* Author
[2024] 4 S.C.R. 655 : 2024 INSC 316
Mukhtar Zaidi
v.
The State of Uttar Pradesh & Anr.
(Criminal Appeal No. 2134 of 2024)
18 April 2024
[Vikram Nath* and Satish Chandra Sharma, JJ.]
Issue for Consideration
Whether CJM as also the High Court fell in error in taking cognizance
u/s. 190(1)(b) Cr.P.C. inasmuch as the CJM had relied upon not
only the Protest Petition which was supported by affidavit of the
complainant but also on the affidavits of witnesses which were
filed along with the Protest Petition to support the contents of the
complaint.
Headnotes
Code of Criminal Procedure, 1973 – s.190(1)(b), s.200 – FIR
lodged – Police report filed u/s. 173(2) Cr.P.C. – I.O. found
that no evidence could be collected which could substantiate
the allegations made in the FIR – Protest Petition filed along
with affidavit – The CJM rejected the police report u/s. 173(2)
Cr.P.C., however, proceeded to take cognizance for offences u/
ss. 147, 342, 323, 307, 506 of the IPC and u/s. 190 (1)(b) of the
Cr.P.C. – Appellant contended that once the CJM was relying
upon additional material in the form of evidence produced
by the complainant along with the Protest Petition then the
only option for the CJM was to treat it as a complaint u/s. 200
Cr.P.C. and proceed accordingly following the due procedure
in Chapter XV of the Cr.P.C. – Correctness:
Held: The CJM had actually taken into consideration not only the
Protest Petition but also the affidavit filed in support of the Protest
Petition as well as the four affidavits of witnesses filed along with the
Protest Petition – It was based on consideration of such affidavits
that the CJM was of the view that the investigation was not a fair
investigation and these affidavits made out a prima facie case for
taking cognizance and summoning the accused – In the instant
case as the Magistrate had already recorded his satisfaction that
656 [2024] 4 S.C.R.
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it was a case worth taking cognizance and fit for summoning the
accused, this Court is of the view that the Magistrate ought to
have followed the provisions and the procedure prescribed under
Chapter XV of the Cr.P.C. – Accordingly, impugned orders passed
by the High Court and also the CJM are set aside. [Paras 7 and 11]
Case Law Cited
Vishnu Kumar Tiwari v. State of Uttar Pradesh, through
Secretary Home, Civil Secretariat, Lucknow & Anr.
[2019] 8 SCR 1114 : (2019) 8 SCC 27 – relied on.
List of Acts
Code of Criminal Procedure, 1973.
List of Keywords
FIR; Report of police officer on completion of investigation; Protest
Petition; Witness; Additional materials; Cognizance; Summoning
of accused; Complaints to magistrate.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2134
of 2024
From the Judgment and Order dated 24.08.2021 of the High Court
of Judicature at Allahabad in A482 No.15273 of 2021
Appearances for Parties
Vinod Prasad, Sr. Adv., Ajay Kumar Srivastava, Ms. Jyoti Tiwary,
Rajesh Pandey, Advs. for the Appellant.
Shashank Shekhar Singh, Shantanu Singh, Shekhar Prit Jha, S.S.
Haider, Ms. Preeti Kumari, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Vikram Nath, J.
Leave granted.
2. This appeal assails the correctness of the order dated 24.08.2021
passed by the Allahabad High Court dismissing the application under
[2024] 4 S.C.R. 657
Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.
Section 482 of the Code of Criminal Procedure, 19731
filed by the
appellant wherein a prayer was made to quash the Summoning Order
dated 08.03.2021 by the Chief Judicial Magistrate2
, Aligarh in Case
No.129/2020 under Sections 147, 342, 323, 307, 506 of the Indian
Penal Code, 18603
Police Station, Civil Lines, District Aligarh. There
is an order dated 01.11.2021 passed by the High Court wherein the
Case Number mentioned in the order dated 24.08.2021 was corrected
as Case No.5727/2021.
3. Respondent no.2 lodged a First Information Report4
bearing the
aforesaid details whereupon the same was investigated and after
investigation the police report under Section 173(2) Cr.P.C. was
submitted according to which the Investigating Officer found that no
evidence could be collected which could substantiate the allegations
made in the FIR. The said report was submitted to the Court concerned
whereupon notices were issued to the informant. The informant filed
a Protest Petition along with affidavits to show that the investigation
carried out by the Investigating Officer was not a fair investigation.
He had completed the case diary sitting at the Police Station without
actually recording the statements of the witnesses.
4. The CJM, by order dated 08.03.2021 rejected the police report under
Section 173(2) Cr.P.C. and further proceeded to take cognizance
for offences under Sections 147, 342, 323, 307, 506 of the IPC and
under Section 190 (1) (b) of the Cr.P.C. and also directed that the
matter would continue as a State case. Accordingly, it summoned
the accused, fixed 30th April, 2021. This order of cognizance and
summoning the present appellant was assailed before the High
Court by way of a petition under Section 482 Cr.P.C. registered as
Application u/s.482 No.15273 of 2021. The said application has sine
been dismissed by the High Court giving rise to the present appeal.
