# Virendra Kumar Jha v. Civil Judge Junior Division, Shahjahanpur & Ors

- **Citation:** (2019) 3 ILRA 94
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-04-15
- **Case number:** Criminal Misc. Application No.8318 of 2003
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-jha-v-civil-judge-junior-division-shahjahanpur-ors-44886
- **Pages:** 9

## Headnote

Law-Code
of
Criminal
Procedure, 1973 - Cognizance under
Section 190(1)(c) Cr.P.C.- Section 200
and 202 Cr.P.C - Procedure to entertain
a
complaint
case
is
mandatory.
Magistrate rejected police report and
took cognizance under Section 190(1)(c)
Cr.P.C. relying on affidavits filed before
him by the complainant along with
Protest
Petition
-
Not
legal
and
permissible for the Magistrate to adopt
that procedure.

If Magistrate finds lack of material with
investigation of Police, option available to him
is to take into account original complaint and
follow procedure prescribed in Section 200
and 202 for taking cognizance-Magistrate
cannot
mix-up
the
material
placed
by
complainant along with Protest Petition to take
cognizance after rejecting Police Report but
without following the procedure prescribed
under Chapter 15. (Para 14,16,22, 29)

B. Criminal Law -Code of Criminal
Procedure, 1973 - Cognizance under
Section 190(1)(c) Cr.P.C - Magistrate has
not given any reason for rejecting Police
report - Approach contrary to law and
cannot be sustained.

Application u/s 482 Cr.P.C allowed (E-3)

List of cases cited: -

## Text

94 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)11ILR A94

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.04.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Criminal Misc. Application No.8318 of 2003
u/s 482 Cr.P.C.

Virendra Kumar Jha ...Applicant
Versus
Civil
Judge
Junior
Division,
Shahjahanpur & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Praveen Kumar Srivastava, Sri Sushil
Kumar Srivastava, Sri Mohit Singh.

Counsel for the Opposite Parties:
A.G.A., Sri C.B. Prasad, Sri J. Habib, Sri Javed
Habib, Sri R.L. Verma, Sri V.K. Dwivedi.

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973 - Cognizance under
Section 190(1)(c) Cr.P.C.- Section 200
and 202 Cr.P.C - Procedure to entertain
a
complaint
case
is
mandatory.
Magistrate rejected police report and
took cognizance under Section 190(1)(c)
Cr.P.C. relying on affidavits filed before
him by the complainant along with
Protest
Petition
-
Not
legal
and
permissible for the Magistrate to adopt
that procedure.

If Magistrate finds lack of material with
investigation of Police, option available to him
is to take into account original complaint and
follow procedure prescribed in Section 200
and 202 for taking cognizance-Magistrate
cannot
mix-up
the
material
placed
by
complainant along with Protest Petition to take
cognizance after rejecting Police Report but
without following the procedure prescribed
under Chapter 15. (Para 14,16,22, 29)

B. Criminal Law -Code of Criminal
Procedure, 1973 - Cognizance under
Section 190(1)(c) Cr.P.C - Magistrate has
not given any reason for rejecting Police
report - Approach contrary to law and
cannot be sustained.

Application u/s 482 Cr.P.C allowed (E-3)

List of cases cited: -

1. Tula Ram Vs Kishore Singh AIR (1977) SC 2401

2. M/s India Carat Pvt. Ltd. Vs St. of Kar.
(1989) (26) ACC 280 (SC)

3. Gangadhar Janardan Mhatre Vs St. of Mah.
& ors. (2004) (7) SCC 768

4. Rakesh & anr. Vs St. of U.P. & anr. (2014)
(13) SCC 133

5. Minu Kumari & anr. Vs St. of Bih. & ors.
(2006) (4) SCC 359

6. Sunil Bharti Mittal Vs C.B.I., (2015) (4) SCC
609

7. Pakhando & ors. Vs St. of U.P. (2001) (43)
ACC 1096

8. Mohammad Yusuf Vs St. of U.P. (2007) (9)
ADJ 294

9. Kallu & ors. Vs St. of U.P. (2010) (69) ACC
780

10. Mitrasen Yadav Vs St. of U.P. (2010) (69)
ACC 540

11. Criminal Rev. No. 1601 of (2015), Mukeem
7 2 ors. Vs St. of U.P. & anr., decided on
07.08.2015

12. Writ Petition- Misc. Single No. 3776 of
(2012), Md. Shafiq Khan & ors. Vs St. of U.P.
& ors., decided on 24.03.2014
(Delivered by Hon'ble Sudhir Agarwal, J. )

