VISHNU KUMAR TIWARI versus STATE OF UTTAR PRADESH THROUGH SECRETARY HOME, CIVIL SECRETARIAT LUCKNOW AND ANOTHER
[2019] 8 S.C.R. 1114, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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VISHNU KUMAR TIWARI
v.
STATE OF UTTAR PRADESH THROUGH SECRETARY HOME,
CIVIL SECRETARIAT LUCKNOW AND ANOTHER
(Criminal Appeal No. 1015 of 2019)
JULY 09, 2019
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973:
s.173 – Final report under – Exonerating all the accused of
the offences u/ss.498A, 304B and 201 IPC and ss.3 and 4 of Dowry
Prohibition Act – Protest petition by complainant – Dismissed by
the Magistrate – Revision petition dismissed – Writ petition seeking
direction to the Magistrate to look into the matter afresh for taking
cognizance against the accused persons – High Court allowed the
petition – Appeal to Supreme Court – Held: High Court was in error
in concluding that protest petition was not considered by the
Magistrate – The Magistrate had duly taken into consideration the
protest petition – Before a Magistrate proceeds to accept a final
report u/s.173 and exonerate the accused, it is incumbent upon him
to apply his mind to the content of the protest petition – The duty of
the Magistrate is not one limited to readily accepting the final report
– It is open for the Magistrate either to accept the final report or to
proceed to take cognizance u/s. 190(1)(b) of Cr.P.C. for which there
is no necessity to examine the witnesses u/s.200 Cr.P.C. – But since
the Magistrate cannot be compelled to treat the protest petition as a
complaint, the remedy for the complainant would be to file a
fresh
complaint and invite the Magistrate to follow the procedure u/ss.200
r/w. s.202 Cr.P.C. –  If the protest petition fulfills the requirements
of a complaint, the Magistrate may treat the protest petition as a
complaint and deal with the same as required u/s.200 r/w. s.202
Cr.P.C. – The protest petition in the present case did not fulfill the
requirement of a complaint – Order of High Court is liable to be set
aside.
   [2019] 8 S.C.R. 1114
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Constitution of India:
Art.226 – Jurisdiction under – Scope of – Held: High Court
while exercising powers u/Art.226 must bear in mind the limited
nature of its jurisdiction when it deals with orders of subordinate
courts.
Allowing the appeal, the Court
HELD : 1. In the present case, following the First
Information Report, the Investigating Officer conducted an
investigation. Statements were taken from the complainant, his
wife and his son. This is apart from the statements which were
taken from the Doctors who treated the daughter of the second
respondent/complainant. The Investigation Officer concluded that
there is no material which would warrant the accused being sent
for trial. When such a report is filed before the court, it is beyond
the shade of doubt that the Magistrate may still choose to reject
the final report and proceed to take cognizance of the offences,
which in his view, are seen committed. He may, on the other
hand, after pondering over the materials, which would include
the statements of witnesses collected by the Investigating Officer,
decide to accept the final report. He may entertain the view that
it is a case where further investigation by the Officer is warranted
before a decision is taken as to whether cognizance is to be taken
or not. [Para 25] [1132-E-G]
2. Thus, before a Magistrate proceeds to accept a final
report under Section 173 Cr.P.C. and exonerate the accused, it
is incumbent upon the Magistrate to apply his mind to the
contents of the protest petition and arrive at a conclusion
thereafter. While the Investigating Officer may rest content by
producing the final report, which, according to him, is the
culmination of his efforts, the duty of the Magistrate is not one
limited to readily accepting the final report. It is incumbent upon
him to go through the materials, and after hearing the complainant
and considering the contents of the protest petition, finally decide
the future course of action to be, whether to continue with the
matter or to bring the curtains down. [Para 26] [1132-H;
1133-A-B]
VISHNU KUMAR TIWARI v. STATE OF U. P. THR. SEC.
HOME, CIVIL SECRETARIAT LUCKNOW
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3. In the present case, the Magistrate does refer to the
protest petition. The  Magistrate, in fact, proceeded to take the
view that Magistrate has to take cognizance on the basis of the
statements of the witnesses recorded by the Investigating Officer
and materials collected. He further finds that if cognizance is taken
on the basis of protest petition and documents annexed, that is
illegal. It is after that it was found that the deceased died due to
her illness and no prima facie case was made out against the
accused persons.  [Paras 27 and 29] [1133-C; 1134-B-C]
4. The High Court while exercising powers under Article
226 of the Constitution of India, at any rate, must bear in mind
the limited nature of its jurisdiction when it deals with orders of
subordinate courts. The High Court was in clear error in
concluding that the protest petition was not considered. That the
High Court may take one of the two views of the matter may be
an unsafe premise for its interference with the orders passed by
the Magistrate, as affirmed by the Additional Sessions Judge.
[Paras 30 and 32] [1134-E, G; 1135-A]
5. The Magistrate relying upon judgment passed by Single
Judge of Allahabad High Court in *Mohammed Yusuf case had
taken the view that if cognizance is taken on the basis of the
protest petition and the documents annexed with, that is illegal.
He also took the view that the Magistrate has to take cognizance
on the basis of
statements of witnesses recorded by the
Investigating Officer, in the case diary and the material collected
during investigation.  Thus, the Magistrate had adhered to the
law laid down by the Single Judge of High Court. If the Single
Judge, who has rendered the impugned judgment in the present
case, had a different view, he ought to have referred the matter
to a larger Bench. [Paras 34 and 36] [1135-G; 1136-A, F]
*Mohammed Yusuf and others v. State of Uttar Pradesh
and others 2008 CriLJ 493 –  referred to.
