# Shyam Babu & Ors v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1523
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-03-21
- **Case number:** Application U/S 482 No. 30776 of 2012
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-babu-ors-v-state-of-u-p-anr-45533
- **Pages:** 3

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 190 (1)(a) -
Section 190 (1)(b) - At the time of
summoning and taking cognizance, under
Section 190 of Cr.P.C., material placed on
case diary, is to be taken in consideration
and once the same is insufficient and further
evidence is being taken, then, procedure
under Chapter XV of Cr.P.C. was required
and Magistrate was to make inquiry under
Section
200
and
202
of
Cr.P.C.
The
Magistrate can ignore the conclusion arrived
at by Investigating Officer and independently
apply his judicial mind to the facts emerging
from the investigation and take cognizance
of the case, if he thinks fit and exercise his
power
under
Section
190
(1)(b).
The
Magistrate is not bound in such situation to
follow the procedure laid down in Section
200 and 202 of Cr.P.C. for taking cognizance
of the case under Section 190 (1)(a),
though, it is open to him to act under
Section 200 and 202 of Cr.P.C. also.

The magistrate cannot take into account
material extraneous to the case diary while
considering a Protest Petition and either the
Magistrate can summon the accused u/s
190(1)(b) ignoring the Final Report or
proceed under Chapter XV of the Code
treating the matter as a Complaint Case. (
Para 5)

Criminal Application allowed.

Case law discussed:-

## Text

2 All. Shyam Babu & Ors. Vs. State of U.P. & Anr.
1523
any offence under sections 419, 420 IPC and
there are no specific averments with regard to
offences under sections 504, 506 and 201 IPC.
Hence I am in full agreement with the
arguments advanced on behalf of applicant that
his prosecution for offences under sections
419, 420, 338, 504, 506 and 201 IPC is
unwarranted and amounts to abuse of process
of Court and if permitted to continue will cause
unnecessary harassment of a M.B.B.S. Doctor.
There is sufficient ground for quashing the
proceedings of criminal case for preventing
abuse of process of Court and to secure the
ends of justice. Therefore, the application is
liable to be allowed and proceedings of
Criminal Case No.2136 of 2018 (State Vs. Dr.
Sushil Kumar Gupta), relating to Case Crime
No.338 of 2017, under sections 419, 420, 338,
504, 506 and 201 IPC as well as charge sheet
dated 21.3.2018, are liable to be quashed as
against applicant.

13. The application U/s 482 Cr.P.C. is
allowed and the proceedings of Criminal Case
No.2136 of 2018 (State Vs. Dr. Sushil Kumar
Gupta), relating to Case Crime No.338 of
2017, under sections 419, 420, 338, 504, 506
and 201 IPC as well as charge sheet dated
21.3.2018 are quashed, accordingly.

14. However, it is made clear that any
observation made in the body of judgment will
not prejudice the rights of opposite party no.2
in the case pending as against co-accused
person or in civil proceedings, if any, filed by
her.
----------
(2020)02ILR A1523

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 30776 of 2012

Shyam Babu & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Akhil Kumar Shukla

Counsel for the Opposite Parties:
A.G.A., Sri Radha Mohan Pandey, Sri
Rajendra Kumar Ojha

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 190 (1)(a) -
Section 190 (1)(b) - At the time of
summoning and taking cognizance, under
Section 190 of Cr.P.C., material placed on
case diary, is to be taken in consideration
and once the same is insufficient and further
evidence is being taken, then, procedure
under Chapter XV of Cr.P.C. was required
and Magistrate was to make inquiry under
Section
200
and
202
of
Cr.P.C.
The
Magistrate can ignore the conclusion arrived
at by Investigating Officer and independently
apply his judicial mind to the facts emerging
from the investigation and take cognizance
of the case, if he thinks fit and exercise his
power
under
Section
190
(1)(b).
The
Magistrate is not bound in such situation to
follow the procedure laid down in Section
200 and 202 of Cr.P.C. for taking cognizance
of the case under Section 190 (1)(a),
though, it is open to him to act under
Section 200 and 202 of Cr.P.C. also.

The magistrate cannot take into account
material extraneous to the case diary while
considering a Protest Petition and either the
Magistrate can summon the accused u/s
190(1)(b) ignoring the Final Report or
proceed under Chapter XV of the Code
treating the matter as a Complaint Case. (
Para 5)

Criminal Application allowed.

Case law discussed:-
1. Minu Kumari & anr. Vs. St. Of Bihar, (2006)
4 SCC 359
1524 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. The applicants namely, Shyam
Babu, Sri Kant and Ram Niwas, by means
of this application, under Section 482
Cr.P.C.,
have
invoked
the
inherent
jurisdiction of the Court with prayer to set
aside impugned summoning order with
entire proceeding of Complaint Case No.
5/11/2005 (State Vs. Ram Babu and
others), under Sections 419, 420, 467, 468,
471 I.P.C., P.S. Chibramau, District
Kannauj, wherein, summoning order dated
28.8.2012, has been passed by learned
Judicial Magistrate, Chibramau, Kannauj,
against applicants.

