Shivani Singh v. Trivendra and Others), arising out of Case Crime No

protest petition filed by first informant-opposite party-2 against the Police Report No. 04 of 2025 dated 14.01.2025, rejected the police report dated 14.01.2025 submitted by the Investigating Officer in terms of section 173 (2) Cr.P.C. and has simultaneously taken cognizance and summoned the applicants under Sections 140(3), 123, 127(2), 65(1), 115(2), 351(3), 352, 304(2) BNSS, under Sections 3/4 POCSO Act and under Section 67-A IT Act, Police Station-Iglas, District-Aligarh. The impugned order further records that the consequential case shall proceed as a state case.

4. Record shows that an FIR dated 16.11.2024 was lodged by first informant-opposite party-2 Ram Kishan (Father of the prosecutrix) and was registered as Case Crime No. 0612 of 2024, under Sections 140(3), 123, 127(2), 65(1), 115(2), 351(3), 352, 304(2) BNSS, Sections 3/4 POCSO Act and Section 67-A IT Act, Police Station-Iglas, District-Aligarh. In the aforesaid FIR 5 persons namely - (1) Trivendra, (2) Sumit, (3) Meena Devi, (4) Omkar @ Aunkar and (5) Chhotu 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, he came to the conclusion that no offence as complained of is made out against named accused. In view of above, Investigating Officer opined to submit the final report No. 04 of 2025. Accordingly, he submitted the Police Report/Final Report No. 04 of 2025 dated 14.01.2025 in terms of Section 173(2) Cr.P.C.

7. Upon submission of aforementioned police report before court, concerned, the first informant-opposite party-2 filed her protest petition dated 31.01.2025 to the same. It is aposite to mention here mention here that under the code i.e. Cr.P.C. there is no right with the first informant to file a protest petition against the police report submitted by the Investigating Officer in terms of Section 173 (3) Cr.P.C. However, the said right has not been recognized as a valid right of the first informant by the Apex Court. The the case of Bhagwant Singh Vs. Supreme Court in Commissioner of Police And Another, (1985) 2 SCC 537, has held that the first informant has a right to file a protest petition against the police report .

9.Thereafter, Court below examined the protest petition filed by the first informant opposite party 2 in the light of the papers accompanying the aforementioned police report. Ultimately, Court below, by means of the order impugned dated 03.02.2025, rejected the police report 14.01.2025, allowed the protest petition filed first informant opposite party 2, took cognizance in exercise of jurisdiction under section 190(1)(b) Cr.P.C. and summoned the applicants under Sections 140(3), 123, 127(2), 65(1), 115(2), 351(3), 352, 304(2) BNSS, under Sections 3/4 POCSO Act and under Section 67-A IT Act with a further direction that the consequential case shall proceed as a state case.

10. Mr. Ajit Kumar, the learned counsel for applicant submits that the order impugned dated 03.02.2025 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.

11. 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 the procedure to be adopted by the 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.

12. It is then submitted by the learned counsel for applicant that once the police report dated 14.01.2025 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, the proceedings can proceed as a state case only when the Court has taken cognizance upon the police report. Since there was no police report in existence, no cognizance could have been taken by Court below on the basis of police report. The proper course for the Court below was to disapprove the police report (ASWIKAR) and then take cognizance on the said police report 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.

13. Per contra, the learned A.G.A. for State-opposite party-1 and Lavlesh Kumar Shukla, the learned counsel representing first informant-opposite party-2 have vehemently opposed the present application. They submit 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 a prima-facie satisfaction has been recorded that criminality alleged to have been committed by applicant is prima-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 present application is, therefore, liable to be dismissed.

14. Having heard Mr. Ajit Kumar, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, Mr. Lavlesh Kumar Shukla, the learned counsel representing first informant-opposite party-2 and upon perusal of record this Court finds that the solitary issue that has emerged for consideration before this Court in this application 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.

15. The issue as has emerged in this application 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 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. on the basis of such report and proceed with the matter as a state case. In view of above, the order impugned is manifestly illegal and without jurisdiction and therefore cannot be sustained. The same is, therefore, liable to be set aside.

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

17. It is, accordingly, allowed.

18. The order impugned dated 03.02.2025 passed by Special Judge (POCSO Act)/Additional District and Sessions Judge, Aligarh, in Case No. 20 of 2024 (Shivani Singh Vs. Trivendra and Others), arising out of Case Crime No. 612 of 2024, under Sections 140(3), 123, 127(2), 65(1), 115(2), 351(3), 352, 304(2) BNSS, under Sections 3/4 POCSO Act and under Section 67-A IT Act, Police Station-Iglas, District-Aligarh is, hereby, set aside.

