# Surendra Pal Kushwaha v. The State Of U.P & Anr

- **Citation:** (2016) 3 ILRA 468
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-14
- **Bench:** Mahendra Dayal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-pal-kushwaha-v-the-state-of-u-p-anr-43473
- **Pages:** 5

## Headnote

The applicant has filed an application under Section 482 Cr.P.C. challenging the judgment and order
dated 4.3.2015 passed by the Additional Sessions Judge Court No.3, Unnao in Criminal Revision
No.106 of 2012 whereby the revision has been dismissed and the order dated 24.2.2012 passed by
the Additional Chief Judicial Magistrate Court No.5, Unnao has been confirmed.
3 All. Surendra Pal Kushwaha Vs State Of U.P. & Anr.
469

The facts in brief are that the opposite party no.2 lodged an FIR upon which the police conducted
investigation and submitted final report. When the notice was issued to the opposite party no.2, he
appeared before the court below and filed a protest petition. The learned Magistrate after going
through the material on record, came to the conclusion that there was sufficient evidence to proceed
against the applicant and other accused persons and thereupon passed the summoning order taking
cognizance under Section 190(1)(b) Cr.P.C. This order was challenged by the applicant by filing
Criminal Revision No.106 of 2012 which was also dismissed.

In the present case, from the perusal of the impugned order, I find that the learned Magistrate has
not taken into consideration the contents of the protest petition or any other material brought by
complainant, but has only taken into account the statement of the witnesses who were interrogated
during investigation. I, therefore, do not find any illegality or infirmity in the order passed by both the
courts below and as such, the application under Section 482 Cr.P.C. lacks merit and is accordingly
Dismissed.

Held: Para-

Case Law discussed: 2015 Legal Eagle (Ald) page 1432 Mukeem & 2 Others vs. State of U.P. &
Anothe. Ram Kumar Pandey @ Bachu Dayal @ Anr. Vs. State of U.P. reported in 2013, Legal Eagle
768.Pakhando & others Vs. State of U.P. & Anr.2012(2)SCC page 731 Vasanti Dubey Vs. State of
Madhya Pradesh.1989(2) Legal Eagle (SCC) page 132 India Carat Private Ltd. Vs. State of
Karnataka.2014(1) ACR page 573 Naresh Pal Singh Vs. State of U.P and Others.2015 Legal Eagle (Ald)
page 1432 Mukeem & 2 Others vs. State of U.P. & Another.

## Text

468 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) where no award under section 11 of the said Land Acquisition Act has been
made, then, all provisions of this Act relating to the determination of compensation shall
apply; or

(b) .........................

 (2) ..........................."

16. In our considered opinion, the aforesaid provisions will not stand attracted in a case
where the acquisition proceedings already stand lapsed by operation of law in view of the
provisions of Section 11-A of the Act, 1894. The provisions of Section 24(1)(a) can stand
attracted only in a case where the proceedings initiated under the Act, 1894 are pending at
the time of enforcement of the Act, 2013.

17. In view of the aforesaid facts and discussions, since no award has been made in
respect of plot nos. 121/3 area 0-3-0, plot no. 125 area 0-17-0 and plot no. 666 area 1-1-0
situate in village Khoda, Pargana Loni, Tehsil Dadri, District Ghaziabad within the period
prescribed under Section 11-A of the Act, 1894, the acquisition proceedings in respect of
the said three plots in dispute stand lapsed.

18. Writ petition stands allowed.

19. However, in the facts and circumstances, we do not make any order as to costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.03.2016

BEFORE

THE HON'BLE MAHENDRA DAYAL, J.

