# Than Singh and others v. Kishore Kumar & another - **Citation:** (2003) 2 ILRA 366 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2001-12-11 - **Case number:** Criminal Misc. Writ Petition No. 483 of 2003 - **Bench:** K.N. Sinha - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/than-singh-and-others-v-kishore-kumar-another-40109 - **Pages:** 3 ## Headnote Code of Criminal Procedure, 1973Section 90 (1) (a) and (b) and S.173 (2)- Scope taking of cognizance under- Incident of beating by both sides-FIR lodged by both sides-Order of Magistrate summoning petitioners- F.I.R. submitted by Police-Magistrate not bound to accept police version-Order of Magistrate showing that there were three eye witnesses besides complainant and a report to S.S.P.-Magistrate on receipt of report under S.173 (2) may accept or reject same and take cognizance of offence under S.190 (1) (b) or S.190 (a) on basis of original complaint and may proceed to examine complainant and his witnesses-On basis of evidence on record, held, there exists sufficient ground to proceed against accused-Impugned orders, held to be justified. Held; Held- Para 7 I have perused the summoning order and that of the revisional court. If some incident takes place and beating is given from both sides and both sides lodged F.I.R. it cannot be said that the F.I.R. by the other party is the result of the F.I.R. by one party. If this plea is accepted, then every aggrieved person lodging the report, after one party has lodged shall be debarred from taking action against the culprit. The order of the Magistrate shows that there were three eye witnesses besides the complainant and a report to the S.S.P. It is settled principle that the Magistrate on receipt of a report U/s 173 (2) Cr.P.C. may accept the report or reject the same and take cognizance of the offence under section 190 (1) (b) Cr.P.C. or he may take cognizance of offence U/s 190 (1) (a) Cr.P.C. on the basis of the original complaint and proceed to examine the complainant and his witnesses. Held- Para 9 So far as the question of evidence is concerned, the court has to see whether there exists sufficient ground to proceed of not. By scrutinizing the impugned http://www.allahabadhighcourt.nic.in 2 All] Krishna Gopal Pandey and another V. Bans Bahadur Singh and another 367 order of the Magistrate I find that there exists sufficient ground to proceed against the accused and the order of the learned Magistrate and that of the revisional court are perfectly justified in view of the evidence available on record. Case Law Referred: 2003 (4) A.C.C. 182 ## Text http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2003 366 dismissed by the High Court but it directed the respondent vendee to pay a further sum of Rs. One lac which was raised by 3 lacs by the Apex Court that case there are two distinguishing features. Firstly the property was situate in Delhi where the real estate price had escalated and secondly out of the consideration Rs.16,000/- settled only Rs.1,000/- was paid at the time of the agreement to sell and the balance was to be paid later. In these circumstances the vendee was called upon to pay an additional sum of Rs. 3 lacs. In the present case there is no evidence to indicate that the prices had escalated. That apart out of the total consideration of Rs.48,000/-, Rs.40,000/- was paid as advance and only a small portion of Rs. 8,000/- remained to be paid. 23. The appeal does not involved any substantial question of law. Dismissed. --------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD FEBRUARY 25, 2003 BEFORE THE HON'BLE K.N. SINHA, J. Criminal Misc. Writ Petition No. 483 of 2003 Than Singh and others ...Petitioner Versus Kishore Kumar & another ...Respondents Counsel for the Petitioner: Sri Dhruva Narayan Sri Bala Krishna Narayana Counsel for the Respondents: Sri Mahendra Pal Singh A.G.A. Code of Criminal Procedure, 1973Section 90 (1) (a) and (b) and S.173 (2)- Scope taking of cognizance under- Incident of beating by both sides-FIR lodged by both sides-Order of Magistrate summoning petitioners- F.I.R. submitted by Police-Magistrate not bound to accept police version-Order of Magistrate showing that there were three eye witnesses besides complainant and a report to S.S.P.-Magistrate on receipt of report under S.173 (2) may accept or reject same and take cognizance of offence under S.190 (1) (b) or S.190 (a) on basis of original complaint and may proceed to examine complainant and his witnesses-On basis of evidence on record, held, there exists sufficient ground to proceed against accused-Impugned orders, held to be justified. Held; Held- Para 7 I have perused the summoning order and that of the revisional court. If some incident takes place and beating is given from both sides and both sides lodged F.I.R. it cannot be said that the F.I.R. by the other party is the result of the F.I.R. by one party. If this plea is accepted, then every aggrieved person lodging the report, after one party has lodged shall be debarred from taking action against the culprit. The order of the Magistrate shows that there were three eye witnesses besides the complainant and a report to the S.S.P. It is settled principle that the Magistrate on receipt of a report U/s 173 (2) Cr.P.C. may accept the report or reject the same and take cognizance of the offence under section 190 (1) (b) Cr.P.C. or he may take cognizance of offence U/s 190 (1) (a) Cr.P.C. on the basis of the original complaint and proceed to examine the complainant and his witnesses. Held- Para 9 So far as the question of evidence is concerned, the court has to see whether there exists sufficient ground to proceed of not. By scrutinizing the impugned http://www.allahabadhighcourt.nic.in 2 All] Krishna Gopal Pandey and another V. Bans Bahadur Singh and another 367 order of the Magistrate I find that there exists sufficient ground to proceed against the accused and the order of the learned Magistrate and that of the revisional court are perfectly justified in view of the evidence available on record. Case Law Referred: 2003 (4) A.C.C. 182 (Delivered by Hon'ble K.N. Sinha, J.) 1. Heard the learned counsel for the petitioners, the learned A.G.A. and perused the impugned order. 