2. Heard learned counsel for the
applicants and learned A.G.A. for the
State.

3. Learned counsel for the applicants
argued that this case crime number was
got registered, by way of an application
moved under Section 156(3) of Cr.P.C.,
wherein,
investigation
resulted
in
submission of final report. Against final
report, a protest petition was filed,
annexing therewith certain affidavits and
documents.
On
the
basis
of
these
documents, order dated 28.8.2012, was
passed by Judicial Magistrate, Chibramau,
District Kannauj, wherein, final report was
rejected and applicants were summoned
for offences punishable under Sections
419, 420, 467, 468, 471 I.P.C. No
statements under Section 200 of Cr.P.C. or
inquiry under Section 202 of Cr.P.C. was
made. Rather, summoning was passed, on
the basis of documents, filed with protest
petition. Hence, without following the
procedure given for complaint cases, under
Chapter
XV
of
Code
of
Criminal
Procedure, impugned order was passed.
Though, it has been written in this order
that Investigating Officer has not recorded
statement of witnesses under Section 161
of Cr.P.C. in accordance with their
contentions and this was specifically said
in protest petition that no such recording
of
statement
of
informant
and
his
witnesses were made, by Investigating
Officer. Meaning thereby, no statement
under Section 161 of Cr.P.C. was got
recorded, by Investigating Officer and it
was complained by informant itself.
Hence, on the basis of statements recorded
under Section 161 of Cr.P.C. and evidence
collected in case diary, final report was
submitted. Meaning thereby, till then,
there was no material for summoning of
applicants. On the basis of protest petition
and documents annexed therewith, this
impugned summoning order was passed.
Hence, these evidence were with no option
for any rebuttal by applicants and a
procedure given under Chapter XV of
Cr.P.C. was also not obeyed. Hence, for
ensuring end of justice, this application
has been filed with above prayer.

4. Learned counsel for opposite party
No. 2 as well as learned AGA, has
vehemently opposed that this cognizance
was taken under Section 190 of Cr.P.C.
and this summoning was there as a State
case. A procedure of complaint case given
under Chapter XV of Cr.P.C. was not
acted by trial court concerned, hence, no
question of recording of statement under
Sections 200 or 202 of Cr.P.C. ever arisen.
Hence, this application be dismissed.

5. Having heard learned counsels for
both sides, it is apparent that a question of
fact is not to be seen and appreciated, in
exercise of inherent jurisdiction under
Section 482 of Cr.P.C., by this Court,
rather it is within the domain of
2 All. Rishi Kumar Sharma Vs. State of U.P. & Anr.
1525
Magistrate, concerned. A legal aspect is
there and the legal position is very well
clear that if informant himself had
complained that his statement was not
recorded as per his own contention, in
statement under Section 161 of Cr.P.C.,
his witnesses were, too, not examined and
recorded under Section 161 of Cr.P.C., the
evidence in case diary was not in support
of submission of charge-sheet and final
report was submitted. Hence, on the basis
of final report and investigation annexed
therewith, there was no ground for taking
any
cognizance
or
summoning
of
applicants
for
those
offences
nor
Magistrate has written so, i.e., impugned
summoning has been passed, on the basis
of material annexed with protest petition
and it is settled law that at the time of
summoning and taking cognizance, under
Section 190 of Cr.P.C., material placed on
case diary, is to be taken in consideration
and once the same is insufficient and
further evidence is being taken, then,
procedure under Chapter XV of Cr.P.C.
was required and Magistrate was to make
inquiry under Section 200 and 202 of
Cr.P.C. Then after, those documents,
which were filed with protest petition, may
be taken into consideration. Accordingly,
as per law, the Magistrate can ignore the
conclusion arrived at by Investigating
Officer and independently apply his
judicial mind to the facts emerging from
the investigation and take cognizance of
the case, if he thinks fit and exercise his
power under Section 190 (1)(b). The
Magistrate is not bound in such situation
to follow the procedure laid down in
Section 200 and 202 of Cr.P.C. for taking
cognizance of the case under Section 190
(1)(a), though, it is open to him to act
under Section 200 and 202 of Cr.P.C. also,
as Apex Court held in Minu Kumari And
Anr vs The State Of Bihar, (2006) 4
SCC
359.
Meaning
thereby,
the
material to be taken into consideration,
at the time of taking cognizance under
Section 190 (1)(a) or (b) of Cr.P.C.,
must be the material emerging from the
investigation i.e. within the case diary
and not out of the case diary, filed by
way of protest petition and affidavit.
Hence, this application deserves merit.

6. Accordingly, it is being
allowed.

7. Impugned cognizance taking
order as well as summoning order with
entire proceeding of Complaint Case
No. 5/11/2005 (State Vs. Ram Babu
and others), under Sections 419, 420,
467, 468, 471 I.P.C., P.S. Chibramau,
District Kannauj, is being set aside.

8. File is remanded back to
Magistrate
concerned,
for
having
recourse under Chapter XV of Cr.P.C.
and proceed in accordance with law.

9. With above directions, the
application is finally disposed of.
----------
(2020)02ILR A1525

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 34825 of 2012

Rishi Kumar Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Amit Krishan