# Surendra Kumar and others v. State of U.P. & another

- **Citation:** (2007) 3 ILRA 736
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-30
- **Case number:** Criminal Misc. Application No. 20017 of 2007
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-kumar-and-others-v-state-of-u-p-another-41129
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 482Summoning
Order-passed
without
perusing case Diary as well as final
report-treating the protest petition as
Complaint-without recording statement
of witnesses-held-magistrate committed
manifest error-order impugned can not
sustain.

Held: Para 4

But in the present case for passing any
order in respect of the conclusion drawn
by the I.O. The learned Magistrate has
not perused case diary for which he was
under obligation to do so, whereas the
protest petition has been treated as a
complaint straightway, it is not proper.
The learned Magistrate has committed a
manifest error by adopting such a
procedure, the learned Magistrate has
again committed the manifest error in
passing the impugned order without
recording the statement of the witnesses
under section 202 Cr.P.C. The prescribed
procedure for taking the cognizance in a
complaint case has not been followed.
The impugned order dated 26.6.2007 is
illegal and is liable to be set aside.

## Text

736 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
for all purposes in relation of his service,
including
eligibility
for
promotion,
superannuation, premature retirement or
retirement benefits, and no application or
representation shall be entertained for
correction of such date of age In any
circumstances whatsoever.]

9. I fully agree with the finding
recorded by the Executive Engineer. It is
more than clear that the first entry in the
service book was "01.08.1986 ko 48
varsh..' Subsequent entry was made after
two or three months of the first entry and
that also on the direction of camp-clerk,
which
was
illegal
and
utterly
unauthorized. The subsequent entry was,
therefore, rightly scored off.

10. Accordingly, there is no merit in
the writ petition, hence it is dismissed.

11. Office is directed to supply a
copy of this judgment free of cost to Sri
S.P. Mishra, learned standing counsel,
within a week.
 Petition Dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2007

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Application No. 20017 of
2007

Surendra Kumar and others ...Applicants
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicants:
Sri S.C. Pandey

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

Code of Criminal Procedure-Section 482Summoning
Order-passed
without
perusing case Diary as well as final
report-treating the protest petition as
Complaint-without recording statement
of witnesses-held-magistrate committed
manifest error-order impugned can not
sustain.

Held: Para 4

But in the present case for passing any
order in respect of the conclusion drawn
by the I.O. The learned Magistrate has
not perused case diary for which he was
under obligation to do so, whereas the
protest petition has been treated as a
complaint straightway, it is not proper.
The learned Magistrate has committed a
manifest error by adopting such a
procedure, the learned Magistrate has
again committed the manifest error in
passing the impugned order without
recording the statement of the witnesses
under section 202 Cr.P.C. The prescribed
procedure for taking the cognizance in a
complaint case has not been followed.
The impugned order dated 26.6.2007 is
illegal and is liable to be set aside.

(Delivered by Hon'ble Ravindra Singh, J.)

1. Heard learned counsel for the
applicants and learned A.G.A.

2. This application has been filed
with a prayer to quash the order dated
26.6.2007 passed by learned A.C.J.M,
Bhadoi in Criminal case No. 171 of 2005
whereby the learned Magistrate concerned
has taken the cognizance and summoned
the applicant to face the trial for the
offence punishable under sections 147,
323, 504, 506, 452 IPC. It is contended by
learned counsel for the applicant that O.P.
No. 2 Smt. Saraswati Devi lodged the
F.I.R. in case crime No. 46 of 2005 under
sections 147,323,504, 506,452 IPC P:S.
Suriyawan, District Sant Ravidas Nagar
3 All] Surendra Kumar and others V. State of U.P. and another
737
(Bhadoi), after investigation the final
report dated 25.2.2005 was submitted in
the Court of learned Magistrate concerned
on which notice was issued to the
complainant O.P. No.2 on 31.5.2007.
After receiving the notice the first
informant O.P. No. 2 appeared before the
court concerned and filed a protest
petition, the same was treated as a
complaint
by
learned
Magistrate
concerned and next date for recording the
statement of the first informant as
complainant under section 200 Cr.P.C.
was fixed, her statement was recorded
under section 200 Cr.P.C. on 9.2.20006,
thereafter the next dated was fixed for
recording the statement of witnesses
under section 202 Cr.P.C. For this
purpose many dates were fixed but no
statement under section 202 Cr.P.C. was
recorded and for recording the statement
under section 202 Cr.P.C. and without
passing any order on final report, the
learned
Magistrate
has
taken
the
cognizance and summoned the applicant
to face the trial for the offence punishable
under sections 147, 323, 504, 506, 452
IPC on 26.6.2007. The order dated
26.6.2007 is illegal and liable to be set
aside.

