# Smt. Alka & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 47
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-07
- **Case number:** Criminal Revision No. 378 of 2021
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-alka-ors-revisionists-v-state-of-u-p-anr-51660
- **Pages:** 11

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504, 500, 166, 166-A, 409 &
120-B - Code of Criminal Procedure, 1973
- Sections 190, 197, 397 & 401 - State
challenged order dated 17.02.2021 by Chief
Judicial Magistrate, Barabanki, rejecting final
report, accepting protest application, and taking
cognizance against public servants (C.D.O., S.P.,
S.H.O., I.O.) under Sections 120-B and 166-A
IPC without sanction under Section 197 Cr.P.C.
Court held: (1) Cognizance against public
servants (C.D.O., S.P., S.H.O., I.O.) for acts in
discharge of official duties invalid without prior
government sanction under Section 197 Cr.P.C.
(2) No specific allegations or material evidence
supported cognizance under Section 409 IPC for
embezzlement; mere discrepancies in reports
insufficient. (3) FIR for non-cognizable offences
(Sections 323, 504, 500 IPC) wrongly registered
under Section 154 Cr.P.C.; trial as St. case
illegal. (4) Section 166-A IPC inapplicable as
failure to register FIR under Section 409 IPC not
covered. (5) Magistrate's order lacked prima
facie
satisfaction
of
offence
ingredients,
rendering it unsustainable (Amod Kumar Kanth
Vs Assn. of Victim of Uphaar Tragedy, 2023 SCC
Online SC 578; St. of Orissa Vs Ganesh Chandra
Jew, (2004) 8 SCC 40; Gauri Shankar Prasad Vs
St. of Bihar, (2000) 5 SCC 15; St. of U.P. Vs
Ram Swaroop, (1974) 4 SCC 764).
Revision allowed.

Case Law Cited:

## Text

3 All. Smt. Alka & Ors. Vs. State of U.P. & Anr.
47
material collected during investigation.
Therefore, the revision is liable to be
allowed and the impugned order deserves
to be set aside.

17. Accordingly, present revision
stands allowed and the impugned order
passed by learned Additional Chief Judicial
Magistrate, Second, Gorakhpur, is hereby
set aside and the matter is remanded back
to learned Magistrate to hear and decide the
application for discharge moved by the
revisionist afresh, strictly, in accordance
with law as well as in the light of
observations made in present revisional
order.
----------
(2024) 3 ILRA 47
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.03.2024
BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 378 of 2021

Smt. Alka & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Ram Jee Saxena, Sri Raghuvansh
Chandra

Counsel for the Opposite Parties:
G.A., Sri Ashok Kumar Pandey

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504, 500, 166, 166-A, 409 &
120-B - Code of Criminal Procedure, 1973
- Sections 190, 197, 397 & 401 - State
challenged order dated 17.02.2021 by Chief
Judicial Magistrate, Barabanki, rejecting final
report, accepting protest application, and taking
cognizance against public servants (C.D.O., S.P.,
S.H.O., I.O.) under Sections 120-B and 166-A
IPC without sanction under Section 197 Cr.P.C.
Court held: (1) Cognizance against public
servants (C.D.O., S.P., S.H.O., I.O.) for acts in
discharge of official duties invalid without prior
government sanction under Section 197 Cr.P.C.
(2) No specific allegations or material evidence
supported cognizance under Section 409 IPC for
embezzlement; mere discrepancies in reports
insufficient. (3) FIR for non-cognizable offences
(Sections 323, 504, 500 IPC) wrongly registered
under Section 154 Cr.P.C.; trial as St. case
illegal. (4) Section 166-A IPC inapplicable as
failure to register FIR under Section 409 IPC not
covered. (5) Magistrate's order lacked prima
facie
satisfaction
of
offence
ingredients,
rendering it unsustainable (Amod Kumar Kanth
Vs Assn. of Victim of Uphaar Tragedy, 2023 SCC
Online SC 578; St. of Orissa Vs Ganesh Chandra
Jew, (2004) 8 SCC 40; Gauri Shankar Prasad Vs
St. of Bihar, (2000) 5 SCC 15; St. of U.P. Vs
Ram Swaroop, (1974) 4 SCC 764).
Revision allowed.