6. In the facts of the present 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
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the final report, the statements under Section 161 of Cr.P.C 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, if he treats the protest petition as a
complaint, he would have to follow the procedure prescribed under
Section 200 and 202 of Cr.P.C 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
Cr.P.C for which there is no necessity to examine the witnesses
under Section 200 of Cr.P.C. 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
Cr.P.C or Section 200 read with Section 202 of Cr.P.C.  Therefore,
in
the facts of  the present case, the decision of the High Court
cannot be supported. [Para 41] [1137-E-H; 1138-A-B]
7. 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.  A protest petition is in
the nature of a complaint and should be examined in accordance
with provisions of Chapter XVI of Cr.P.C. [Para 42] [1138-C-D]
8. If a protest petition fulfills 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 Cr.P.C.  In the present case, there was
no list of witnesses as such in the protest petition. The prayer in
VISHNU KUMAR TIWARI v. STATE OF U. P. THR. SEC.
HOME, CIVIL SECRETARIAT LUCKNOW
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the protest petition is to set aside the final report and to allow
the application against the final report. Thus, the protest petition
in the present case, is summing up of the objections the second
respondent against the final report.  [Para 45] [1139-G;
1140-A-B]
9. The appeal is filed by the husband of the deceased, by
special leave and permission. The allegations in the First
Information Report are raised against the other relatives of the
appellants, viz., his parents and in-laws and his siblings also. They
have not challenged the order of the High Court. The Magistrate
accepted the final report and decided not to proceed against any
of the accused including the appellant. This stood confirmed by
the Additional Sessions Judge. Before the High court, neither
the appellant nor any of his relatives were made parties. It may
be true that till process is issued, the accused may not have the
right to be heard. The High Court, in fact contemplated
consideration of the protest petition so that cognizance may be
taken under Section 190(1)(b) of Cr.P.C.  This premise being
without any basis even qua the other accused who are the
relatives of the appellant, the impugned order must be set aside.
Having regard to the nature of the allegations and in exercise of
powers also under Article 142 of the Constitution of India, the
Order of the High Court is set aside. [Paras 46, 47, 48 and 49]
[1140-C-G]
Qasim and others v. The
State and others 1984 CrlLJ
1677– relied on.
Mahabir Prasad Agarwala v. State AIR 1958 Ori. 11 ;
Veerappa and others v. Bhimareddappa 2002 CriLJ
2150 (Karnataka) – approved.
Abhinandan Jha and others v. Dinesh Mishra [1967] 3
SCR 668 ; H.S. Bains, Director, Small Saving-cum-
Deputy Secretary Finance, Punjab, Chandigarh v. State
(Union Territory of Chandigarh) (1980) 4 SCC 631 :
[1981] 1 SCR 935 ; Mahesh Chand v. B. Janardhan
Reddy (2003) 1 SCC 734 : [2002] 4 Suppl. SCR 566 ;
Gangadhar Janardan Mhatre v. State of Maharashtra
(2004) 7 SCC 768 : [2004] 4  Suppl. SCR 772 ; Kishore
Kumar Gyanchandani v. G.D. Mehrotra (2011) 15 SCC
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513 ; Rakesh Kumar and another v. State of Uttar
Pradesh and another (2014) 13 SCC 133 ; Iris
Computers Limited v. Askari Infotech Private Limited
and others (2015) 14 SCC 399 ; Radhey Shyam &
another v. Chhabi Nath & others (2015) 5 SCC 423 :
[2015] 3 SCR 197 ; Surya Dev Rai v. Ram Chander
Rai & others (2003) 6 SCC 675 : [2003] 2 Suppl.
SCR 290 – referred to.
Case Law Reference
[1967] 3 SCR 668
referred to
Para 13
[1981] 1 SCR 935  
referred to
Para 15
[2002] 4 Suppl. SCR 566
referred to
Para 18
[2004] 4 Suppl. SCR 772
referred to
Para 19
(2011) 15 SCC 513
referred to
Para  22
(2014) 13 SCC 133
referred to
Para 24
[2015] 3 SCR 197
referred to
Para 30
[2003] 2 Suppl. SCR 290
referred to
Para 30
2008 CriLJ 493
referred to
Para 34
AIR 1958 Ori. 11
approved
Para 42
1984 CrlLJ 1677
relied on
Para 42
2002 CriLJ 2150 (Karnataka) approved
Para 44
(2015) 14 SCC 399
referred to
Para 49
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1015 of 2019.
From the Judgment and Order dated 21.09.2017 of the High Court
of Judicature at Allahabad, Bench at Lucknow in Misc. Single No. 5202
of 2008.
Ratnakar Das, Sr. Adv., Rohit Pandey, Prabhu Singh, Ms. Sukriti
Chauhan, Jaykrishnan C.D., Ms. Taruna Ardhendumauli Prasad, Varad
Dwivedi,  Advs. for the Appellant.
VISHNU KUMAR TIWARI v. STATE OF U. P. THR. SEC.
HOME, CIVIL SECRETARIAT LUCKNOW
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V. Shekhar, Sr. Adv., Ankur Prakash, Suryodaya Prakash Tiwari,
Sanjay Kumar Dubey, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. The second respondent, in this appeal generated by special
leave, got registered a First Information Report which invoked Sections
201, 304B and 498A of the Indian Penal Code, 1860 (hereinafter referred
to as ‘the IPC’ for short) and Sections 3 and 4 of the Dowry Prohibition
Act, 1961. Briefly, the contents of the complaint are as follows
The appellant married the second respondent’s daughter on
22.04.2004. The father of the appellant made a demand for an
Alto car and Rs. 2 lakhs for admission of Vishnu in B.Ed. He did
not accept the demand for dowry, and even at the time of marriage,
he made a demand of Rs. 4 lakhs. There is reference to his
daughter informing her mother that her mother-in-law, father-in-
law, husband, brother-in-law and sister-in-law used to beat her
and torture her to bring dowry. There is reference to telephone
call that his daughter was critical. It was made on 08.09.2010 and
when they reached there, the daughter was not there. Upon
insisting, the mother-in-law of second respondent’s daughter told
them that they had taken her somewhere to some hospital. Search
was made at many hospitals but the daughter could not be found.