1. Heard Sri Praveen Kumar
Srivastava, Advocate, holding brief of Sri
Sushil Kumar Srivastava, learned counsel
for applicant and learned AGA for State.
3 All. Virendra Kumar Jha Vs. Civil Judge Junior Division, Shahjahanpur & Ors.
95

2. This application under Section
482 Cr.P.C. has been filed for quashing
orders dated 09.05.2003, 16.08.2003 and
12.09.2003 and also to quash proceeding
against applicant in Case Crime No. 163
of 2000, under Sections 427, 166, 392
IPC, Police Station Tilhar, District
Shahjahanpur, pending in the Court of
Civil Judge, Junior Division, Tilhar,
Shahjahanpur.

3. The facts disclosed in the
application are that applicant, at the
relevant point of time, was posted on the
post of Executive Officer, Nagar Palika
Parishad, Tilhar, Shahjahanpur in 2002.
Opposite party-3 was permitted to install
a khokha (Thatchment) on a land belong
to Nagar Palika, measuring 6 X 3 meters
on 13.09.1994, with a licence fee of Rs.
50/- per month. Said licence was for a
period of six months. There was a clear
condition that licensee shall not make any
permanent construction over the allotted
land.
Licence
was
renewed
upto
12.09.1997.

4. After expiry of period of licence,
opposite party-3 instead of evicting the
premises, filed an Injunction Suit No.
94/97 in the Court of Civil Judge (Junior
Division),
Tilhar,
Shahjahanpur
impleading Nagar Palika Parishad, Tilhar
and Executive Officer Nagar Palika
Parishad, Tilhar as defendants. Suit was
decreed with the direction that defendants
would not evict plaintiff from the said
premises except following the procedure
prescribed
in
law.
Taking
undue
advantage
of
the
injunction
order,
opposite party-3 attempted to raise
permanent construction on the land of
Nagar Palika whereupon Sub-Divisional
Magistrate, Tilhar passed an order dated
21.03.2000 directing applicant to take
necessary
steps
for
preventing
unauthorized construction and removal
thereof, since it is a public premises and
responsibility to restrain anyone from
unauthorized possession and unauthorized
construction lie upon Nagar Palika.

5. Pursuant to order of SubDivisional Magistrate dated 21.03.2000,
applicant took steps and prevented
opposite party-3 from raising illegal
construction. Again, opposite party-3
filed Original Suit (hereinafter referred to
as "OS") No. 21 of 2000 in the Court of
Civil Judge (Junior Division), Tilhar,
Shahjahanpur stating that he is entitled to
raise construction on disputed property
and carry on his business and defendants
have no right to interfere, therefore, a
permanent
injunction
be
issued
restraining them from interfering in
possession. The relief sought in aforesaid
suit read as under:-

^^v- ;g fd LFkkbZ fu"ks/kkKk
fo:) izfroknhx.k bl vk'k; dh ikfjr dh
tkos fd izfroknhx.k Lo;a] muds deZpkjh]
Bsdsnkj] lg;ksxh vkfn oknh dh fookfnr
lEifRr ftldk C;kSjk okn i= ds vUr esa fn;k
gS] esa oknh ds 'kkafriwoZd fuekZ.k dk;Z djus ,oa
mlds dCtk o n'ky bLrseky esa fdlh Hkh
izdkj dk gLr{ksi djus ls ckt jgsA

c- ;g fd oknh dks gtkZ o
[kpkZ eqdnek izfroknh ls fnyk;k tkosA

l- ;g fd vuqrks"k U;k;ky; ds
vuqlkj cgd oknh eqQhn gks og Hkh oknh ds
izfroknhx.k ls fnyk;k tkosA**

"A. That an order in the nature
of permanent injunction may be passed
against defendants restraining them, their
employees, contractors, companions, etc
from any sort of interfering with peaceful
96 INDIAN LAW REPORTS ALLAHABAD SERIES
construction, possession and use by the
plaintiff on his property in question whose
details are mentioned on the end of the
plaint.