Case Law Cited:

1. Amod Kumar Kanth Vs Assn. of Victim of
Uphaar Tragedy, 2023 SCC Online SC 578 (Para
16, 21)

2. St. of Orissa Vs Ganesh Chandra Jew, (2004)
8 SCC 40 (Para 23)

3. Gauri Shankar Prasad Vs St. of Bihar, (2000)
5 SCC 15 (Para 22)

4. St. of U.P. Vs Ram Swaroop, (1974) 4 SCC
764 (Para 13)

5. P. Ravindran Vs St., 2010 SCC Online Mad
1709 (Para 11, not binding)

6. Revision Allowed; Impugned Order Set Aside.

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

1. Heard Sri Vinod Kumar Shahi, the
learned
Additional
Advocate
General
assisted by Sri Anurag Verma, the learned
A.G.A.-I appearing on behalf of the State -
Revisionist, Sri Krishna Gopal, the learned
Counsel for the opposite party no.2 and
perused the records.
48 INDIAN LAW REPORTS ALLAHABAD SERIES

2. By means of the instant revision
filed under Section 397/401 Cr.P.C. the State
has challenged the validity of an order dated
17.02.2021, passed by learned Chief Judicial
Magistrate, Barabanki (hereinafter referred to
as 'the C.J.M.') in Case No.717 of 2021 -
Ram Pratap Versus Anup Kumar Singh and
others, whereby while deciding a protest
application filed by the opposite party no.2
against a final report submitted by the
Investigating Officer the learned trial court
has not only accepted the protest application
and rejected the final report and taken
cognizance of offences under Sections 323,
504, 500 and 166 I.P.C. allegedly committed
by the persons named in the F.I.R., but at the
same time has taken cognizance of offence
under Section 120-B I.P.C. against Megha
Roopam - the then Chief Development
Officer (hereinafter referred to as 'the
C.D.O.'), Sri. Arvind Chaturvedi - the then
Superintendent of Police (hereinafter referred
to as 'the S.P.') and Sri. Zaid Ahmad - the
Investigating Officer/Sub-Inspector of Police
(hereinafter referred to as 'the I.O.).
Cognizance of offence under Section 166-A
I.P.C. has also been taken against Sri. Prakash
Chandra Sharma - the then Station House
Officer (hereinafter referred to as 'the
S.H.O.'). Copies of the order were directed to be
sent to the Principal Secretary of Government of
U. P. (without specifying the department) and to
the District Magistrate for initiating departmental
action against the then Chief Development officer,
the then S.P. and the then S.H.O., Dewa,
Barabanki for submitting a final report in the
matter for giving wrongful benefit to the accused
persons under a conspiracy and a copy was
ordered to be sent to the S.P. for taking action
against the S.H.O. for his omission to register a
case regarding embezzlement of government
money.

3. Briefly stated, the facts of the case are that
the opposite party no. 2 had filed an application
under Section 156 (3) Cr.P.C. against (i) Anup
Kumar Singh, Block Development Officer
(hereinafter referred to as 'the B.D.O.'), (ii) Beena,
Village Panchayat Officer, alleging that the
complainant is a former Village Pradhan. The
complainant had given a complaint to the District
Magistrate alleging that the work of construction
of toilets was being carried out in the village
against the prescribed standards. Thereupon an
enquiry was conducted through the C.D.O.,
Barabanki and the Sub Divisional Magistrate,
Nawabganj, District Barabanki and both the
aforesaid officers had submitted reports containing
different findings. The complainant on his own
got an enquiry conducted by the Village
Panchayat Officer and he gave an application to
the Sub Divisional Magistrate, Nawabganj,
Barabanki. The complainant had gone to some
office on 05.08.2019 where the Village
Development Officer was also present. Both the
accused persons alleged that the complainant was
a tout and this was the reason behind his making
the complaints. When the complainant objected,
the Block Development Officer Anup Kumar
Singh slapped him and pushed him out of the
office and the other co-accused person stated that
she had seen many village pradhans like the
complainant and she asked him to go away
else the consequence will not be good. The
complainant stated that the use of word tout
was intended to cause disrespect to the
complainant, from which he suffered
mental and physical agony.