5. Shri Vinod Prasad, learned senior counsel appearing for the appellant
submitted that the CJM as also the High Court fell in error in taking
cognizance under Section 190(1)(b) Cr.P.C. inasmuch as the CJM
had relied upon not only the Protest Petition which was supported
1 Cr.P.C.
2 CJM
3 IPC
4 FIR
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by affidavit of the complainant but also on the affidavits of witnesses
which were filed along with the Protest Petition to support the contents
of the complaint. The submission was that once the CJM was relying
upon additional material in the form of evidence produced by the
complainant along with the Protest Petition then the only option for
the CJM was to treat it as a complaint under Section 200 Cr.P.C. and
proceed accordingly. The said case could not have been continued
as a State case and should have been treated as a private complaint.
It was also submitted that it was open for the CJM to have rejected
the police report submitted under Section 173(2) Cr.P.C. for closure
and relying upon the material in the case diary, (in effect, the material
collected during investigation) could have taken cognizance but
once additional evidence was being relied upon which had been
filed along with the Protest Petition then the only option open was to
treat it as a private complaint and after following the due procedure
in Chapter XV of the Cr.P.C. proceeded to take cognizance under
Section 190(1)(a) Cr.P.C.
6. On the other hand, the submission advanced by the learned counsel
for the State as also the Complainant – respondent no.2 was that
the CJM did not take into consideration any additional evidence
filed in the form of affidavits along with the Protest Petition and had
only relied upon the material collected during the investigation as
contained in the case diary and based upon the same the satisfaction
recorded by the CJM to reject the police report and take cognizance
was well within his domain and such cognizance would fall within
Section 190(1)(b) Cr.P.C. It was thus submitted that the impugned
order does not suffer from any infirmity.
7. We have carefully examined the order dated 24.08.2021 passed
by the CJM taking cognizance and summoning the police and we
find that the CJM had actually taken into consideration not only the
Protest Petition but also the affidavit filed in support of the Protest
Petition as well as the four affidavits of witnesses filed along with
the Protest Petition. It was based on consideration of such affidavits
that the CJM was of the view that the investigation was not a fair
investigation and these affidavits made out a prima facie case for
taking cognizance and summoning the accused.
8. Once we have held as above without going into many judgments of
this Court on the point as to how the Magistrate would proceed under
[2024] 4 S.C.R. 659
Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.
Section 190 Cr.P.C. once the Investigating Officer had submitted a
closure report under Section 173(2) Cr.P.C., we may briefly deal
with the legal issue and refer to relevant paragraphs of a recent
decision. In this connection, Section 190(1) (a) and (b) of Cr.P.C. is
extracted hereunder:
190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate
of the first class, and any Magistrate of the second class
specially empowered in this behalf under sub-section
(2), may take cognizance of any offence –
(a) upon receiving a complaint of facts which constitute
such offence;
(b) upon a police report of such facts;….”
9. In the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh,
through Secretary Home, Civil Secretariat, Lucknow & Anr.,
5
Justice K.M.Joseph, speaking for the Bench laid down the legal
position relying upon previous judgments of this Court. In the said
case the facts were quite similar to that of the present case where
affidavits were filed along with the Protest Petition. The net result
is that the Magistrate in the present case ought to have treated the
Protest Petition as a complaint and proceeded according to Chapter
XV of the Cr.P.C.. The relevant paragraphs dealing with the above
aspect in the case of Vishnu Kumar Tiwari (supra), being paragraphs
42 to 46 are reproduced hereunder:
“42. In the facts of this case, having regard to the nature
of the allegations contained in the Protest Petition and the
annexures which essentially consisted of affidavits, if the
Magistrate was convinced on the basis of the consideration
of the final report, the statements under Section 161 of
the Code that no prima facie case is made out, certainly
the Magistrate could not be compelled to take cognizance
by treating the Protest Petition as a complaint. The fact
that he may have jurisdiction in a case to treat the Protest
Petition as a complaint, is a different matter. Undoubtedly,
5 (2019) 8 SCC 27
660 [2024] 4 S.C.R.
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if he treats the Protest Petition as a complaint, he would
have to follow the procedure prescribed under Sections 200
and 202 of the Code if the latter section also commends
itself to the Magistrate. In other words, necessarily,
the complainant and his witnesses would have to be
examined. No doubt, depending upon the material which
is made available to a Magistrate by the complainant in
the Protest Petition, it may be capable of being relied on
in a particular case having regard to its inherent nature
and impact on the conclusions in the final report. That
is, if the material is such that it persuades the court to
disagree with the conclusions arrived at by the investigating
officer, cognizance could be taken under Section 190(1)
(b) of the Code for which there is no necessity to examine
the witnesses under Section 200 of the Code. But as the
Magistrate could not be compelled to treat the Protest
Petition as a complaint, the remedy of the complainant
would be to file a fresh complaint and invite the Magistrate
to follow the procedure under Section 200 of the Code or
Section 200 read with Section 202 of the Code. Therefore,
we are of the view that in the facts of this case, we cannot
support the decision of the High Court.
