# Yunus & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2022) 5 ILRA 276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-05
- **Case number:** Criminal Revision No. 3547 of 2021
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yunus-ors-revisionists-v-state-of-u-p-anr-48511
- **Pages:** 5

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 190(1) (b) - Application by
first informant - Addition of offence by
Magistrate to the offences mentioned in
the Police Report under section 173(2) of
the CrPc at pre-cognizance stage- This is
a
pre-cognizance
stage,
where
the
Magistrate has not taken the cognizance
of the offence. Charge-sheet/police report
u/s 173(2) of Cr.P.C. is nothing which is
simply an opinion of the Investigating
Officer based on the material collected
during investigation and it is not binding
or mandatory upon the Magistrate. The
Magistrate may or may not agree with the
opinion of the Investigating Officer. The
Magistrate has every right to defer his
opinion
from
the
opinion
of
the
Investigating Officer, on the basis of
material on record by passing a speaking
order - The order impugned reflects
judicial application of mind by the learned
Magistrate - Learned Magistrate after
assessing the entire material collected
during
investigation
found
that
Investigating
Officer
has
wrongly
submitted charge sheet u/s 323, 324, 325,
504,
506
I.P.C.,
which
was
not
in
consonance with the gravity of offences
made out on the basis of material
collected during investigation.

At the pre- cognizance stage the Magistrate is
not bound by the police report and can also add
offences not mentioned in the Police Report on
the basis of the material collected during the
course of the investigation. (Para 7, 9, 10)

Criminal Revision rejected. (E-3)

Case law / Judgements (cited):-

St. of Guj. vs Girish Radhakrishnan Varde in
Criminal Appeal No.1996 of 2013(SC).

## Text

276 INDIAN LAW REPORTS ALLAHABAD SERIES
courts in inquiries and trials. Sections 177
to 179 Cr.P.C. are quoted as under:-

"177. Ordinary place of inquiry
and trial-. Every offence shall ordinarily
be inquired into and tried by a Court within
whose local jurisdiction it was committed.

178. Place of inquiry or trial. (a)
When it is uncertain in which of several
local areas an offence was committed, or
(b) where an offence is committed partly in
one local area and partly in another, or (c)
where an offence is a continuing one, and
continues to be committed in more local
areas than one, or (d) where it consists of
several acts done in different local areas, it
may be inquired into or tried by a Court
having jurisdiction over any of such local
areas.

179. Offence triable where act
is done or consequence ensues. When an
act is an offence by reason of anything
which has been done and of a consequence
which has ensued, the offence may be
inquired into or tried by a Court within
whose local jurisdiction such thing has
been done or such consequence has ensued.

9. From the above provisions, it is
clear that the normal rule is that the offence
shall ordinarily be inquired into and tried
by a court within whose local jurisdiction it
was committed. However, when it is
uncertain in which of several local areas an
offence was committed or where an offence
is committed partly in one local area and
partly in another or where an offence is a
continuing one, and continues to be
committed in more than one local area and
takes place in different local areas as per
Section 178 Cr.P.C. the Court having
jurisdiction over any of such local areas is
competent to inquire into and try the
offence. Section 179 Cr.P.C. makes it clear
that if anything happened as a consequence
of the offence, the same may be inquired
into or tried by a Court within whose local
jurisdiction such thing has been done or
such consequence has ensued.

10. In the light of the above, this
Court
has
critically
examined
the
allegations levelled in the complaint as well
as the statement of victim No. 2 recorded
by the police under Section 161 Cr.P.C. and
also the statement under Section 164
Cr.P.C. and found that the offence in this
case is said to have been committed in
more local areas and one of the local areas
being Chitrakoot, the court below at
Chitrakoot has jurisdiction to proceed with
the criminal case instituted therein.

11. In such circumstances, this Court
does not find any illegality in the order
impugned passed by the court below.
Hence, there is no force in this criminal
revision and the same is hereby dismissed.