Thereafter, they found that the daughter had died. Reference was
made to the demand for dowry by
appellant and father-in-law,
mother-in-law, brother-in-law and sister-in-law of the second
respondent’s daughter and that they have killed his daughter. It
would appear that on the basis of the same, Crime No. 721 of
2007 was registered. The Investigating Officer, however, on the
basis of the investigation, after taking the statements, filed a final
report under Section 178 of The Code of Criminal Procedure,
1973 (hereinafter referred to as ‘the Cr.PC.’ for short).
2. The second respondent thereupon filed a protest petition. The
Chief Judicial Magistrate passed an order concluding that the daughter
of the second respondent/complainant, wife of the appellant, died due to
her illness. It was further found that the accused persons had not caused
any harassment or torture to her nor has committed dowry death. There
was no prima facie case made out against the accused persons under
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Section 498A, 304B and 201 of the IPC and Sections 3 and 4 of the
Dowry Prohibition Act,1961. It was found that there is no sufficient
ground made out for action and the protest petition was dismissed and
final report accepted.
3. The second respondent thereupon lodged revision petition before
the Additional Sessions Judge. The Additional Sessions Judge did not
find merit and dismissed the criminal application. This led to a writ petition
before the High Court at Allahabad. This petition was filed invoking
Article 226 of the Constitution of India. A Writ of Certiorari was sought
to quash the impugned order passed by the Additional Sessions Judge
and the order passed by the Chief Judicial Magistrate. A further direction
was sought to be passed to investigate the case by taking statements of
victim’s family and other witnesses and submit a report before the Chief
Judicial Magistrate. Direction was sought to the Chief Judicial Magistrate
for looking into the matter afresh for taking cognizance against the accused
persons in the case.
4. By the impugned judgment, the High Court set aside the orders
passed by the Chief Judicial Magistrate and the Additional Sessions Judge.
The Chief Judicial Magistrate was directed to consider the protest petition
afresh in the light of the observations made therein. Feeling aggrieved
by the said order, the special leave petition was filed, for which permission
was sought and was granted by order dated 04.12.2017.
5. We have
heard the learned Counsel for the parties and granted
leave in the matter.
6. The learned Senior Counsel for the appellant would point out
that the High Court has not noticed that the Chief Judicial Magistrate
has in fact considered the protest petition. He makes the complaint in
the light of the following findings recorded by the High Court:
“11. In the light of above law, I am of the opinion that, if the
protest petition was submitted by the petitioner against the final
report submitted by the police, then it was the duty of the learned
Magistrate to go through the protest petition and if there was any
substance in the protest petition then he may took cognizance
under Section 190(1)(b) of Cr.P.C.
12. The perusal of the record of learned Magistrate disclose that
he has not taken into consideration the protest petition of the
petitioner. Since there was a protest petition that is why it was the
VISHNU KUMAR TIWARI v. STATE OF U. P. THR. SEC.
HOME, CIVIL SECRETARIAT LUCKNOW [K. M. JOSEPH, J.]
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pious duty of the learned CJM to consider the facts mentioned in
the protest petition and to decide it according to law.”
7. The order passed by the Chief Judicial Magistrate shows that
there is consideration of the protest petition. Neither the Chief Judicial
Magistrate nor the Additional Sessions Judge have failed to apply the
correct principles of law. In this regard, it is apposite to notice the
following observations made in the impugned judgment of the High Court:
“10. In the case 2001 (43) ACC 1096 Pakhando & others Vs
State of UP & another, it is opined by the Court that in the case of
final report the Magistrate has four options:-
(1) He may agree with the conclusion of the police and accept
the final report and drop the proceeding.
(2) He may take cognizance under Section 190(1)(b) Cr.P.C.
and issue process straightaway to the accused without being
bound by the conclusion of the investigating agency where he
is satisfied that upon the facts discovered by the police, there
is sufficient ground to proceed.
(3) He may order for further investigation if he is satisfied that
the investigation was made in a perfunctory manner.
(4) He may without issuing process and dropping the
proceedings 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 Sections 200 and 202 Cr.P.C. and
thereafter whether complaint should be dismissed or
process
should be issued.”
8. He would emphasise that it is a case where the late wife of the
appellant/daughter of the second respondent had died a natural death.
There is a case for the appellant that the marriage was solemnized in the
year 2004. It was after some time that the wife of the appellant conceived
and the child was delivered. It is further the case of the appellant that
unfortunately illness struck the daughter of the second respondent.
Treatment was afforded and, as found by the Chief Judicial Magistrate,
the complainant’s daughter died due to her illness. There was no case
made out for interfering with the orders impugned before the High Court.
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9. Per contra, the learned counsel appearing on behalf of the
second respondent/complainant drew our attention to the death certificate
issued by Priti Hospital:
“DEATH CERTIFICATE
This is to certify that Patient Smt. Jaya Tiwari aged about 31
year, female W/o. Shri Vishnu Tiwari. R/o Village Saorai,
Saifabad, Patti Pratapgarh U.P. Who was admitted in this Trust
on 09.10.07 at 10.29 P.M. as a case of septicaemia c respiratory
distress under Doctor A. Gupta has expired on 10.10.2007 at 8.00
A.M. due to cardio pulmonary arrest.”
10. He would point out that on the one hand, there is reference to
the case of the daughter of the complainant being one of septicaemia c
respiratory distress but it is also stated that the daughter of the second
respondent/complainant died due to cardio pulmonary arrest. This raised
questions which are not dealt with by the orders impugned before the
High Court.
11. He also referred to the statements given by the witness to
contend that there was material which should have persuaded the Chief
Judicial Magistrate to treat the protest petition as a complaint and the
matter should have been proceeded on the said basis.
