Soni Devi v. Yogesh Kumar), arising out of Case Crime No

1. Heard Mr. Sanjay Mishra, Advocate, holding brief of Mr. Satya Narayan Yadav, the learned counsel for applicant and the learned A.G.A. for State opposite party-1.

2. Perused the record.

3. Challenge in this application under Section 482 Cr.P.C. is to the summoning order dated 05.09.2024 passed by Additional Chief Judicial Magistrate, Firozabad in Misc. Case No. 185 of 2019 (Soni Devi Vs. Yogesh Kumar), arising out of Case Crime No. 261 of 2018, under Section 376 IPC, Police Station-Narkhi, District- Firozabad, now pending in Court of Additional Chief Judicial Magistrate, Firozabad, whereby Court below has not only allowed the protest petition filed by first informant/opposite party-2 against police report dated 25.09.2018 submitted 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 without disappointing the final report/police report dated 25.08.2018. 4. Record shows that in respect of an incident, which is alleged to have occurred on 03.02.2018, a delayed FIR dated 14.05.2018 was lodged by first informant-Smt. Soni Devi and was registered as Case Crime No. 0261 of 2018, under Sections 498-A, 506 I.P.C. Police Station-Narkhi, District-Firozabad. In the aforesaid FIR, three persons namely Yogesh Kumar Nigam (husband) (applicant herein), (2) Khooblal (father-in-law) and (3) Rajkumari (mother- in-law) have been nominated as named accused.

5. 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 Cr.P.C., as well as the statements of the prosecutrix/first informant recorded under Sections 161/164 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 25.09.2018 (final report) in terms of Section 173(2) Cr.P.C.

6. Upon submission of aforementioned police report before Court below, the first informant Smt. Soni Devi i.e. opposite party-2 herein filed her protest petition 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.

7. After aforementioned protest petition was filed, Court below proceeded to consider the police report in the light of the protest petition filed by first informant/opposite party-2. Ultimately, vide order dated 05.09.2024, Court below allowed the protest petition filed by the first informant-opposite party-2 and simultaneously summoned the applicant, under Section 376 IPC but without disappointing the final report/police report referred to above.

8. Thus feeling aggrieved by the order dated 05.09.2024, applicant has now approached this Court by means of present application under Section 528 BNSS.

9. Mr. Sanjay Mishra, Advocate, holding brief of Mr. Satya Narayan Yadav, the learned counsel for applicant submits that the order impugned in present application under Section 528 BNSS. is manifestly illegal being in excess of jurisdiction. Consequently, the same is liable to be set aside by this Court.

10. 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.

11. It is then submitted by the learned counsel for applicant that Court below has summoned the applicant without disappointing the final report/police report submitted by the Investigating Officer. In the absence of any order disappointing the aforesaid report, Court below could not delved into the papers for exercising the jurisdiction under Section 190(1)(b) Cr.P.C. Since the police report submitted by the Investigating Officer was a final report and not charge sheet, no cognizance could have been taken by Court below on the basis of said 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.

12. 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.

13. Having heard Sanjay Mishra, Advocate, holding brief of Mr. Satya Narayan Yadav, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the matter requires consideration.

14. Notice on behalf of State-opposite party-1 has been accepted by the learned A.G.A.

15. Issue notice to first informant-opposite party-2.

16. All the opposite parties may file their respective counter affidavits within 4 weeks.

17. Applicants will have 2 weeks thereafter to file his rejoinder affidavits.

18. List this application for admission on 17.07.2025.

19. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicants in support of this application as noted herein above, as an interim measure, it is, hereby provided that until further orders of this Court, further proceedings in Misc. Case No. 185 of 2019 (Soni Devi Vs. Yogesh Kumar) arising out of Case Crime No. 261 of 2018, under Section 376 IPC, Police Station-Narkhi, District- Firozabad now pending in the Court of Additional Chief Judicial Magistrate, Firozabad shall remain stayed. Order Date:- 14.5.2025 HSM

1. Heard Mr. Sanjay Mishra, Advocate, holding brief of Mr. Satya Narayan Yadav, the learned counsel for applicant and the learned A.G.A. for State opposite party-1.