12. No order as to costs.
----------
(2022)05ILR A276
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.05.2022

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Revision No. 3547 of 2021

Yunus & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Amit Kumar Srivastava, Sri Prem
Shankar Mishra

Counsel for the Opposite Parties:
G.A., Sri Bhuvnesh Kumar Singh
5 All. Yunus & Ors. Vs. State of U.P. & Anr.
277
Criminal Law- Code of Criminal Procedure,
1973- Section 190(1) (b) - Application by
first informant - Addition of offence by
Magistrate to the offences mentioned in
the Police Report under section 173(2) of
the CrPc at pre-cognizance stage- This is
a
pre-cognizance
stage,
where
the
Magistrate has not taken the cognizance
of the offence. Charge-sheet/police report
u/s 173(2) of Cr.P.C. is nothing which is
simply an opinion of the Investigating
Officer based on the material collected
during investigation and it is not binding
or mandatory upon the Magistrate. The
Magistrate may or may not agree with the
opinion of the Investigating Officer. The
Magistrate has every right to defer his
opinion
from
the
opinion
of
the
Investigating Officer, on the basis of
material on record by passing a speaking
order - The order impugned reflects
judicial application of mind by the learned
Magistrate - Learned Magistrate after
assessing the entire material collected
during
investigation
found
that
Investigating
Officer
has
wrongly
submitted charge sheet u/s 323, 324, 325,
504,
506
I.P.C.,
which
was
not
in
consonance with the gravity of offences
made out on the basis of material
collected during investigation.

At the pre- cognizance stage the Magistrate is
not bound by the police report and can also add
offences not mentioned in the Police Report on
the basis of the material collected during the
course of the investigation. (Para 7, 9, 10)

Criminal Revision rejected. (E-3)

Case law / Judgements (cited):-

St. of Guj. vs Girish Radhakrishnan Varde in
Criminal Appeal No.1996 of 2013(SC).

(Delivered by Hon'ble Rahul Chaturvedi,
J.)

1. Heard Shri Prem Shankar Mishra,
learned counsel for the revisionists; Shri
Bhuvnesh Kumar Singh, learned counsel
for opposite party no.2 and learned A.G.A.
for the State. Perused the record.

2. The instant criminal revision is
being filed by the revisionists Yunus, Kamil
and Alim, assailing the legality and validity
of impugned order dated 01.02.2021 passed
by the Judicial Magistrate, Chandpur,
Bijnor in Criminal Case No.391 of 2019
(State vs. Kamil and others), arising out of
Case Crime No.223 of 2018, u/s 323, 324,
325, 504, 506 I.P.C., P.S.-Shivala Kala,
District-Bijnor, whereby learned Magistrate
has
taken
cognizance
against
the
revisionists for the offence u/s 323, 324,
326, 504, 506 I.P.C., while responding to
the application dated 31.5.2019 filed by the
prosecution at pre-cognizance stage.

3. Long and short of the submissions
advanced by learned counsel for the
revisionists is that on 21.11.2018 a F.I.R.
was got registered for the incident said to
have taken place on 9.9.2018 by Mohd.
Akram u/s 307, 323, 504, 506 I.P.C. against
Kamil, Alim and one unknown person. This
F.I.R. was registered routed through an
Application u/s 156(3) of Cr.P.C. with the
allegation that the contesting parties were
political opponents and on this score they
were nurturing an inimical relationship. On
9.9.2018 around 06.30 in the evening when
the informant was coming to his home, in
the way, near a culvert, he was ambushed
by Kamil, Alim and one unknown armed
with tabbal and knife. They started hurling
filthy abuses and thereafter assaulted upon
him. Alim was armed with tabbal, who had
given a deadly blow over his head, whereas
Kamil had assaulted by knife over his head
and unknown person had brutally assaulted
with
lathi-danda.
This
incident
was
witnessed by co-villagers and on making
challenge by them, the assailants ran away
giving threatening to kill the informant.
278 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohd. Akram who is the informant, is the
main injured and he was put for medical
examination.
From
the
medical
examination report it transpires that the
injured has sustained six injured over his
person, including the incised wounds and
contused swelling. The injured was referred
for
X-Ray
of
skull
and
chest.
Supplementary report indicates that there is
head injury over the injured and C.T. scan
of the head was advised. C.T. scan report
dated
10.9.2018
shows
(i)
multiple
depressed fractures of frontal bone on left
side, (ii) fractures of left zygomatic and left
orbit and (iii) multiple small hemorrhagic
contusions at left frontal lobe. In the
opinion of doctor, head injuries are
grievous in nature and in the X-Ray report
also multiple depression of fracture is
observed. After recording the statements of
the injured and the doctor, the Investigating
Officer of the case, it appears that in order
to oblige the accused, changed the texture
of the case by dropping Section 307 of
I.P.C. from the array of sections mentioned
in the F.I.R. and submitted charge-sheet
dated 13.2.2019 against the revisionists u/s
323, 324, 325, 504, 506 of I.P.C.

