# Surya Bhan v. State of U.P. and another

- **Citation:** (2007) 2 ILRA 436
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-03-01
- **Case number:** Criminal Misc. Writ Petition No. 770 of 2007
- **Bench:** M.K. Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surya-bhan-v-state-of-u-p-and-another-40937
- **Pages:** 6

## Headnote

Code of Criminal Procedure-Section 190
(1)(6)-Power of Magistrate-investigation
officer
submitted
final
report-the
Magistrate can either accept the final
report and drop the proceeding or direct
for further investigation or treating the
protest petitioner as complaint may
proceed under Section 200 and 202
Cr.P.C.-but can not go beyond the
material
provided
by
I.O.-without
specifying
offences,
the
sectionsummoning the accused-held- in correctset-aside.

Held: Para 17

In
the
instant
case,
the
learned
Magistrate has directed to summon the
accused
persons
under
Section
190(1)(b) of Cr.P.C. This in itself is an
illegal order as the accused could not be
summoned and tried under Section 190
of Cr.P.C. This section empowers the
Magistrate to take cognizance of an
offence which is constituted from the
facts as disclosed in the police report.
The
accused is summoned
for the
offence that has been committed by him
under the provisions of Indian Penal
Code or any other law under which he
could be tried and punished. The learned
Magistrate Should have specified the
offence and the section (s) under which
he was summoning the accused after
taking cognizance. Thus I come to the
conclusion that the impugned order
dated 10.10.2006 passed by the learned
Magistrate is not correct and is liable to
be set aside. The order in revision passed
on 6.12.2006 by the learned Incharge
Sessions Judge is also, therefore, liable
to be set aside. Therefore, the writ
petition is to be allowed.
Case law discussed:
2001 (43) ACC-1096
1963 Supp. (1) SCR-953
2005 (7) SCC-467

## Text

436 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2007

BEFORE
THE HON'BLE M.K. MITTAL, J.

Criminal Misc. Writ Petition No. 770 of
2007

Surya Bhan

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Satish Trivedi
Sri Roshan Khan
Sri Vinod Shanker Giri

Counsel for the Respondents:
Sri G.S. Chaturvedi
Sri Udai Chandani
A.G.A.

Code of Criminal Procedure-Section 190
(1)(6)-Power of Magistrate-investigation
officer
submitted
final
report-the
Magistrate can either accept the final
report and drop the proceeding or direct
for further investigation or treating the
protest petitioner as complaint may
proceed under Section 200 and 202
Cr.P.C.-but can not go beyond the
material
provided
by
I.O.-without
specifying
offences,
the
sectionsummoning the accused-held- in correctset-aside.

Held: Para 17

In
the
instant
case,
the
learned
Magistrate has directed to summon the
accused
persons
under
Section
190(1)(b) of Cr.P.C. This in itself is an
illegal order as the accused could not be
summoned and tried under Section 190
of Cr.P.C. This section empowers the
Magistrate to take cognizance of an
offence which is constituted from the
facts as disclosed in the police report.
The
accused is summoned
for the
offence that has been committed by him
under the provisions of Indian Penal
Code or any other law under which he
could be tried and punished. The learned
Magistrate Should have specified the
offence and the section (s) under which
he was summoning the accused after
taking cognizance. Thus I come to the
conclusion that the impugned order
dated 10.10.2006 passed by the learned
Magistrate is not correct and is liable to
be set aside. The order in revision passed
on 6.12.2006 by the learned Incharge
Sessions Judge is also, therefore, liable
to be set aside. Therefore, the writ
petition is to be allowed.
Case law discussed:
2001 (43) ACC-1096
1963 Supp. (1) SCR-953
2005 (7) SCC-467

(Delivered by Hon'ble M.K. Mittal. .J.)

1. This writ petition has been
received in this Court by nomination.

2. The writ petition has been filed
with the prayer to quash the impugned
order dated 6th December, 2006 passed
by
the
Incharge
Sessions
Judge,
Allahabad in Criminal Revision No.876
of 2006 whereby the revision has been
dismissed in limine and order dated 10th
October 2006 passed by the Additional
Chief Judicial Magistrate, Court No.2,
Allahabad in Criminal Case No.99/XII of
2006 (Deepak Kumar Singh Vs. Dilip
Agrahari and others) [Annexures- l and
2], whereby the final report No.36 of
2006 has been rejected and the protest
petition
dated
17.6.2006
filed
by
respondent no.2 has been accepted and
the accused have been directed to be
summoned under Section 190 (1)(b) of
Cr.P.C.
2 All] Surya Bhan V. State of U.P. and another
437
3. Heard Sri Satish Trivedi, learned
Senior Advocate assisted by Sri Roshan
Khan
for
the
petitioner,
Sri
O.S.
Chaturvedi, learned Senior Advocate
assisted by Sri Udai Chandani for
respondent no.2, learned A.G.A. and
perused the material on record. Counter
and
rejoinder
affidavits
have
been
exchanged.

