# Umesh Singh Revisionist v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 1979
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Criminal Revision No. 5872 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-singh-revisionist-v-state-of-u-p-anr-51915
- **Pages:** 17

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 2 (d), 2(h), 156(3),
161, 173, 173(2), 190, 190(1), 190(1)(a),
190 (1)(b), 191(b), 200, 202, 397 & 401 -
Indian Penal Code, 1860 - Sections 34,
307 & 427 - Indian Evidence Act, 1872 -
Section 11 - Criminal Revision - u/s 397/401
Cr.P.C. - FIR u/s 307, 427, 34 of IPC -
investigation - final report - protest petition -
rejected by the ACJM - complainant field
criminal revision - Revisional Court allowed the
revision by remitting the matter to court below
to decide the same afresh - against which the
present Revision - aspect of, the power of
magistrate and jurisdiction of Revisional Court is
discussed - court finds that, (i) after registration
of FIR and after submission of the final report by
the I.O. same was transfer to crime branch, (ii)
1980 INDIAN LAW REPORTS ALLAHABAD SERIES
the I.O. while submitting FR took into
consideration of the St.ments of informant and
all the witnesses of both side and arrived at a
conclusion that the informant of accused person
in the incident was not found and there is no
chance to find out the real accused persons
being nothing could be found - (iii) on the
evidence collected by the I.O. he is duty bound
to report the result of investigation in the
prescribed form to the concern magistrate - held
- (i) Revisional jurisdiction should be exercised
by any court in exceptional cases when there is
some glaring defect in the procedure or a
manifest error on a point of law resulting in
flagrant miscarriage of justice, (ii) relying upon
the material available on record, the Magistrate
has
duly
recorded
his
satisfaction
comprehensively that it was a case where the
complicity of the revisionist was not found in the
incident, (iii) the revisional court has committed
error in setting aside the order and remitting the
matter back to the Magistrate to decide it afresh
-
consequently,
the
order
impugned
is
unsustainable and is set aside - revision stands
allowed. (Para - 24, 51, 53, 57, 59)

Revision Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,866 of 56,686. This is a partial read: ask again with offset=39866 for what follows._

5 All. Umesh Singh Vs. State of U.P. & Anr.
1979
for sale would come into play, as this clause
gives a discretion to the defendantpetitioner to execute the saledeed after the
resolution of dispute, if any, by erecting the
boundary wall upon the land in suit if it was
not constructed within three months of
execution of agreement for sale.

22. Looking to the pleadings as
raised in paragrpah no.5 to the plaint it can
be safely concluded that there was some
dispute regarding land in question and the
Court would only come to a conclusion
after the evidence is led whether this
dispute was the reason for petitioner not
constructing the boundary wall and not
executing the saledeed. There is no
pleading in the entire petition that petitioner
had ever shown his readiness and
willingness to execute the sale deed by
constructing the boundary wall, or that he
had replied to the first notice. All this,
therefore, leads to an inevitable conclusion
that question as to limitation is a mixed
question of law and fact so as to determine
whether the suit in question is filed within
limitation period or was barred by law of
limitation.

23. In such above view of the
matter, therefore, neither I find any
manifest error in the order passed by the
trial court, nor do I see any wrongful
exercise of jurisdiction vested in the Court,
nor even any failure to exercise jurisdiction
vested in Court that may require this Court
to interfere with the order impugned in
exercise of its revisional power under 115
C.P.C.

24. However, since the question as
to maintainability of the suit for being
barred by limitation goes to the root of the
matter, I hereby provide that while the
issues are framed, the issue qua order 7 rule
11 CPC shall be framed as first issue to be
decided as preliminary issue before any
other issue is decided. Parties shall be
permitted to lead their evidence and shall be
afforded reasonable opportunity of hearing
upon the said preliminary issue.

25. With these observations and
directions, this petition stands disposed of.
----------
(2024) 5 ILRA 1979
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Revision No. 5872 of 2023

Umesh Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Mohd. Raghib Ali, Sr. Advocate

