Murari @ Murarilal Sharma and 2 Others vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:49758

Court No. - 70

Case :- APPLICATION U/S 528 BNSS No. - 11002 of 2025

Applicant :- Murari @ Murarilal Sharma And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Daga,Prateek Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Amit Daga, the learned counsel for applicants and the learned A.G.A. for State-opposite party-1.

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Perused the record.

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Challenge in this application under Section 528 BNSS is to the summoning order dated 04.03.2025 passed by Chief Judicial Magistrate, Aligarh in Criminal Case No. 5248 of 2025 (Smt. Gunjan Sharma Vs. Devi Charan and Others), arising out of Case Crime No. 112 of 2024, under Sections 376-D, 452, 506 IPC, Police Station-Roravar, District-Aligarh, now pending in Court of Chief Judicial Magistrate, Aligarh, whereby Court below has not only allowed the protest petition dated 28.01.2025 filed by first informant/opposite party-2 against police report dated 23.05.2024 submitted under Section 173(2) Cr.P.C., rejected the police report dated 23.05.2024 submitted by the Investigating Officer, under Section 173 (2) Cr.P.C. but also has simultaneously taken cognizance, in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. and summoned the applicant to face trial.

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Record shows that in respect of an incident, which is alleged to have occurred on 23.11.2023, a delayed FIR dated 27.03.2024 was lodged by first informant/opposite party-2, Smt. Gunjan Sharma and was registered as Case Crime No. 112 of 2024, under Sections 376-D, 452, 506 IPC, Police Station-Roravar, District-Aligarh. In the aforesaid FIR, 3 persons namely (1) Devi Charan, (2) Murari and (3) Ashwani have been nominated as named accused.

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After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. On the basis of material collected by him, during course of investigation, including the statements of various witnesses examined under Section 161

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Cr.P.C., he came to the conclusion that offence complained of is not established. He, accordingly, opined to submit the final report. Investigating Officer, thus, submitted the police report dated 23.05.2024 (final report) in terms of Section 173(2) Cr.P.C..

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Upon submission of aforementioned police report before Court below, the first informant Smt. Gunjan Sharmai i.e. opposite party2 herein filed her protest petition dated 28.01.2025 against the same. It is apposite to mention here that under the Code i.e. Cr.P.C., there is no provision regarding filing of protest petition by the first informant against the police report. However, the same has now been provided for by the judgment of Supreme Court in Bhagwant Singh Vs. Commissioner of Police And Another, (1985) 2 SCC 537 .

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After aforementioned protest petition was filed, Court below proceeded to consider the police report in the light of the protest petition. Ultimately, vide order dated 04.03.2025, Court below allowed the protest petition filed by the first informant-opposite party-2, rejected the police report dated 23.05.2024, and simultaneously summoned the applicant, under Sections 376-D, 452, 506 IPC.

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Mr. Amit Daga, the learned counsel for applicant submits that the order impugned in present application under Section 482 Cr.P.C. is manifestly illegal being in excess of jurisdiction. Consequently, the same is liable to be set aside by this Court.

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According to the learned counsel for applicant, the words "charge sheet" and "final report" have not been defined in the Code i.e. Cr.P.C. The Code (Cr.P.C.) only speaks of the police report. Section 190 Cr.P.C. provides for the procedure to be adopted by the jurisdictional Magistrate upon submission of the police report. The parameters regarding exercise of jurisdiction by Court, under Section 190 Cr.P.C. now stands crystallized by the judgment of Supreme Court in Vishnu Kumar Tiwari Vs. State of U.P. and Another, (2019) 8 SCC 27.

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It is then submitted by the learned counsel for applicant that once the police report dated 23.05.2024 submitted by Investigating Officer was set aside (NIRAST) by Court below then in that eventuality, the Court concerned could not have taken cognizance upon the same, in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. Admittedly, summoning order dated 04.03.2025 was passed by Chief Judicial Magistrate, Aligarh in Criminal Case No. 5248 of 2025 (Smt. Gunjan Sharma Vs. Devi Charan and Others),

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arising out of Case Crime No. 112 of 2024, under Sections 376-D, 452, 506 IPC, Police Station-Roravar, District-Aligarh, now pending in Court of Chief Judicial Magistrate, Aligarh only after taking of cognizance upon same. The concerned Court can proceed with the matter as a state case only when the Court has taken cognizance upon the police report as explained above. Since there was no police report in existence, therefore, no cognizance could have been taken by Court below on the basis of police report. The proper course for the Court below was not to accept the police report (ASWIKAR) and then proceed with the matter. On the above premise, the learned counsel for applicants submits that the order impugned cannot be sustained and is, therefore, liable to be set aside by this Court.

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Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present application. He submits that the order impugned in present application is perfectly just and legal. Court below, while exercising it's jurisdiction under Section 190(1) (b) Cr.P.C. can look into the papers accompanying the police report and on basis thereof, arrive at it's own independent conclusion. The Court is not bound by the opinion expressed by the Investigating Officer in the police report. As such, no interference is warranted by this Court in present application inasmuch as, cognizance has been taken by the Court concerned only after prima-facie satisfaction has been recorded that criminality alleged to have been committed by applicant is ex-facie apparent as per the papers accompanying the police report. They, therefore, submit that no interference is warranted by this Court in present application. The same is, therefore, liable to be dismissed.

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Having heard Mr. Amit Daga, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the solitary issue that has emerged for consideration before this Court is as to:- whether after rejecting the police report submitted by the Investigating Officer in terms of Section 173(2) Cr.P.C., yet the Magistrate can exercise jurisdiction under Section 190(1)(b) Cr.P.C. by taking cognizance upon the said police report and proceed with the matter as a state case.

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The issue so raised is no longer res-integra and stands concluded by the judgments of this Court in following cases;- (1) Hari Ram Vs. State of U.P. and Another, 2016 ADJ Online, 0185 (Criminal Revision No. 695 of 2001) and (2) Application U/s 482 Cr.P.C. No. 8563 of 2023 (Smt. Bhuri Vs. State of U.P. and Another) decided on 15.03.2023 . This Court in aforementioned judgments has held that once the Magistrate has

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rejected (NIRAST) the police report submitted under Section 173(2) Cr.P.C. then the Magistrate is denuded of his jurisdiction to take cognizance under Section 190(1)(b) Cr.P.C. and proceed with the matter as a state case. In view of above, the order impugned cannot be sustained and is, therefore, liable to be set aside.

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As a result, the present application under Section 482 Cr.P.C. succeeds and is liable to be allowed.

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It is, accordingly, allowed.

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The impugned summoning order dated 04.03.2025 passed by Chief Judicial Magistrate, Aligarh in Criminal Case No. 5248 of 2025 (Smt. Gunjan Sharma Vs. Devi Charan and Others), arising out of Case Crime No. 112 of 2024, under Sections 376-D, 452, 506 IPC, Police Station-Roravar, District-Aligarh, now pending in Court of Chief Judicial Magistrate, Aligarh is, hereby, set aside.

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The matter shall stand remitted to Court concerned for passing a fresh order in the light of observations made herein above. The necessary exercise shall be undertaken by Court below within a period of two months from the date of presentation of a certified copy of this order.

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In the facts and circumstances of the case, the cost is made easy.

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Order Date :- 7.4.2025 YK

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

Murari @ Murarilal Sharma and 2 Others v. State of U.P. and Another

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Murari @ Murarilal Sharma and 2 Others v. State of U.P. and Another

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