B. That the compensation and
expenses may be paid to the plaintiff by
the defendants.

C. That any other relief which the
Court deems proper in favour of the plaintiff
may be paid to him by the defendants."

(English Translation by Court)

6. Opposite party-3 had constructed
three side walls of about five feet height.
Applicant, in the light of orders issued by
Sub-Divisional Magistrate, sought police
help to remove such an unauthorized
construction on the land of Nagar Palika.
Thereupon, opposite party-3 filed an
application under Section 156(3) Cr.P.C.
before
Chief
Judicial
Magistrate
concerned, whereupon a police report was
called which was submitted by Inspector,
Police Station Tilhar on 26.07.2000.
Chief
Judicial
Magistrate,
however,
passed an order directing police to
register report, whereupon FIR being
Case Crime No. 163 of 2000, under
Sections
427,
166,
392
IPC
was
registered. After investigation, police
submitted final report dated 15.10.2000
whereagainst a protest petition was filed
by opposite party-3 on 22.04.2003.
Magistrate vide order dated 09.05.2003
rejected final report dated 15.10.2000 and
taking
cognizance
under
Section
190(1)(c) Cr.P.C., for the offences under
Sections 427, 166, 392 IPC, summoned
accused-applicant and others.

7. It is contended that Magistrate
has proceeded in the case as State case
and not a complaint case without
following the procedure prescribed for
complaint case. In order to reject final
report, it has relied on the evidence placed
before it by opposite party-3 along with
its protest petition. Where Magistrate rely
on evidence placed by complainant in a
protest petition in order to reject police
case, law is that Magistrate in such a case,
would treat protest petition as complaint
and proceed in the matter as complaint
case and not as a State case.

8. In my view, submission of
counsel for applicant has substance.

9. Chapter XIV, Cr.P.C. deals with
conditions requisite for initiation of
proceedings and also the powers of
cognizance of a Magistrate. Section 190,
relevant for our purpose, is reproduced as
under:

"190.
(1)
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;

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

(2)
The
Chief
Judicial
Magistrate may empower any Magistrate
of the second class to take cognizance
3 All. Virendra Kumar Jha Vs. Civil Judge Junior Division, Shahjahanpur & Ors.
97
under sub- section (1) of such offences as
are within his competence to inquire into
or try."

10. Chapter XV, thereafter has four
Sections, i.e., Sections 200 to 203, which
deal
with
complaint
to
Magistrate.
Chapter XVI deals with commencement
of proceedings before Magistrate and
Section 204 empowers a Magistrate to
issue summons or a warrant, as the case
may be, to secure attendance of an
accused, if in the opinion of Magistrate,
there is sufficient ground to proceed and
take cognizance of offence.

11. If magistrate finds that Police
has not made proper investigation and
submitted final report, it can direct police
to make further investigation in the
matter, or, if there is sufficient material,
he can pass order taking cognizance and
summoning accused.

12. As long back as in 1977,
Supreme Court in Tula Ram Vs. Kishore
Singh AIR 1977 SC 2401 said that
Magistrate can ignore a final report
submitted
by
Police
including
the
conclusion and take cognizance of case
under Section 190(1)(b) on the basis of
material collected during investigation
and issue process, or in the alternative, he
may
take
cognizance
of
original
complaint, examine the complainant and
his witnesses and thereafter issue process
to accused, if he is of opinion that case
should be proceeded with.