3. In reply of he above contention, it
is submitted by learned A.G.A. that there
is no illegality in the impugned order
dated 26.6.2007, but it has been admitted
that without recording the statement of the
witness under section 202 Cr.P.C. for
which many dates were fixed, the learned
Magistrate has taken the cognizance and
no order has been passed on the final
report.

4.

Considering
the
facts,
circumstances of the case, submissions
made
by
learned
counsel
for
the
applicants and learned A.G.A. and from
the perusal of the record it appears that in
the present case the learned Magistrate
has not passed any order on the final
report even the learned Magistrate has not
perused the case diary and without any
reason the protest: petition has been
treated as a complaint straightway and for
recording the statement of the witnesses
under section 202 Cr.P.C. many dates
were fixed and without any reason the
statement of the witnesses under section
202 Cr.P.C. have not been recorded and
without recording the statement under
section
202
Cr.P.C.
the
impugned
order·26.6.2007 has been passed. It is
settled position of the law that after
investigation if any final report is
submitted
the
learned
Magistrate
concerned is under obligation to peruse
the material collected by the I.O. in case
diary, if learned Magistrate concerned is
satisfied with the conclusion drawn by the
I.O. after perusing the case diary, the
same may be accepted, or if after perusal
of the case diary the learned magistrate
comes to the conclusion, that on the basis
of the material collected by the I.O. prima
facie any offence is made out, the
conclusion drawn by the I.O. submitting
the final report may be rejected and
cognizance may be taken. In case the
learned
Magistrate
comes
to
the
conclusion that for drawing any proper
conclusion the further investigation is
required, the order of further investigation
may be passed or if after perusing the case
diary the learned Magistrate comes to the
conclusion that the protest petition may be
treated as a complaint, the same may be
treated as a complaint and procedure of
the complaint case shall be followed. But
in the present case for passing any order
in respect of the conclusion drawn by the
I.O. The learned Magistrate has not
738 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
perused case diary for which he was
under obligation to do so, whereas the
protest petition has been treated as a
complaint straightway, it is not proper.
The learned Magistrate has committed a
manifest error by adopting such a
procedure, the learned Magistrate has
again committed the manifest error in
passing the impugned order without
recording the statement of the witnesses
under section 202 Cr.P.C. The prescribed
procedure for taking the cognizance in a
complaint case has not been followed.
The impugned order dated 26.6.2007 is
illegal and is liable to be set aside. The
impugned order is set aside on a technical
ground,
therefore,
it
is
necessarily
required to remit the matter to the court of
learned Magistrate concerned to pass a
fresh order after perusing the case diary in
accordance with provisions of law.

5. In view of the above discussion,
the impugned order dated 26.6.2007
passed by learned A.C.J.M. Bhadohi in
Criminal case F.R. No. 171 of 2007 in
case crime No. 46 of 2005, P.S.
Suriyawan, District Sant Ravidas Nagar
(Bhadohi) is set aside. The learned
Magistrate concerned shall pass a fresh
order in accordance with the provisions of
law.

6.

With
this
direction,
this
application is finally disposed of.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.10.2007

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 21192
of 2007

Devendra Singh

...Applicant
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicant:
Sri Satish Trivedi
Sri Santosh Tripathi
Sri Manoj Tiwari

Counsel for the Opposite Parties:
Sri G.S. Hajela
A.G.A.

Code of Criminal Procedure-Section 439Bail Application-offence under Section
13 (2) rule 13 (1) (D) of Prevention of
Corruption
Act
120-B,
167,
420,
511,468,471 IPC-applicant one of the coaccused-got recorded his name other the
revenue record on the basis of forged
lease deed-most of the lease holders
belongs to another village-a big land
seam worth of more than Rs.600 Crorsforgery committed in malkan registershaking
the
confidence
of
common
people-considering
the
gravity
of
offence-not entitled for bail-Rejected.

Held: Para 7

Considering the facts, circumstances of
the case, submissions made by learned
counsel
for
the
applicant,
learned
counsel for C.B.I. and in view of the
above discussions it appears that the
gravity of the offence is too much, it is a
big land scam in which the C.B.I. has
collected
the
material
against
the
applicant to show his involvement and
without expressing any opinion on the
merits of t he case, the applicant is not