4. On 04.08.2020 the C.J.M.,
Barabanki passed an order stating that from
the facts, circumstances and documents
available, the matter appears to be of
embezzlement of public money, which
prima facie appears to be a cognizable
offence. The C.J.M. directed the S.H.O.,
Dewa, Barabanki to register a case against
appropriate persons in appropriate sections
and to submit a compliance report within
seven days.
3 All. Smt. Alka & Ors. Vs. State of U.P. & Anr.
49

5. In furtherance of the aforesaid
order dated 04.08.2020 passed by the
C.J.M., F.I.R. No.326 of 2020 was
registered
in
Police
Station
Dewa,
Barabanki against (1) Anup Kumar Singh
and (2) Beena, for offences under Sections
323, 504, 500 and 166 I.P.C., all of which
are non-cognizable offence and no F.I.R.
could have been registered under Section
154 Cr.P.C. in respect of non-cognizable
offence(s).

6.

After
investigation,
the
Investigating Officer submitted a final
report on 20.09.2020, stating that from the
statement of the complainant, statements of
some independent witnesses and from the
report submitted by the C.D.O., Barabanki
as well as the statement of one of the
accused persons no offence was made out.

7. On 08.02.2021, the opposite party
no. 2 filed a protest application against the
final report, a certified copy whereof has
been annexed with the revision. It bears the
title - Application for rejecting the Final
Report and Summoning the Accused
Persons, and thereafter the words and
figures
'under
sections
409/500/504/166/323 IPC' have been added
by hand and this interpolation has not been
authenticated by the signature of the
applicant or any person. Page 1 of the
application does no bear the signature of
any person and in this manner the
complainant has the liberty to disown the
contents of page 1 of the application at his
sweet will.

8. It is stated in the application that he
had lodged the report for embezzlement in
construction of toilets, whereas there is
absolutely no whisper of embezzlement in
the application under Section 156 (3)
Cr.P.C. The complainant alleged that the
Investigating Officer has not recorded the
statements of the persons who were present
on the spot of occurrence and the offence
under Section 409 I.P.C. was also made out
against the accused persons. He stated that
there were discrepancies in the enquiry
report submitted by the C.D.O., Barabanki
and Sub Divisional Magistrate, Nawabganj,
Barabanki and that the Village Panchayat
Officer has stated in her report that 511
toilets had been constructed whereas in the
report
submitted
by
the
S.D.M.
in
furtherance
of
the
application
dated
24.06.2019 it was stated that 150 toilets
were incomplete and 40 toilets had not
been constructed.

9. The complainant further alleged
that the Block Development Officer had
stated in his report dated 22.07.2019 that
the complainant was giving repetitive
complaints for the reason of him being a
tout, has damaged his reputation in the
society and has defamed him. He alleged
that the accused Anup Kumar Singh has
made a wrong entry in lock book (Sic logbook). The complainant alleged that the
accused persons had shown construction of
511 toilets on paper and misappropriate the
entire amount whereas about 400 toilets
had not been constructed in the village of
the complainant.

10. While deciding the protest
application, the learned C.J.M. held that the
matter involved embezzlement of public
money but the F.I.R. was registered only
for offence of causing hurt, abusing and
defaming the complainant. The Magistrate
found that the administrative enquiry
conducted by the C.D.O.after registration
of the F.I.R. was interference in the
criminal case after registration of the F.I.R.,
which was not proper. The court found that
from the statement of the complainant
50 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded under Section 161 Cr.P.C. and
other
documentary
evidence,
it
was
apparent that illegalities were committed in
construction of toilets and when the
complainant made enquiry regarding it, he
was beaten up, abused and disrespected.
Therefore, there was sufficient reason for
taking cognizance of the offence under
Sections 409, 323, 504, 500 I.P.C. against
the named accused persons.

11. The learned counsel appearing on
behalf of the opposite party no.2 raised a
preliminary
objection
regarding
locus
standi of the State to file the instant
revision when the impugned order has not
been passed against the State. He has relied
upon the a decision of a Single Judge
Bench of the Hon'ble High Court of
Madras in the case of P. Ravindran Vs.
State: 2010 (3) CTC 73 = 2010 SCC
OnLine Mad 1709, wherein it was held
that: -

"29. It is a settled preposition of
law that a criminal proceeding cannot be
used as an instrument of wrecking a private
vengeance either on political reason or
otherwise by a third party to the criminal
proceeding. .... Considering the vital legal
aspects, in the light of the various rulings
of the Honourable Supreme Court, I am of
the view that the petitioner/third party to a
criminal proceeding is not legally entitled
to maintain criminal revision against
discharge or acquittal recorded by the trial
court, unless he is also an aggrieved
person."

