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If Court Doesn't Agree With The Protest Application Then The Same Could Be Treated As Complaint: Allahabad High Court

Sparsh Upadhyay
10 Nov 2021 8:48 AM GMT
If Court Doesnt Agree With The Protest Application Then The Same Could Be Treated As Complaint: Allahabad High Court
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The Allahabad High Court recently observed that if the Court is not in agreement with the protest application, then the just and proper action could be to read the protest petition as a complaint by the Court.The Bench of Justice Vikas Kunvar Srivastav observed thus while hearing a plea moved under Article 227 of the Constitution of India against a 2006 order passed by the Additional...

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The Allahabad High Court recently observed that if the Court is not in agreement with the protest application, then the just and proper action could be to read the protest petition as a complaint by the Court.

The Bench of Justice Vikas Kunvar Srivastav observed thus while hearing a plea moved under Article 227 of the Constitution of India against a 2006 order passed by the Additional Session Judge/Fast Track Court of Sultanpur (UP) in the capacity of the revisional court.

Facts in brief 

The petitioner was carrying on the business of Tent and Shamiana in Sultanpur. In 2005, a theft took place in his tent house by breaking the locks and doors of the back side, the thieves carried away almost all the articles of Shamiana valued of approximately sum of Rs.1,00,000/-.

Intitally the local police did not register an FIR in the case, however, after 11 days, the police registered the F.I.R. under Section 379 I.P.C. and started the investigation.

Ultimately, a final report was submitted before the court 2006 stating that the incident of theft was false and lodged with malafide motive of claiming insurance amount.

The Court accepted the said final report, despite the fact that a protest petition against the said report was there and the Court also went ahead to summon the complainant (petitioner) under Section 182 Cr.P.C. for criminal prosecution.

Aggrieved against the order, the petitioner firstly moved a criminal revision, which was heard by Additional Session Judge/F.T.C. Sultanpur who rejected the same, therefore, he moved to the High Court.

The  counsel for the petitioner argued that the impugned order (summoning him under S. 182 IPC) was passed only on consideration of the case diary submitted by the police station and the final report was accepted on the basis of materials on case diary, however, it was contended that the case diary in itself had no material except a speculation as to the lodging of FIR for false claim of insurance.

Court's observations 

At the outset, the Court noted that both the courts below had erred in acting in accordance with the procedure on receiving the police report over a registered criminal case.

Further, taking into account the fact that the court of Magistrate had reached at the conclusions that investigating officer was under fault to commit delay that's why stolen goods could not be recovered, the Court observed thus:

"...the consequence of such conclusion could be that the police who submitted final report as to the falsity of the First Information Report as to the theft in the shop of the petitioner was wrong. The protest application could have been treated as complaint. The speculation of police that the information as to the theft might have been lodged for the purpose of claiming insurance amount falsely could not be given weight by the Magistrate legally for holding the First Information Report lodged falsely."

Importantly, the Court further opined that without examining the truthness or falsity of the F.I.R. on evidence, the court of Additional Chief Judicial Magistrate proceeded under Section 182 Cr.P.C. for the prosecution of complainant (petitioner) for lodging false report and the same was not tenable in the eyes of law.

Against this backdrop, the Court observed that the correct course of action for the Magistrrate was to read the protest petition as complaint, so that the informant (petitioner) could have been given opportunity to produce evidences and witnesses in support of complaint made to the police with regard to the theft in his shop.

Concludingly, on the basis of above discussions, the Court held that the order of Chief Judicial Magistrate, Sultanpur suffered from illegality and the Additional Session Judge/Fast Track, Sultanpur was also wrong in confirming the order of the Magistrate vide his judgment.

Therefore, both the ordered were set aside and and writ petition was allowed.

Case title - Mahesh Chandra Dwivedi v. State Of U.P.Through Secy. Home Lko. And 3 Others

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