12. The court put a question to the appellant as to why the Additional
Sessions Judge has found that there is prima facie no case made under
Section 304B and 201 of the IPC against the accused persons by the
Chief Judicial Magistrate but why there is no reference to Section 498A
of IPC. The learned counsel drew our
attention to the order passed by
the Additional Sessions Judge and contended that the second respondent/
complainant did not press the case under Section 498A of the IPC. The
contention was confined to Section 304B and 201 of the IPC.
A LOOK AT WHAT THIS COURT SPOKE IN THE MATTER
13. In Abhinandan Jha and others v. Dinesh Mishra1, the question
arose as to whether when a report is submitted that there is no material
that any case is made out for sending the accused for trial, the Magistrate
can direct the police to submit a charge-sheet. This Court took the view
that the Magistrate cannot compel the Police to change their opinion.
However, it was held that the Magistrate is free to not accept such
1 AIR 1968 SC 117 / (1967) 3 SCR 668
VISHNU KUMAR TIWARI v. STATE OF U. P. THR. SEC.
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report and he may take suitable action. The Magistrate may direct further
investigation under Section 156 (3) of the Code. It was further held that
it would be in a case where the Magistrate feels that the investigation is
unsatisfactory or incomplete. It may be also in a case where there is
scope for further investigation.
14. It may not be inapposite that we refer to the following discussion
by this Court in Abhinandan Jha (supra) as to what is a final report:
“13. It will be seen that the Code, as such, does not use the
expression ‘charge-sheet’ or ‘final report’. But it is understood, in
the Police Manual containing Rules and Regulations, that a report
by the police, filed under Section 170 of the Code, is referred to
as a ‘charge-sheet’. But in respect of the reports sent under
Section 169 i.e. when there is no sufficient evidence to justify the
forwarding of the accused to a Magistrate, it is termed variously,
in different States, as either ‘referred charge’, ‘final report’, or
‘summary’.”
15. In H.S. Bains, Director, Small Saving-cum-Deputy Secretary
Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh)2,
the Police submitted a final report. However, the Magistrate disagreed
with the conclusion of the Police and directed issue of process upon
taking cognizance of the case. A contention was taken that the Magistrate
acted illegally in not recording statements on oath of the complainant
and the
witnesses under Section 200 of the Code and the Magistrate
must, therefore, be treated as having taken cognizance upon the Police
report for which he was not competent as it was not a report under
Section 173, but a final report within the meaning of Section 169. It was
contended that the Magistrate had only two options before him – (i) he
could either order further investigation. (ii) He could also take cognizance
as upon a complaint but for the same the statements of the complainant
and witnesses had to be recorded.
16. This Court in the course of its judgment in H.S. Bains (supra),
held as follows:
“6. It is seen from the provisions to which we have referred in
the preceding paras that on receipt of a complaint a Magistrate
has several courses open to him. He may take cognizance of the
offence and proceed to record the statements of the complainant
2 (1980) 4 SCC 631
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and the witnesses present under Section 200. Thereafter, if in his
opinion there is no sufficient ground for proceeding he may dismiss
the complaint under Section 203. If in his opinion there is sufficient
ground for proceeding he may issue process under Section 204.
However, if he thinks fit, he may postpone the issue of process
and either enquire into the case himself or direct an investigation
to be made by a police officer or such other person as he thinks fit
for the purpose of deciding whether or not there is sufficient ground
for proceeding. He may then issue process if in his opinion there
is sufficient ground for proceeding or dismiss the complaint if there
is no sufficient ground for proceeding. On the other hand, in the
first instance, on receipt of a complaint, the Magistrate may, instead
of taking cognizance of the offence, order an investigation under
Section 156(3). The police will then investigate and submit a report
under Section 173(1). On receiving the police report the Magistrate
may take cognizance of the offence under Section 190(1)(b) and
straight away issue process. This he may do irrespective of the
view expressed by the police in their report whether an offence
has been made out or not. The police report under Section 173
will contain the facts discovered or unearthed by the police and
the conclusions drawn by the police therefrom. The Magistrate is
not bound by the conclusions drawn by the police and he may
decide to issue
process even if the police recommend that there is
no sufficient ground for proceeding further. The Magistrate after
receiving the police report, may, without issuing process or dropping
the proceeding decide to take cognizance of the offence on the
basis of the complaint originally submitted to him and proceed to
record the statements upon oath of the complainant and the
witnesses present under Section 200 of the Criminal Procedure
Code and thereafter decide whether to dismiss the complaint or
issue process. The mere fact that he had earlier ordered an
investigation under Section 156 (3) and received a report under
Section 173 will not have the effect of total effacement of the
complaint and therefore the Magistrate will not be barred from
proceeding under Sections 200, 203 and 204. Thus, a Magistrate
who on receipt of a complaint, orders an investigation under Section
156(3) and receives a police report under Section 173(1), may,
thereafter, do one of three things: (1) he may decide that there is
VISHNU KUMAR TIWARI v. STATE OF U. P. THR. SEC.
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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.”
(Emphasis supplied)
17. Thus, when he proceeds to take action by way of cognizance
by disagreeing with the conclusions arrived at in the police report, he
would be taking cognizance on the basis of the police report and not on
the complaint. And, therefore, the question of examining the complainant
or his witnesses under Section 200 of the Code would not arise. This
was the view clearly enunciated.
18. In Mahesh Chand v. B. Janardhan Reddy3, the appellant/
complainant had lodged report alleging commission of offences by the
respondent. Subsequently, being dissatisfied with the investigation, he
filed a criminal complaint in the court of the Magistrate. In the meantime,
the Investigating Officer filed a final report finding that the controversy
was of a civil
nature. The appellant filed a protest petition. The final
report was accepted by the Magistrate. The complaint case filed by the
appellant was also closed. It became final. The appellant filed a third
complaint, as it were, under Section 200 of the Code. On summons
being issued, it was successfully questioned before the High Court. We
may notice the following discussion by this Court profitably.