12. The aforesaid decision of a
Single Judge Bench of the Madras High
Court is not a binding precedent. Moreover,
it does not lay down any proposition of law
which may apply to the facts of the present
case.

13. Per contra, the learned Additional
Government Advocate appearing on behalf
of the State has submitted that the State has
the responsibility to ensure prosecution of
accused persons as also to protect its
officers from frivolous prosecutions. He
has placed reliance on a decision of the
Hon'ble Supreme Court in State of U.P.
Versus Ram Swaroop: (1974) 4 SCC 764,
in which it was held that: -

"37.Thelocus
standiof
State
Governments to file appeals in this Court
against judgments or orders rendered in
criminal
matters,
particularly
those
commenced otherwise than on private
complaints, has been recognised over the
years and for a valid reason. All crimes
raise problems of law and order and some
raise issues of public disorder. The effect of
crime on the ordered growth of society is
deleterious and the State Governments are
entrusted
with
the
enforcement
and
execution
of
laws
directed
against
prevention and punishment of crimes. They
have, therefore, a vital stake in criminal
matters which explains why all public
prosecutions are initiated in the name of
the Government."

14. The allegation of the complainant
in the application under Section 156 (3)
Cr.P.C. was against the (i) Anup Kumar
Singh, Block Development Officer, (ii)
Beena, Village Panchayat Officer, alleging
that the complainant is a former Village
Pradhan. There was no allegation against
the C.D.O., the Superintendent of Police,
the S.H.O. or the Investigating Officer. Yet
while allowing the protest petition filed
against the final report submitted after
investigation, the learned C.J.M. has taken
cognizance of offences regarding which
there was no factual averment and has
summoned the C.D.O., the Superintendent
of Police, the S.H.O. and the Investigating
Officer for being tried without sanction of
3 All. Smt. Alka & Ors. Vs. State of U.P. & Anr.
51
the State Government. The aforesaid
persons summoned by the C.J.M. are public
servants and, therefore, the State has an
interest in protecting its officers from any
frivolous prosecution launched without its
sanction.

15. Therefore, I find no merit in the
preliminary objection raised by the learned
Counsel for the opposite party no. 2
regarding locus standi of the State
Government and I hold that the State has
the right to assail validity of the impugned
order and I proceed to examine the revision
on its merits.

16. The learned Additional Advocate
General has submitted that the C.J.M. has
no authority in law to take cognizance of
offences allegedly committed by the
C.D.O., the Superintendent of Police, the
S.H.O.
and
the
Sub-Inspector
/
Investigating Officer, all of whom are
public servants, without a prior sanction for
their
prosecution
granted
by
the
Government. In support of this submission,
he has placed reliance on the decision in
the case of Amod Kumar Kanth v. Assn.
of Victim of Uphaar Tragedy, 2023 SCC
OnLine SC 578.

17. Section 197 Cr.P.C. provides as
follows: -

"197. Prosecution of Judges and
public servants.-(1) When any person
who is or was a Judge or Magistrate or a
public servant not removable from his
office save by or with the sanction of the
Government is accused of any offence
alleged to have been committed by him
while acting or purporting to act in the
discharge of his official duty, no Court
shall take cognizance of such offence
except with the previous sanctionsave as
otherwise provided in theLokpal and
Lokayuktas Act, 2013-

(a) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
the Union, of the Central Government;

(b) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
a State, of the State Government:

Provided that where the alleged
offence was committed by a person referred
to in clause (b) during the period while a
Proclamation issued under clause (1) of
Article356of theConstitutionwas in force in
a State, clause (b) will apply as if for the
expression "State Government" occurring
therein,
the
expression
"Central
Government" were substituted.

Explanation.-For the removal of
doubts it is hereby declared that no
sanction shall be required in case of a
public servant accused of any offence
alleged to have been committed under
Section166-A, Section166-B, Section354,
Section354-A, Section354-B, Section354-C,
Section354-D,
Section370,
Section375,
Section376,Section376-A, Section376-AB,
Section376-C, Section376-D, Section376DA,
Section376-DB
or
Section509of
theIndian Penal Code (45 of 1860).

(2)
No
Court
shall
take
cognizance of any offence alleged to have
been committed by any member of the
Armed Forces of the Union while acting or
purporting to act in the discharge of his
official duty, except with the previous
sanction of the Central Government.