U/S 482/378/407 No. - 1927 of 2015

Surendra Pal Kushwaha ...Applicant
Versus
The State Of U.P & Anr. ...Respondents

Counsel for the Applicant:
Hemant Kumar Misra, Arti Ganguly

Counsel for the Respondents:
Govt. Advocate

The applicant has filed an application under Section 482 Cr.P.C. challenging the judgment and order
dated 4.3.2015 passed by the Additional Sessions Judge Court No.3, Unnao in Criminal Revision
No.106 of 2012 whereby the revision has been dismissed and the order dated 24.2.2012 passed by
the Additional Chief Judicial Magistrate Court No.5, Unnao has been confirmed.
3 All. Surendra Pal Kushwaha Vs State Of U.P. & Anr.
469

The facts in brief are that the opposite party no.2 lodged an FIR upon which the police conducted
investigation and submitted final report. When the notice was issued to the opposite party no.2, he
appeared before the court below and filed a protest petition. The learned Magistrate after going
through the material on record, came to the conclusion that there was sufficient evidence to proceed
against the applicant and other accused persons and thereupon passed the summoning order taking
cognizance under Section 190(1)(b) Cr.P.C. This order was challenged by the applicant by filing
Criminal Revision No.106 of 2012 which was also dismissed.

In the present case, from the perusal of the impugned order, I find that the learned Magistrate has
not taken into consideration the contents of the protest petition or any other material brought by
complainant, but has only taken into account the statement of the witnesses who were interrogated
during investigation. I, therefore, do not find any illegality or infirmity in the order passed by both the
courts below and as such, the application under Section 482 Cr.P.C. lacks merit and is accordingly
Dismissed.

Held: Para-

Case Law discussed: 2015 Legal Eagle (Ald) page 1432 Mukeem & 2 Others vs. State of U.P. &
Anothe. Ram Kumar Pandey @ Bachu Dayal @ Anr. Vs. State of U.P. reported in 2013, Legal Eagle
768.Pakhando & others Vs. State of U.P. & Anr.2012(2)SCC page 731 Vasanti Dubey Vs. State of
Madhya Pradesh.1989(2) Legal Eagle (SCC) page 132 India Carat Private Ltd. Vs. State of
Karnataka.2014(1) ACR page 573 Naresh Pal Singh Vs. State of U.P and Others.2015 Legal Eagle (Ald)
page 1432 Mukeem & 2 Others vs. State of U.P. & Another.

(Delivered by Hon'ble Mahendra Dayal, J.)

1. Heard Sri Hemant Kumar Mishra, learned counsel for the applicant and the learned
AGA for the State.

2. The applicant has approached this Court by way of filing an application under
Section 482 Cr.P.C. challenging the judgment and order dated 4.3.2015 passed by the
Additional Sessions Judge Court No.3, Unnao in Criminal Revision No.106 of 2012
whereby the revision has been dismissed and the order dated 24.2.2012 passed by the
Additional Chief Judicial Magistrate Court No.5, Unnao has been confirmed.

3. The facts in brief are that the opposite party no.2 lodged an FIR upon which the
police conducted investigation and submitted final report. When the notice was issued to the
opposite party no.2, he appeared before the court below and filed a protest petition. The
learned Magistrate after going through the material on record, came to the conclusion that
there was sufficient evidence to proceed against the applicant and other accused persons and
thereupon passed the summoning order taking cognizance under Section 190(1)(b) Cr.P.C.
This order was challenged by the applicant by filing Criminal Revision No.106 of 2012
which was also dismissed.

4. It has been contended by the learned Counsel for the applicant that the law with
regard to taking cognizance is that when after submission of final report, the court considers
that final report submitted by the police should be accepted, a notice to the complaint will be
issued. If the Magistrate finds that the material collected by the investigating officer is
470 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient to proceed against the accused persons, he can straightway pass summoning order
after taking cognizance under Section 190(1)(b) Cr.P.C. In that case he is not required to
issue any notice to the complainant. In the present case, since the Magistrate was of the
opinion that the final report was not to be accepted,therefore, he issued notice to the
complainant upon which he filed a protest petition which was also taken into consideration
by the Magistrate and thereafter he passed the impugned summoning order dated 24.2.2012.