2. The present writ petition has been moved under Article 226 of the Constitution of India for issue of a writ in the nature of certiorari quashing the order dated 11.12.2001 passed by the I Addl. Civil Judge (Junior Division)/ Judicial Magistrate, Badaun and the order dated 29.8.2002 passed by the Addl. Sessions Judge, Court no. 7 Badaun in Criminal Revision No. 38 of 2002, Annexures 9 and 10 to the writ petition. 3. The brief facts giving rise to this petition are that the respondent No. 1 filed an application under section 156 (3) Cr.P.C. on 24.4.2000 where in an order for investigation was passed. The I.O. submitted F.R. before the Magistrate. The II Addl. C.J.M. Badaun issued notice to the informant, respondent No. 1, who filed an application praying to record his statement. The statement of respondent No. 1 was recorded under section 200 Cr.P.C. and that of three witnesses Tejpal, Shivom and Shyam Singh were recorded U/s 202 Cr.P.C. (Annexures 5, 6, 7 and 8 respectively to the writ petition). The learned Magistrate took cognizance and passed an order summoning the petitioners. The petitioners filed a revision before the Sessions Judge, Badaun, which was dismissed. It is alleged that the impugned orders are bad in the eyes of law as the proceedings in question against the petitioners have been instituted as a counter-blast to case crime No. 87 of 2000 under section 323/504 I.P.C. and the three eye witnesses are the main accused in that case. 4. The respondent No. 1 filed a counter affidavit on the ground that the statement of the respondent and witnesses were recorded and the court after examining the evidence passed the order. 5. Rejoinder affidavit was also filed on behalf of the petitioners. 6. It was submitted by the learned counsel for the petitioners that the police has submitted the F.I.R. observing that as a case against the respondent was already proceeding; hence the F.I.R. was submitted. This was the version of the police but the Magistrate is not bound to accept the version of the police. 7. I have perused the summoning order and that of the revisional court. If some incident takes place and beating is given from both sides and both sides lodged F.I.R. it cannot be said that the F.I.R. by the other party is the result of the F.I.R. by one party. If this plea is accepted, then every aggrieved person lodging the report, after one party has lodged shall be debarred from taking action against the culprit. The order of the Magistrate shows that there were three eye witnesses besides the complainant and a report to the S.S.P. It is settled principle that the Magistrate on receipt of a report U/s 173 (2) Cr.P.C. may accept the report or reject the same and take cognizance of the offence under section 190 (1) (b) Cr.P.C. or he may take cognizance of offence U/s 190 (1) (a) Cr.P.C. on the basis of the original http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2003 368 complaint and proceed to examine the complainant and his witnesses. 8. The Apex Court in Mahesh Chandra Vs. Janardan Reddy and others, reported in 2003 (4) A.C.C. page 182 has held that merely because the Magistrate has accepted the F.I.R., the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition. 9. So far as the question of evidence is concerned, the court has to see whether there exists sufficient ground to proceed of not. By scrutinizing the impugned order of the Magistrate I find that there exists sufficient ground to proceed against the accused and the order of the learned Magistrate and that of the revisional court are perfectly justified in view of the evidence available on record. The writ petition is devoid of any merit and therefore it is hereby dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 14.02.2003 BEFORE THE HON'BLE ASHOK BHUSHAN, J. Civil Misc. Writ Petition No. 2882 of 2003 Daljeet Singh ...Petitioner Versus Commissioner, Chitrakoot Dham, Mandal Banda and another ...Respondents Counsel for the Petitioner: Sri Vinay Khare Counsel for the Respondents: S.C. U.P. Minor Mineral (Concession) Rules, 1963-R. 21 and 70-Liability to pay royalty-Arises when a lessee removes mineral from leased area question of issue of Form MM-11 by lessee arises only when a consignment of minor mineral is sent by Vehicles animal or any other mode of transport-held, petitioner having issued Form MM-11 between 1.4.2001 to 11.4.2001, he was liable to pay royalty at rate existing on that day- held. Held-Para- 6 & 7 From the aforesaid rule, it is clear that liability to pay royalty arises at the point when a lessee removes the mineral from leased area. Form MM-11 is issued for transportation of the mineral giving various details in Form MM-11. Rule 70 of U.P. Minor Minerals (Concession) Rules, 1963 is relevant in this respect. Thus the question of issue of Form MM11 by lessee only arises when a consignment of minor mineral is sent by vehicle, animal or any other mode of transport. Petitioner having issued the Form MM-11 between 1.4.2001 to 11.4.2001, he was liable to pay the royalty at the rate as existing on that day. The fact that petitioner received Form MM-11 from the office of District Magistrate price to 31.3.2001 is not relevant. (Delivered by Hon'ble Ashok Bhushan, J.) 1. Heard counsel for the petitioner and the learned standing counsel. 2. By this writ petition, the petitioner has prayed for quashing of the order dated 25.10.2002 passed by Commissioner, Chitrakoot Dham, Mandal, Banda and the order dated 12.6.2001 passed by Collector, Mahoba. Petitioner is a holder of mining lease. In pursuance of the mining lease he has