(3) The State Government may, by
notification, direct that the provisions of
sub-section (2) shall apply to such class or
category of the members of the Forces
charged with the maintenance of public
52 INDIAN LAW REPORTS ALLAHABAD SERIES
order as may be specified therein, wherever
they may be serving, and thereupon the
provisions of that sub-section will apply as
if for the expression "Central Government"
occurring therein, the expression "State
Government" were substituted.
* * *"

18. The C.D.O. and the S.P.are public
servants who are not removable from his
office save by or with the sanction of the
Government and undisputedly they have
the protection of Section 197 Cr.P.C.

19. So far as the S.H.O. and the
Investigating Officer are concerned it is to
be noted that the State Government has
issued a Notification No. 1841 (3)/VI-53871 dated 30.01.1975, which reads as under:
-

"Grih Vibhag (Police), Anubhag9, Notification No. 1841 (3)/VI-538-71,
dated January 30, 1975:-

In
exercise
of
the
powers
conferred by sub-section (3) of Section 197
of the Code of Criminal Procedure, 1973
(Act No. 2 of 1974), the Governor is
pleased to direct that the provisions of subsection (2) of the aforesaid section shall
apply to all members of the following
forces of the State, charged with the
maintenance of public order wherever they
may be serving, namely: (i) U.P. Police
Force
(ii)
U.P.
Pradeshik
Armed
Constabulary"

20. Therefore, there is a specific bar
against taking cognizance of offences by
any member of U. P. Police Force -
including the S.H.O. and the Sub-Inspector
- Investigating Officer, without previous
sanction of the State Government.

21. The phrase "any offence alleged
to have been committed by him while acting
or purporting to act in the discharge of his
official duty" occurring in Section 197 (1)
Cr.P.C. have been the subject matter of
discussion in various precedents. In Amod
Kumar Kanth v. Assn. of Victim of
Uphaar Tragedy (Supra) it was held that: -

"32.Here we may notice one
aspect. When the question arises as to
whether
an
act
or
omission
which
constitutes an offence in law has been done
in the discharge of official functions by a
public servant and the matter is under a
mist and it is not clear whether the act is
traceable to the discharge of his official
functions, the Court may in a given case
tarry and allow the proceedings to go on.
Materials will be placed before the Court
which will make the position clear and a
delayed decision on the question may be
justified. However, in a case where the act
or the omission is indisputably traceable
to the discharge of the official duty by the
public servant, then for the Court to not
accept the objection against cognizance
being taken would clearly defeat the
salutary
purpose
which
underlies
Section197of theCr. P.C. It all depends on
the facts and therefore, would have to be
decided on a case to case basis."
(Emphasis supplied)

22. In Gauri Shankar Prasad v.
State of Bihar, (2000) 5 SCC 15, it was
held that: -

"7.Section 197 CrPC affords
protection to a Judge or a magistrate or a
public servant not removable from his
office save by or with the sanction of the
Government against any offence which is
alleged to have been committed by him
while acting or purporting to act in the
discharge
of
his
official
duty.
The
protection is provided in the form that no
3 All. Smt. Alka & Ors. Vs. State of U.P. & Anr.
53
court shall take cognizance of such offence
except with the previous sanction of the
Central
Government
or
the
State
Government as the case may be. The object
of the section is to save officials from
vexatious proceedings against Judges,
magistrates and public servants but it is no
part of the policy to set an official above
the common law. If he commits an offence
not connected with his official duty he has
no privilege. But if one of his official acts
is alleged to be an offence, the State will
not allow him to be prosecuted without its
sanction. Section 197 embodies one of the
exceptions to the general rules laid down
in Section 190 CrPC, that any offence may
be taken cognizance of by the Magistrates
enumerated therein. Before this section
can be invoked in the case of a public
servant two conditions must be satisfied i.e.
(1) that the accused was a public servant
who was removable from his office only
with the sanction of the State Government
or the Central Government; and (2) he
must be accused of an offence alleged to
have been committed by him while acting
or purporting to act in the discharge of his
official duty.

