Allahabad High Court
Vidhya Yadav vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 29 April, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:24516
Court No. - 12
Case :- APPLICATION U/S 482 No. - 3518 of 2025
Applicant :- Vidhya Yadav
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Bal Keshwar Srivastava,Ajit Kumar Mishra,Izhar Husain Siddiqui,Kanchan Sinha,Masood Ali,Syed Mohd. Intizar,Toshendra Kumar,Versha Rani Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard Sri Bal Keshwar Srivastava, learned counsel for the applicant as well as learned A.G.A. on behalf of the State.
2. By means of the present petition under Section 528 of BNSS the petitioner has challenged order dated 19.7.2023 thereby the Additional Chief Judicial Magistrate, Lucknow has treated the protest petition as a complaint in Case No.1416 of 2021, under Sections 427, 504 and 506 IPC and also the order dated 30.11.2024 whereby he has taken cognizance and issued summons to the petitioner.
3. The facts in brief are that a first information report was registered by opposite party No.2 under Sections 427, 504 and 506 IPC which was registered as FIR No.324 of 2019. The police after due investigation did not find occurrence of any cognizable offence and accordingly submitted final reports under Section 173 (2) of Cr.P.C. on 19.12.2020. Against the final report opposite party No.2 had filed a protest petition which was duly considered by the trial court and by means of the order dated 19.7.2023 the same was treated as complaint and subsequently after recording statement under Section 200 and 202 Cr.P.C the petitioner has been summoned. Both the said orders have been assailed in the present writ petition.
4. One of the main planks of the arguments of the petitioner is that undoubtedly when a final report/closure report is filed by the police then the Magistrate is empowered to consider the protest petition and treat the protest petition as compliant but before doing this he has to see that the complaint complies with all the ingredients of a complaint as defined under Section 200 and 202 of the Cr. P.C. He submits that in the case of Vishnu Kuamr Tiwari Vs. State of U.P. and others, (2019) 8 SCC 27 on submission of a final report and subsequently protest petition being filed the manner in which the magistrate has to proceed has been duly considered in paragraph 8 of the said judgment which is quoted as under :-
" The order passed by the Chief Judicial Magistrate shows that there is consideration of the protest petition. Neither the Chief Judicial Magistrate nor the Additional Sessions Judge have failed to apply the correct principles of law. In this regard, it is apposite to notice the following observations made in the impugned judgment of the High Court:
10. In the case 2001 (43) ACC 1096 Pakhando & others Vs State of UP & another, it is opined by the Court that in the case of final report the Magistrate has four options:-
(1) He may agree with the conclusion of the police and accept the final report and drop the proceeding.
(2) He may take cognizance under Section 190(1)(b) Cr.P.C. and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed.
(3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.
(4) He may without issuing process and dropping the proceedings 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 Sections 200 and 202 Cr.P.C. and thereafter whether complaint should be dismissed or process should be issued.?
5. He has further submitted that undoubtedly the power to treat a protest petition as a complaint exists but before treating it as complaint the protest petition should fulfill all the ingredients of a compliant as provided for under Section 2 d of the Cr.P.C. He submits that this aspect of the matter was duly considered by Supreme Court in the case of Vinay Tyagi Vs. Irshad Ali alias Deepak and others, (2013) 5 Supreme Court Cases 762 in para 48 which is reproduced as under:-
"What ultimately is the aim or significance of the expression ?fair and proper investigation? in criminal jurisprudence? It has a twin purpose. Firstly, the investigation must be unbiased, honest, just and in accordance with law. Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons."
6. He further submits that a perusal of the protest petition which is annexed along with the present petition clearly indicates that the complainant in the protest petition has only highlighted the cursory and arbitrary manner of investigation by the police in the said case. It has been stated that on lodging of the first information report the matter was entrusted to Sub Inspector Viresh Kumar who initiated the said investigation but was subsequently transferred. After transfer of the investigation officer the matter was entrusted to another Sub Inspector who did not conduct the investigation nor did he visit the place of occurrence and merely under the pressure of the accused persons recorded the statement of number of witnesses under Section 161 of Cr.P.C. He further submits that this aspect would be evident from the affidavits of all the witnesses which were filed before him which have been sworn by a notary in the same language and, in fact, had prayed for fair investigation in the said matter. It is further noticed that in the entire protest petition there is no mention with regard to the facts on which the first information report has been lodged nor any material in support of the first information report has been stated in the said complaint and accordingly for the aforesaid reason it has been stated that the protest petition cannot be treated as a complaint in as much as it lacks all the ingredients of a complaint as per Section 2 (d) of Cr.P.C.
7. Accordingly, after hearing the parties and perusing the records, we find that that matter requires consideration.
8. Issue notice to opposite party No.2.
9. List on 23.5.2025.
10. As an interim measure, it is provided that till the next date of listing no coercive action shall be taken against the petitioner in pursuance of the orders dated 9.7.2023 as well as 30.11.2024.
(Alok Mathur, J.)
Order Date :- 29.4.2025
RKM.
