 and
when the opposite party no. 2 objected
against it, the accused persons attacked him
with sticks and a spade causing injury on
his hand and head.

4. The medico legal examination
report of the victim mentions an incised
wound on his head, contusions on left hand
and left knee and an abrasion on chest and
abdomen. The incised wound was opined to
have
been
causes
by
some
sharp
object/weapon and the other injuries were
caused by some hard and blunt object and
the injuries were fresh.

5. The opposite party no. 2 reiterated
the FIR allegations while recording her
statement under Section 161 Cr.P.C.

6. The Investigating Officer recorded
statements of two independent witnesses,
both of whom stated that the accused
persons had abused and assaulted the
opposite party no. 2 and the accused
persons had left threatening them after
intervention of the witnesses.

7.

After
investigation,
the
Investigating Officer submitted a chargesheet dated 01.04.2023 for offences under
Sections 323, 504, 506 IPC only.

8. While assailing validity of the
aforesaid order, the learned counsel for the
applicant has submitted that in x-ray
examination of the victim, no abnormality
has been detected and, therefore, the
offence under Section 308 IPC is not made
out.

9. Section 308 IPC provides as
follows:-
940 INDIAN LAW REPORTS ALLAHABAD SERIES

"308.
Attempt
to
commit
culpable homicide.-

Whoever does any act with such
intention or knowledge and under such
circumstances that, if he by that act caused
death, he would be guilty of culpable
homicide not amounting to murder, shall be
punished with imprisonment of either
description for a term which may extend to
three years, or with fine, or with both; and,
if hurt is caused to any person by such act,
shall be punished with imprisonment of
either description for a term which may
extend to seven years, or with fine, or with
both.

Illustration: A, on grave and
sudden provocation, fires a pistol at Z,
under such circumstances that if he thereby
caused death he would be guilty of culpable
homicide not amounting to murder. A has
committed the offence defined in this
section."

10. A bare perusal of Section 308 IPC
indicates that there is absolutely no
necessity of causing of any injury for
making out an offence under Section 308
IPC and even in absence of any hurt having
been caused, an offence to commit culpable
homicide is made out and in such a case, it
will be punishable with imprisonment
which may extend to three years. In case
hurt is caused in the incident, the offence
becomes punishable with imprisonment
which may extend to seven years, even if
the hurt is not grievous, i.e. if the hurt is
simple. Therefore, the submission of the
learned counsel for the applicant that in
absence of any abnormality having been
reported in the x-ray examination of the
opposite party no. 2, offence under Section
308 IPC is not made out, is absolutely
misconceived and the same is rejected.

11. The learned counsel for the
applicant next submitted that when the trial
court has ordered further investigation, it
had no jurisdiction to take cognizance of
the offence.

12. Section 190 Cr.P.C. provides as
follows: -

"190. Cognizance of offences by
Magistrates.-
(1)
Subject
to
the
provisions of this Chapter, any Magistrate
of the first class, and any Magistrate of
the second 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.
(Emphasis supplied)

13. A bare reading of Section 190 (1)
(b) Cr.P.C. indicates that a Magistrate is
empowered to take cognizance of any
offence upon a police report of facts which
constitute such offence. Police report has to
be of facts which constitute the offence and
it need not mention the offence which is
made out. Even if the police report
mentions some offence and it omits to
mention some other offence, in case the
Magistrate is satisfied from facts stated in
the police report that some other offence is
also made out, the Magistrate can take
cognizance of that offence also.

14. In India Carat (P) Ltd. v. State of
Karnataka, (1989) 2 SCC 132, a Bench
3 All. Shamsher Bahadur & Ors. Vs. State of U.P. & Anr.
941
consisting of three Hon'ble Judges of the
Hon'ble Supreme Court held that: -

"11. ... On receiving the police
report the Magistrate may take cognizance
of the offence under Section 190(1)(b) and
issue process straightway to the accused.
The Magistrate may exercise his powers in
this behalf irrespective of the view
expressed by the police in their report
whether an offence has been made out or
not. This is because the police report under
Section 173(2) will contain the facts
discovered or unearthed by the police as
well as the conclusion drawn by the police
therefrom. If the Magistrate is satisfied that
upon the facts discovered or unearthed by
the police there is sufficient material for
him to take cognizance of the offence and
issue process, the Magistrate may do so
without reference to the conclusion drawn
by the Investigating Officer because the
Magistrate is not bound by the opinion of
the police officer as to whether an offence
has been made out or not. Alternately the
Magistrate, on receiving the police report,
may without issuing process or dropping
the proceeding proceed to act under
Section 200 by taking cognizance of the
offence on the basis of the complaint
originally submitted to him and proceed to
record the statement upon oath of the
complainant and the witnesses present and
thereafter decide whether the complaint
should be dismissed or process should be
issued.
* * *