8.What offences can be held to
have been committed by a public servant
while acting or purporting to act in the
discharge of his official duties is a vexed
question which has often troubled various
courts including this Court. Broadly
speaking, it has been indicated in various
decisions of this Court that the alleged
action constituting the offence said to
have been committed by the public servant
must have a reasonable and rational
nexus with the official duties required to
be discharged by such public servant."
(Emphasis supplied)

23. In State of Orissav.Ganesh
Chandra Jew,(2004) 8 SCC 40, the
Hon'ble Supreme Court explained the
underlying concept of protection under
Section 197 and held as follows: -

"9...The section falls in the
chapter dealing with conditions requisite
for initiation of proceedings. That is, if the
conditions mentioned are not made out or
are absent then no prosecution can be set in
motion. .... So far as public servants are
concerned, the cognizance of any offence,
by any court, is barred by Section 197 of
the Code unless sanction is obtained from
the appropriate authority, if the offence,
alleged to have been committed, was in
discharge of the official duty. The section
not only specifies the persons to whom the
protection is afforded but it also specifies
the conditions and circumstances in which
it shall be available and the effect in law if
the conditions are satisfied. The mandatory
character of the protection afforded to a
public servant is brought out by the
expression
"no
court
shall
take
cognizance of such offence except with the
previous sanction". Use of the words "no"
and "shall" makes it abundantly clear that
the bar on the exercise of power by the
court to take cognizance of any offence is
absolute
and
complete.
The
very
cognizance
is
barred.
That
is,
the
complaint cannot be taken notice of.
According to Black's Law Dictionary the
word "cognizance" means "jurisdiction"
or "the exercise of jurisdiction" or "power
to try and determine causes". In common
parlance it means taking notice of. A court,
therefore, is precluded from entertaining a
complaint or taking notice of it or
exercising jurisdiction if it is in respect of a
public servant who is accused of an offence
alleged to have been committed during
discharge of his official duty."

(Emphasis supplied)
54 INDIAN LAW REPORTS ALLAHABAD SERIES

24. The learned C.J.M. has found that
the administrative enquiry conducted by the
C.D.O.after registration of the F.I.R. was
interference in the criminal case after
registration of the F.I.R., which was not
proper.
However,
this
administrative
enquiry was conducted by the C.D.O. in
discharge of his official duty. The C.D.O.
had sent the report to the Superintendent of
Police, who forwarded the same to the
S.H.O. in discharge of his official duty. The
investigating officer took into consideration
S.H.O.
had
also
acted
as
per the
instructions of his superior officer, i.e. the
Superintendent of Police, in discharge of
his official duty. Megha Roopam - the then
C.D.O., Sri. Arvind Chaturvedi - the then
S.P.and Sri. Zaid Ahmad - the Investigating
Officer/Sub-Inspector
of
Police.
Cognizance of offence under Section 166-A
I.P.C. has also been taken against Sri.
Prakash Chandra Sharma - the then S.H.O.

25. Therefore, all the aforesaid
persons have acted in discharge of their
official duty while committing the alleged
offending acts and the cognizance of the act
committed by them, even if it amounts to
an offence, cannot be taken without
previous sanction of the Government.

26. Therefore, the impugned order
dated 17.02.2021 passed by the C.J.M.
taking cognizance of offence allegedly
committed
by
the
C.D.O.,
the
Superintendent of Police, in discharge of
their official duty, is unsustainable in law.

27. The C.J.M. found that from the
statement of the complainant recorded
under Section 161 Cr.P.C. and other
documentary evidence, it was apparent that
illegalities were committed in construction
of toilets and when the complainant made
enquiry regarding it, he was beaten up,
abused and disrespected and that there was
sufficient reason for taking cognizance of
the offence under Sections 409, 323, 504,
500 I.P.C. against the named accused
persons.

28. Section 409 I.P.C. provides
punishment for the offence of Criminal
breach of trust by public servant, or by
banker, merchant or agent. Criminal breach
of trust is defined in Section 405 I.P.C. as
follows: -

"405. Criminal breach of trust.-
Whoever, being in any manner entrusted
with property, or with any dominion over
property, dishonestly misappropriates or
converts to his own use that property, or
dishonestly uses or disposes of that
property in violation of any direction of law
prescribing the mode in which such trust is
to be discharged, or of any legal contract,
express or implied, which he has made
touching the discharge of such trust, or
wilfully suffers any other person so to do,
commits "criminal breach of trust".
* * *

