[2014] 13 S.C.R.1072

RAKESH &ANR

STATE OF U.P. &ANR.

(Criminal Appeal No. 1412 of 2014)

AUGUST 13, 2014

[SUDHANSU JYOTI MUKHOPADHAYA AND

RANJAN GOGOi, JJ] c Code of Criminal Procedure, 1973:

. ss. 173, 190(1 )(a) and 190(1 )(b) - Jurisdiction of Magistrate to take cognizance, on a protest petition/complaint, of an offence in respect of which a final report u/s 173 had been accepted - Held: Only because Magistrate has D accepted a final report, the same by itself would not stand in f1is way to take cognizance of the offence on a protesV complaint petition; bu( the question which is required to be posed and answered would be as to under what circumstances

tl7e said power can be exercised.

E Respondent No.2 lodged an FIR for offence punishable u/s 364 IPC against the appellants and two others. On completion of investigation, the Investigating Officer submitted a final report to the court that no case was made out against the persons accused and that they F wcre falsely implicated in the case. By order dated 26.11.2002, the Magistrate accepted the final report but simultaneously directed that the case be proceeded with as a complaint case. The statements u/ss 200 and 202 Cr.P.C., were recorded and the accused were summoned G by the trial court to face the trial. The appellants moved the High Court, which answered in affirmative the question as to 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 H complainant/first informant.

RAKESH &ANR v. STATE OF U.P. &ANR. 1073

In the instant appeal, it was contended for the A accused-appellant that having accepted the final report, the Magistrate had become "functus officio" and was denuded of all powers to proceed in the matter.

Dismissing the appeal, the Court B HELD: 1.1 In Gopal Vijay Verma*, this Court 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. [Para 6) c

[1076-C-D]

*Gopal Vijay Verma v. Bhuneshwar Prasad Sinha & Ors. 1982 (3) SCC 510 ; H.S. Bains v.

State (Union Territory of Chandigarh) 1980 Crl.

LJ 1308; Gangadhar Janardan Mhatre v. State of Maharashtra & Ors. 2004 (4) Suppl.

SCR 772 : 2004 (7) SCC 768 - relied on

Bhuneshwar Prasad Sinha vs. State of Bihar 1981 Crl.LJ 795, stood reversed.

E 1.2 In Mahesh Chand**, this Court has held that 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 F question which is required to be posed and answered would be as to under what circumstances the said power can be exercised. Therefore, the High Court has rightly answered the question. [Para 9)(1078-A-C]

**Mahesh Chand v. B.Janardhan Reddy & Anr.

G 2002 (4) Suppl. SCR 566: 2003 (1) sec 734; Kumar Gyanchandani vs. GD. Mehrotra & Anr. 2011 (15) sec 513 - relied on.

CASE LAW REFERENCE

1981 Crl.LJ 795 relied on Para 5

1982 (3) sec 510 stood disapproved Para 9

1980 Crl. LJ 1308 relied on Para 7 8 2004 (4) Suppl. SCR 772 relied on Para 9

2002 (4) Suppl. SCR 566 relied on Para 9

2011 (15) sec 513 relied on .

Para 9 c CRJMINAL APPELLATE JURISDICTION : Criminal Appeal No(s). 1412 of2014.

From the Judgment and Order dated 04.03.2013 of the High Court of Judicature at Allahabad, Lucknow Bench U. P. in Criminal Misc. Petition No. 64 of 2008.

Shrish Kumar Misra, Adv., for the Appellants.

Ms. Nidhi, Adv., for the Respondents.

The Judgment of the Court was delivered by

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 complainanVfirst iformant? The above question having been answered in the affirmative by F 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 :

G Respondent No.2 herein lodged an FtR which was registered as Crime Case NoA80 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 H officer submitted a final report to the court that no case is made

out against the appellants and the other two accused and that A they have been falsely implicated in the case. By order dated

261h 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 B (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 c 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 Bihari, the very same question came up for consideration before the 0 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 ifthe Magistrate agrees with the opinion of the police he may accept the final report and close the E 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 F 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 G clear from the order dated 6m 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

1[1981 Crl.LJ 795] H

SUPREME COURT REPORTS

(2014] 13 S.C.R.

A 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 B 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 Viiay Verma vs. Bhuneshwar Prasad Sinha & Ors. 2

7. If we are to go back to trace the genesis of the views E 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 - F

"( 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 G process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;

21982 (3) sec s10 H 3[1980 Crl. LJ 1308].

( 3) he may take cognizance ofthe offence under Section A 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 B 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 C 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 D Maharashtra & Ors.4 . The following view may be specifically noted-

" ................ The Magistrate can ignore the conclusion arrived at by the investigating officer and independently E 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 F 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 Kamataka]" (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

4[2004 (7) sec 768] (para 9) 5[2003 (1) sec 734] (para 12)

A 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;

0 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 E wasmade.

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 F is without any merit or substance. It is accordingly dismissed.

Rajendra Prasad Appeal dismissed.

6(2011 (15) sec 513]