“12. 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.
xxx
 xxx
 xxx
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16. In Munilal Thakur case [1985 Cri LJ 437:1984 Pat LJR 774]
the Division Bench of the Patna High Court was concerned with
the question as to whether a Magistrate even after accepting final
report filed by the police, can take cognizance of offence upon a
complaint or the protest petition on same or similar allegations of
fact; to which the answer was rendered in the affirmative.
17. The question which has arisen for consideration herein neither
arose therein nor was canvassed.
18. In Jayashankar Mund case [1989 Cri LJ 1578 : (1989) 67
Cut LT 426] the Orissa High Court again did not have any occasion
to consider the question raised herein. The Court held: (Cri LJ pp.
1582-83, para 6)
“Even though a protest petition is in the nature of a complaint,
it is referable to the investigation already held by the vigilance
police culminating in the final report and because the informant
was not examined on solemn affirmation under Section 202 of
the Code, thereby no illegality or prejudice was caused to the
accused. If such a view is accepted and there is no reason
why such a view should not be accepted, the necessary
consequence in this particular case shall be that the protest
petition which is of the nature of a complaint petition filed by
the petitioner shall be in continuation and in respect of the case
instituted and investigated by the vigilance police.”
19. Keeping in view the settled legal principles, we are of the
opinion that the High Court was not
correct in holding that the
second complaint was completely barred. It is settled law that
there is no statutory bar in filing a second complaint on the same
facts. In a case where a previous complaint is dismissed without
assigning any reasons, the Magistrate under Section 204 CrPC
may take cognizance of an offence and issue process if there is
sufficient ground for proceeding. As held in Pramatha Nath
Talukdar case [AIR 1962 SC 876 : 1962 Supp (2) SCR 297 :
(1962) 1 Cri LJ 770] second complaint could be dismissed after a
decision has been given against the complainant in previous matter
upon a full consideration of his case. Further, second complaint
on the same facts could be entertained only in exceptional
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circumstances, namely, where the previous order was passed on
an incomplete record or on a misunderstanding of the nature of
complaint or it was manifestly absurd, unjust or where new facts
which could not, with reasonable diligence, have been brought on
record in the previous proceedings, have been adduced. In the
facts and circumstances of this case, the matter, therefore, should
have been remitted back to the learned Magistrate for the purpose
of arriving at a finding as to whether any case for cognizance of
the alleged offence had been made out or not.”
(Emphasis supplied)
19. In Gangadhar Janardan Mhatre v. State of Maharashtra4, this
Court reiterated that Magistrate can, faced with a final report,
independently apply his mind to the facts emerging from investigation
and take cognizance under Section 190 (1)(b), and in this regard, is not
bound to follow the procedure under Sections 200 and 202 of the Code
for taking cognizance under Section 190(1)(b). It was, however, open to
the Magistrate to do so.
20. In regard to the filing of protest petition by the informant who
filed the First Information Report, it is important to notice the following
discussion by this Court:
“6. There is no provision in the Code to file a protest petition
by the informant who lodged the first information report. But this
has been the practice. Absence of a provision in the Code relating
to filing of a protest petition has been
considered. This Court
in Bhagwant Singh v. Commr. of Police [(1985) 2 SCC 537:1985
SCC (Cri) 267 : AIR 1985 SC 1285] stressed on the desirability of
intimation being given to the informant when a report made under
Section 173(2) is under consideration. The Court held as follows:
(SCC p. 542, para 4)
“There can, therefore, be no doubt that when, on a
consideration of the report made by the officer in charge of a
police station under sub-section (2)(i) of Section 173, the
Magistrate is not inclined to take cognizance of the offence
and issue process, the informant must be given an opportunity
of being heard so that he can make his submissions to persuade
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the Magistrate to take cognizance of the offence and issue
process. We are accordingly of the view that in a case where
the Magistrate to whom a report is forwarded under sub-section
(2)(i) of Section 173 decides not to take cognizance of the
offence and to drop the proceeding or takes the view that there
is no sufficient ground for proceeding against some of the
persons mentioned in the first information report, the Magistrate
must give notice to the informant and provide him an opportunity
to be heard at the time of consideration of the report.”
9. When a report forwarded by the police to the Magistrate
under Section 173(2)(i) is placed before him several situations
arise. The report may conclude that an offence appears to have
been committed by a particular person or persons and in such a
case, the Magistrate may either (1) accept the report and take
cognizance of the offence and issue process, or (2) may disagree
with the report and drop the proceeding, or (3) may direct further
investigation under Section 156(3) and require the police to make
a further report. The report may on the other hand state that
according to the police, no offence appears to have been
committed. When such a report is placed before the Magistrate
he has again option of adopting one of the three courses open i.e.
(1) he may accept the report and drop the proceeding; or (2) he
may disagree with the report and take the view that there is
sufficient ground for further proceeding,
take cognizance of the
offence and issue process; or (3) he may direct further
investigation to be made by the police under Section 156(3). The
position is, therefore, now well settled that upon receipt of a police
report under Section 173(2) a Magistrate is entitled to take
cognizance of an offence under Section 190(1)(b) of the Code
even if the police report is to the effect that no case is made out
against the accused. The Magistrate can take into account the
statements of the witnesses examined by the police during the
investigation and take cognizance of the offence complained of
and order the issue of process to the accused. Section 190(1)(b)
does not lay down that a Magistrate can take cognizance of an
offence only if the investigating officer gives an opinion that the
investigation has made out a case against the accused. The
Magistrate can ignore the conclusion arrived at by the investigating
officer and independently apply his mind to the facts emerging
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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. State of
Karnataka [(1989) 2 SCC 132 : 1989 SCC (Cri) 306 : AIR 1989
SC 885] .] The informant is not prejudicially affected when the
Magistrate decides to take cognizance and to proceed with the
case. But where the Magistrate decides that sufficient ground
does not subsist for proceeding further and drops the proceeding
or takes the view that there is material for proceeding against
some and there are insufficient grounds in respect of others, the
informant would certainly be prejudiced as the first information
report lodged becomes wholly or partially ineffective. Therefore,
this Court indicated in Bhagwant Singh case [(1985) 2 SCC 537
: 1985 SCC (Cri) 267 : AIR 1985 SC 1285] that where the
Magistrate decides not to take cognizance and to drop the
proceeding or takes a view that there is no sufficient ground for
proceeding against some of the persons mentioned in the first
information report, notice to the informant and grant of opportunity
of being heard in the matter becomes
mandatory. As indicated
above, there is no provision in the Code for issue of a notice in
that regard.”