5. The submission on behalf of the applicant is that when the final Report is submitted
by the police after investigation, the Magistrate has three options. The first option open for
the Magistrate is to accept the final report but before accepting the final report, a notice has
to be given to the complainant. The Second option open to the Magistrate is that if he finds
that investigation has not been done properly, the Magistrate can order for further
investigation in the matter. The third option which is open to the Magistrate is that if on
perusal of the case diary, he finds that there is sufficient evidence against accused persons,
he can straightway take cognizance of the offence under Section 190(1)(b) Cr.P.C.
According to the learned counsel for the applicant, once the Magistrate exercises his option
to issue notice to the complainant, it would mean that he does not propose to accept the final
report. If upon notice issued to the complainant, he files a protest petition, the Magistrate has
to follow the procedure of complaint case and examine the complainant under section 200
Cr.P.C. and then make an inquiry under Section 202 Cr.P.C. and only after that he could
take decision as to whether accused persons should be summoned or not. It is a settled law
that if the Magistrate chooses to take cognizance on the basis of case diary under section
190(1)(b) Cr.P.C, the Magistrate cannot take note of any material accept those collected by
the investigating officer during investigation. According to the learned counsel for the
applicant, the Magistrate in the present case, has taken cognizance under Section 190(1) (b)
Cr.P.C but simultaneously he has also taken into account, the protest petition filed by the
opposite party no.2 complainant. This procedure adopted by the magistrate is erroneous and
is not permissible under the law.

6. In support of his arguments, the learned counsel for the applicant has relied upon a
decision of this court reported in 2015 Legal Eagle (Ald) page 1432 Mukeem & 2 Others vs.
State of U.P. & Another. In this case the Hon'ble Allahabad High Court while considering
the cognizance order of the magistrate, has held that if the accused is summoned on the basis
of protest petition, the Magistrate has to follow the procedure of complaint case laid down in
the Cr.P.C. and treat the protest petition as complaint case. Similar, view has been expressed
in the case of Ram Kumar Pandey @ Bachu Dayal @ Anr. Vs. State of U.P. reported in
2013, Legal Eagle 768.

7. Reliance has also been placed on a decision of this Court which was rendered in the
case of Pakhando & others Vs. State of U.P. & Anr., in this case also this court has held
that while taking cognizance of offence under Section 190 (1) (b) Cr.P.C, the magistrate
cannot consider any other material except the material collected by the I.O.

8. In other case relied upon by the applicant is reported in 2012(2)SCC page 731
Vasanti Dubey Vs. State of Madhya Pradesh. In this case, the Hon'ble Supreme Court
3 All. Surendra Pal Kushwaha Vs State Of U.P. & Anr.
471
while accepting ratio laid down in the case of Abhinandan Jha, held that when the police
submits a final report, the Magistrate cannot direct the police to straightway submit the
charge-sheet. It has also been held that even if the police report indicates that no case is
made out against the accused, the Magistrate can ignore the same and take cognizance on
applying his mind independently of the case.

9. Lastly, reliance has been placed on a land mark decision on the subject which is
reported in 1989(2) Legal Eagle (SCC) page 132 India Carat Private Ltd. Vs. State of
Karnataka. In this case also the Hon'ble Supreme Court has held that it is open for the
Magistrate to ignore the conclusions of the police regarding the credibility of the witnesses
and take cognizance of the offence. If he does so, it would be on the basis of the statement
of the witnesses as revealed by the police report. He is not bound to follow the procedure
laid down in Sections 200 and 202 Cr.P.C.

10. The learned counsel has referred to the impugned order passed by the Magistrate on
24.2.2012 and has submitted that in the opening paragraph of the order, the learned
Magistrate has referred to the contents of the protest petition. This prima facie suggests that
the Magistrate has taken into account, the protest petition and as such he was bound to
follow the procedure of complaint case as held by the Hon'ble Supreme Court. The
Magistrate agistrate cannot adopt both the options simultaneously.

11. Learned AGA has opposed the application and has submitted that whenever the
police after investigation submits closure report, the complainant who lodged the FIR, has a
right to be heard. It is for this purpose that a notice is issued to him on submission of final
report by the police. Since he is a victim of the wrong committed, he has right to file
objection against the submission of final report. There is no procedure in the Code of
criminal Procedure for filing of protest petition. The complainant only makes protest by way
of filing objection Informing the Magistrate that the police has not submitted the final report
correctly and there is evidence on record to take cognizance of the offence. The Magistrate
in such a case, may either accept the final report or treat the protest petition as complaint or
if there is sufficient evidence in the case diary, he may straightway pass under Section
190(1)(b) Cr.P.C. In the present case, a perusal of the order passed by the Magistrate reveals
that although it has been referred in the order that the complainant filed protest petition but
while taking cognizance,The Magistrate has clearly observed that from the evidence
collected by the I.O., there was sufficient material against the accused persons and
thereupon he took cognizance of the offence. Merely by accepting protest petition, it cannot
be said that the protest petition was considered. The acceptance of protest petition means
that the Magistrate has accepted the objections of the complainant and has not accepted the
final report.

12. The learned AGA has placed reliance on a judgment of this court reported in
2014(1) ACR page 573 Naresh Pal Singh Vs. State of U.P and Others. In this case a
coordinate bench of this court has held that merely because protest petition has been allowed
by the Magistrate, it would not mean that procedure of complaint should have been
followed. If the Magistrate has not taken into account the contents of the protest petition or
472 INDIAN LAW REPORTS ALLAHABAD SERIES
the affidavit filed in support thereof but has only taken into account the evidence collected
by the I.O., it was not obligatory on the part of the Magistrate to follow the procedure of
complaint case.

13. Having heard the learned counsel for the applicant and the learned AGA and also
on perusal of the law cited by them, the law which emerges out is that the Magistrate, if
chooses to take cognizance under Section 190(1) (b) Cr.P.C, he is prohibited from taking
into consideration any material other than the case diary. The contents of the protest petition
or the affidavits filed in support thereof, cannot be taken into account by the magistrate. If
the Magistrate intends to take into consideration the protest petition or the affidavits filed in
support thereof, he has to follow the procedure of complaint case.

14. In the present case, from the perusal of the impugned order, I find that the learned
Magistrate has not taken into consideration the contents of the protest petition or any other
material brought by complainant, but has only taken into account the statement of the
witnesses who were interrogated during investigation. I, therefore, do not find any illegality
or infirmity in the order passed by both the courts below and as such, the application under
Section 482 Cr.P.C. lacks merit and is accordingly Dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.03.2026

BEFORE

THE HON'BLE MAHENDRA DAYAL, J.

Criminal Revision No. - 130 of 2015

Gaurav Shukla ...Revisionist
Versus
State Of U.P. & Anr ...Respondents

Counsel for the Revisionist:
Dr. L.P. Mishra, Shri Sharad Pathak

Counsel for the Respondents:
Shri Zafaryab Jilani, Additional Advocate General Shri Jalaj Kumar Gupta

The revisionist Gaurav Shukla, who is involved in a case under Sections 365, 376 IPC has claimed
juvenility on the basis of high school mark-Sheet in which his date of birth has been recorded as
02.10.1989. No one was named in the FIR. When the police proceeded with the investigation, the
name of the revisionist Along with other co-accused came into light. He approached this Court by
way of filing Writ Petition No.3936 (MB) of 2005, in which the arrest of the revisionist was stayed.
While the Investigation was in progress, the police of Police Station Mahanagar, Lucknow registered
another criminal case against the revisionist on 19.07.2005 being Case Crime No.260/2005. In this
Case also, the revisionist on his appearance claimed juvenility on the basis of high school mark-sheet
and when the matter was referred to the Juvenile Justice Board, the Board on the basis of High school
mark-sheet, declared the revisionist as juvenile. The present revision being Crime No. 80/2005 was