IMPORTANT POINT
Cognizance of offence – Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of police report.

ORDER

1. Heard learned counsel for the parties.

2. Leave granted.

3. The two appeals arise out of the orders passed by the High Court of Judicature at Allahabad in the Application No.14899/2022 filed by the respondents-accused under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’). These two appeals have been filed by the appellant-complainant challenging the order dated 21.07.2022 by which the High Court had granted the prayer made by the respondents-accused to amend the application filed under Section 482 Cr.P.C. and challenging the order dated 22.07.2022 by which the High Court has set aside the orders dated 15.11.2018 and dated 11.01.2022 passed by the Chief Judicial Magistrate (for short, ‘CJM’) in Misc. Case No.06/11/2018 arising out of Case Crime No.907/2017. The High Court vide the impugned order further directed the concerned Magistrate to pass a fresh order on the Protest Petition filed by the appellant-complainant in the light of observations made by it in the impugned order.

4. The short facts giving rise to the present appeals are that on 16.08.2017, the appellant – Junaid Khan had lodged an FIR alleging inter alia that the respondents–accused armed with sharp-edged weapons had attacked him and his family and also abused them due to an old enmity. As a result thereof, his family members got seriously injured, and were sent to the hospital for treatment. The said FIR was registered as Crime Case No.907 of 2017 for the offence under Sections 147, 148, 149, 307, 323, 324, 504 IPC at P.S. Kotwali Gursahaiganj, Kannauj. The Investigating Officer, after completing the investigation, submitted the Final Report bearing No.164/2017 on 13.11.2017.

5. Being aggrieved by the said report, the appellant-complainant filed a Protest Petition being F.R. No.06/11/18 before the concerned CJM. The concerned CJM vide order dated 15.11.2018 rejected the Final Report of the Investigating Officer and directed that the Protest Petition be registered as the Complaint Case. The said complaint case was registered and numbered as the Complaint No.2783/2018.

6. The concerned CJM having regard to the provisions contained in Sections 200 and 202 Cr.P.C. and after recording the statements of the complainant and eight other witnesses, issued summons to the respondents-accused vide order dated 11.01.2022 in the said complaint case. Being aggrieved by the said order passed on 11.01.2022, the respondents-accused preferred an application under Section 482 bearing No.14899/2022 before the High Court.

7. On 20.07.2022, the respondents-accused, who were the applicants before the High Court, submitted an application seeking amendment in the prayer clause of the application filed under Section 482 and prayed for setting aside of the order dated 15.11.2018 as well. The said application for amendment came to be allowed by the High Court vide the impugned order dated 21.07.2022. On the very next day, the High Court after hearing the learned counsel for the parties passed the impugned order on 22.07.2022, allowing the said application under Section 482 as stated hereinabove.

8. The High Court while passing the impugned order, observed as under: -

“20. When the findings recorded by concerned Magistrate as noted above, are examined in the light of the observations contained in paragraph 28 of the judgement in Hari Ram (supra) do not fulfill the mandate of law which the Magistrate is required to comply while exercising jurisdiction under Section 190 (1) (b) Cr.P.C. No finding has been recorded by concerned Magistrate with regard to the papers accompanying the police report. Without recording any finding that there is no evidence against applicants in the papers accompanying police report, the conclusion drawn by Magistrate to treat the protest petition as a complaint is not only illegal, but also arbitrary. Once the Magistrate came to prima facie conclusion that investigation of concerned case crime number is unsatisfactory or is the outcome of