(Emphasis supplied)
21. This Court, in Gangadhar Janardan Mhatre (supra), also stressed
on the need to issue notice to the informant in the following discussion:
  “12. Therefore, the stress is on the issue of notice by the
Magistrate at the time of consideration of the report. If the
informant is not aware as to when the matter is to be considered,
obviously, he cannot be faulted, even if protest petition in reply to
the notice issued by the police has been filed belatedly. But as
indicated in Bhagwant Singh case [(1985) 2 SCC 537 : 1985
SCC (Cri) 267 : AIR 1985 SC 1285] the right is conferred on the
informant and none else.”
(Emphasis supplied)
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22. In Kishore Kumar Gyanchandani v. G.D. Mehrotra5, a First
Information Report was lodged in respect of certain offences. The Police
filed a final report which came to be accepted. Nearly three months
thereafter, a protest petition was filed. The Magistrate directed the same
to be considered as a complaint. He held an inquiry under Section 202 of
the Code and proceeded to take cognizance. Paragraph 4 is relevant
and it reads as follows:
“4. There is some controversy between the parties that before
accepting the final form by the Magistrate on 27-1-1996 notice
had been served on the complainant and the complainant did not
file objections, whereas the case of the complainant is that he had
not received any notice from the Court. Be that as it may, we are
not entering into that controversy for deciding the present case as
in our view it is not material either way nor does it oust the
jurisdiction of the Magistrate on the basis of a complaint to take
cognizance of the offence alleged to have been committed by the
accused even if he had already accepted the final form, the same
having been filed by the police.”
23. In fact, the case itself was decided by a Bench of three learned
Judges of this Court in view of the divergence of opinion in the Court.
The Court held as follows:
“6. It is too well settled that when police after investigation
files a final form under Section 173 of the Code, the Magistrate
may disagree with the conclusion arrived at by the
police and
take cognizance in exercise of power under Section 190 of the
Code. The Magistrate may not take cognizance and direct further
investigation in the matter under Section 156 of the Code. Where
the Magistrate accepts the final form submitted by the police, the
right of the complainant to file a regular complaint is not taken
away and in fact on such a complaint being filed the Magistrate
follows the procedure under Section 201 of the Code and takes
cognizance if the materials produced by the complainant make
out an offence. This question has been raised and answered by
this Court in the case of Gopal Vijay Verma v. Bhuneshwar
Prasad Sinha[(1982) 3 SCC 510 : 1983 SCC (Cri) 110]
whereunder the view of the Patna High Court to the contrary has
been reversed. The Court in no uncertain terms in the aforesaid
5 (2011) 15 SCC 513
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case has indicated that the acceptance of final form does not
debar the Magistrate from taking cognizance on the basis of the
materials produced in a complaint proceeding.”
(Emphasis supplied)
This Court found that the High Court was in error in interfering
with the cognizance taken by the Magistrate.
24. In Rakesh Kumar and another v. State of Uttar Pradesh and
another6, on the basis of a First Information Report lodged by the Police
after investigation, a final report came to be filed. The Magistrate accepted
the final report. He, simultaneously, directed the case be proceeded with
as a complaint case. Statements under Section 200 and 202 of the Code
were recorded. The High Court turned down the plea of the accused to
whom summons were issued. It was the contention of the accused that
having accepted a negative final report, the court could not take action
on the basis of the protest petition filed by the complainant. This Court
refers to the judgment in H.S. Bains (supra). The principles of law laid
down in paragraph 12 of Mahesh Chand (supra), which we have also
referred to earlier, came to be approved. The order of the High Court
was approved.
25. This is a case where following the First Information Report,
the Investigating Officer conducted an investigation. Statements were
taken from the complainant, his wife and his son. This is apart from the
statements which were taken from the Doctors who treated the
daughter
of the second respondent/complainant. The Investigation Officer
concluded that there is no material which would warrant the accused
being sent for trial. When such a report is filed before the court, it is
beyond the shade of doubt that the Magistrate may still choose to reject
the final report and proceed to take cognizance of the offences, which in
his view, are seen committed. He may, on the other hand, after pondering
over the materials, which would include the statements of witnesses
collected by the Investigating Officer, decide to accept the final report.
He may entertain the view that it is a case where further investigation
by the Officer is warranted before a decision is taken as to whether
cognizance is to be taken or not.
26. It is undoubtedly true that before a Magistrate proceeds to
accept a final report under Section 173 and exonerate the accused, it is
6 2014 (13) SCC 133
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incumbent upon the Magistrate to apply his mind to the contents of the
protest petition and arrive at a conclusion thereafter. While the
Investigating Officer may rest content by producing the final report,
which, according to him, is the culmination of his efforts, the duty of the
Magistrate is not one limited to readily accepting the final report. It is
incumbent upon him to go through the materials, and after hearing the
complainant and considering the contents of the protest petition, finally
decide the future course of action to be, whether to continue with the
matter or to bring the curtains down.
27. In this case, the High Court proceeded on the basis, as we
have noticed, that the Magistrate has not taken into consideration the
protest petition and it was his pious duty to consider the facts mentioned
in the petition. We have examined the order passed by the Magistrate.