4. Stunned and dissatisfied by this
report u/s 173(2) Cr.P.C. submitted by the
I.O., the informant moved an application on
31.5.2019 challenging the opinion of the I.O.
that keeping in view the gravity, seat and
nature of injuries, instead of Sections 323,
324, 325, 504, 506 of I.P.C., the I.O. of the
case ought to have submitted charge sheet
inserting Sections 307, 308 of I.P.C. among
other sections as per prosecution case. It is
not out of place to mention here that the
application on behalf of prosecution was
instituted at pre-cognizace stage.

5. At the stage of taking cognizance,
learned Magistrate after taking into account
the material collected by the I.O. during
investigation and the objection raised by
the informant vide application dated
31.5.2019,
have
passed
the
present
impugned
order
dated
01.2.2021
(cognizance order) whereby he has taken
cognizance of the offences u/s 323, 324,
326, 504, 506 I.P.C.

6. Learned counsel for the revisionists
seriously disputed the impugned order
passed by the learned Magistrate by
making a mention that this is not a stage
where the Magistrate can change the
texture of the case by inserting the
additional sections or replacing the same by
more grievous sections of the I.P.C.
Learned counsel for the revisionist in this
regard has relied upon the judgement of
Hon'ble Apex Court in State of Gujarat vs
Girish Radhakrishnan Varde in Criminal
Appeal No.1996 of 2013 decided on
25.11.2013. Learned
counsel
for
the
revisionists has emphasized on paragraphs
11 and 19 of the said judgement, which
read thus :

"11.
While
analysing
the
controversy raised in this appeal, it is
clearly obvious that the entire dispute
revolves around the procedural wrangle
and the correct course to be adopted by the
trial court while taking cognizance but in
the entire process it appears that the
distinction between a case lodged by way of
a
complaint
before
the
magistrate
commonly referred to as complaint case
under Section 190 of the Cr.P.C. and a case
registered
on
the
basis
of
a
first
information report under Section 154 of the
Cr.P.C. before the police, seems to have
been missed out, meaning thereby that the
distinction
between
the
procedure
prescribed under Chapter XII of the Cr.P.C.
to be adopted in a case based on police
5 All. Yunus & Ors. Vs. State of U.P. & Anr.
279
report and the procedure prescribed under
Chapter XIV and Chapter XV for cases
based on a complaint case lodged before
the magistrate has clearly been overlooked
or lost sight of. It may be relevant to record
at this stage that the term 'complaint' has
been defined in the Cr.P.C. and it means the
allegations made orally or in writing to a
magistrate, with a view to taking action
under the Code due to the fact that some
person, whether known or unknown, has
committed an offence but does not include
a police report lodged under Section 154
Cr.P.C. Section 190(1) of the Cr.P.C.
contains the provision for cognizance of
offences by the Magistrates and it provides
three ways by which such cognizance can
be taken which are reproduced hereunder:-

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

(b) upon a police report in
writing of such facts--that is, facts
constituting the offence--made by any
police officer;

(c) upon information received
from any person other than a police officer
or upon the Magistrate's own knowledge or
suspicion that such offence has been
committed.