Counsel for the Opposite Parties:
G.A., Satya Priya Mishra

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 2 (d), 2(h), 156(3),
161, 173, 173(2), 190, 190(1), 190(1)(a),
190 (1)(b), 191(b), 200, 202, 397 & 401 -
Indian Penal Code, 1860 - Sections 34,
307 & 427 - Indian Evidence Act, 1872 -
Section 11 - Criminal Revision - u/s 397/401
Cr.P.C. - FIR u/s 307, 427, 34 of IPC -
investigation - final report - protest petition -
rejected by the ACJM - complainant field
criminal revision - Revisional Court allowed the
revision by remitting the matter to court below
to decide the same afresh - against which the
present Revision - aspect of, the power of
magistrate and jurisdiction of Revisional Court is
discussed - court finds that, (i) after registration
of FIR and after submission of the final report by
the I.O. same was transfer to crime branch, (ii)
1980 INDIAN LAW REPORTS ALLAHABAD SERIES
the I.O. while submitting FR took into
consideration of the St.ments of informant and
all the witnesses of both side and arrived at a
conclusion that the informant of accused person
in the incident was not found and there is no
chance to find out the real accused persons
being nothing could be found - (iii) on the
evidence collected by the I.O. he is duty bound
to report the result of investigation in the
prescribed form to the concern magistrate - held
- (i) Revisional jurisdiction should be exercised
by any court in exceptional cases when there is
some glaring defect in the procedure or a
manifest error on a point of law resulting in
flagrant miscarriage of justice, (ii) relying upon
the material available on record, the Magistrate
has
duly
recorded
his
satisfaction
comprehensively that it was a case where the
complicity of the revisionist was not found in the
incident, (iii) the revisional court has committed
error in setting aside the order and remitting the
matter back to the Magistrate to decide it afresh
-
consequently,
the
order
impugned
is
unsustainable and is set aside - revision stands
allowed. (Para - 24, 51, 53, 57, 59)

Revision Allowed. (E-11)

List of Cases cited:

1. Vishnu Kumar Tiwari Vs St. of U.P. & anr. -
2019 AIR (SC) 3482,

2. Munshi Prasad Vs St. of Bihar - AIR 2001 SC
3031,

3. Bhagwant Singh Vs Commissioner of Police -
(1985) 2 SCC 53,

4. H.S. Bains, Director, small saving-cumDeputy Secretary, Punj., Chandigarh (1980) 4
SCC 631,

5. M/s India Carat Pvt Ltd Vs St. of Karnataka &
anr. - 1989 (1) RCR (Criminal) 395,

6. Union Public Service Commission Vs S
Papaiah - 1997 SCC (Crl) 1112,

7. Vishnu Kumar Tiwari Vs The St. of Uttar
Pradesh - (2019) 8 SCC 27,

8. Abhinandan Jha & ors.Vs Dinesh Mishra - AIR
1968 SC 117,

9. Tata Iron and Steel Co. Ltd. Vs Inspector of
Police, CCB, Egmore, Madras - 1989 LW(CRL)
155,

10. Dr. Mrs Nupur Talwar Vs C.B.I, Delhi - 2012
Crl. LJ SC 954,

11. India Carat Private Ltd. Vs St. of Karnataka
- (1989) 2 SCC 132,

12. Vishnu Kumar Tiwari Vs St. of U.P - (2019)
8 SCC 27,

13. Munna Devi Vs St. of Raj. & anr. - 2001 (9)
SCC 631,

14. Km. Phooldali Vs St. of U.P. & anr. - Criminal
Revision
No.1734/2000,
decided
on
06.11.2019.

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Saghir Ahmad, learned
Senior Advocate assisted by Mr. Mohd
Raghib Ali, learned counsel for the
revisionist, Mr. Satya Priya Mishra, learned
counsel for the opposite party no.2 and Mr.
Amit Singh Chauhan, learned AGA-I
assisted by Mr. Mayank Awasthi, learned
counsel for the State and perused the
record.

2. This criminal revision under
section 397/401 Cr.P.C. has been preferred
by the revisionist against the impugned
order dated 30.09.2023 passed by the
learned Additional Sessions Judge/Special
Judge, P.C. Act (U.P.S.I.B.), Gorakhpur in
criminal revision no.130 of 20221, arising
out of . Case Crime No. 60 of 2016, F.R.
No.20010/2017, under Sections 307, 427,
34 IPC, Police Station-Uruwa Bazar,
District-Gorakhpur.
5 All. Umesh Singh Vs. State of U.P. & Anr.
1981
BRIEF FACTS OF THE CASE