13. In M/s India Carat Pvt. Ltd.
Vs. State of Karnataka 1989 (26) ACC
280 (SC), Court has observed in para 16
of judgment that Magistrate can take into
account statements of witnesses examined
by Police during investigation, take
cognizance of offence complained of,
order to issue a process to 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 of making out a case
against accused. Magistrate can ignore
conclusion arrived at by Investigating
Officer, independently applying his mind
to the facts emergent from investigation
and can take cognizance of case or in
alternative he can take cognizance of
original
complaint
and
examine
complainant
and
his
witness
and
thereafter issue process to accused, if he
is of opinion that the case should proceed.
Following observations of Court fortify
what is observed above:

"16. 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 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. The Magistrate is
98 INDIAN LAW REPORTS ALLAHABAD SERIES
not bound in such a situation to follow the
procedure laid down in Section 200 and
202 of the Code for taking cognizance of
a case under Section 190(1)(b) though it
is open to him to act under Section 200 or
Section 202 also. The High Court was,
therefore, wrong in taking the view that
the Second Additional Chief Metropolitan
Magistrate was not entitled to direct the
registration of a case against the second
respondent and order the issue of
summons to him.

17. The fact that in this case the
investigation had not originated from a
complaint preferred to the Magistrate but
had been made pursuant to a report given
to the police would not alter the situation
in any manner. Even if the appellant had
preferred a complaint before the learned
Magistrate and the Magistrate had
ordered
investigation
under
Section
156(3), the police would have had to
submit a report under Section 173(2). It
has been held in Tula Ram and others
Vs. Kisohre Singh 1978 (1) SCR 615 that
if
the
police,
after
making
an
investigation, send a report that no case
was made out against the accused, the
Magistrate could ignore the conclusion
drawn by the police and take cognizance
of a case under Section 190(1)(b) and
issue process or in the alternative he can
take
cognizance
of
the
original
complaint and examine the complainant
and his witnesses and thereafter issue
process to the accused, if he is of opinion
that the case should be proceeded with."

(emphasis added)

14. The observations made in para
16 and 17 in M/s India Carat Pvt. Ltd.
Vs. State of Karnataka (supra) make it
very clear that Magistrate if proceed to
take cognizance on Police report, material
which can be examined by him would be
such which has been collected during
investigation. If Magistrate finds that
Police
has
not
properly
made
investigation and appropriate material has
not been collected, it is always open to
him
to
direct
Police
for
further
investigation but if Magistrate finds fault
with investigation made by Police and
still finds justification to proceed with the
matter taking into account complaint
made by complainant, in such case he has
to examine complainant and his witness
and thereafter issue process.

15. In Gangadhar Janardan
Mhatre vs. State of Maharashtra and
others 2004 (7) SCC 768, the Court
reiterating above view said as under:

"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, exercise of his
powers under Section 119(1)(b) and
direct the issue of process to the
accused."

(emphasis added)

16. Having said so, Court has also
made it clear that while proceeding to
issue process considering facts emergent
from investigation and taking a different
view than what has been reported by
Police,
Magistrate
need
not
apply
procedure laid down in Section 200 and
202. However, if Magistrate finds lack of
material with investigation of Police,
option available to him is to take into
account original complaint and if that is
adopted by Magistrate, he is bound to
3 All. Virendra Kumar Jha Vs. Civil Judge Junior Division, Shahjahanpur & Ors.
99
follow procedure prescribed in Section
200 and 202 for taking cognizance, but he
can not mix-up the material placed by
complainant along with Protest Petition to
take cognizance after rejecting Police
Report
but
without
following
the
procedure prescribed under Chapter 15.

17. A similar view has also been
expressed in Rakesh and another Vs.
State of U.P. And another 2014 (13)
SCC 133 where Court referred to and
relied on the decision in H.S. Bains Vs.
State (UT of Chandigarh) 1980 (4) SCC
631.

18. In Minu Kumari and another
Vs. State of Bihar and others 2006 (4)
SCC 359, Court said as under:

"11. When a report forwarded
by the police to the Magistrate under
Section 173(2)(i) is placed before him
several situations arise. The report may
conclude that an offence appears to have
been committed by a particular person or
persons and in such a case, the
Magistrate may either (1) accept the
report and take cognizance of the offence
and issue process, or (2) may disagree
with the report and drop the proceeding,
or (3) may direct further investigation
under Section 156(3) and require the
police to make a further report. The
report may on the other hand state that
according to the police, no offence
appears to have been committed. When
such a report is placed before the
Magistrate he has again option of
adopting one of the three courses open
i.e., (1) he may accept the report and
drop the proceeding; or (2) he may
disagree with the report and take the view
that there is sufficient ground for further
proceeding, take congnizance of the
offence and issue process; or (3) he may
direct further investigation to be made by
the police under Section 156(3). 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 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,
exercise of his powers under Section
190(1)(b) and direct the issue of process
to the accused."

