# Vashisth v. Shiv Prakash and others)

- **Citation:** (2009) 3 ILRA 981
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-07
- **Case number:** Criminal Misc. Application No. 19770 of 2009
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vashisth-v-shiv-prakash-and-others-41597
- **Pages:** 5

## Headnote

Code
of
Criminal
Procedure-482Procedure after receiving final report on
protest application an order accepting
final report ignoring protest applicationeven without giving
any notice to
informant-illegal-procedure contained in
Chapter XV should be followed treating
complaint to the protest applicationorder passed by Courts below set-asidematter remanded for fresh consideration.

Held: Para 14

Consequently,
both
the
applications
under Section 482 Cr.P.C. are allowed.
Setting aside the impugned orders, the
courts below are directed to pass orders
on the protest petitions filed by the
applicants against final reports in both
the
cases,
treating
the
same
as
complaint and following the procedure
laid down under section 200 and 202
Cr.P.C.
Case law discussed:
2003 (46) ACC182.

## Text

3 All] Anil Kumar Vashisth V. State of U.P. and others
981
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Application No. 19770 of
2009

Anil Kumar Vashisth

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

Counsel for the Applicant:
Sri R.K. Kaushik

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

Code
of
Criminal
Procedure-482Procedure after receiving final report on
protest application an order accepting
final report ignoring protest applicationeven without giving
any notice to
informant-illegal-procedure contained in
Chapter XV should be followed treating
complaint to the protest applicationorder passed by Courts below set-asidematter remanded for fresh consideration.

Held: Para 14

Consequently,
both
the
applications
under Section 482 Cr.P.C. are allowed.
Setting aside the impugned orders, the
courts below are directed to pass orders
on the protest petitions filed by the
applicants against final reports in both
the
cases,
treating
the
same
as
complaint and following the procedure
laid down under section 200 and 202
Cr.P.C.
Case law discussed:
2003 (46) ACC182.

(Delivered by Hon'ble Vijay Kumar Verma, J.)

1. "Whether the final report can be
accepted without passing any order on the
protest petition filed by the complainant
in the case where prima facie offences are
disclosed from the averments made in the
FIR,: is the main legal question that falls
for
consideration
in
both
these
applications under section 482 of the
Code of Criminal Procedure (in short, 'the
Cr.P.C.').

2. By means of Criminal Misc.
Application No. 19770 of 2009, order
dated 21.03.2009 passed by the Special
Judge, (D.A.A.), Jhansi in Criminal Misc.
Case No. 690 of 2007 (Anil Kumar
Vashisth Vs. Shiv Prakash and others)
under section 395 IPC, P.S. Irach, District
Jhansi is sought to be quashed, whereas in
Criminal Misc. Application No. 19771 of
2009, prayer to quash the order dated
20.05.2009
passed
by
the
judicial
Magistrate, Garotha in Criminal Misc.
Case No. 52 of 2008 (Km. Bhanwati Vs.
Badri
and
others)
under
section
379,352,504, 506 IPC P.S. Garotha,
District Jhansi has been made.

3. Although different orders have
been challenged by means of these
applications under section 482 Cr.P.C.,
but since the common legal question is
involved in both these applications, hence
for the sake of convenience, they are
being decided by this common order.

4. Shorn of unnecessary details, the
facts emerging from the record leading to
the filling of these applications, in brief,
are that an FIR was lodged on 17.10.2007
by Anil Kumar Vashisth (applicant in
Application No. 19770 of 2009) at P.S.
Irach (Jhansi), where a case under section
395, 397 IPC at case crime No. 320 of
2007 was registered against Sri Prakash,
Ashok Kumar, Sri Ram, Ram Kumar,
Lakhan Lal, Mahadev (opposite parties
982 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
No. 2 to 7) and 30 unknown persons.
After investigation, final report was
submitted on next day i.e. 18.10.2007.
Against that final report, the applicant
Anil Kumar Vashisth filed protest petition
in the Court of Special Judge, (D.A.A.),
Jhansi in Criminal Misc. Case No.690 of
2007. After hearing parties counsel, the
learned Special Judge, (D.A.A.) Jhansi
accepted the final report vide impugned
order dated 21.03.2009, but did not pass
any order on the protest petition. This
order has been challenged in Application
No.19770 of 2009. On the basis of the
application under section 156 (3) Cr.P.C.
moved by Km. Bhanwati (applicant in
Application No. 19771 of 2009), an FIR
was registered in pursuance of the order
passed on that application on 20.07.2008
at P.S. Garotha, where a case under
section 379, 352, 504, 506 IPC was
registered at case crime No. 378 of 2008
against Badri, Phool Singh, Ajay, Indra
Kumar and Hari (opposite parties No. 2 to
6). After investigation of this case also,
final report was submitted by the
investigating officer, against which the
applicant Km. Bhanwati filed protest
petition on 14.12.2008 in Criminal Misc.
Case No. 52 of 2008 in the Court of
Judicial Magistrate, Garotha, who vide
impugned
order
dated
20.05.2009
accepted the final report, without passing
any order on the protest petition. This
order has been challenged in Criminal
Misc. Application No.19971 of 2009.

