IMPORTANT POINTS
If cognizance is taken on basis of the police report and not on the complaint, question of examining the complainant or his witnesses would not arise.
Orders of civil court cannot be quashed in a writ of certiorari.
A Judge differing from judgment of co-ordinate bench is required to refer the matter to larger bench.
Acceptance of final report by police would not preclude taking cognizance on a protest/complaint petition.
Protest petition if satisfying requirements of a complaint should be dealt with as complaint.

JUDGMENT :

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 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:

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