4. The brief facts of the case are that
respondent no.2 Deepak Kumar Singh
filed an application under Section 156(3)
of Cr.P.C. on 15th December, 2005
alleging that the election of the Students
Union,
Allahabad
University,
had
concluded on 24th November, 2005.
Manoj Kumar Singh elder brother of
Deepak Kumar Singh was a candidate for
the President's post. On that day, in the
night at about, 8 P.M. respondent no.2
and his supporters had collected at the
room of Ajai Singh in Chhota Baghara
and they had some programme for dinner
etc. At that time Chandan Pandey, driver
of the brother of respondent no.2, Brijesh
Singh and Santosh Singh were also
present. The boys were making noise
expecting the victory of their candidate.
But at that time, Kamlesh Yadav with his
supporter Dilip Agrahari and his uncle
Surya Bhan and 8-10 persons came at the
room and started pulling Deepak Kumar
Singh saying as to why they were talking
against them. They took Deepak outside
and Dilip Agrahari struck a butt blow on
his head. At that time Surya Bhan
exhorted to shoot him and Kamlesh
Yadav wanted to make a second fire but
he could not do so as someone fired from
his (Deepak Kumar Singh) side to save
them and the shot hit Kamlesh Yadav.
Surya Bhan also made fire but it missed.
Thereafter, the injured were taken to the
hospital. On the basis of this application,
the
learned
Magistrate
directed
for
registration
of
the
case
and
after
investigation the Investigating Officer
submitted a final report. Against the final
report respondent no.2 filed a protest
petition and along with that protest
petition he also filed his affidavit as well
as affidavits of his witnesses Brijesh
Singh, Santosh Kumar, Chandan Pandey
and Ajai Singh. The learned Magistrate
after considering the case diary and
affidavits allowed protest petition holding
that the Investigating Officer had not
correctly recorded the statements of the
witnesses and had wrongly concluded that
no incident had taken place. The learned
Magistrate also held that the medical
evidence on record proved that the
incident took place. Consequently he
rejected the final report and allowed the
protest petition and directed to summon
the accused under Section 190 (1)(b) of
Cr.P.C. Against that order the applicant
preferred Criminal Revision No.879 of
2006 but the same has been dismissed in
limine, hence this writ petition.

5. It may be noted that a report was
lodged by Shiv Bhan Singh Yadav on
24.11.2005 at 10.30 P.M. regarding the
incident that took place the same day at 9
P.M. and the case was registered as case
crime No.6237050358 of 2005 under
Section 302I.P.C. In this report Manoj
Kumar Singh, Deepak Kumar Singh
(respondent no.2) and Chandan Pandey
have been named as accused persons and
it has been alleged that after conclusion of
the students union election, the informant
Shiv Bhan Singh Yadav along with
nephew Kamlesh Kumar Singh Yadav
who was candidate for the post of General
Secretary had hardly reached near the
house of Dilip Kumar Agrahari, a friend
on motorcycle, the accused persons came
438 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
in a black Safari vehicle which was being
driven by Chandan Pandey. They abused
Kamlesh Kumar Singh Yadav and Manoj
Kumar Singh fired at the right temple of
Kamlesh Kumar Singh Yadav from point
blank range. He was injured and fell
down. The accused also made several
fires in air and one of them hit Chandan
Pandey. Kamlesh Kumar Singh Yadav
was taken to hospital, but the doctors
present there, declared him dead.

6. Learned counsel for the petitioner
has contended that, the learned Magistrate
has not properly exercised jurisdiction
vested in him while summoning the
accused under Section 190 (l)(b) of
Cr.P.C. and has committed mistake
regarding procedure itself. According to
the learned counsel for the petitioner, the
Investigating Officer has statutory duty to
investigate on the basis of report and after
collecting evidence he can submit charge
sheet or can give a final report in the
matter.
Although,
he
has
further
contended that the Magistrate is not
bound by the opinion of the Investigating
Officer and can form his own independent
opinion but only on the basis of materials
collected by the Investigating Officer, the
Magistrate can either accept the final
report or reject the same and take
cognizance of the offence under Section
190(1)(b). But if there is any extraneous
matter, then the Magistrate can take
cognizance under Section 190 (l)(a) of
Cr.P.C. and can proceed under Sections
200 and 202 of Cr.P.C. or can direct the
Investigating
Officer
for
further
investigation under Section 173(8) of
Cr.P.C. According to him, in this case the
Investigating
Officer
submitted
final
report and against that respondent no.2
filed a protest petition with affidavits
which
was
extraneous
matter
and,
therefore, the learned Magistrate could
not have summoned the accused under
Section 190 (1)(b) of Cr.P.C.