He does refer to the protest petition. The contents therein are undoubtedly
noticed. Magistrate says that he has gone through the First Information
Report. He finds that the complainant is not an eyewitness in regard to
the death of his daughter. He recorded that he has gone through the
statements of witnesses given under Section 161. We may notice that
the following findings were entered in regard to the case of torture
committed against the complainant’s daughter:
“… First of all I have gone through the statement of Sh Shiv
Shankar Ojha who is complainant in this case. Although
this
witness has partly favoured the incident but here it is pertinent to
mention that at the time of death of deceased Jaya, this witness
was not present. When it was asked from this witness that whether
after you received information of torture committed to you daughter,
you had made any application anywhere or you had informed this
through any relation etc. In reply to this question, he has stated
that ‘no’. I have also duly gone through the statement of Smt.
Shakuntala Devi mother of deceased. Mother of deceased has
given statement to the investigating officer that my son in law is
working in Haryana in a private job.”
28. Thereafter, he referred to the statement of the mother and
brother of the deceased. He refers to the statements of the Doctors.
The Doctors concluded that the deceased died due to her illness. One of
the Doctors have stated that the mother of the patient Smt. Shakuntala
had signed the admission form. The patient was examined. The patient
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had delivered a child two months ago by caesarean operation. She was
suffering from fever. She was breathing rapidly. Her body was suffering
from jaundice. She was in need of respiratory support machine. The
disease of the patient was septic shock and multiple organ failure. She
died on 08.10.2017. The death was found to be due to her illness.
29. The Chief Judicial Magistrate, in fact, proceeded to take the
view that Magistrate has to take cognizance on the basis of the statements
of the witnesses recorded by the Investigating Officer and materials
collected. He further finds that if cognizance is taken on the basis of
protest petition and documents annexed, that is illegal. It is after that it
was found that the deceased died due to her illness and no prima facie
case was made out against the accused persons.
30. We may notice that against the order of the Chief Judicial
Magistrate and Additional Sessions Judge, the second respondent has
invoked jurisdiction under Article 226 of the Constitution of India. The
relief sought in the writ petition is one of certiorari to quash the orders.
We may indicate that in Radhey Shyam & another v. Chhabi Nath &
others7 , this Court, after overruling the judgment of this Court in Surya
Dev Rai v. Ram Chander Rai & others8 in this regard, it has been laid
down that a Writ of Certiorari will not lie to quash an order of a civil
court. The High Court while exercising powers under
Article 226 of the
Constitution of India, at any rate, must bear in mind the limited nature of
its jurisdiction when it deals with orders of subordinate courts.
31. In the facts of this case, the High Court concluded that the
Magistrate has not considered the protest petition by the second
respondent/complainant. Had it been the case where protest petition
had not been considered at all, it may have been open to the court to
came to the conclusion that an illegality had been committed in exercise
of its jurisdiction to deal with the final report. But it is another matter
when the Magistrate has undoubtedly considered the protest petition to
direct the court again to consider the matter for action on the same, and
for that purpose, to set aside the proceedings.
32. We would think that, as noticed by us, the High Court was in
clear error in concluding that the protest petition was not considered.
That the High Court may take one of the two views of the matter may
7 (2015) 5 SCC 423
8 (2003) 6 SCC 675
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be an unsafe premise for its interference with the orders passed by the
Magistrate, as affirmed by the Additional Sessions Judge.
33. On the basis of the materials which include the statements of
the Doctors and after adverting to the contentions of the protest petition,
the Magistrate has come to the conclusion that it is not a fit case for
being continued and the matter should end as the daughter of the second
respondent/complainant died due to illness. It is a finding which is arrived
at by the court with reference to the statements of the medical
practitioners. Equally, in the circumstances which led to the unfortunate
death of the daughter of the second respondent/complainant, it is found
no case was made out under Section 201 of the IPC. It would appear
that before the Sessions Judge, the aspect relating to Section 498A or in
fact the provisions relating to Sections 3 and 4 of the Dowry Prohibition
Act, 1961, was not pressed by the second respondent. That apart, we
also notice that Magistrate has referred to the statement of the
complainant that there was no complaint made about the torture
apparently based on dowry demand as alleged.
34. We have also gone through the protest petition along with the
counter affidavit. No doubt, in paragraph 2, there is a general reference
to demands for property from the deceased and father of the deceased
and torture. Paragraphs 3 to 15 thereafter relate to the circumstances
relating to the death of the daughter
of the second respondent. In the
said paragraphs, the case is sought to be made out that forged documents
were produced before the Investigating Officer. Affidavits of the mother
and brother of the deceased, inter alia, were also filed to project the
case of forgery. For instance, in the affidavit of the mother of the
deceased, she claims that she has not gone to the hospital on the 9th and
10th of October, 2007, whereas, according to the statement under Section
161 of the Code, she is alleged to have stated that on 09.10.2007, the
deceased was admitted at Priti Hospital by them which apparently
includes the mother. We have noticed that in regard to that no doubt the
Chief Judicial Magistrate has relied upon judgment in Mohammed Yusuf
and others v. State of Uttar Pradesh and others9 and taken the view that
if cognizance is taken on the basis of the protest petition and the
documents annexed with, that is illegal. He also took the view that the
Magistrate has to take cognizance on the basis of statements of witnesses
9 2008 CriLJ 493
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recorded by the Investigating Officer, in the case diary and the material
collected during investigation.
35. A learned Single Judge of the High Court of Allahabad, in the
aforesaid decision, had this to say in paragraph 11:
“11. Where the Magistrate decides to take cognizance under
Section 190(1)(b) ignoring the conclusions reached at by the
Investigating Officer and applying his mind independently, he can
act only upon the statements of the witnesses recorded by the
police in the case-diary and material collected during investigation.