13....On receiving the police
report the Magistrate may take cognizance
of the offence under Section 190(1)(b) and
issue process straightway to the accused.
The Magistrate may exercise his powers in
this behalf irrespective of the view
expressed by the police in their report
whether an offence has been made out or
not. This is because the police report under
Section 173(2) will contain the facts
discovered or unearthed by the police as
well as the conclusion drawn by the police
therefrom. If the Magistrate is satisfied that
upon the facts discovered or unearthed by
the police there is sufficient material for
him to take cognizance of the offence and
issue process, the Magistrate may do so
without reference to the conclusion drawn
by the Investigating Officer because the
Magistrate is not bound by the opinion of
the police officer as to whether an offence
has been made out or not. Alternately the
Magistrate, on receiving the police report,
may without issuing process or dropping
the proceeding proceed to act under
Section 200 by taking cognizance of the
offence on the basis of the complaint
originally submitted to him and proceed to
record the statement upon oath of the
complainant and the witnesses present and
thereafter decide whether the complaint
should be dismissed or process should be
issued."

15. In Nahar Singh versus State of
U. P. and others, (2022) 5 SCC 295, after
discussing various precedents on the point,
the Hon'ble Supreme Court has held that
the Magistrate has to apply his mind while
taking cognizance of an offence and if it
appears from the material placed before
him and any person other than those
arrayed as accused also needs to be
summoned, the Magistrate can certainly
summon him. On the same principle, in
case the Magistrate is satisfied that there is
sufficient material for trial of the accused
for any other offence, he has the power to
summon the accused person(s) for trial of
that offence also. In case the Magistrate is
satisfied by a perusal of the complaint and
the material filed with it, that the accused
persons appear to have violated any
942 INDIAN LAW REPORTS ALLAHABAD SERIES
direction, it can take cognizance of the
offence under Section 31-A also.

16. Therefore, the law requires that a
Magistrate may take cognizance of any
offence upon a police report of the facts
constituting an offence. Although the
police report may not allege commission of
any specific offence, in case the Magistrate
is satisfied that the facts stated in the police
report make out commission of any
offence, the Magistrate can take cognizance
of that offence.

17. A perusal of the impugned order
indicates that from the material placed
before the trial court it found that the
material clearly established commission of
offences under Section 323, 504, 506 &
308 IPC and, accordingly, the trial court
has taken cognizance of the aforesaid
offences. However, the trial court found
that the Investigating Officer has recorded
in the case diary that the injury no. 1 was
caused by some sharp edged object but he
did not make any effort to ascertain as to
what was the object used and he did not
make any attempt to recover the same. The
Investigating Officer formed an opinion
merely being influenced by the fact that no
fracture was caused in the incident. The
trial Court found that the Investigating
Officer has submitted the charge sheet in
respect of the offences which are less
serious under influence of extraneous
reasons. The trial court observed that it was
necessary to make efforts for recovery of
the sharp edged object used in the offence
and has directed further investigation on
this point only.

18. In these circumstances, the trial
court has not committed any error in taking
cognizance of the offence when from the
material placed before the trial, a case for
taking cognizance of offences was made
out.

19. Therefore, there is no error or
illegality in the impugned order dated
08.12.2023 passed by the trial court.

20. The application lacks merit and
the same is dismissed.
----------
(2024) 3 ILRA 942
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.03.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482. No. 2274 of 2024

Dost Mohammad & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Dinesh Kumar Singh (D.K. Singh)

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 420, 467, 468, 471, 504 & 506 -
Petitioners contended that application u/s
156(3) Cr.P.C. filed by opposite party no. 2
was counter-blast to F.I.R. on petitioners'
side - It is urged that when Magistrate, by
order dated 11.11.2021, treating said
application as complaint, fixed matter for
St.ment of complainant u/s 200 Cr.P.C.,
opposite party no. 2 ought not to have
challenged said order before revisional
court on ground that only recourse
available was to direct lodging of F.I.R -
Revisional court, set aside Magistrate's
order dated 11.11.2021 and directed
lodging of F.I.R., pursuant to which
Magistrate, by order dated 20.02.2024,
directed registration of F.I.R - Held, it is
settled law that before issuing summons