43. It is true that law mandates notice to the informant/
complainant where the Magistrate contemplates accepting
the final report. On receipt of notice, the informant may
address the court ventilating his objections to the final
report. This he usually does in the form of the Protest
Petition. In Mahabir Prasad Agarwala v. State [Mahabir
Prasad Agarwala v. State, 1957 SCC OnLine Ori 5 : AIR
1958 Ori 11] , a learned Judge of the High Court of Orissa,
took the view that a Protest Petition is in the nature of a
complaint and should be examined in accordance with the
provisions of Chapter XVI of the Criminal Procedure Code.
We, however, also noticed that in Qasim v. State [Qasim
v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] ,
a learned Single Judge of the High Court of Judicature at
Allahabad, inter alia, held as follows: (Qasim case [Qasim
v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] ,
SCC OnLine All para 6)
[2024] 4 S.C.R. 661
Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.
“6. … In Abhinandan Jha [Abhinandan Jha v. Dinesh
Mishra, AIR 1968 SC 117 : 1968 Cri LJ 97 : (1967) 3
SCR 668] also what was observed was “it is not very
clear as to whether the Magistrate has chosen to treat
the Protest Petition as complaint”. This observation would
not mean that every Protest Petition must necessarily be
treated as a complaint whether it satisfies the conditions
of the complaint or not. A private complaint is to contain
a complete list of witnesses to be examined. A further
examination of complainant is made under Section 200
CrPC. If the Magistrate did not treat the Protest Petition
as a complaint, the Protest Petition not satisfying all the
conditions of the complaint to his mind, it would not mean
that the case has become a complaint case. In fact, in
majority of cases when a final report is submitted, the
Magistrate has to simply consider whether on the materials
in the case diary no case is made out as to accept the
final report or whether case diary discloses a prima facie
case as to take cognizance. The Protest Petition in such
situation simply serves the purpose of drawing Magistrate’s
attention to the materials in the case diary and invite a
careful scrutiny and exercise of the mind by the Magistrate
so it cannot be held that simply because there is a Protest
Petition the case is to become a complaint case.”
(emphasis supplied)
44. We may also notice that in Veerappa v. Bhimareddappa
[Veerappa v. Bhimareddappa, 2001 SCC OnLine Kar 447 :
2002 Cri LJ 2150] , the High Court of Karnataka observed
as follows: (SCC OnLine Kar para 9)
“9. From the above, the position that emerges is this:
Where initially the complainant has not filed any complaint
before the Magistrate under Section 200 CrPC, but, has
approached the police only and where the police after
investigation have filed the ‘B’ report, if the complainant
wants to protest, he is thereby inviting the Magistrate to take
cognizance under Section 190(1)(a) CrPC on a complaint.
If it were to be so, the Protest Petition that he files shall
have to satisfy the requirements of a complaint as defined
662 [2024] 4 S.C.R.
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in Section 2(d) CrPC, and that should contain facts that
constitute offence, for which, the learned Magistrate is
taking cognizance under Section 190(1)(a) CrPC. Instead,
if it is to be simply styled as a Protest Petition without
containing all those necessary particulars that a normal
complaint has to contain, then, it cannot be construed as
a complaint for the purpose of proceeding under Section
200 CrPC.”
45. “Complaint” is defined in Section 2(d) of the Code as
follows:
“2. (d) “complaint” means any allegation made orally or
in writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.
Explanation.—A report made by a police officer in a case
which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall
be deemed to be the complainant;”
46. If a Protest Petition fulfils the requirements of a
complaint, the Magistrate may treat the Protest Petition
as a complaint and deal with the same as required under
Section 200 read with Section 202 of the Code. In this
case, in fact, there is no list of witnesses as such in the
Protest Petition. The prayer in the Protest Petition is to
set aside the final report and to allow the application
against the final report. While we are not suggesting that
the form must entirely be decisive of the question whether
it amounts to a complaint or is liable to be treated as a
complaint, we would think that essentially, the Protest
Petition in this case, is summing up of the objections of
the second respondent against the final report.”
10. From a perusal of the above opinion of this Court, it is also reflected
that the Magistrate also had the liberty to reject the Protest Petition
along with all other material which may have been filed in support
of the same. In that event the Complainant would be at liberty to
file a fresh complaint. The right of the Complainant to file a petition
[2024] 4 S.C.R. 663
Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.
under Section 200 Cr.P.C. is not taken away even if the Magistrate
concerned does not direct that such a Protest Petition be treated
as a complaint.
11. In the present case as the Magistrate had already recorded his
satisfaction that it was a case worth taking cognizance and fit for
summoning the accused, we are of the view that the Magistrate
ought to have followed the provisions and the procedure prescribed
under Chapter XV of the Cr.P.C. Accordingly, we allow this appeal,
set aside the impugned orders passed by the High Court as also
the CJM, Aligarh.
12. However, we leave it open for the Magistrate to treat the Protest
Petition as a complaint and proceed in accordance to law as laid
down under Chapter XV of the Cr.P.C. We make it clear that we
have not made any comments on the merits of the matter and
any observations made would not influence the CJM in taking an
appropriate decision as required above.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal allowed.