2. Perused the record.

3. Challenge in this application under Section 482 Cr.P.C. is to the summoning order dated 05.09.2024 passed by Additional Chief Judicial Magistrate, Firozabad in Misc. Case No. 185 of 2019 (Soni Devi Vs. Yogesh Kumar), arising out of Case Crime No. 261 of 2018, under Section 376 IPC, Police Station-Narkhi, District- Firozabad, now pending in Court of Additional Chief Judicial Magistrate, Firozabad, whereby Court below has not only allowed the protest petition filed by first informant/opposite party-2 against police report dated 25.09.2018 submitted 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 without disappointing the final report/police report dated 25.08.2018. 4. Record shows that in respect of an incident, which is alleged to have occurred on 03.02.2018, a delayed FIR dated 14.05.2018 was lodged by first informant-Smt. Soni Devi and was registered as Case Crime No. 0261 of 2018, under Sections 498-A, 506 I.P.C. Police Station-Narkhi, District-Firozabad. In the aforesaid FIR, three persons namely Yogesh Kumar Nigam (husband) (applicant herein), (2) Khooblal (father-in-law) and (3) Rajkumari (mother- in-law) have been nominated as named accused.

5. 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 Cr.P.C., as well as the statements of the prosecutrix/first informant recorded under Sections 161/164 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 25.09.2018 (final report) in terms of Section 173(2) Cr.P.C.

6. Upon submission of aforementioned police report before Court below, the first informant Smt. Soni Devi i.e. opposite party-2 herein filed her protest petition 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.

7. After aforementioned protest petition was filed, Court below proceeded to consider the police report in the light of the protest petition filed by first informant/opposite party-2. Ultimately, vide order dated 05.09.2024, Court below allowed the protest petition filed by the first informant-opposite party-2 and simultaneously summoned the applicant, under Section 376 IPC but without disappointing the final report/police report referred to above.

8. Thus feeling aggrieved by the order dated 05.09.2024, applicant has now approached this Court by means of present application under Section 528 BNSS.

9. Mr. Sanjay Mishra, Advocate, holding brief of Mr. Satya Narayan Yadav, the learned counsel for applicant submits that the order impugned in present application under Section 528 BNSS. is manifestly illegal being in excess of jurisdiction. Consequently, the same is liable to be set aside by this Court.

10. 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.

11. It is then submitted by the learned counsel for applicant that Court below has summoned the applicant without disappointing the final report/police report submitted by the Investigating Officer. In the absence of any order disappointing the aforesaid report, Court below could not delved into the papers for exercising the jurisdiction under Section 190(1)(b) Cr.P.C. Since the police report submitted by the Investigating Officer was a final report and not charge sheet, no cognizance could have been taken by Court below on the basis of said 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.

12. 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.

13. Having heard Sanjay Mishra, Advocate, holding brief of Mr. Satya Narayan Yadav, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the matter requires consideration.

14. Notice on behalf of State-opposite party-1 has been accepted by the learned A.G.A.

15. Issue notice to first informant-opposite party-2.

16. All the opposite parties may file their respective counter affidavits within 4 weeks.

17. Applicants will have 2 weeks thereafter to file his rejoinder affidavits.

18. List this application for admission on 17.07.2025.

19. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicants in support of this application as noted herein above, as an interim measure, it is, hereby provided that until further orders of this Court, further proceedings in Misc. Case No. 185 of 2019 (Soni Devi Vs. Yogesh Kumar) arising out of Case Crime No. 261 of 2018, under Section 376 IPC, Police Station-Narkhi, District- Firozabad now pending in the Court of Additional Chief Judicial Magistrate, Firozabad shall remain stayed. Order Date:- 14.5.2025 HSM