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Wednesday, August 13, 2014

Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant?= Apex court held YES = CRIMINAL APPEAL NO.1412 OF 2014 (Arising out of SLP(CRL.) No.3308 of 2013) RAKESH & ANR ... APPELLANTS VERSUS STATE OF U.P. & ANR. .. RESPONDENTS = 2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41823

Whether  a  Magistrate  after  accepting  a  negative  final   report submitted by the Police  can  take  action  on  the  basis  of  the  protest petition filed  by  the  complainant/first  informant?= Apex court held YES

Respondent No.2 herein lodged an FIR which  was  registered  as  Crime
Case No.480 of 2000 under Section 364  of  the  Indian  Penal  Code  at  the
Police Station Gosai Ganj District Sultanpur against the appellants and  two
other accused persons.
On completion  of  investigation,  the  investigating
officer submitted a final report to the court  that  no  case  is  made  out
against the appellants and the other two accused and  that  they  have  been
falsely implicated in the case.
By order  dated  26th  November,  2002,  the
learned Magistrate accepted the final  report  but  simultaneously  directed
that the case be proceeded with as a complaint case.
The  statements  under
Sections 200 and 202 of  the  Code  of  Criminal  Procedure  (Cr.P.C.)  were
recorded and the accused were summoned by the learned trial  court  to  face
the trial.
Against the aforesaid orders passed by  the  learned  Magistrate,
the present appellants  moved  the  High  Court  of  Allahabad  raising  the
question noticed earlier.
The High Court having answered the  said  question in the affirmative, this appeal has been filed.=

In Bhuneshwar Prasad Sinha  vs.  State  of  Bihar[1],  the  very  same
question came up for consideration before the Patna  High  Court.
The  High Court answered the question in the negative by holding –
“In that case it has been held by the Supreme Court that if  the  Magistrate
agrees with the opinion of the police he may accept  the  final  report  and
close the proceedings. It will be deemed that the  proceedings  against  the
accused persons in respect of the facts constituting the offence  have  been
closed by the Magistrate  in  a  Judicial-Proceeding.  If  it  is  so,  such
proceeding can only beset aside in revision by the higher  authority  unless
and until the order is not set aside, the  Magistrate  is  not  entitled  to
take cognizance on the basis of the complaint petition or  protest  petition
in respect of the same facts constituting the offence as  mentioned  in  the
final form. In the present case, it is clear from the order dated  6th  Dec.
1978, that the final form was accepted by the court earlier. If  it  is  so,
then the Magistrate was not justified in taking  cognizance  in  respect  of
the same facts constituting the offence which were mentioned  in  the  final
form. In order to  check  the  litigation,  it  is  necessary  that  when  a
judicial order is passed by accepting the final form such order  should  not
be set aside by the Magistrate by taking cognizance  on  the  basis  of  the
complaint petition.”

6.    In the appeal filed against the aforesaid  order  of  the  Patna  High
Court, this Court, however, held that –

“The High Court was clearly in error in thinking that the  Magistrate  could
not take cognizance of a case upon complaint because he had earlier  refused
to take cognizance of the case on a police report. The  order  of  the  High
Court  is  set  aside.  The  matter  is  remitted  to  the  Chief   Judicial
Magistrate, Patna for disposal according to law. If  the  accused  have  any
further objections to raise, they  may  do  so  before  the  Chief  Judicial
Magistrate.”

The decision of this Court is reported in Gopal Vijay Verma  vs.  Bhuneshwar
Prasad Sinha & Ors.[2] .

173, the Magistrate has three options
“(1) he may decide  that  there  is  no  sufficient  ground  for  proceeding
further and drop action;

(2) he may take cognizance of the offence under Section 190  (1)(b)  on  the
basis of the police report and issue process; this he may do  without  being
bound in any manner by the conclusion arrived at  by  the  police  in  their
report;

(3) he may take cognizance of the offence under  Section  190(1)(a)  on  the
basis of the original  complaint  and  proceed  to  examine  upon  oath  the
complainant and his witnesses under Section 200.  If  he  adopts  the  third
alternative, he may hold or direct  an  inquiry  under  Section  202  if  he
thinks fit. Thereafter he may dismiss the complaint  or  issue  process,  as
the case may be.”