(Emphasis
added)

19. In Sunil Bharti Mittal Vs.
Central Bureau of Investigation 2015
(4) SCC 609, Court said:

"... even if a person is not
named as an accused by the police in the
final report submitted, the Court would be
justified in taking cognizance of the
offence and to summon the accused if it
feels that the evidence and material
collected during investigation justifies
prosecution of the accused (See Union of
India v. Prakash P. Hinduja and Anr.
100 INDIAN LAW REPORTS ALLAHABAD SERIES
2003 (6) SCC 195. Thus, the Magistrate
is empowered to issue process against
some other person, who has not been
charge-sheeted, but there has to be
sufficient material in the police report
showing his involvement. In that case, the
Magistrate is empowered to ignore the
conclusion
arrived
at
by
the
investigating officer and apply his mind
independently on the facts emerging
from
the
investigation
and
take
cognizance of the case. At the same time,
it is not permissible at this stage to
consider any material other than that
collected by the investigating officer."

(Emphasis added)

20. This Court has also followed a
similar line and some authorities, relevant
in this regard, may be noticed for
reference.

21. In Pakhando and others Vs.
State of U.P. 2001 (43) ACC 1096, a
Division Bench of this Court after
considering Section 190 Cr.P.C. has held,
if upon investigation Police comes to
conclusion that there was no sufficient
evidence or any reasonable ground of
suspicion to justify forwarding of accused
for trial and submits final report for
dropping proceedings, Magistrate shall
have following four courses and may
adopt any one of them:

(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;

(II) He may take cognizance
under Section 190(I)(b) and issue process
straightway 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

(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(I)(b) 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.
 (Emphasis added)

22. Thus the "material" which can
be examined by Magistrate when Police
submitted final report and upon notice
issued to complainant, Protest Petition is
filed along with some material by
complainant is confined to investigation
only. When matter has been investigated
by Police after registering a report,
Magistrate obviously is not proceeding
according to procedure prescribed in
Chapter XV. I find that it would not be
appropriate for Magistrate not to follow
procedure under Section 200 and 202
Cr.P.C.
but
straightway
relying
on
affidavits filed before him by complainant
along
with
Protest
Petition,
take
cognizance and summon accused after
rejecting Police Report. This is not legal
and permissible.

23. In Mohammad Yusuf Vs. State
of U.P. 2007 (9) ADJ 294, Police
3 All. Virendra Kumar Jha Vs. Civil Judge Junior Division, Shahjahanpur & Ors.
101
submitted final report which was not
accepted by Magistrate, not on the basis
of material collected by Police, but,
relying
on
Protest
Petition
and
accompanying affidavit Magistrate issued
process. Court disapproved the aforesaid
procedure adopted by Magistrate and
said:

"Where the magistrate decides
to take cognizance under section 190 (1)
(b) ignoring the conclusions reached at
by the investigating officer and applying
his mind independently, he can act only
upon the statements of the witnesses
recorded by the police in the case-diary
and
material
collected
during
investigation. It is not permissible at that
stage to consider any material other than
that collected by the investigating officer.
In the instant case the cognizance was
taken on the basis of the protest petition
and
accompanying
affidavits.
The
Magistrate should have adopted the
procedure of complaint case under
Chapter XV of the Code of Criminal
Procedure and recorded the statements of
the complainant and the witnesses who
had filed affidavits under Section 200 and
202 Cr.P.C. The Magistrate could not
take cognizance under section 190 (1)
(b) Cr.P.C. on the basis of protest
petition and affidavits filed in support
thereof. The Magistrate having taking
into account extraneous material i.e.
protest petition and affidavits while
taking cognizance under section 190 (1)
(b) Cr.P.C. the impugned order is
vitiated."