3. The facts in brief which are
essential to be stated for adjudication of this
revision are that:-

(i) An FIR was lodged on
26.05.2016 by the informant; Nanhe Lal
Yadav, under Sections 307, 427, 34 IPC,
which was registered as Case Crime
No.0060 of 2016 against two named
accused, namely, Umesh Singh, Vivek
Singh and three unknown persons with the
allegations
that
on
25.05.2016,
the
informant was returning from Rambada to
his home with his uncle B.R.Yadav in his
Bolero No. UP 53 BK 8201, at around
11:00 pm, his vehicle reached near culvert
and the speed of the vehicle was slow due
to the height of the culvert, due to prior
enmity, the accused Umesh Singh and
Vivek Singh along with three unknown
persons were present on two motorcycles
and they came from the front and started
firing at the informant and his uncle with
the intention of killing them, due to which
the glass of the Bolero broke, the
informant's uncle was shot on his right
shoulder and neck, whereas the informant
was shot on his chest and stomach. As he
had a mobile phone in the left pocket of his
shirt, the aforesaid firearm gunshot hit the
mobile screen due to which the glass of the
mobile was broken. Seeing this unfortunate
incident, the informant started driving the
vehicle speedily to save his life. Seeing this,
the accused fired from behind and chased
them till the petrol pump. Due to the said
gunshot, the front and rear glass of the
vehicle
was
broken.
The
informant
informed the police by dialing 100 in the
control room from his mobile number
9956562664. The police reached there with
an ambulance and seeing the condition of
the informant's uncle, he was taken to the
District Hospital, Gorakhpur for treatment
in the said ambulance. Seeing the serious
condition of informant's uncle, he was
referred
to
the
Medical
College,
Gorakhpur, where he was admitted for
treatment. The informant saw the accused
in the light of the headlights. Rambrichh s/o
Ludur was also sitting with the informant in
his vehicle and had witnessed the above
incident.
 (ii) During investigation, the
statement of injured; Budhiram Yadav was
recorded under Section 161 Cr.P.C. on
04.06.2016 in which he reiterated the
version of the FIR.

(iii) The field unit has inspected
Bolero car No.UP53 BK 8201 and prepared
the memo, which is evident from case dairy
dated 08.06.2016. From the aforesaid, it is
clear that no other witness or any accused
person was found at the place of incident.

(iv) The case was transferred
from Police Station Uruwa Bazar to Police
Station Khajni by order dated 07.07.2016.
The same finds place at Parcha No.X dated
07.07.2016 in the case dairy.

(v) The second Investigating
Officer interrogated the witness Ram Das
and Ramai Bind on 04.08.2016 and
recorded their statements u/s 161 Cr.P.C.
Both the witnesses have supported the FIR
version and Ram Das has stated that he was
sitting in the back seat along with Ramai
Bind and Rambrichh. He also said that
three bullets were fired from the front and
two from the rear of the vehicle.

(vi) In pursuant of the order dated
28.09.2016 passed by Superintendent of
Police (crime), the case was again
transferred from the police station Khajni to
Crime Branch.

(vii) On 24.11.2016, the third
Investigating
Officer
recorded
the
statement of the informant, Budhiram,
Rambrikchh and hearsay witness; Ramai.
1982 INDIAN LAW REPORTS ALLAHABAD SERIES
The injured Budhiram and witness; Ram
Brikchh have reiterated their earlier
statement. The hearsay witness; Ramai has
also repeated his earlier statement. On
28.12.2016, the statement of Ram Das has
been recorded, who has supported the
prosecution story.

(viii) An application alongwith
affidavit of Smt. Suddha Singh wife of
Umesh Kumar Singh addressed to D.I.G.,
Gorakhpur Range Gorakhpur for fair
investigation
has
been
given
on
01.02.2017. The same finds place at parcha
no.29 in the case dairy.

(ix) Thereafter, on 10.02.2017,
Umesh Kumar Singh has given an
application alongwith affidavit referring to
the earlier application given by his wife,
which is also addressed to the D.I.G.,
Gorakhpur Range Gorakhpur requesting
for fair investigation.

(x) Smt. Sudha Singh wife of
Umesh Singh has given an affidavit stating
therein that at the date and time of incident,
Umesh Singh is not present. The same has
been supported by the Chandra Kant,
Dinesh Chaubey, Vijay Pratap Singh, Ram
Agrawal and statement of Suddha Singh,
Doctor Virendra Kumar Gupta, statement
of Dig Vijay Singh, Ajay Sharma, Rakesh,
Ashok Yadav, Arun Bahadur Pal, by means
of affidavits filed before the Investigating
Officer, which is part of case dairy.

(xi) Taking into consideration the
aforesaid, the Investigating Officer, on the
basis of evidence collected during course of
investigation under Section 2(h) Cr.P.C.
arrived at a conclusion that a there is no
evidence against the named accused,
therefore, they have been exonerated from
all charges and final report no.2/2017,
dated 14.02.2017 has been submitted.

(xii) The aforesaid final report
has been placed before learned Additional
Chief
Judicial
Magistrate,
Bansgaon,
Gorakhpur and on 19.11.2018, the opposite
party no.2 filed protest/objection in
connection with the above referred final
report.

(xiii)
On
05.05.2022,
learned
Additional
Chief
Judicial
Magistrate,
Bansgaon, Gorakhpur rejected the protest
petition and accepted the final report. The
aforesaid order dated 05.05.2022 was
challenged
by
the
opposite
party
no.2/complainant by means of filing
criminal revision no.130 of 2022 on
05.07.2022.