8.    The second and third options available to the Magistrate as laid  down
in H.S. Bains (supra) has been referred to and  relied  upon  in  subsequent
decisions of  this  Court  to  approve  the  action  of  the  Magistrate  in
accepting the final report and at the  same  time  in  proceeding  to  treat
either the police report or the initial complaint as the basis  for  further
action/enquiry in the matter of the allegations levelled therein.
Reference
in this regard may be made to  the  decision  of  this  Court  in  Gangadhar
Janardan Mhatre vs. State of Maharashtra & Ors.[4].
The following  view  may be specifically noted -

“…………….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 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  India  Carat
(P) Ltd. v. [pic]State of Karnataka]” (Para 6)

    The view expressed by this Court in  Gopal  Vijay  Verma  (supra)  has
been followed in Mahesh Chand vs. B.Janardhan Reddy & Anr.[5] and also in  a
somewhat  recent   pronouncement   in   Kishore   Kumar   Gyanchandani   vs.
G.D.Mehrotra & Anr.[6]. 
The clear exposition of law in  para  12  of  Mahesh
Chand (supra) which is extracted below would leave no manner of  doubt  that
the answer to the question posed by the High Court is correct.

“There cannot be any doubt or dispute that only because the  Magistrate  has
accepted a final report, the same by itself would not stand in  his  way  to
take cognizance of the offence on  a  protest/complaint  petition;  but  the
question which is required to be posed and answered would  be  as  to  under
what circumstances the said power can be exercised.”

10.   In the present case, the contention advanced on behalf of the  accused
pertained to the question of jurisdiction alone;
it was  urged  that  having
accepted the  final  report  the  learned  Magistrate  had  become  “functus
officio” and was denuded of all power to proceed in the  matter.
The  above
stand taken and the answer provided by the High Court would not  require  us
to consider the circumstances in which the exercise of power was made.

11.   In Kishore Kumar (supra) the question has been  gone  into  again  and
reliance has been placed on Gopal Vijay Verma (supra) to reiterate the  same
conclusion.

12.   In view of the above, it has to be held that this  appeal  is  without
any merit or substance. It is accordingly dismissed. 

2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41823
SUDHANSU JYOTI MUKHOPADHAYA, RANJAN GOGOI
                        REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL  NO.1412 OF  2014
                 (Arising out of SLP(CRL.) No.3308 of 2013)


RAKESH & ANR                                 ...   APPELLANTS

                                   VERSUS


STATE OF U.P. & ANR.                           ..  RESPONDENTS



                               J U D G M E N T

RANJAN GOGOI, J.

1.    Leave granted.

2.     Whether  a  Magistrate  after  accepting  a  negative  final   report
submitted by the Police  can  take  action  on  the  basis  of  the  protest
petition filed  by  the  complainant/first  informant?  The  above  question
having been answered in the affirmative by the Allahabad  High  Court,  this
appeal has been filed by the accused.
3.    The bare facts that would be required to be noticed are as follows :
      Respondent No.2 herein lodged an FIR which  was  registered  as  Crime
Case No.480 of 2000 under Section 364  of  the  Indian  Penal  Code  at  the
Police Station Gosai Ganj District Sultanpur against the appellants and  two
other accused persons. On completion  of  investigation,  the  investigating
officer submitted a final report to the court  that  no  case  is  made  out
against the appellants and the other two accused and  that  they  have  been
falsely implicated in the case. By order  dated  26th  November,  2002,  the
learned Magistrate accepted the final  report  but  simultaneously  directed
that the case be proceeded with as a complaint case.  The  statements  under
Sections 200 and 202 of  the  Code  of  Criminal  Procedure  (Cr.P.C.)  were
recorded and the accused were summoned by the learned trial  court  to  face
the trial. Against the aforesaid orders passed by  the  learned  Magistrate,
the present appellants  moved  the  High  Court  of  Allahabad  raising  the
question noticed earlier. The High Court having answered the  said  question
in the affirmative, this appeal has been filed.
4.    We have heard learned counsel for the parties.
5.    In Bhuneshwar Prasad Sinha  vs.  State  of  Bihar[1],  the  very  same
question came up for consideration before the Patna  High  Court.  The  High
Court answered the question in the negative by holding –
“In that case it has been held by the Supreme Court that if  the  Magistrate
agrees with the opinion of the police he may accept  the  final  report  and
close the proceedings. It will be deemed that the  proceedings  against  the
accused persons in respect of the facts constituting the offence  have  been
closed by the Magistrate  in  a  Judicial-Proceeding.  If  it  is  so,  such
proceeding can only beset aside in revision by the higher  authority  unless
and until the order is not set aside, the  Magistrate  is  not  entitled  to
take cognizance on the basis of the complaint petition or  protest  petition
in respect of the same facts constituting the offence as  mentioned  in  the
final form. In the present case, it is clear from the order dated  6th  Dec.
1978, that the final form was accepted by the court earlier. If  it  is  so,
then the Magistrate was not justified in taking  cognizance  in  respect  of
the same facts constituting the offence which were mentioned  in  the  final
form. In order to  check  the  litigation,  it  is  necessary  that  when  a
judicial order is passed by accepting the final form such order  should  not
be set aside by the Magistrate by taking cognizance  on  the  basis  of  the
complaint petition.”