5. I have heard arguments of Sri
R.K. Kaushik, Advocate appearing for the
applicants and AGA for the State. Since
the accused/opposite parties had no right
to participate in the proceedings, which
have arisen due to submission of final
report and filing protest petition by the
complainants (applicants), hence notices
have
not
been
issued
to
the
accused/opposite parties in both the cases.

6. The first and foremost submission
made by the learned counsel for the
applicants was that at the time of disposal
of the final reports, the learn ed courts
below were bound to treat the protest
petitions of the complainants as complaint
and after adopting the procedure laid
down in Chapter XV Cr.P.C., order under
Section 203 or 204, as the case may be,
ought to have been passed and since this
procedure was not followed by the Courts
below while deciding the final reports and
protest petitions, hence, the impugned
orders being wholly illegal should be setaside and the cases be sent back to the
Courts below for passing fresh order on
the
protest
petitions
filed
by
the
complainants against the final reports
treating the same as complaints and
following the procedure under Section
200 and 202 Cr.P.C.

7. The learned A.G.A. on the other
hand submitted that the Magistrate is not
bound in each and every case to treat the
protest petition as complaint, and hence,
there is no scope to make any interference
by this Court in the impugned orders, as
the said orders do not suffer from any
legal infirmity.

8. Having taken the submissions
made by the parties' counsel into
consideration and after carefully going
through the averments made in the first
information reports in both the cases, I am
of the opinion that in present cases, the
protest petitions filed by the applicants
against final reports, ought to have been
treated as complaint and after following
the procedure laid down under Chapter
XV Cr.P.C., order under section 203 or
3 All] Anil Kumar Vashisth V. State of U.P. and others
983
204 Cr.P.C., as the case may be, should
have been passed.

9. There is no provision in the Code
of Criminal Procedure to file the protest
petition the final report. However, the
Hon'ble Apex Court in the case of
Bhagwant Singh Vs. Commissioner of
Police (supra) hold that when on
consideration of the report made by the
Officer Incharge of the Police Station
under Sub-Section (2)(i) of Section 173
Cr.P.C., the Magistrate is not inclined to
take cognizance of the offence and issue
process, the informant must be given an
opportunity of being heard, so that he can
make his submission to persuade the
Magistrate to take the cognizance of the
offence and issue process. Siminlar view
has been expressed by the Hon'ble Apex
Court
in
the
case
of
Gangadhar
Janardan
Mhatre
Vs.
State
of
Maharashtra (supra). It is further held in
Gangadhar
Janardan
Mhatre
case
(supra) that in a case where the
Magistrate, to whom a report is forwarded
under sub-section (2) (i) of Section 173
Cr.P.C., decides not to take cognizance of
the offence and to drop the proceeding or
takes the view that there is no sufficient
ground for proceeding against some of the
persons mentioned in the first information
report, the Magistrate must give notice to
the informant and provide him an
opportunity to be heard at the time of
consideration of the report. There is
nothing in both the rulings that in each
and every case the Magistrate is bound to
adopt the procedure of complaint case on
the protest petition. Only the opportunity
of hearing is to be granted to the
informant at the time of consideration of
the final report. If from the allegations
made in the first information report any
criminal offence is not primal facie
disclosed, then the Magistrate is not
bound to treat the protest petition as
complaint
and
in
such
case
after
dismissing the protest petition, the final
report may be accepted. However, if in
any case, from the averments made in the
First Information Report, prima facie
criminal offence is disclosed, but the
material in the case diary submitted with
the final report is not sufficient to take
cognizance and to issue process against
the accused, then in such case, as held by
this Court in the cases of Anil Kumar
Chauhan Vs. State of U.P. and Mohd.
Yusuf Vs. State of U.P. (supra), the
accused can not be summoned to face the
trial merely on the basis of the protest
petition and other material including
affidavits filed in support thereof without
following the procedure laid down under
section 200 and 202 Cr.P.C.

10. The Division Bench of this
Court in the case of Pakhandu Vs. State
of U.P.(supra) after making reference of
certain decisions of Hon'ble Apex Court
has held as under in para 14 of the report
at page 2546:-

"14. From the aforesaid decisions, it
is thus clear that where the Magistrate
receives final report, the following four
courses are open to him and he may adopt
any one 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
complainant; or
(ii) he may take cognizance under
Section 190 (1)(b) and issue process
straightway to the accused without being
bound
by
the
conclusions
of
the
984 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
investigating agency, where he is satisfied
that upon the facts discovered or
unearthed by the police, there is sufficient
ground to proceed; or
(iii) 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 (1)(a),
upon the original complaint or protest
petition treating the same as complaint,
Cr.P.C. and thereafter decide whether
complaint should be dismissed or process
should be issued.