7.

Learned
counsel
for
the
respondent no.2 has contended that if the
material collected during investigation
shows
that
the
offence
has
been
committed, the accused can be summoned
under Section 190(1)(b) of Cr.P.C. even if
there is any extraneous material and at the
most it is irregularity and not illegality.

8. Section 190 provides for
cognizance of offence by a Magistrate.
The relevant portion of sub section (1)
reads as under:
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
subsection (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;"

9. It shows that a Magistrate can
take
cognizance
upon
receiving
a
complaint of facts which constitute such
offence in sub-clause (l)(a) and upon a
police report of such facts under subclause (1)(b). The Criminal Procedure
Code provides for separate procedures for
cases in which the cognizance has been
taken on a complaint and on a police
report. Therefore, these are two separate
categories and cannot be intermixed.
These are statutory provisions and have to
be followed as such.

10. In the case of Pakhando and
others Vs. State of U.P. and another 2001
(43) ACC 1096, a Division Bench of this
Court has held that where the Magistrate
2 All] Surya Bhan V. State of U.P. and another
439
receives final report 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 complaint: or

(II) He may take cognizance under
Section 190(l)(b) and issue process
straightaway 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

(Ill) 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(
l)(a) upon the original complaint or
protest petition treating the same as
complaint 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.

11. In this case it has also been held
that it would, however, be relevant to
mention that for forming such an
independent opinion the Magistrate can
act only upon the statements of witnesses
recorded by the police in the case diary
and other material collected during
investigation. It is not permissible for him
at that stage to make use of any material
other than investigation records, unless
he decides to take cognizance under
Section 190(1)(a) of the Code and calls
upon the complainant to examine himself
and the witnesses present, if any, under
Section 200.

12. Therefore, this shows that the
Magistrate while taking cognizance under
Section 190(1)(b) can only rely on the
police report that means evidence and
material collected by the Investigating
Officer
during
investigation.
The
Magistrate can not, therefore, take into
consideration any extraneous material and
if he does so, he should, take cognizance
under Section 190(1)(a) and should
proceed in the matter as a complaint case.

13. It is relevant to quote the
following passage of the case of Ajit
Kumar Palit Vs. State of West Bengal
1963 Supp (1) SCR 953 as quoted in the
case of CREF Finance Ltd. Vs. Shree
Shanthi Homes (P) Ltd. and another
(2005) 7 Supreme Court Cases 467:

"The word 'cognizance' has no
esoteric or mystic significance in criminal
law or procedure. It merely meansbecome aware of and where used with
reference to a court or judge, to take
notice of judicially. It was stated in Gopal
Marwari V. emperor by the learned
Judges of the Patna High Court in a
passage quoted with approval by this
Court in R.R. Chari V. State of U.P. (SCR
at p.320) that the word, 'cognizance' was
used in the Code to indicate the point
when the magistrate or judge takes
judicial notice of an offence and that it
was a word of indefinite import, and is
not perhaps always used in exactly the
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
same sense. As observed in Emperor Vs.
Sourindra Mohan Chuckerbutty (ILR at p.
416) 'taking cognizance does not involve
any formal action; or indeed action of any
kind, but occurs as soon as a Magistrate,
as such applies his mind to the suspected
commission of an offence'. Where the
statute prescribes the materials on which
alone the judicial mind shall operate
before any step is taken, obviously the
statutory requirement must be fulfilled."

14. Therefore, the legal position is
clear that where the statute prescribes the
materials on which alone the judicial
mind shall operate before any step is
taken, obviously the statutory requirement
must be fulfilled, Applying this principle
to Section 190(1)(b), it becomes apparent
that
the
Magistrate
while
taking
cognizance of the offence under this
section cannot rely on any material other
than the police report of such fact.