It is not permissible at that stage to consider any material other
than that collected by the investigation Officer. In the instant case
the cognizance was taken on the basis of the protest petition and
accompanying affidavits. The Magistrate should have adopted
the procedure of complaint case under Chapter XV of the Code
of Criminal Procedure and recorded the statements of the
complainant and the witnesses who had filed affidavits under
Sections 200 and 202 Cr.P.C. The Magistrate could not take
cognizance under Section 190(1)(b) Cr.P.C. on the basis of protest
petition and affidavits filed in support thereof. The Magistrate
having taken into account extraneous material i.e. protest petition
and affidavits while taking cognizance under Section 190(1)(b)
Cr.P.C. the impugned order is vitiated.”
(Emphasis supplied)
36. The Chief Judicial Magistrate has adhered to the law laid
down by
the learned Single Judge. In fact, we may notice that in regard
to this aspect, if the learned Single Judge, who has rendered the impugned
judgment in this case, had a different view, he ought to have referred the
matter to a larger Bench.
37. In H.S. Bains (supra), there was a private complaint within
the meaning of Section 190(1)(a) of the Code. The matter was referred
to the Police under Section 156(3). The Investigating Officer filed a
final report. Therein, the court took the view that apart from the power
of the Magistrate to take cognizance notwithstanding the final report,
under Section 190(1)(b), he could also fall back upon the private complaint
which was initially lodged but after examining the complainant and his
witnesses, as contemplated under Sections 200 and 202 of the Code. In
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regard to taking cognizance under Section 190(1)(b) of the Code of a
final report, undoubtedly, it is not necessary to examine the complainant
or his witnesses though he may do so.
38. In Mahesh Chand (supra), no doubt the matter was commenced
by a First Information Report and followed up by the complainant in the
court under Section 190(1)(a) of the Code. On the First Information
Report, after investigation, a final report was filed. The final report came
to be accepted and it was closed. This is despite the fact that there was
the protest petition. A third complaint, as it were, came to be filed by the
complainant. This Court went on to hold that acceptance of the final
report would not stand in the way of taking cognizance on a protest/
complaint petition.
39. In Kishore Kumar Gyanchandani (supra), after the final report
was accepted on a protest petition which was treated as a complaint,
evidence was taken within the meaning of Section 200 of the Code.
40. In Rakesh Kumar (supra), the final report was filed which
was accepted by the Magistrate but he simultaneously directed the case
to be proceeded as a complaint case and statements under Sections 200
and 202 of the Code came to be recorded.
41. 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, if he treats the protest petition as a complaint, he would
have to follow the procedure prescribed under Section 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
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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.
42. 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. State10, 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 provisions of
Chapter XVI of the Criminal Procedure Code. We, however, also noticed
that in Qasim and others v. The State and others11, a learned Single
Judge of the High Court of Judicature at Allahabad, inter alia, held as
follows:
“4. … In the case of Abhinandan Jha MANU/SC/0054/1967
(supra) 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 & 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 Cr.P.C. 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
10 AIR 1958 Ori. 11
11 1984 CrlLJ 1677
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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.”
43. We may also notice that in Veerappa and others v.
Bhimareddappa12, the High Court of Karnataka observed as follows:
“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 of the Cr. P.C., 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)
of the Cr. P.C. 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 in Section 2(d) of the Cr. P.C., and that should
contain facts that constitute offence, for which, the learned
Magistrate is taking cognizance under Section 190(1)(a) of the
Cr. P.C. 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 of the Cr. P.C.”
44. Complaint is defined in Section
2(d) of the Code as follows:
“(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;”
45. If a protest petition fulfills 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
12 2002 CriLJ 2150 (Karnataka)
VISHNU KUMAR TIWARI v. STATE OF U. P. THR. SEC.
HOME, CIVIL SECRETARIAT LUCKNOW [K. M. JOSEPH, J.]
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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 liable to be treated as a complaint,
we would think that essentially, the protest petition in this case, is summing
up of the objections the second respondent against the final report.
46. This brings us to one aspect of the matter which in fact was
not argued at the Bar. The appeal is filed by the husband of the deceased,
by special leave and permission. The allegations in the First Information
Report are raised against the other relatives of the appellants, viz., his
parents and in-laws and his siblings also. They have not challenged the
order of the High Court. Allegations are made in respect of offences as
committed by them also.
47. In this regard, we may notice, one facet. The Chief Judicial
Magistrate accepted the final report and decided not to proceed against
any of the accused including the appellant. This stood confirmed by the
Additional Sessions Judge. Before the High court, neither the appellant
nor any of his relatives were made parties. When the order was passed
by the High Court accepting the report and directing reconsideration,
was it necessary for the second
respondent/complainant to implead the
appellant and other relatives? Can we set aside the judgment of the
High Court qua only the appellant, or can we in the facts in this case,
also interfere with the order of the High Court against all the accused?
48. It may be true that till process is issued, the accused may not
have the right to be heard (See the judgment of this court in Iris Computers
Limited v. Askari Infotech Private Limited and others13).
49. The High Court, in fact, at paragraph 11 of the impugned
order, which we have extracted at paragraph 6 of our judgment,
contemplated consideration of the protest petition so that cognizance
may be taken under Section 190(1)(b) of the Code. This premise being
without any basis even qua the other accused who are the relatives of
the appellant, we would think that the impugned order must be set aside.
Having regard to the nature of the allegations and in exercise of our
powers also under Article 142 of the Constitution of India, we must set
aside the Order of the High Court.
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50. We would think that in the facts of this case, the High Court
erred in intervening and that there was no justification in the facts for
the High Court in setting aside the orders.
51. Resultantly, the appeal will stand allowed, the impugned order
of the High Court will stand set aside. We, however, make it clear that
this would be without prejudice to the rights of the second respondent to
file a complaint as already noticed in the order of the Additional Sessions
Judge.
Kalpana K. Tripathy
Appeal allowed.
VISHNU KUMAR TIWARI v. STATE OF U. P. THR. SEC.
HOME, CIVIL SECRETARIAT LUCKNOW [K. M. JOSEPH, J.]