19. 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. Order Date :- 1.4.2025 Vinay VINAY KUMAR High Court of Judicature at Allahabad

protest petition filed by first informant-opposite party-2 against the Police Report No. 04 of 2025 dated 14.01.2025, rejected the police report dated 14.01.2025 submitted by the Investigating Officer in terms of section 173 (2) Cr.P.C. and has simultaneously taken cognizance and summoned the applicants under Sections 140(3), 123, 127(2), 65(1), 115(2), 351(3), 352, 304(2) BNSS, under Sections 3/4 POCSO Act and under Section 67-A IT Act, Police Station-Iglas, District-Aligarh. The impugned order further records that the consequential case shall proceed as a state case.

4. Record shows that an FIR dated 16.11.2024 was lodged by first informant-opposite party-2 Ram Kishan (Father of the prosecutrix) and was registered as Case Crime No. 0612 of 2024, under Sections 140(3), 123, 127(2), 65(1), 115(2), 351(3), 352, 304(2) BNSS, Sections 3/4 POCSO Act and Section 67-A IT Act, Police Station-Iglas, District-Aligarh. In the aforesaid FIR 5 persons namely - (1) Trivendra, (2) Sumit, (3) Meena Devi, (4) Omkar @ Aunkar and (5) Chhotu 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, he came to the conclusion that no offence as complained of is made out against named accused. In view of above, Investigating Officer opined to submit the final report No. 04 of 2025. Accordingly, he submitted the Police Report/Final Report No. 04 of 2025 dated 14.01.2025 in terms of Section 173(2) Cr.P.C.

7. Upon submission of aforementioned police report before court, concerned, the first informant-opposite party-2 filed her protest petition dated 31.01.2025 to the same. It is aposite to mention here mention here that under the code i.e. Cr.P.C. there is no right with the first informant to file a protest petition against the police report submitted by the Investigating Officer in terms of Section 173 (3) Cr.P.C. However, the said right has not been recognized as a valid right of the first informant by the Apex Court. The the case of Bhagwant Singh Vs. Supreme Court in Commissioner of Police And Another, (1985) 2 SCC 537, has held that the first informant has a right to file a protest petition against the police report .

9.Thereafter, Court below examined the protest petition filed by the first informant opposite party 2 in the light of the papers accompanying the aforementioned police report. Ultimately, Court below, by means of the order impugned dated 03.02.2025, rejected the police report 14.01.2025, allowed the protest petition filed first informant opposite party 2, took cognizance in exercise of jurisdiction under section 190(1)(b) Cr.P.C. and summoned the applicants under Sections 140(3), 123, 127(2), 65(1), 115(2), 351(3), 352, 304(2) BNSS, under Sections 3/4 POCSO Act and under Section 67-A IT Act with a further direction that the consequential case shall proceed as a state case.

10. Mr. Ajit Kumar, the learned counsel for applicant submits that the order impugned dated 03.02.2025 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.

11. 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 the procedure to be adopted by the 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.

12. It is then submitted by the learned counsel for applicant that once the police report dated 14.01.2025 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, the proceedings can proceed as a state case only when the Court has taken cognizance upon the police report. Since there was no police report in existence, no cognizance could have been taken by Court below on the basis of police report. The proper course for the Court below was to disapprove the police report (ASWIKAR) and then take cognizance on the said police report 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.

13. Per contra, the learned A.G.A. for State-opposite party-1 and Lavlesh Kumar Shukla, the learned counsel representing first informant-opposite party-2 have vehemently opposed the present application. They submit 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 a prima-facie satisfaction has been recorded that criminality alleged to have been committed by applicant is prima-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 present application is, therefore, liable to be dismissed.

14. Having heard Mr. Ajit Kumar, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, Mr. Lavlesh Kumar Shukla, the learned counsel representing first informant-opposite party-2 and upon perusal of record this Court finds that the solitary issue that has emerged for consideration before this Court in this application 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.

15. The issue as has emerged in this application 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 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. on the basis of such report and proceed with the matter as a state case. In view of above, the order impugned is manifestly illegal and without jurisdiction and therefore cannot be sustained. The same is, therefore, liable to be set aside.

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

17. It is, accordingly, allowed.

18. The order impugned dated 03.02.2025 passed by Special Judge (POCSO Act)/Additional District and Sessions Judge, Aligarh, in Case No. 20 of 2024 (Shivani Singh Vs. Trivendra and Others), arising out of Case Crime No. 612 of 2024, under Sections 140(3), 123, 127(2), 65(1), 115(2), 351(3), 352, 304(2) BNSS, under Sections 3/4 POCSO Act and under Section 67-A IT Act, Police Station-Iglas, District-Aligarh is, hereby, set aside.

19. 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. Order Date :- 1.4.2025 Vinay VINAY KUMAR High Court of Judicature at Allahabad