# Smt. Mamta Kanojia@ Pinki v. Davesh Kumar Kanojia and another

- **Citation:** (2008) 2 ILRA 623
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-15
- **Bench:** S.K. Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mamta-kanojia-pinki-v-davesh-kumar-kanojia-and-another-41051
- **Pages:** 4

## Headnote

Code
of
Criminal
Procedure-Section
190(1)(b)-power of Magistrate-treating
the protest application as complaintinstead of taking cognizance on the basis
of
statements
of
witness-Magistrate
rightly exercised 4th option given by the
Apex
Court
in
Pakhando
case-no
interference under section 482 called for.
624 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Held: Para 7

The
learned
Chief
Metropolitan
Magistrate in the present case adopted
the fourth option available to him
instead
of
taking
cognisance
under
section 190 (1) (b) on the basis of
statements of the complainant and the
witnesses
recorded
during
the
investigation. Since this option was
available to the learned Magistrate to
treat the protest petition of the applicant
as a complaint case, I do not find any
force in this Application under section
482 Cr.P.C. in the light of the above law.
Since the learned Chief Metropolitan
Magistrate exercised the fourth option
aforesaid as per the law laid down in the
case of Pakhando & other's Vs. State of
U.P. & another, as quoted above, no
interference in the matter is called for
under section 482 Cr.P.C.
Case Law discussed:
AIR 1989 SUPREME COURT 885; 2007 (59)
ACC 1050; 2001 (43) ACC 1096.

## Text

2 All] Hari Ram V. State of U.P. and others
623
us. It is in the peculiar facts and
circumstances of that case that the Court
has held that for calling a person Goonda
he must necessary come under the
category of goonda. The allegations were
made against a student of M.A. in the
aforesaid case. The facts of that peculiar
case were considered for the purpose to
ascertain whether he fell within the ambit
of 'Goonda' as defined in Section 2 of the
.Act. The second, case on which reliance
has been placed rendered by the Apex
Court in Vijay Narain Singh Vs. State of
Bihar (1984) 3 Supreme Court Cases Page
14.

7. In the aforesaid cases the word
habitually is considered which is as
under:-

"The word 'habitually' means by
force of habit. It is the force of habit
inherent or latent in an individual with
criminal
instinct,
with
a
criminal
disposition of mind, that makes a person
accustomed to lead a life of crime posing
danger to the society, in general. If a
person
with
criminal
tendencies
consistently or persistently or repeatedly
commits or attempts to commits or abets
the commission of offences punishable
under Chapter XVI or Chapter XVII of
the Penal Code, he should be considered
to be an "anti social element".

8. From the facts and circumstances
as narrated above, it is apparent from
reading of notice that the petitioner is
committing offence again and again to
create terror in society therefore he can be
said to be habitual of committing the acts
which have been narrated in the notice
impugned. The petitioner has come up
against the notice only and it is always
open to him to submit reply to the same.
Sufficiency of Evidence is not to be seen
by the High Court at this stage of notice.
This Court under judicial scrutiny under
Article 226 of the Constitution is to see,
on existence of material and not the
sufficiency or adequacy of material in the
notice under the Uttar Pradesh Control of
Goondas Act, 1970 read-with U.P.
Control of Goonda Rules, 1970.

9. For the reasons stated above, we
are not inclined to interfere in the matter.
It is open for the authorities concern to
place the material before the authority and
pass appropriate orders.

10. Writ Petition is, accordingly,
dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.05.2008

BEFORE
THE HON'BLE S.K. JAIN, J.

Criminal Misc. Application 10413 of 2008

Smt. Mamta Kanojia@ Pinki ...Applicant
Versus
Davesh Kumar Kanojia and another

 ...Respondents

Counsel for the Applicant:
Sri. Shiv Nath Singh
Sri. Pramod Srivastava

Counsel for the Respondents:
A.G.A.