6.    In the appeal filed against the aforesaid  order  of  the  Patna  High
Court, this Court, however, held that –

“The High Court was clearly in error in thinking that the  Magistrate  could
not take cognizance of a case upon complaint because he had earlier  refused
to take cognizance of the case on a police report. The  order  of  the  High
Court  is  set  aside.  The  matter  is  remitted  to  the  Chief   Judicial
Magistrate, Patna for disposal according to law. If  the  accused  have  any
further objections to raise, they  may  do  so  before  the  Chief  Judicial
Magistrate.”

The decision of this Court is reported in Gopal Vijay Verma  vs.  Bhuneshwar
Prasad Sinha & Ors.[2] .

7.    If we are to go back to trace the genesis of the  views  expressed  by
this Court in Gopal Vijay Verma (supra), notice must be had of the  decision
of this Court in H.S. Bains vs. State  (Union  Territory  of  Chandigarh)[3]
wherein it was held that after receipt of the police  report  under  Section
173, the Magistrate has three options –
“(1) he may decide  that  there  is  no  sufficient  ground  for  proceeding
further and drop action;

(2) he may take cognizance of the offence under Section 190  (1)(b)  on  the
basis of the police report and issue process; this he may do  without  being
bound in any manner by the conclusion arrived at  by  the  police  in  their
report;

(3) he may take cognizance of the offence under  Section  190(1)(a)  on  the
basis of the original  complaint  and  proceed  to  examine  upon  oath  the
complainant and his witnesses under Section 200.  If  he  adopts  the  third
alternative, he may hold or direct  an  inquiry  under  Section  202  if  he
thinks fit. Thereafter he may dismiss the complaint  or  issue  process,  as
the case may be.”


8.    The second and third options available to the Magistrate as laid  down
in H.S. Bains (supra) has been referred to and  relied  upon  in  subsequent
decisions of  this  Court  to  approve  the  action  of  the  Magistrate  in
accepting the final report and at the  same  time  in  proceeding  to  treat
either the police report or the initial complaint as the basis  for  further
action/enquiry in the matter of the allegations levelled therein.  Reference
in this regard may be made to  the  decision  of  this  Court  in  Gangadhar
Janardan Mhatre vs. State of Maharashtra & Ors.[4]. The following  view  may
be specifically noted -

“…………….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 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  India  Carat
(P) Ltd. v. [pic]State of Karnataka]” (Para 6)


9.    The view expressed by this Court in  Gopal  Vijay  Verma  (supra)  has
been followed in Mahesh Chand vs. B.Janardhan Reddy & Anr.[5] and also in  a
somewhat  recent   pronouncement   in   Kishore   Kumar   Gyanchandani   vs.
G.D.Mehrotra & Anr.[6]. The clear exposition of law in  para  12  of  Mahesh
Chand (supra) which is extracted below would leave no manner of  doubt  that
the answer to the question posed by the High Court is correct.

“There cannot be any doubt or dispute that only because the  Magistrate  has
accepted a final report, the same by itself would not stand in  his  way  to
take cognizance of the offence on  a  protest/complaint  petition;  but  the
question which is required to be posed and answered would  be  as  to  under
what circumstances the said power can be exercised.”

10.   In the present case, the contention advanced on behalf of the  accused
pertained to the question of jurisdiction alone; it was  urged  that  having
accepted the  final  report  the  learned  Magistrate  had  become  “functus
officio” and was denuded of all power to proceed in the  matter.  The  above
stand taken and the answer provided by the High Court would not  require  us
to consider the circumstances in which the exercise of power was made.

11.   In Kishore Kumar (supra) the question has been  gone  into  again  and
reliance has been placed on Gopal Vijay Verma (supra) to reiterate the  same
conclusion.

12.   In view of the above, it has to be held that this  appeal  is  without
any merit or substance. It is accordingly dismissed.


                                    ……..…..…………………………...J.
                                  [Sudhansu Jyoti Mukhopadhaya]




                                  ……..…………………………….……J.
                                                            [Ranjan Gogoi]

New Delhi;
August 13, 2014.



-----------------------
[1]    [1981 Crl.LJ 795]
[2]    1982 (3) SCC 510
[3]    [1980 Crl. LJ 1308],
[4]    [2004 (7) SCC 768] (para 9)
[5]    [2003 (1) SCC 734] (para 12)
[6]    [2011 (15) SCC 513]

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