29. The C.J.M. has not recorded any
prima facie satisfaction regarding the role
of the Block Development Officer and the
Village Panchayat Officer in construction
of toilets. For taking cognizance of the
offence under Section 409 I.P.C. or for any
other offences there should be a specific
allegation of commission of some act
which prima facie make out commission of
the alleged offence. There appears to be
absolutely no factual allegation made in the
complaint or in the protest petition and no
material
to
prima
facie
establish
'entrustment' of any property to any of the
accused persons or to the effect that any of
them have dishonestly misappropriated or
converted to his own use that property, or
3 All. Smt. Alka & Ors. Vs. State of U.P. & Anr.
55
has dishonestly used or disposed of that
property in violation of any direction of
law. Merely because the accused persons
were holding some office, they cannot be
tried for commission of any offence
without
any
specific
allegation
of
commission of any act on their part make
out the ingredients of the offence.

30. The C.J.M. has taken cognizance
of the offences under Section 190 (1) (b)
Cr.P.C., which 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) ..."

31. The police report submitted in this
case mentioned that no offence took place
and no such fact has been stated in the
police report as may make out cognizance
of any offence. In absence of the police
having reported such facts, as make out
commission of any offence, the C.J.M.
could not have taken cognizance of any
offence under Section 190 (1) (b) Cr.P.C.
The order taking cognizance of offence
under Section 190 (1) (b) Cr.P.C. is bad in
law for this reason.

32. The report dated 20.08.2020
submitted by the C.D.O. to the S.P., which
was annexed with the police report, stated
that the B.D.O. had submitted a report
stating that the complainant claims himself
to be a former village pradhan whereas in
the
letter
dated
14.06.2019,
the
complainant has claimed himself to be the
husband of a former village pradhan, which
contentions are self contradictory and
misleading. Regarding the complaint that
toilets had not been constructed, the B.D.O.
informed that the complainant's complaint
dated 17.06.2019 was uploaded on IGRS
Portal on 18.06.2019 and an enquiry was
conducted by the District Panchayat Raj
Officer and the enquiry report dated
17.07.2019 was also uploaded on the
portal, as per which out of total 511 toilets,
421 had been constructed and the incentive
for construction of the remaining private
toilets had been paid to the beneficiaries.
As per the report of the S.D.M., 150 toilets
had not been finished and work had not
commenced on 40 toilets, although the date
of enquiry conducted by the S.D.M. is not
available on record. The Village Panchayat
Secretary Ms. Beena had produced the
digital diary of each of the toilets alongwith
its beneficiary, which established that all
the toilets had been completed.

33. Regarding the incident of beating
and abusing etc. that allegedly occurred on
05.08.2019, the B.D.O. had produced a
copy of the log-block of his official vehicle
to prove that he had not gone to Dewa on
the date of the alleged incident and he was
present in Development Block Harakh.
Regarding the report that alleged that the
complainant was a tout, it was stated that
the said report did not bear the signature of
the B.D.O. and it was not issued under his
authority.

34. It is significant to note that in the
entire application under Section 156 (3)
56 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C., there was no mention of any
embezzlement of public money and the
only allegation was that there was some
discrepancy in two reports submitted by
two different officers, but the discrepancy
in
the
reports
was
not
specifically
mentioned in the application. The findings
of the reports or the discrepancies in the
reports were not mentioned in the order.
The findings of the report dated 20.08.2020
submitted by the C.D.O. have been
mentioned above. The date of the report of
the S.D.M. is not available on record and
there is a possibility that the two reports
mention the situation existing on two
different points on time. Besides stating
that the matter involves embezzlement of
public money, there are no particulars in the
order as to who has committed the
embezzlement of public money and in what
manner.

35. Neither the application under
Section 156 (3) Cr.P.C. made a mention of
any specific offence committed by the
accused persons, nor any specific offence
were mentioned in the order dated
04.08.2020,
passed
by
the
C.J.M.,
Barabanki.

36. Therefore, there was absolutely no
material before the C.J.M. justifying
cognizance of any offence under Section
190 (1) (b) Cr.P.C. Criminal prosecution
cannot
be
initiated
merely
on
an
assumption that an offence has been
committed, but the Magistrate has to
arrieve at a prima facie satisfaction from a
complaint of facts which constitute such
offence or from a police report of such facts
or by an information received from any
person other than a police officer, or upon
his own knowledge, that such offence has
been committed. In the present case, no
such material was available before the
C.J.M. as would warrant taking cognizance
of any offence. In case the C.J.M. was not
satisfied with the police report, he could
only have passed an order for further
investigation regarding the allegations.

