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2001 Supreme(SC) 1709
SUPREME COURT OF INDIA
K.T. THOMAS, R.P. SETHI, JJ.
Kishore Kumar Gyanchandani – Petitioner
Versus
G.D. Mehrotra and Another – Respondents
S.L.P. (Crl.) No. 2396 of 2000
Decided On : 25-01-2001
Advocate Appeared:
For the Petitioners: P.R. Thakur, Vaneen Thakur, S.K. Sabharwal.
For the Respondents: S.C. Maheshwari, Sandhya Goswami, M.P.S. Tomar.
The legal position involved in the case must be decided by a larger Bench.
Headnote:
Final Report - Protest Complaint - The court discussed the legal position when the police filed a final report after investigation and the aggrieved person filed a protest complaint on the same allegations. The High Court quashed the proceedings initiated by the Magistrate on the protest complaint.
Fact of the Case:
The police filed a final report after investigation, and the aggrieved person filed a protest complaint on the same allegations. The Magistrate had passed an order accepting the final report before the protest complaint was filed.
Finding of the Court:
The High Court quashed the proceedings initiated by the Magistrate on the protest complaint.
Issues: The legal position when a protest complaint is filed after the police filed a final report, and the acceptance of the final report by the Magistrate before the protest complaint was filed.
Ratio Decidendi: The court decided that the legal position involved in the case must be decided by a larger Bench.
Final Decision: The matter is remitted to the Chief Judicial Magistrate for disposal according to law, and if the accused have any further objections to raise, they may do so before the Chief Judicial Magistrate.
ORDER :
1. The point involved in this case is this: when the police filed a final report after investigation holding that no offence against the accused mentioned in the FIR is made out, the aggrieved person filed a protest complaint on the same allegations. But before the protest complaint was filed before the Magistrate he had passed an order on 27-1-1996 “Notice on the final report was served on the complainant and none is present for opposing the final report and hence the final report is accepted.” The protest complaint was filed on 19-4-1996. The High Court quashed the proceedings initiated by the Magistrate on the protest complaint as per the impugned order.
2. Learned counsel for the petitioner cited the decision of a two-Judge Bench of this Court in Gopal Vijay Verma vs. Bhuneshwar Prasad Sinha, (1982) 3 SCC 510 which reads thus: (SCC p. 511, para-1)
“1. 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.”
3. In further support of his contention he has invited our attention to the detailed facts of the judgment of the Patna High Court which was the judgment challenged in the afore-cited decision (the said judgment of the Patna High Court is reported in Bhuneshwar Prasad Sinha vs. State of Bihar, 1981 Cri. L.J. 795 : 1981 BLJR 369 (Pat). Learned counsel for the petitioner submitted that in the spaid case also the Magistrate has closed the proceedings accepting the final report prior to the lodging of the protest complaint.
4. We feel that the legal position involved in the present case must be decided by a larger Bench. Hence the Registry will place this for orders of the Hon'ble Chief Justice of India.
