Allahabad High Court
Pramod Kumar Shukla @ Gopal Ji And ... vs State Of U.P. And Another on 16 October, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:185903
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 482 No. - 17921 of 2018
Pramod Kumar Shukla @ Gopal Ji And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Kameshwar Singh, Neeraj Sinha
Counsel for Opposite Party(s)
:
G.A., Sanjay Kumar Srivastava
Court No. - 85
HON'BLE JAI PRAKASH TIWARI, J.
1. Heard Sri Kameshwar Singh, learned counsel for the applicants, Sri Sanjay Kumar Srivastava, learned counsel for O.P. No.2 and learned AGA for the State.
2. By way of instant application, applicants made following prayer:-
"It, is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow the application and may set aside the summoning order dated 27.8.2016 passed by Chief Judicial Magistrate, Banda by which he has summoned the applicants with other co-accused persons on Protest Petition of the Opposite Party No.2 Under Section 147, 302 I.P.C. in Misc. Case No.35/13 Awadhesh Kumar Versus Juggilal and others, Police Station Kotwali Nagar, District Banda and Non Bailable Warrant dated 3.2.2017, 11.4.2017, 11.5.2017, 3.8.2017, 5.10.2017, 30.11.2017, 3.2.2018 and 11.4.2018 passed by Chief Judicial Magistrate, Banda against the applicants and other co-accused persons, otherwise the applicants will suffer an irreparable loss and injury.
It is further prayed that this Hon'ble Court may be pleased to stay the summoning order dated 27.8.2016 passed by Chief Judicial Magistrate, Banda by which he has summoned the applicants with other co-accused persons on Protest Petition of the Opposite Party No.2 Under Section 147, 302 I.P.C. in Misc. Case No.35/13 Awadhesh Kumar Versus Juggilal and others. Police Station Kotwali Nagar, District Banda and Non Bailable Warrant dated 3.2.2017, 11.4.2017, 11.5.2017, 3.8.2017, 5.10.2017, 30.11.2017, 3.2.2018 and 11.4.2018 passed by Chief Judicial Magistrate, Banda against the applicants and other co-accused persons (Annexure No.13 and 14 to the affidavit) during the pendency of present petition 482 Cr.P.C. before this Hon'ble Court, otherwise the applicants will suffer an irreparable loss and injury."
3. In this case, FIR has been lodged through an application under Section 156(3) Cr.P.C. against applicants and others. During investigation, Investigating Officer has recorded the statements of informant/ O.P. No.2 and other witnesses. After investigation, I.O. submitted final report and thereafter Opposite Party No.2 had filed protest petition before learned C.J.M., Banda. Vide impugned order dated 27.8.2016, learned C.J.M., concerned rejected the final report and summoned the applicants under Sections 147, 302 IPC. Hence, instant application U/s 482 Cr.P.C.
4. Learned counsel for the applicants submitted that the FIR was lodged as Case Crime No. 689 of 2012 under Sections 147, 302 IPC, P.S.-Kotwali Nagar, District-Banda on the basis of application under Section 156(3) Cr.P.C. moved by the informant/ O.P. No.2 with regard to murder of his brother, allegedly committed by applicants and others.
5. He further submitted that panchayatnama of the dead body was conducted on 11.5.2012 and as per the panchayatnama report, deceased died due to injury received on his body. He further submitted that on the same day, post-mortem was conducted and as per post-mortem report, deceased sustained multiple abraded contusion and other injuries on his body. As per doctor, who conducted post-mortem, cause of death of the deceased is shock and hemorrhage due to ante-mortem injuries.
6. He further submitted that during investigation I.O. recorded the statements of formal and informal witnesses, though, informant reiterated the version of FIR but denied any enmity with the applicants. From the statements of other witnesses recorded during investigation, it reveals that on 10.5.2012 at about 10:00 p.m. in the night one motorcycle rider has fell down due to collision with road divider and received serious injuries due to which he died. Investigating Officer recorded the statement of doctor too, who conducted the post-mortem of the deceased, wherein he opined that the injuries sustained by the deceased were not caused due to marpeet and the injuries were the result of accident. He further submitted that actually deceased received injuries in the accident, in which his bike hit the road divider. As per the statement of S.I. Pankaj Tiwari, who was posted at police chowki- Aliganj, Banda, on 10.5.2012 in the night at about 10.30 p.m. one truck driver informed him that one motorcycle driver has fell down in an accident and received injuries and after receiving information, he along with other police personnel reached at spot and found that deceased was lying near the divider. During investigation, all the witnesses denied the allegation made by prosecution.