(xiv) On 30.09.2022, the learned
Additional Sessions Judge/Special Judge,
P.C. Act (U.P.S.I.B.), Gorakhpur has heard
and allowed the revision in part by setting
aside the order dated 05.05.2022 and
remitting the matter to the learned Chief
Judicial Magistrate, Bansgaon, Gorakhpur
to decide the same afresh in the light of
observations made by the revisional court
after providing an opportunity to both the
parties. Hence the present criminal revision
has been filed.

REVISIONIST'S SUBMISSION

4. Learned counsel for the
revisionist, while challenging the order
impugned, has submitted that:-

 (i) the Revisional Court has
passed unjust, improper and illegal order
and exceeded his jurisdiction, therefore, the
same is not sustainable in the eye of law.

(ii)
the
finding
given
and
conclusion arrived by the Revisional Court
is perverse on record and the very
assumption has not been supported by any
cogent, clinching and admissible evidence
collected by the Investigating Officer
during course of investigation according to
section 2(h) Cr.P.C.
5 All. Umesh Singh Vs. State of U.P. & Anr.
1983

(iii) the Revisional Court has
passed
the
impugned
order
without
application of judicial mind and without
considering that learned Additional Chief
Judicial Magistrate, Bansgaon, Gorakhpur
has legally taken into consideration of facts
and circumstances as enumerated in the
material collected by the Investigating
Officer as well as protest petition and has
reasonably arrived at conclusion to accept
the final report passing the order dated
05.05.2022 in just, proper and legal
manner.

(iv) the opposite party no.2 has
completely failed to point out any error in
the investigation and has also not rebutted
the
conclusion
arrived
at
by
the
Investigating Officer while submitting final
report. No ground has been taken in the
memo of revision regarding illegality or
infirmity in the order impugned 05.05.2022
passed by the concerned Magistrate, which
has not been considered by the Revisional
Court in its order dated 30.09.2023. Thus,
the same is illegal.

(v) To sum up, the impugned
order dated 30.09.2023 has been challenged
merely on three grounds; firstly, the
opposite party no.2 has been completely
failed to point out any error in above
referred Final Report No.2/17, dated
14.02.2017 in its protest petition dated
19.11.2018; secondly, the opposite party
no.2 has not rebutted the finding recorded
by the concerned Magistrate in its order
dated 05.05.2022 in the memo of revision
dated 05.07.2022; thirdly, the innocence of
the revisionist has been fortified firstly by
the Investigating Officer vide Final Report
No.2/17 dated 14.07.2022 and secondly by
the concerned Magistrate vide its order
dated 05.05.2022.

6. Learned counsel for the
revisionist has relied upon the judgment of
Apex Court in the case of Vishnu Kumar
Tiwari vs. State of U.P. and another2.
Relevant paragraph nos.25, 26 & 41 of the
aforesaid judgment are as under:-

"25. In Rakesh Kumar and
another v. State of Uttar Pradesh and
another, on the basis of a First Information
Report
lodged
by
the
Police
after
investigation, a final report came to be
filed. The Magistrate accepted the final
report. He, simultaneously, directed the
case be proceeded with as a complaint
case. Statements under Section 200 and 202
of the Code were recorded. The High Court
turned down the plea of the accused to
whom summons were issued. It was the
contention of the accused that having
accepted a negative final report, the court
could not take action on the basis of the
protest petition filed by the complainant.
This Court refers to the judgment in H.S.
Bains (supra). The principles of law laid
down in paragraph 12 of Mahesh Chand
(supra), 6 2014 (13) SCC 133 which we
have also referred to earlier, came to be
approved. The order of the High Court was
approved.

26. This is a case where following
the
First
Information
Report,
the
Investigating
Officer
conducted
an
investigation. Statements were taken from
the complainant, his wife and his son. This
is apart from the statements which were
taken from the Doctors who treated the
daughter
of
the
second
respondent/complainant. The Investigation
Officer concluded that there is no material
which would warrant the accused being
sent for trial. When such a report is filed
before the court, it is beyond the shade of
doubt that the Magistrate may still choose
to reject the final report and proceed to take
cognizance of the offences, which in his
view, are seen committed. He may, on the
1984 INDIAN LAW REPORTS ALLAHABAD SERIES
other hand, after pondering over the
materials,
which
would
include
the
statements of witnesses collected by the
Investigating Officer, decide to accept the
final report. He may entertain the view that
it is a case where further investigation by
the Officer is warranted before a decision
is taken as to whether cognizance is to be
taken or not.

41. In Rakesh Kumar (supra), the
final report was filed which was accepted
by the Magistrate but he simultaneously
directed the case to be proceeded as a
complaint case and statements under
Sections 200 and 202 of the Code came to
be recorded."