37. Moreover, the offences punishable
under Sections 323, 504 and 500 I.P.C. are
non-cognizable offences and a trial in
respect of those offences can only be
instituted and continued as such and only a
complaint can be registered in respect of
those offences. The trial Court has acted
illegally in directing trial of the accused
persons for the aforesaid offences as a state
case.

38. It appears that the Magistrate has
passed the impugned order having been
swayed by the impression created by the
complainant that some illegalities had been
committed in construction of toilets.
However, every dereliction of duty would
not make out a case of trial, unless the
essential conditions for initiating the trial
are fulfilled and the C.J.M. has not taken
care to examine whether the essential
ingredients of the offence and other
prerequisites for taking cognizance are
fulfilled or not.

39. The C.J.M. has summoned
the S.H.O. to face trial for the offence
under Section 166-A I.P.|C. for his failure
to register F.I.R. under Section 409 I.P.C.
which reads as under: -

"166-A.
Public
servant
disobeying
direction
under
law.-
Whoever, being a public servant,-

(a)
knowingly
disobeys
any
direction of the law which prohibits him
from requiring the attendance at any place
of any person for the purpose of
investigation into an offence or any other
matter,
or
3 All. Pinki Vishwakarma & Anr. Vs. State of U.P. & Anr.
57

(b) knowingly disobeys, to the
prejudice of any person, any other direction
of the law regulating the manner in which
he shall conduct such investigation, or

(c) fails to record any information
given to him under sub-section (1) of
Section 154 of the Code of Criminal
Procedure, 1973 (2 of 1974), in relation to
cognizable
offence
punishable
under
Section 326-A, Section 326-B, Section 354,
Section 354-B, Section 370, Section 370-A,
Section 376, Section 376-A, Section 376AB, Section 376-B, Section 376-C, Section
376-D, Section 376-DA, Section 376-DB],
Section 376-E or Section 509,

shall be punished with rigorous
imprisonment for a term which shall not be
less than six months but which may extend
to two years, and shall also be liable to
fine."

40. The S.H.O. had registered the
F.I.R. and had entrusted investigation to the
Investigating
Officer,
who
conducted
investigation and found that the offences
alleged
was
not
made
out.
The
investigation was carried out in compliance
of the order passed by the Magistrate,
although that order was not in accordance
with law as it had directed investigation by
the police without recording a prima facie
satisfaction that a cognizable offence had
been committed warranting investigation
by the police. The S.H.O. obeyed the order
of the C.J.M. concerned, registered a case
and got the same investigated. Merely
because the court is not convinced with the
findings of the S.H.O. it cannot be said that
the S.H.O. has not obeyed direction of the
C.J.M., although it was not in accordance
with law.

41. Failure to register an F.I.R. is an
offence under Section 166-A I.P.C. only if
the report was regarding commission of
offences under Section 326-A, Section 326B, Section 354, Section 354-B, Section
370, Section 370-A, Section 376, Section
376-A, Section 376-AB, Section 376-B,
Section 376-C, Section 376-D, Section
376-DA, Section 376-DB], Section 376-E
or Section 509. Failure to register F.I.R. for
offence under Section 409 would not be an
offence under Section 166-A, I.P.C.

42. In view of the aforesaid
discussions, the impugned order dated
17.10.2021 passed by the C.J.M. suffers
from
patent
illegalities
and
it
is
unsustainable in law. The continuance of
prosecution on the basis of such an order
would clearly be an abuse of the process of
law, warranting interference by this Court
in exercise of its revisional powers.

43. Accordingly, the revision is
allowed. The
impugned
order
dated
17.02.2021, passed by learned C.J.M.,
Barabanki in Case No.717 of 2021 - Ram
Pratap Versus Anup Kumar Singh and
others, is hereby set aside.
----------
(2024) 3 ILRA 57
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2024
BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 462 of 2023

Pinki Vishwakarma & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Shailendra Kumar Rai, Sri Hari Keshav

Counsel for the Opposite Parties:
G.A., Sri Pradeep Kumar Rai

Criminal Law - Criminal Procedure Code,
1973 - Sections 397, 401 & 125 - Revision