 (Emphasis added)

24. In Kallu and others Vs. State
of U.P. 2010 (69) ACC 780, Court said:

"Therefore, in present case
also, if the material in the case diary was
not
sufficient
for
summoning
the
accused persons to face the trial, then
the
protest
petition
filed
by
the
complainant against the final report
ought to have been registered as
complaint and after
following
the
procedure laid down in section 200 and
202 Cr.P.C."

(Emphasis added)

25. Court further held:

"If after taking evidence under
section 200 and 202 Cr.P.C., the
magistrate decides to take cognizance
against the accused persons, final report
has to be rejected, but in any case,
cognizance cannot be taken merely on
the basis of affidavits or other material
filed by the complainant in support of
the protest petition against final report
without following the procedure laid
down under Chapter XV Cr.P.C., if the
material in the case diary is not sufficient
to take cognizance." (Emphasis
added)

26. In Mitrasen Yadav Vs. State of
U.P. 2010 (69) ACC 540, Court said that
on the basis of Protest Petition and
documents filed therewith, no cognizance
under Section 190(1)(b) Cr.P.C. can be
taken.

27. In Criminal Revision No. 1601
of 2015, Mukeem and 2 others Vs. State
of U.P. and another, decided on
07.08.2015, Court while deprecating
procedure followed by Magistrate by
relying on Protest Petition and its
documents, without following procedure
of complaint, said:

"The impugned order shows
that the Magistrate summoned accused
102 INDIAN LAW REPORTS ALLAHABAD SERIES
persons presuming that oral evidence on
behalf of first informant was adduced on
protest petition, which is possible only when
the protest petition was ordered to be treated
as a complaint. The record shows that
neither protest petition was ordered to be
registered as complaint nor any oral
evidence of the witnesses was recorded.
Summoning of the accused persons on the
basis of the oral evidence indicates that the
Magistrate was satisfied with the fact that in
evidence collected by the I.O, there was no
sufficient material for taking cognizance. The
learned Magistrate has also observed that the
I.O. has committed a mistake in not recording
the evidence of other witnesses. Summoning
is also based on facts mentioned in the
protest petition and documentary evidence, as
mentioned in the order impugned which is
erroneous in view of the law cited above."

(Emphasis added)

28. In Writ Petition- Misc. Single
No. 3776 of 2012, Mohammad Shafiq
Khan and others Vs. State of U.P. and
others, decided on 24.03.2014, Court, in
para 9, held as under:

"9. Therefore, it is clear from
the above that the Magistrate on the
basis of protest petition can reject the
final report, he may treat the protest
petition as complaint, he may also direct
for further investigation. But in the facts
of this case the Magistrate while
rejecting the final report has also taken
into consideration the affidavits filed
along with protest petition and this
approach of the Magistrate was not in
accordance with law." (Emphasis added)

29. Looking to exposition of law,
discussed above, I find that in the present
case Magistrate has not referred to any
material placed before him as collected by
Investigating Officer. Instead it has
rejected final report on the basis of facts
stated in Protest Petition and thereafter
summoned accused-applicant. Magistrate
has not given any reason for rejecting
Police report and nothing has been said in
this regard. This approach on the part of
Magistrate, I find is contrary to what has
been laid down in the above authorities
and the same cannot be sustained.

30. In the result, application is
allowed.
Impugned
orders
dated
09.05.2003, 16.08.2003 and 12.09.2003
and further proceedings in Case Crime
No. 163 of 2000, under Sections 427,
166, 392 IPC, Police Station Tilhar,
District Shahjahanpur, pending in the
Court of Civil Judge, Junior Division,
Tilhar, Shahjahanpur are hereby set aside.
----------
(2019)11ILR A102

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.08.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA , J.

Criminal Misc. Application No.8408 of 2017
u/s 482 Cr.P.C.

Munna Lal & Ors ...Applicants
Versus
State of U.P. & Anr ...Opposite Parties

Counsel for the Applicants:
Sri Shiv Nath Singh, Sri Satyam Singh, Sri
D.P.S. Chauhan.

Counsel for the Opposite Parties:
A.G.A., Sri Keshari Nandan Singh

A. Criminal Law -Indian Penal Code,
1860 - Section 464 of IPC - Ingredients-
`false documents' - Not sufficient that a
document
has
been