Nov - High Court of Judicature at Allahabad

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984 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (iii) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (iv) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (1)(a), upon the original complaint or protest petition treating the same as complaint, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. 11. From the afore-cited observations of the Division Bench also, it is clear that the Magistrate is not bound to treat the protest petition as complaint in each and every case and if the Magistrate agreeing with the conclusions arrived at by the police decides to accept the final report and to drop the proceedings, then opportunity of hearing has to be given to the complainant before passing order on the final report. According to the Pakhandu case (supra), the fourth course open to the Magistrate is that without issuing process or dropping the proceedings, he may decide to take cognizance 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 Section 200 and 202 Cr.P.C. and thereafter to deicde whether the complaint may be dismissed or process should be issued. The procedure of fourth course of Pakhandu case (supra) should be followed in the cases where prima facie offences are disclosed from the averments made in the First Information Reports; but in the cases, where the first information report does not disclose any criminal offence and final report is submitted by the investigating officer, then there is no justification in such cases to compel the Magistrate to treat the protest petition against final report as complaint and to follow the procedure laid down in Chapter XV Cr.P.C. 12. In view of the observations made herein-above, let us now see whether in instant cases, the learned Courts below were justified in accepting the final report without passing any order on the protest petitions. Annexure 12 in Criminal Misc. Application No. 19770 of 2009 is the copy of the FIR of case crime No. 320/2007 of P.S. Erach (Jhansi). On the basis of the averments made in the FIR, prima facie offences are disclosed. In the like manner, from the averments made in the First Information Report (Annexure-1 of Criminal Misc. Application No.19771 of 2009) of case crime no. 378 of 2008 of P.S. Garotha (Jhansi), prima facie offences are disclosed. Therefore, if the materials in the case diary submitted with the final reports by the investigating officer in both these cases were not sufficient to take cognizance against the accused persons, then having regard to the allegations made in the first information reports, the protest petitions of the applicants ought to have been treated as complaint and after following the procedure laid down in Chapter XV Cr.P.C., the courts below ought to have decided whether the complaint may be dismissed or process against the accused should be issued. In case the process is issued against the accused, then the final report has to be rejected. 13. The Hon’ble Apex Court in the case of Mahesh Chand Vs. B. Janardhan Reddy and another 2003 (46) ACC182
3 All] Smt. Sadhana Singh V. State of U.P. and others 985 has held that even after accepting the final report, cognizance of the offence can be taken on the complaint/protest petition filed by the complainant on the same or similar allegations. Therefore, having regard to the law laid down by the Hon’ble Apex Court in the case of Mahesh Chand Vs. B. Janardhan Reddy (supra) and the observations made by the Division Bench of this Court in the case of Pakhando Vs. State (supra) if would be in the interest of justice to send the cases back to the court below for passing order on the protest petitions treating the same as complaint and following the procedure laid down in Chapter XV Cr.P.C. 14. Consequently, both the applications under Section 482 Cr.P.C. are allowed. Setting aside the impugned orders, the courts below are directed to pass orders on the protest petitions filed by the applicants against final reports in both the cases, treating the same as complaint and following the procedure laid down under section 200 and 202 Cr.P.C. 15. This order shall form part of the record of Criminal Misc. Application No. 19770 of 2009 and copy thereof will be kept on the record of Criminal Misc. Application No.19771 of 2009. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.11.2009 BEFORE THE HON’BLE ARUN TANDON, J. Civil Misc. Writ Petition No.42640 of 2009 Smt. Sadhana Singh …Petitioner Versus State of U.P. and others …Respondents Counsel for the Petitioner: Sri Shatrughan Singh Counsel for the Respondent: C.S.C. Constitution of India-Article 14- discrimination-exclusion from eligibility of B.Ed. degree holders from the State of J. & K for Special B.T.C. Training Course 2007-held-not discriminatory. Held: Para 21 In these set of circumstances if the State with reference to the letter of the NCTE has decided to entertain the applications of the candidates who have obtained a B.Ed. Degree from the institutions recognized by NCTE or who under the Full Bench judgment of the High Court may become entitle to such consideration alone. Such decision cannot be termed as arbitrary in view of the specific norms of teachers education provided under the NCTE Act which are not applicable to the institutions in Jammu & Kashmir. The candidate with a Degree of B.Ed. from institutions in Jammu & Kashmir form a different class and if such class of candidates have been excluded from consideration for admission to BTC Special Training Course, 2007 by the State Government purposely, it cannot be said to be violative of Article 14 of the Constitution of India. Such action of the district authorities to exclude the candidates like
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Nov - High Court of Judicature at Allahabad

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