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]
-----------------------
8
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] .
“(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]
-----------------------
8