7. On the cumulative strength of the
aforesaid submissions, learned counsel for
the revisionist submits that the Revisional
Court has illegally passed the order
impugned dated 30.09.2023 allowing the
revision of the opposite party no.2 without
assigning any cogent reason, which is not
justifiable in the eye of law, therefore, the
impugned order is liable to be set aside.

SUBMISSION OF OPPOSITE
PARTY NO.2

8. On the other hand, learned
counsel for the opposite party no.2 submits
that there is no illegality in the order
impugned dated 30.09.2023 as the same has
been passed after considering the principal
as laid down by judgment of Apex Court in
Vishnu Kumar Tiwari (supra). The
concerned Magistrate while passing the
order dated 05.05.2023 has confirmed the
final report ignoring the statement of
injured witness and eye witness. The
investigating officer while submitting the
final report has not collected live location
of such witnesses, who have supported the
plea of alibi as taken by the revisionist and
without taking the same into consideration,
the concerned Magistrate has passed the
order dated 05.05.2023, which is illegal.

9. He further submits that the
opposite party no.2/informant has not
mentioned an additional ground in the
revision and only such ground, which is
recorded by the Investigating Officer
during investigation and it's part of case
dairy, has been ignored and final report has
been submitted, which has been accepted
by the concerned Magistrate without
verifying the evidence as placed by the
accused persons.

10. Relying upon the judgment of
Apex Court in the case of Munshi Prasad
vs. State of Bihar3, he submits that the plea
of alibi was not accepted when the accused
had stated that he was present in the
meeting held near about 400-500 meters
way from the place of incident as
considered the accused must have joined
meeting after committed the incident. The
aforesaid fact has not been considered by
the Investigating Officer while submitting
the Final Report nor the concerned
Magistrate while accepting the final report
and passing the order dated 05.05.2023.

11. Relying upon Section 11 of
Evidence Act, learned counsel for the
opposite party no.2 submits that the plea of
alibi has taken by the accused has to be seen
as to whether the same is inconsistent with
any fact in issue or relevant fact or if by
themselves or in connection with other
facts it makes the existence or nonexistence of any fact in issue or relevant
fact highly probable or improbable.

12.

Thus,
probability
of
committing the offence and they going for
treatment of his wife as has been stated by
5 All. Umesh Singh Vs. State of U.P. & Anr.
1985
the revisionist and supported by the other
persons appears to be highly improbable as
the fact that the revisionist has committed
the offence and has gone for the treatment
of his wife as there are chances that the
revisionist would have committed the
offence and then had gone for treatment of
his wife. Thus, there is no illegality in the
order impugned.

SUBMISSION
OF
STATE
COUNSEL

13. While assisting the Court,
learned counsel for the State submits that
the Magistrate after receiving the final
report has the following options:-

 (i) he could have accepted the
report and, closed the case;

(ii)
he
could
have
taken
cognizance of offence on the basis of
evidence available in the case diary against
the accused, if he was satisfied that the
conclusion arrived at by the investigating
officer was not correct;

(iii) he could have ordered for
further investigation, if he was satisfied that
the investigation was made in a perfunctory
manner; and

(iv) he could have treated the
protest petition as a complaint and adopted
the procedure under Chapter XV of the
code.

14. He further submits that in the
present case as the Magistrate has initiated
to consider the options available, he after
considering the record, issued notice to the
first informant, before accepting the police
report in the light of judgment of Apex
Court in the case of Bhagwant Singh Vs
Commissioner of Police4, as there is no
provision of protest petition in the Code. As
such it is explicit that the Magistrate was of
the opinion to opt for the option (a) of
accepting the Final Report after considering
material
collected
by
investigating
agencies. Thus notice was issued to the
complainant to raise objection against the
same if any.

15. Here, the protest petition has to
satisfy the ingredients of complaint before
the Magistrate taking cognizance u/s 190
(1) (a) CrPC. Where the informant brought
to the notice of the Magistrate the
infirmities
in
the
investigation
and
investigating process, a refusal of the
Magistrate on the ground that he does not
have the power to review can be totally
wrong. Further Magistrate is not debarred
from taking cognizance of a second
complaint mere on the ground that earlier
he had declined to take cognizance. In
support of his submission, he has relied
upon the followings judgements:-

(i) H.S. Bains, Director, small
saving-cum-Deputy Secretary, Punjab,
Chandigarh5;

(ii) M/s India Carat Pvt Ltd Vs
State of Karnataka & another6;

(iii)
Union
Public
Service
Commission Vs S Papaiah7;

 (iv) Vishnu Kumar Tiwari Vs
State of UP8;

16.