An
examination
of
these
provisions makes it clear that when a
Magistrate takes cognizance of an offence
upon receiving a complaint of facts which
constitute such offence, a case is instituted
in the Magistrate's Court and such a case
is one instituted on a complaint. Again,
when a Magistrate takes cognizance of any
offence upon a report in writing of such.
facts made by any police officer it is a case
instituted in the Magistrate's court on a
police report. The scheme underlying
Cr.P.C. clearly reveals that anyone who
wants to give information of an offence may
either approach the Magistrate or the
officer in charge of a Police Station. If the
offence complained of is a non-cognizable
one, the Police Officer can either direct the
complainant to approach the Magistrate or
he may obtain permission of the Magistrate
and investigate the offence. Similarly
anyone can approach the Magistrate with a
complaint and even if the offence disclosed
is a serious one, the Magistrate is
competent to take cognizance of the offence
and initiate proceedings. It is open to the
Magistrate but not obligatory upon him to
direct investigation by police. Thus two
agencies have been set up for taking
offences to the court."

7. I have carefully gone through the
order impugned as well as the facts and
circumstances of the case. It is apparent on
the face of record from the perusal of
material
evidence
collected
during
investigation,
that
there
is
explicit
incompatibility
between
the
offences/sections mentioned in the charge
sheet submitted by the Investigating Officer
and the offences made out from the
material collected during investigation. As
mentioned above, in the instant case the
police on 13.2.2019 have submitted a
charge sheet u/s 323, 324, 325, 504, 506 of
I.P.C. against Kamil, Alim and Yunus.

8. Aggrieved by the changing of
colour and texture of the case, an
application was moved by the injuredinformant himself on 31.5.2019 (Annexure
No.4 to the petition) whereby detailed
allegation has been levelled that Tabbal,
knife and lathi-danda were used while
making assault and injured sustained
grievous injuries corresponding to the said
weapons over the vital parts i.e. skull and
chest. Not only this, there are depressed
fractures over the frontal bone and there is
a hemorrhage inside the brain of the injured
and as per the supplementary medical
280 INDIAN LAW REPORTS ALLAHABAD SERIES
report, the injuries sustained by the injured
are grievous in nature.

9. This is a pre-cognizance stage,
where the Magistrate has not taken the
cognizance
of
the
offence.
Chargesheet/police report u/s 173(2) of Cr.P.C. is
nothing which is simply an opinion of the
Investigating Officer based on the material
collected during investigation and it is not
binding or mandatory upon the Magistrate.
The Magistrate may or may not agree with
the opinion of the Investigating Officer. It
is clear that the cognizance of the offence
was taken on 01.2.2021, responding to the
application moved by the informant dated
31.5.2019. Prior to this, there was no
cognizance
order
on
record.
The
Magistrate has every right to defer his
opinion
from
the
opinion
of
the
Investigating Officer, on the basis of
material on record by passing a speaking
order.

10. I have perused the order
impugned,
which
reflects
judicial
application of mind by the learned
Magistrate.
Learned
Magistrate
after
assessing the entire material collected
during
investigation
found
that
Investigating
Officer
has
wrongly
submitted charge sheet u/s 323, 324, 325,
504, 506 I.P.C., which was not in
consonance with the gravity of offences
made out on the basis of material collected
during investigation.

11. After appreciated the material on
record
and
the
application,
learned
Magistrate was not in agreement with the
opinion formed by the Investigating
Officer of the case and has dropped
Section 325 I.P.C. and replaced it by
Section 326 of I.P.C., in addition to
Sections 323, 324, 504, 506 I.P.C. I do not
find any illegality or infirmity in the
impugned order. Taking into account the
totality of circumstances, I am not inclined
to upset the order impugned or substitute
the discretion exercised by the learned
Magistrate.

12. However, it is given to understand
that the revisionists Kamil and Alim have
got themselves bailed out in Sections 323,
324, 326, 504, 506 I.P.C., except Yunus, as
such, revisionist Yunus is directed to
surrender before the court concerned by
15.6.2022 and apply for bail in added
Section 326 I.P.C., which shall be heard
and decided by the concerned court below
on the same day.

13. It is open for the revisionists that
after getting themselves bailed out, they
may take recourse of the appropriate
provisions of the Code of Criminal
Procedure at appropriate stage for seeking
discharge, if so advised.

14. With the above observation this
revision stands disposed off.
----------
(2022)05ILR A280
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.04.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 3618 of 2021

Mohd. Danish ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Bibhuti Narayan Singh

Counsel for the Opposite Parties: