Allowed

Rajeev Goel and 2 Others v. State of U.P.and Another

Allahabad HC17 Mar 2023A482/8048/2023

Case brief

AI extract

What is this about?

This application under Section 482 Cr.P.C. challenged a Magistrate's order treating a protest petition as a complaint without rejecting the Investigating Officer's final police report. The Court held that cognizance under Section 190(1)(a) Cr.P.C. requires rejection of the Section 173 report. The order was quashed and matter remitted.

What did the court decide?

The order dated 19.05.2022 treating the protest petition as a complaint and the summoning order dated 20.01.2023 are quashed; matter remitted to court below.

Rajeev Goel and 2 Others Vs State of U.P.and… — Criminal Trial and Appeal | Allahabad HC (2023)

¶1

Court No. - 65

¶2

Case :- APPLICATION U/S 482 No. - 8048 of 2023

¶3

Applicant :- Rajeev Goel And 2 Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Krishna Kant Tiwari,Ashok Kumar Mishra

¶4

Counsel for Opposite Party :- G.A.,Mahendra Kumar Singh Chauhan

¶5

Hon'ble Rajeev Misra,J.

¶6

Supplementary affidavit filed by learned counsel for applicants in court today is taken on record.

¶7

Heard Mr. Ashok Kumar Mishra, the learned counsel for applicants, the learned A.G.A. for State and Mr. Sandeep Kumar, Advocate holding brief of Mr. M.K.S. Chauhan, the learned counsel for complainant/opposite party-2.

¶8

At the very outset, the learned counsel for applicants submits that due to inadvertence the order dated 19.05.2022 passed by Additional Chief Judicial Magistrate, Nageena, Bijnor in Case No. 441 of 2019 (Radhey Shyam Vs. Rajeev Gunder) Sections 420, 467, 468, 471 I.P.C. P.S. Dhampur, District-Bijnor could not be challenged in the prayer clause of this application. He therefore submits that he be permitted to amend the prayer clause of this application by seeking a challenge to the order dated 19.05.2022 passed by Additional Chief Judicial Magistrate, Bijnor in Case No. 441 of 2019 (Radhey Shyam Vs. Rajeev Goyal) under Sections 420, 467, 468, 471 I.P.C., arising out of Case Crime No. 197 of 2019 under Sections under Sections 420, 467, 468, 471 I.P.C. Police Station-Dhampur, District Bijnor.

¶9

Prayer made for is bonafide. Same is not opposed by learned

¶10

A.G.A. It is accordingly allowed.

¶11

Let necessary amendment be carried out by learned counsel for applicants in the prayer clause of present application during course of the day.

¶12

Challenge in this application under Section 482 Cr.P.C. is to the Summoning Order dated 20.01.2023 passed by Additional Chief Judicial Magistrate, Nageena, District-Bijnor in Complaint Case No. 18474 of 2022 (Radhe Shyam Vs. Rajeev Goyal) under Section 420 I.P.C., P.S. Dhampur, District-Bijnor and the order dated 9.05.2022 passed by Additional Chief Judicial Magistrate, Nageena, Bijnor in Case No. 441 of 2019 (Radhey Shyam Vs. Rajeev Gunder) Sections 420, 467, 468, 471 I.P.C. P.S. Dhampur, District-Bijnor, whereby court below without rejecting the police report (final report dated 08.06.2019) submitted under Section 173 (2) Cr.P.C. concluded that the protest petition filed by first informant opposite party-2 shall be treated as a complaint in exercise of jurisdiction under Section 190 (1) (a) Cr.P.C.

¶13

Record shows that first informant/opposite party-2 lodged an F.I.R. dated 04.05.2019, which was registered as Case Crime no. 0197 of 2019 under Sections 420, 467, 468, 4717 IPC, Police Station - Dhampur, District -Bijnor. In the aforesaid F.I.R. fifteen persons have been nominated as named accused.The copy of F.I.R. is on record at page 21 of the paper book.

¶14

After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. He recorded the statement of witnesses including complainant/opposite party 2, under Section 161 Cr.P.C. On the basis of above and other material

¶15

collected by him during course of investigation, Investigating Officer came to the conclusion that the offence complained of is not established. Accordingly, he submitted the police report (final report dated 08.06.2019) under Section 173 (2) Cr.P.C. After submission of aforementioned police report (final report), first informant/opposite party-2 filed a protest petition dated 08.08.2019 and concluded that protest petition filed by complainant/opposite party-2 shall be treated as a complaint. However no order rejecting the police report (final report) was passed. Court below considered the police report (final report) dated 08.06.2019 and the protest petition filed by complainant/opposite party-2 shall treated as a complaint vide order 19.05.2022.

¶16

Learned counsel for applicants contends that after submission of police report dated 08.06.2019 , court below was under a legal obligation either to accept the final report or reject the same. Only after final report submitted by Investigating Office under Section 173 (2) Cr.P.C. was rejected, court below could have exercised its jurisdiction under Section 190 (1) (a) Cr.P.C. Above having not been done by court below, therefore order impugned in present application is manifestly illegal inasmuch as a police report submitted by Investigating Officer still subsist. As such, order impugned dated 19.05.2022 cannot be sustained. The summoning order being consequential is also liable to be quashed by this Court.

¶17

In support of above, the learned counsel for applicants has referred to the judgement dated 22.07.2022 passed by this Court in Criminal Misc. Application No. 14899 of 2022 (Dabeer and 9 other Vs. State of U.P. and another).

¶18

Per contra, the learned A.G.A. for State and Mr. Sandeep Kumar, Advocate holding brief of Mr. M.K.S. Chauhan, the learned counsel for complainant/opposite party-2 have opposed the present application. However, they have no objection in case present application is allowed and the matter is remitted to court below for decision afresh.

¶19

Having heard the learned counsel for applicants, the learned A.G.A. for State, the learned counsel representing complainant/opposite party-2 and upon perusal of record, this Court finds that while passing impugned order dated 19.05.2022, court below has not rejected the police report (final report) dated 08.06.2019 submitted by Investigating Officer under Section 173 (2) Cr.P.C. Without rejecting the police report, the concerned Magistrate could not have taken cognizance in exercise of jurisdiction under Section 190 (1) (a) Cr.P.C. As the Original order cannot be sustained, the consequential summoning order is also liable to be quashed. Thus the order dated 19.05.2022 is manifestly illegal and therefore, liable to be quashed..

¶20

In view of above, present application succeeds and is liable to be allowed.

¶21

14. It is accordingly allowed .

¶22

The impugned Summoning Order dated 20.01.2023 passed by Additional Chief Judicial Magistrate, Nageena, District-Bijnor in Complaint Case No. 18474 of 2022 (Radhe Shyam Vs. Rajeev Goyal) under Section 420 I.P.C., P.S. Dhampur, District-Bijnor as well as the the order dated 9.05.2022 passed by Additional Chief Judicial Magistrate, Nageena, Bijnor in Case No. 441 of 2019 (Radhey Shyam Vs. Rajeev Gunder) Sections 420, 467, 468, 471

¶23

I.P.C. P.S. Dhampur, District-Bijnor, are hereby quashed.

¶24

Matter is remitted to court concerned for decision afresh in the light of observations made herein above.

¶25

Order Date :- 17.3.2023 YK

¶26

Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Rajeev Goel and 2 Others v. State of U.P.and Another

Case brief

What is this about?

What did the court decide?

Rajeev Goel and 2 Others v. State of U.P.and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mamnoon Nisha Vs State of U.P. and Another

Anil Kumar and 2 Others Vs State of U.P. and Another

Vijay Arora and 3 Others Vs State of U.P. and Another

M/S Vimal Enterprises Vs Deputy General Manager Power Distribution and 2 Others

Baldeva and 4 Others Vs State of U.P. and Another

Rambabu Vs State of U.P. and Another