The
Magistrate
after
considering the protest petition finds that
protest petition is devoid of necessary
requirements
which
may
call
for
questioning the investigation and while
concurring with the opinion of I.O. filed in
CD Parcha No. 31 accepted the final report
vide its order dated 05.05.2022.

17. He further submits that against the
order dated 05.05.2022, the revision was
filed by the O.P./first informant as revision
1986 INDIAN LAW REPORTS ALLAHABAD SERIES
no. 130 of 2022 and the same was allowed
and case was remitted back for readjudication by the learned Additional
Sessions Judge, Gorakhpur vide its order
dated 30.09.2023.

18. The aforesaid order dated
30.9.2023 was passed by the learned
Additional Sessions Judge after observing
that learned Magistrate has passed the order
dated 5.5.2022 without going through the
aspect that I.O. didn't find the incident as
untrue and accepted the final report against
the accused on the ground that there is
evidence of alibi of the accused and that
complicity of the accused was wrongly
mentioned.

19. He has relied upon the judgment
of Apex Court in the case of Vishnu Kumar
Tiwari vs The State of Uttar Pradesh9. The
relevant paragraph no.26 is as under:-

"26. It is undoubtedly true that
before a Magistrate proceeds to accept a
final report u/s 173 and exonerate the
accused, it is incumbent upon the
Magistrate to apply his mind to the contents
of the protest petition and arrive at a
conclusion
thereafter.
While
the
Investigating Officer may rest content by
producing
the
final
report,
which
according to him, is the culmination of his
efforts, the duty of the Magistrate is not one
limited to readily accepting the final report.
It is incumbent upon him to go through
materials,
and
after
hearing
the
complainant and considering the contents
of the protest petition, finally decide the
future course of action to be whether to
continue with the matter or to bring the
curtain down."

20. While reiterating the aforesaid
observation made by the Apex Court in
Vishnu Kumar Tiwari (Supra), the
Revisional Court erred in examining the
order dated 05.05.2022 which is clearly in
the light of its ambit, as the concerned
Magistrate has explicitly mentioned that
protest petition doesn't mention any
infirmities in the investigation nor it
specifically points out any such evidence
which satisfy for the summoning of
accused or rejected the final report.
Moreover order dated 05.05.2022 reveals
that Magistrate has gone thought the
material available and had pointed out the
evidence collected by I.O. which exonerate
the accused person from the complicity of
offence.

21. Further, it is well settled that it
is within the discretionary power of the
Magistrate to accept or reject the final
report submitted to him by the police
officer.

22. Moreover, the Revisional Court
can not touch the factual aspects of the
matter and re-appreciate the evidence
unless it is shown / found that the court
below failed to exercise the jurisdiction
which they are supposed to or have
committed a patent illegality. It is further
well settled that Revisional Court can not
substitute its opinion simply because
another view is possible and unless there is
patent illegality on the face of record which
may lead to miscarriage of justice, the
Revisional Court will not exercise its
diligence over the matter.

23. With consent of the counsel for
the parties, this revision is decided finally
at this stage without calling for counter
affidavit as legal question is involved.

OBSERVATION
OF
THE
COURT
5 All. Umesh Singh Vs. State of U.P. & Anr.
1987
24. Before entering into merits of
the case, the facts of the brief are:-

 (a) An FIR was registered as Case
Crime No.60 of 2016, under Sections 307,
427, 34 IPC against the revisionist and
others at P.S.-, District-Gorakhpur on
26.05.2016 by opposite party no.2-Nanhe
Lal
Yadav.
Subsequently,
after
investigation, the Investigating Officer
submitted final report no.2/17 dated
14.02.2017. The said investigation was
conducted by Police Station-Uruwa Bazar
then it was transferred to Police StationKhajni and then it was transferred to crime
branch.

(b) The Investigating Officer
while submitting final report took into
consideration the statement of informant,
all the witnesses including injured witness,
injury reports, spot inspection report and
affidavits filed by person from side of
revisionist, thus arriving at a conclusion
that the involvement of revisionist-Umesh
Singh and Vivek Singh in the incident was
not found, efforts were put in to find the real
accused persons but nothing could be
found. There being no chances in near
future to find the real culprits and as the
investigation was pending since ten
months, therefore, it was not appropriate to
keep it pending. Hence, final report was
submitted on 14.02.2017.

(c) On the evidence collected by
the Investigating Officer, he has to form his
opinion as to whether it discloses any
offence or it does not disclose any offence
and accordingly, he is duty bound to report
the result of his investigation in the
prescribed form to the jurisdictional
magistrate. In the present case on the basis
of evidence collected by the Investigating
Officer, thus finally submitted a final report
on 14.02.2017.

25. While dealing with the merits
of the case two aspects are involved; firstly,
the power of Magistrate as to what exercise
is to be done after receiving such a report;
secondly, jurisdiction of the Sessions
Judge/ Revisional Court while deciding the
revision.