7. He further submitted that after proper investigation, Investigating Officer submitted the final report in favour of applicants and others. Against the final report, O.P. No.2 filed protest petition before the court concerned.
8. Learned counsel for the applicants further submitted that learned C.J.M., Banda wrongly rejected the final report and summoned the accused-applicants under Sections 147 and 302 IPC. He further submitted that impugned summoning order dated 27.8.2016 and order of N.B.Ws. are passed without application of judicial mind and are arbitrary and unsustainable in the eye of law, therefore, the same are liable to be set aside.
9. Per contra, learned AGA as well as learned counsel for O.P. No.2 opposed the prayer and submitted that learned Magistrate after due consideration of facts and circumstances rejected the final report and rightly summoned the applicants.
10. I have heard both the parties and perused the record of the case.
11. It is evident from the record that initially, FIR was lodged by O.P. No.2, the brother of the deceased against applicants and others. After investigation I.O. submitted final report in favour of applicants. Thereafter protest petition has been filed by O.P. No.2 aggrieved with the final report. Learned Magistrate after considering the protest petition and material on record passed the impugned order dated 27.8.2016, whereby he rejected the final report and summoned the applicants under Sections 147 and 302 IPC.
12. Before arriving at a conclusion, it is appropriate to consider certain legal principles.
13. In case of Abhinandan Jha & others vs. Dinesh Mishra AIR 1968 SC 117, the Apex Court has observed as follows:-
??there is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under Section 190(1)(c) Cr.P.C.. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute. or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence. not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under s. 190(1) (c) Cr.P.C., on the ground that, after having due regard to the final report and the police records placed before him, be has reason to suspect that an offence has been committed.?
14. In case of Minu Kumari and another vs. The State of Bihar and others AIR 2006 SC 1937 the Court has observed as follows:-
".....When a report forwarded by the police to the Magistrate under Section 173(2) 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. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [see M/s. India Carat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)]"
15. The following provisions have been given in the Code of Criminal Procedure regarding the investigation.
15.1. Section 169 Cr.P.C. Release of accused when evidence deficient-
If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient, evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.
15.2. Section 170(1) and (2) Cr.P.C. Cases to be sent to Magistrate when evidence is sufficient-
(1) If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for the attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
15.3.. Section 173(2) Cr.P.C. Report of police officer on completion of Investigation-
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
a. the names of the parties;
b. the nature of the information;
c. the names of the persons who appear to be acquainted with the circumstances of the case;
d. whether any offence appears to have been committed and, if so, by whom;
e. whether the accused has been arrested;
f. whether he has been released on his bond and, if so, whether with or without sureties;
g. whether he has been forwarded in custody under section 170.
h. whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the Indian Penal Code.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given.
16. In case at hand, before passing the impugned order, learned Magistrate has observed that on perusal of case diary, it reveals that informant/complainant?s version supported by his statement. The panchayatnama and post-mortem reports also supported the injuries. Learned Magistrate also observed that despite evidence, the Investigating Officer erroneously submitted final report. The case does not appear suspicious at this stage and prima facie case is made out against the applicants. Learned Magistrate clearly observed that investigation is flawed. Thus, learned Magistrate passed the impugned order after due consideration of facts and circumstances of the present case and evidence on record.
17. As the legal framework presented herein reveals that after submission of final report by I.O., the Magistrate has power to reject the final report and summon the accused. The legal position on this point is well settled. The Magistrate is not bound in every case to accept the final report submitted by the Investigating Officer. The Magistrate has ample power to disagree with the conclusion of the Investigating Officer and take cognizance of the offence if prima facie material is available on record. It is also a settled principle of law that cognizance of an offence can be taken even after submission of the final report by the police.
18. In view of the aforesaid discussion, this Court finds that there is no illegality, perversity or infirmity in the impugned summoning order dated 27.8.2016.
19. The present application lacks of merit and is accordingly dismissed.
(Jai Prakash Tiwari,J.) October 16, 2025 KK Patel