15. The contention of learned
counsel for the respondent no.2 is that
even if the Magistrate takes wrong
cognizance under section 190(l)(a)or(b), it
is merely on irregularity. But this
contention cannot be accepted as statute
itself provides as to what material is to be
considered by the Magistrate before
taking cognizance and procedure for trial
of the case will depend on the cognizance
taken in accordance with those materials.
The cognizance is taken of the offence
and, therefore, the court on perusal of the
complaint or report has to satisfy itself on
the basis of the facts which constitute the
offence. There may be instances where
the Magistrate finds that the complaint is
not made by the person who can lodge the
complaint or the complaint is not
entertainable by that Court or cognizance
of the offence alleged to have been
committed cannot be taken without the
sanction of the competent authority etc. In
such matters Magistrate should refuse to
take cognizance but if the Magistrate
takes cognizance in such matters, and
proceeds, the same may be curable under
Section 460 Cr.P.C. But in the case where
statute directs as to how and on what
material the cognizance is to be taken, any
violation thereof will he illegality and not
irregularity. As for instance if the
Magistrate
takes
cognizance
on
a
complaint and directs to proceed as a
police
case
or
conversely
takes
cognizance on a police report and directs
to proceed as a complaint case, this defect
in cognizance would not be irregularity
and would not be curable as it would
vitiate the procedure. Such contingency is
not permissible under law and in the
circumstances the contention as raised by
the learned counsel for the respondent
no.2 is not tenable and cannot be
accepted.

16. In this case the learned
Magistrate while passing the impugned
order has given a finding that the
Investigating Officer did not correctly
record
the
statements
and
wrongly
concluded that the incident had not taken
place and submitted final report whereas
the medical and documentary evidence
fully proved that the incident took place.
It is well settled that the cognizance is
taken of the offence and not of the
offender and at the stage of cognizance
the learned Magistrate is only required to
see whether prima facie any offence has
been
committed.
But
the
learned
Magistrate instead of giving any such
findings has concluded that the incident
did take place.
2 All] Raj Pal Singh V. State of U.P. and others
441
17. In the instant case, the learned
Magistrate has directed to summon the
accused persons under Section 190(1)(b)
of Cr.P.C. This in itself is an illegal order
as the accused could not be summoned
and tried under Section 190 of Cr.P.C.
This section empowers the Magistrate to
take cognizance of an offence which is
constituted from the facts as disclosed in
the
police
report.
The
accused
is
summoned for the offence that has been
committed by him under the provisions of
Indian Penal Code or any other law under
which he could be tried and punished. The
learned Magistrate Should have specified
the offence and the section (s) under
which he was summoning the accused
after taking cognizance. Thus I come to
the conclusion that the impugned order
dated 10.10.2006 passed by the learned
Magistrate is not correct and is liable to
be set aside. The order in revision passed
on 6.12.2006 by the learned Incharge
Sessions Judge is also, therefore, liable to
be set aside. Therefore, the writ petition is
to be allowed.

18. The writ petition is hereby
allowed and the impugned orders are set
aside. The learned Magistrate is directed
to consider the matter afresh and to
proceed according to law and in the light
of the observations made in the judgment
herein above. The complainant shall
appear in the Court of the learned
Magistrate for further orders on 12th
March, 2007.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD09.02.2007

BEFORE
THE HON'BLE G.P. SRIVASTAVA, J.

First Appeal No. 273 of 1996

Raj Pal Singh
...Appellant-Claimant
Versus
State of U. P. and others ...Respondents

Connected with
First Appeal No. 274 of 1996, First Appeal
No. 275 of 1996, First Appeal No. 276 of
1996, First Appeal No. 277 of 1996, First
Appeal No. 278 of 1996, First Appeal No.
279 of 1996, First Appeal No. 280 of
1996, First Appeal No. 281 of 1996

Counsel for the Appellant:
Sri P.K. Singh
Sri B.C. Jauhari

Counsel for the Respondents:
S.C.

Land Acquisition Act-Section 20 (1)-AEnhancement of compensations-S.L.O.
given award at the rate of Rs.12500/-
per Bigha-reference court enhanced to
Rs.20,000/- per Bigha with solatium at
the rate of 30% along with 12% interest
on
enhanced
amount-first
appeal
claiming further enhancement-held-not
entitled for larger amount what have
been claimed by the appellant.

Held: Para 10

It appears that the Reference court has
come to conclusion that the market
value of the land in question should be at
least at the rate of Rs.20,000/- per bigha
because the land in question stands on
the better footing than the land involved
in the award given by the S.L.A.O. dated
2.3.1983 in respect of a different village
Badha. As the appellants themselves