Code
of
Criminal
Procedure-Section
190(1)(b)-power of Magistrate-treating
the protest application as complaintinstead of taking cognizance on the basis
of
statements
of
witness-Magistrate
rightly exercised 4th option given by the
Apex
Court
in
Pakhando
case-no
interference under section 482 called for.
624 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Held: Para 7

The
learned
Chief
Metropolitan
Magistrate in the present case adopted
the fourth option available to him
instead
of
taking
cognisance
under
section 190 (1) (b) on the basis of
statements of the complainant and the
witnesses
recorded
during
the
investigation. Since this option was
available to the learned Magistrate to
treat the protest petition of the applicant
as a complaint case, I do not find any
force in this Application under section
482 Cr.P.C. in the light of the above law.
Since the learned Chief Metropolitan
Magistrate exercised the fourth option
aforesaid as per the law laid down in the
case of Pakhando & other's Vs. State of
U.P. & another, as quoted above, no
interference in the matter is called for
under section 482 Cr.P.C.
Case Law discussed:
AIR 1989 SUPREME COURT 885; 2007 (59)
ACC 1050; 2001 (43) ACC 1096.

(Delivered by Hon'ble S.K. Jain, J.)

1. This Application under section
482 Cr.P.C. has been made to stay the
effect and operation of order dated
18.1.2008 passed by Chief Metropolitan
Magistrate, Kanpur Nagar in Misc. Case
No.711 of 2007 in Case Crime No.487 of
2007 under sections 323, 504, 506, 498A
IPC and section 3⁄4 Dowry Prohibition
Act, Police Station Chakeri, District
Kanpur Nagar and also to stay further
proceedings of the aforesaid case.

2. The facts to this case are that
applicant lodged an FIR on 13.6.2007 at
Police
Station
Chakeri,
which
was
registered as Case Crime No. 487 of 2007
under sections 323, 504, 506, 498A IPC
and section 3⁄4 Dowry Prohibition Act.
The
investigating
officer
during
investigation recorded the statement of
applicant, her mother, father and brother
under section 161 Cr.P.C., but the police
submitted the final report in favour of
respondent no.1. The applicant filed
protest petition on 17.9.2007 before the
Chief Metropolitan Magistrate, Kanpur
Nagar and the learned Chief Metropolitan
Magistrate rejected the final report
submitted by the police and registered the
protest petition as a complaint case.

3. It has been argued by the learned
counsel for the applicant that on the basis
of FIR and medical report of the applicant
and statements recorded under section
161 Cr.P.C., the case under sections 323,
504, 506, 498A IPC and section 3⁄4 Dowry
Prohibition Act was made out and the
learned Magistrate erred in treating the
protest petition as a complaint case. The
learned Magistrate could ignore the
conclusion arrived at by the investigating
officer that no case against respondent
no.1 was made out and on the basis of
statements of complainant, her mother,
father and brother recorded, the learned
Magistrate under section 190 (l) (b) could
direct the issue of process to the accused.

4. The Hon'ble Apex Court in the
case of M/s. India Carat Pvt. Ltd. Vs.
State of Karnataka & another AIR 1989
SUPREME COURT 885 has laid down in
paragraph 16 as follows:
Para 16. The position is therefore, now
well settled that upon receipt of a police
report under section 173 (2) a Magistrate
is entitled to take cognisance of an
offence under Section 190 (1) (b) of the
Code even if the police report is to the
effect that no case is made out against the
accused. The Magistrate can take into
account the statements of the witnesses
examined by the police during the
investigation and take cognisance of the
offence complained of and order the issue
2 All] Smt. Mamta Kanojia @ Pinki V. Devesh Kumar Kanojia and another
625
of process to the accused. Section 190 (1)
(b) does not lay down that a Magistrate
can take cognisance of an offence only if
the investigating officer gives an opinion
that the investigation has made out a case
against the accused. 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 cognisance of
the case, if he thinks fit, in exercise of 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 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. The High Court was, therefore,
wrong in taking the view that the Section
Additional Chief Metropolitan Magistrate
was not entitled to direct the registration
of a case against the second respondent
and order the issue of summons to him.

5. Learned counsel for the applicant
has cited the case of Sanjay Bansal &
another Vs. Jawaharlal Vats 2007 (59)
ACC 1050 in which a similar view was
taken by the Hon'ble Apex Court.

6. In the case of Pakhando & others
Vs. State of U.P. & another 2001 (43)
ACC 1096 it has been laid down by this
Court that when a final report is submitted
in a case and is received by the Magistrate
the following four courses are open to
him and he may adopt anyone of them 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 to the
complainant; or

(ii) he may take cognizance under
Section 190 (l) (b) and issue process
straightway 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; or

(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 complain 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.

7. The learned Chief Metropolitan
Magistrate in the present case adopted the
fourth option available to him instead of
taking cognisance under section 190 (1)
(b) on the basis of statements of the
complainant and the witnesses recorded
during the investigation. Since this option
was available to the learned Magistrate to
treat the protest petition of the applicant
as a complaint case, I do not find any
force in this Application under section
482 Cr.P.C. in the light of the above law.
Since the learned Chief Metropolitan
Magistrate exercised the fourth option
aforesaid as per the law laid down in the
case of Pakhando & others Vs. State of
U.P. & another, as quoted above, no
interference in the matter is called for
under section 482 Cr.P.C.
626 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

8. The Application under section
482 Cr.P.C. is dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD24.06.2008

BEFORE
THE HON'BLE R.K. RASTOGI, J.

Criminal Misc. Application No.14300 of
2008

Jhabbu Lal and others
...Applicants
Versus
State of U.P. and another ...Respondents

Counsel for the Applicants:
Sri Ramashanker Shukla

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-S-482-two
first information reports-two different
charge sheet against same accused
persons-held-not justified-second FIR as
well as the charge sheet quashed with
direction to the Magistrate to consider
whether any fracture caused to the
mother of complainant.

Held: Para 4

Therefore, the second First Information
Report, which had been registered as
Case Crime No. 05 of 2006 is quashed
and the charge sheet submitted on the
basis of that First Information Report is
also quashed. However, taking into
consideration that there are allegations
in the First Information Report that
there was fracture on the head of the
mother
of
the
complainant,
the
Magistrate, at the stage of framing the
charges shall consider this aspect of the
case as to whether the mother of the
complainant had received a fracture on
her head or not, and if there was any
fracture, what offence is prima facie
made out against the accused in respect
of that fracture on the head, and then he
shall proceed with the case registered as
Case No.2766 of 2005 on the basis of
Case Crime No. 13 of 2005.

(Delivered by Hon'ble R.K. Rastogi, J.)

1. This is an application under
Section 482 Cr.P.C. for quashing the
impugned charge sheet No.14/2007 in
Case
Crime
No.C-5/2006
of
P.S.
Dannahar,
District
Mainpuri,
under
Sections 323,504,506,308 I.P.C. pending
before
3rd
Additional
Civil
Judge
(J.D.)/Judicial
Magistrate-1st
Class,
Mainpuri.

2. Since the point involved in this
case is legal one, I have, with the consent
of the parties, heard learned counsel for
the applicants as well as learned A.G.A.
for the State and I am deciding it without
calling for any counter affidavit.

3. The facts relevant for disposal of
this application under Section 482 Cr.P.C.
are that the complainant-opposite party
no. 2 moved an application against the
accused-applicants under Section 156(3)
Cr. P.C. in the Court of Additional Chief
Judicial Magistrate-I, Mainpuri leveling
allegations under Sections 323, 504, 506
and 308 I.P.C. against the accusedapplicants in respect of an incident which
had allegedly taken place on 6.4.2005 at
6.00 P.M. with the mother of the
applicant. This application was moved on
23.4.2005 and on this application, the
learned Magistrate passed an order on
3.5.2005 directing the police to register
the
First
Information
Report
and
investigate the same. Then Case Crime
No.13 of 2005 under Sections 323, 504,
506 & 308 I.P.C. was registered at the
police station on 2.10.2005 and charge