11.

From
the
afore-cited
observations of the Division Bench also,
it is clear that the Magistrate is not bound
to treat the protest petition as complaint in
each and every case and if the Magistrate
agreeing with the conclusions arrived at
by the police decides to accept the final
report and to drop the proceedings, then
opportunity of hearing has to be given to
the complainant before passing order on
the final report. According to the
Pakhandu case (supra), the fourth course
open to the Magistrate is that without
issuing
process
or
dropping
the
proceedings, he may decide to take
cognizance under Section 190 (1)(a)
Cr.P.C., upon the original complaint or
protest petition treating the same as
complaint and proceed to act under
Section 200 and 202 Cr.P.C. and
thereafter to deicde whether the complaint
may be dismissed or process should be
issued. The procedure of fourth course of
Pakhandu
case
(supra)
should
be
followed in the cases where prima facie
offences are disclosed from the averments
made in the First Information Reports; but
in the cases, where the first information
report does not disclose any criminal
offence and final report is submitted by
the investigating officer, then there is no
justification in such cases to compel the
Magistrate to treat the protest petition
against final report as complaint and to
follow the procedure laid down in Chapter
XV Cr.P.C.

12. In view of the observations made
herein-above, let us now see whether in
instant cases, the learned Courts below
were justified in accepting the final report
without passing any order on the protest
petitions. Annexure 12 in Criminal Misc.
Application No. 19770 of 2009 is the
copy of the FIR of case crime No.
320/2007 of P.S. Erach (Jhansi). On the
basis of the averments made in the FIR,
prima facie offences are disclosed. In the
like manner, from the averments made in
the First Information Report (Annexure-1
of Criminal Misc. Application No.19771
of 2009) of case crime no. 378 of 2008 of
P.S.
Garotha
(Jhansi),
prima
facie
offences are disclosed. Therefore, if the
materials in the case diary submitted with
the final reports by the investigating
officer in both these cases were not
sufficient to take cognizance against the
accused persons, then having regard to the
allegations made in the first information
reports, the protest petitions of the
applicants ought to have been treated as
complaint
and
after
following
the
procedure laid down in Chapter XV
Cr.P.C., the courts below ought to have
decided whether the complaint may be
dismissed or process against the accused
should be issued. In case the process is
issued against the accused, then the final
report has to be rejected.

13. The Hon'ble Apex Court in the
case of Mahesh Chand Vs. B. Janardhan
Reddy and another 2003 (46) ACC182
3 All] Smt. Sadhana Singh V. State of U.P. and others
985
has held that even after accepting the final
report, cognizance of the offence can be
taken on the complaint/protest petition
filed by the complainant on the same or
similar allegations. Therefore, having
regard to the law laid down by the
Hon'ble Apex Court in the case of
Mahesh Chand Vs. B. Janardhan Reddy
(supra) and the observations made by the
Division Bench of this Court in the case
of Pakhando Vs. State (supra) if would
be in the interest of justice to send the
cases back to the court below for passing
order on the protest petitions treating the
same as complaint and following the
procedure laid down in Chapter XV
Cr.P.C.

14.

Consequently,
both
the
applications under Section 482 Cr.P.C.
are allowed. Setting aside the impugned
orders, the courts below are directed to
pass orders on the protest petitions filed
by the applicants against final reports in
both the cases, treating the same as
complaint and following the procedure
laid down under section 200 and 202
Cr.P.C.

15. This order shall form part of the
record of Criminal Misc. Application No.
19770 of 2009 and copy thereof will be
kept on the record of Criminal Misc.
Application No.19771 of 2009.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.42640 of 2009

Smt. Sadhana Singh

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

Counsel for the Petitioner:
Sri Shatrughan Singh

Counsel for the Respondent:
C.S.C.

Constitution
of
India-Article
14discrimination-exclusion from eligibility
of B.Ed. degree holders from the State of
J. & K for Special B.T.C. Training Course
2007-held-not discriminatory.

Held: Para 21

In these set of circumstances if the State
with reference to the letter of the NCTE
has decided to entertain the applications
of the candidates who have obtained a
B.Ed.
Degree
from
the
institutions
recognized by NCTE or who under the
Full Bench judgment of the High Court
may
become
entitle
to
such
consideration
alone.
Such
decision
cannot be termed as arbitrary in view of
the specific norms of teachers education
provided under the NCTE Act which are
not applicable to the institutions in
Jammu & Kashmir. The candidate with a
Degree of B.Ed. from institutions in
Jammu & Kashmir form a different class
and if such class of candidates have been
excluded
from
consideration
for
admission
to
BTC
Special
Training
Course, 2007 by the State Government
purposely, it cannot be said to be
violative of Article 14 of the Constitution
of India. Such action of the district
authorities to exclude the candidates like