26. While dealing with the first
aspects, i.e. the power of Magistrate as to
what exercise has to be done after receiving
such a report. After receiving the police
report, the learned Magistrate has following
options;-

 (a) The Magistrate may agree
with the conclusion of the police report and
accept the final report and drop the
proceedings;

(b) The Magistrate may take
cognizance under Section 191(b) Cr.P.C.
and issue process straightway to the
accused without being bound by the
conclusion of the Investigating Agency
where he is satisfied that upon the fact
discovered by the police, there is sufficient
ground to proceed;

(c) He may order for further
investigation, if he is satisfied that the
investigation was made in perfunctory
manner;

(d) He may treat the protest, if
any, as complaint without issuing process
and dropping the proceedings under
Section 190(1)(a) Cr.P.C. and proceed to
record statement under Sections 200 and
202 Cr.P.C. and, thereafter, decide whether
the complaint should be dismissed or
process should be issued.

27. When a report, i.e. chargesheet or final report, is submitted, what the
learned Magistrate has to do has been stated
in Section 190 Cr.P.C. It runs as under:-
1988 INDIAN LAW REPORTS ALLAHABAD SERIES
 "190. Cognizance of offences by
Magistrates.

 (1) Subject to the provisions of
this Chapter, any Magistrate of the first
class, specially empowered in this behalf
under sub-section (2), may take cognizance
of any offence-

(a) Upon receiving a complaint of
facts which constitute such offence.

(b) Upon it police report of such
facts;

(c) Upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed."

28. In the present case, where a Final
Report has been submitted, what the
learned Magistrate has to do, has been
stated in several cases. The Apex Court in
the case of Abhinandan Jha and others
vs. Dinesh Mishra10 had occasion to deal
with the question as to what the Magistrate
has to do when a final report is filed before
him by the Investigating Officer. The Apex
Court in aforesaid case while referring to
section 190 Cr.P.C., which is the first
section in the group of sections headed
'conditions requisite for initiation of
proceedings', was of the opinion that the
use of word, 'may take cognizance of any
offence', in Sub-section (1) of Section 190
Cr.P.C., imports the exercise of a 'judicial
discretion' and the Magistrate, who
receives the report, under Section 173, will
have to consider the said report and
judicially take a decision, as to whether
take or not to take cognizance of the
offence.

29. Thus, from the aforesaid
judgment, it follows that it is not as if, that
the Magistrate is bound to accept the
opinion of the police that there is a case
for placing the accused, on trial. It is open
to the Magistrate to take the view that the
facts disclosed in the report do not make
out an offence for taking cognizance or he
may take the view that there is no
sufficient evidence to justify an accused
being put on trial. On either of these
grounds, the Magistrate will be perfectly
justified in declining to take cognizance
of an offence, irrespective of the opinion
of the police.

30. To be more clear, it can be said
that if the Magistrate agrees with the
Final Report, he may accept the Final
Report and close the proceedings. But
there may be instances when the
Magistrate may take the view, on a
consideration of the final report, that the
opinion formed by the police is not based
on a full and complete investigation, in
which case, the Magistrate will have
ample jurisdiction to give directions to
the police under Section 156(3) Cr.P.C. to
make a further investigation. It may also
be so, that if the Magistrate feels, after
considering the final report, that the
investigation
is
unsatisfactory
or
incomplete or that there is scope for
further investigation, it will be open to the
Magistrate to decline to accept the final
report and direct the police to make
further investigation under 156(3).

31. It may also be so, that, in case
the Magistrate on receiving the final
report forms the opinion that the fact, set
out in the final report, constitute an
offence, he may take cognizance of the
offence under Section 190 (1)(b) Cr.P.C.
notwithstanding the contrary opinion of
the police expressed in the final report.

32. The same question as to the
powers of Magistrate while accepting the
final report has been dealt in the case of
5 All. Umesh Singh Vs. State of U.P. & Anr.
1989
Tata Iron and Steel Co. Ltd. vs. Inspector
of Police, CCB, Egmore, Madras11. The
Apex Court observed as under:-

"6. Thirdly, the contention of the
Revision Petitioner is that the Magistrate
should not blindly accept the report of the
Police Officer, and that he should, on the
contrary, apply his mind and come to an
independent conclusion whether to take the
case on file or not under S.190, Cr.P.C. In
fact, when the Magistrate gets a negative
report under S.173, Crl.P.C., he should
chose between one of the four causes: (1) to
accept the report and drop the proceedings.
(2) to direct further investigation to be
made by the police, (3) to investigate
himself or order for the investigation to be
made by another Magistrate under S.159,
Crl.P.C. (4) to take cognizance of the
offence under S.200, Crl.P.C., as a private
complaint,
when
the
materials
are
sufficient in his opinion and if the
complainant is prepared for that course."

33. In Dr. Mrs Nupur Talwar vs.
C.B.I, Delhi12, the Hon'ble Apex Court has
held as under:-

 "18. Section 190 of the Code lays
down the conditions which are requisite for
the initiation of a criminal proceeding.
 19. At this stage the Magistrate is
required
to
exercise
sound
judicial
discretion and apply his mind to the facts
and materials before him. In doing so, the
Magistrate is not bound by the opinion of
the investigating officer and he is
competent to exercise his discretion
irrespective of the views expressed by the
Police in its report and may prima facie
find out whether an offence has been made
out or not.

20. The taking of cognizance
means the point in time when a Court or a
Magistrate takes judicial notice of an offence
with a view to initiating proceedings in
respect of such offence which appears to have
been committed.

21. At the stage of taking of
cognizance of offence, the Court has only to
see whether prima facie there are reasons for
issuing the process and whether the
ingredients of the offence are there on
record."

34. Be that as it may, the Magistrate
is required to exercise sound judicial
discretion and apply his mind to the facts and
materials before him on receiving the Final
Report and in doing so, he is not bound by the
opinion of the Investigating Officer and he is
competent
to
exercise
his
discretion
irrespective of the views expressed by the
police in its report and may prima facie find
out whether an offence has been made out or
not. Thus, taking of cognizance means the
point in time when a Court or a Magistrate
takes judicial notice of an offence with a view
to initiating proceedings in respect of such
offence which appears to have been
committed.

35. At the stage of taking of
cognizance of offence, the Court has only to
see whether prima facie there are reasons for
issuing the process and whether the
ingredients of the offence are there on record.

36. Reference in this connection
may be made to a three Judge Bench decision
of the Apex Court in the case of India Carat
Private Ltd. v. State of Karnataka13. In the
aforesaid case, the Apex Court has explained
the position so brevity, which is as under:-

 "The position is, therefore, now
well settled that upon receipt of a police
report under Section 173(2) a Magistrate is
entitled to take cognizance of an offence
1990 INDIAN LAW REPORTS ALLAHABAD SERIES
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
cognizance of the offence complained of
and order the issue of process to the
accused. Section 190(1) (b) does not lay
down
that
a
Magistrate
can
take
cognizance 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 cognizance 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......"

37. In the present case, first
information
report
was
lodged,
the
Investigating
Officer
conducted
the
investigation taking into consideration
statements of all concerned, spot inspection
report, affidavits filed on behalf of the
revisionist taking plea of alibi, concluded
that the involvement of revisionist was not
found in the incident, therefore, submitted
a final report.

38. As it is well settled and beyond
shed
of
doubt
that
the
Magistrate
irrespective of the opinion found by the
Investigating Officer may choose to reject
the Final Report and proceed to take
cognizance of the offence which in his view
are seen or he may after considering the
material which would include the statement
of
the
witnesses
collected
by
the
Investigating Officer decide to accept final
report. He thus for accepting the final report
has
to
issue
notice
to
the
first
informant/complainant, which has been
done in the present case and a protest
petition has been filed.

39. The protest petition dated
19.11.2018 was rejected and accepting the
Final Report vide order dated 05.05.2022 as
the learned Magistrate found that no
specific ground or specific basis was taken
in the protest petition which could point out
the flaw in the investigation. It was also
found by the learned Magistrate that no
issues or points were mentioned on which a
proper investigation was not done.

40. Short question arises for
consideration in the present case is whether
the protest filed by the informant after
notices issued to him, may be treated as
complaint.

41. The protest petition could have
been treated as complaint case for taking
cognizance under Section 190(1)(a) Cr.P.C.
but for the protest petition to be treated as
complaint, the Magistrate has to satisfy that
the ingredients of complaint as defined
under 2(d) Cr.P.C. are fulfilled.

42. In the present case, the contents
of the protest petition were only that the
Investigating Officer has not carried out
investigation in a proper manner though the
statements and evidences to that effect were
collected by him. The protest petition did
not mention the specific ground, points or
basis on which the investigation was not
conducted.

43. It is undoubted that the
Magistrate can treat the protest petition as
complaint provided that the protest petition
fulfills the requirements of a complaint. It
can be treated as a complaint only after
considering the facts and circumstances of
5 All. Umesh Singh Vs. State of U.P. & Anr.
1991
the case and the material, which is made
available before him by the complainant in
the protest petition. The Magistrate cannot
be compelled to treat the protest petition as
complaint in the absence of any ground and
in case, ingredients of complaint as defined
in Section 2(d) Cr.P.C. are not there.

44.