1. Police filed closure report under Section 173(2) Cr.P.C. — Informant filed Protest Petition with affidavits — Magistrate took cognizance under Section 190(1)(b) Cr.P.C. based on said affidavits. (Para 3 , 4 )
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2024 Supreme(SC) 353
SUPREME COURT OF INDIA
VIKRAM NATH, SATISH CHANDRA SHARMA, JJ.
Mukhtar Zaidi – Appellant
Versus
The State of Uttar Pradesh and Another – Respondents
Criminal Appeal No. 2134 of 2024 Arising Out of SLP (Crl.) No. 9122 of 2021
Decided On : 18-04-2024
Advocates appeared:
For the Petitioner(s): Mr. Dhirendra Kumar, Adv. Ms. Jyoti Tiwary, Adv. Mr. Ajay Kumar Srivastava, AOR
For the Respondent(s): Mr. Shashank Shekhar Singh, AOR Mr. Abhinav Singh, Adv. Mr. Shekhar Prit Jha, AOR
For the Petitioner(s): Mr. Dhirendra Kumar, Adv. Ms. Jyoti Tiwary, Adv. Mr. Ajay Kumar Srivastava, AOR
For the Respondent(s): Mr. Shashank Shekhar Singh, AOR Mr. Abhinav Singh, Adv. Mr. Shekhar Prit Jha, AOR
IMPORTANT POINT
Right of Complainant to file petition under Section 200 Cr.P.C. is not taken away even if Magistrate concerned does not direct that such a Protest Petition be treated as a complaint.
Headnote:
Criminal Procedure Code, 1973 – Sections 190, 200 and 482 – Indian Penal Code,1860 – Sections 147, 342, 323, 307 and 506 – Wrongful restraint, hurt, attempt to murder and criminal intimidation – Summoning Order – CJM had actually taken into consideration not only Protest Petition but also affidavit filed in support of Protest Petition as well as four affidavits of witnesses filed along with Protest Petition – It was based on consideration of such affidavits that CJM was of the view that investigation was not a fair investigation and these affidavits made out a prima facie case for taking cognizance and summoning accused – Magistrate in present case ought to have treated Protest Petition as a complaint and proceeded according to Chapter XV of Cr.P.C. – Magistrate also had liberty to reject Protest Petition along with all other material which may have been filed in support of same – In that event Complainant would be at liberty to file fresh complaint – Right of Complainant to file petition under Section 200 Cr.P.C. is not taken away even if Magistrate concerned does not direct that such a Protest Petition be treated as a complaint – In present case as Magistrate had already recorded his satisfaction that it was a case worth taking cognizance and fit for summoning accused, Magistrate ought to have followed provisions and procedure prescribed under Chapter XV of Cr.P.C. – Impugned orders passed by High Court as also CJM set aside – It is open for Magistrate to treat Protest Petition as a complaint and proceed in accordance to law as laid down under Chapter XV of Cr.P.C. (Paras 7, 9, 10, 11 and 12)
Facts of the case:
Instant appeal assails correctness of order dated 24.08.2021 passed by Allahabad High Court dismissing application under Section 482 of Code of Criminal Procedure, 1973 filed by appellant wherein a prayer was made to quash Summoning Order dated 08.03.2021 by Chief Judicial Magistrate [CJM] Aligarh under Sections 147, 342, 323, 307, 506 of Indian Penal Code, 1860.
Findings of Court:
Magistrate had already recorded his satisfaction that it was a case worth taking cognizance and fit for summoning accused, Magistrate ought to have followed provisions and procedure prescribed under Chapter XV of Cr.P.C.
Result : Appeal allowed.
Act Referred
Legal Category Hierarchy
Table of Contents
2. Whether cognizance based on additional evidence in a Protest Petition must be treated as a private complaint under Section 200 Cr.P.C. or a State case under Section 190(1)(b). (Para 5 , 6 )
3. The Magistrate relied on affidavits filed with the Protest Petition to reject the closure report, thereby necessitating the procedure for private complaints under Chapter XV Cr.P.C. (Para 7 , 9 )
4. When a Magistrate relies on additional evidence provided in a Protest Petition to take cognizance, the matter must be treated as a complaint under Section 200 Cr.P.C. (Para 9 )
5. Appeal allowed — Impugned orders set aside — Magistrate directed to treat the Protest Petition as a complaint and proceed under Chapter XV Cr.P.C. (Para 11 , 12 )
6. What is the legal effect when a Magistrate relies on additional evidence in a Protest Petition?
If a Magistrate relies on additional material, such as affidavits filed with a Protest Petition, to disagree with a police closure report, they must treat the petition as a complaint and follow the procedure prescribed under Chapter XV, specifically Sections 200 and 202 of the Cr.P.C. (Para 9 )
7. Can a Magistrate take cognizance under Section 190(1)(b) Cr.P.C. despite the filing of a Protest Petition?
Yes, if the Magistrate relies solely on the material collected during the investigation as contained in the case diary to disagree with the closure report, cognizance can be taken under Section 190(1)(b) without the necessity of examining witnesses under Section 200. (Para 9 )
8. What remedy is available to a complainant if the Magistrate rejects a Protest Petition and its supporting material?
The Magistrate has the liberty to reject the Protest Petition and all supporting material. In such an event, the complainant remains at liberty to file a fresh complaint under Section 200 Cr.P.C. (Para 10 )
JUDGMENT :
VIKRAM NATH, J.
1. Leave granted.
2. This appeal assails the correctness of the order dated 24.08.2021 passed by the Allahabad High Court dismissing the application under Section 482 of the Code of Criminal Procedure, 19731 [Cr.P.C.] filed by the appellant wherein a prayer was made to quash the Summoning Order dated 08.03.2021 by the Chief Judicial Magistrate2 [CJM] Aligarh in Case No. 129/2020 under Sections 147, 342, 323, 307, 506 of the Indian Penal Code, 18603 [IPC] Police Station, Civil Lines, District Aligarh. There is an order dated 01.11.2021 passed by the High Court wherein the Case Number mentioned in the order dated 24.08.2021 was corrected as Case No. 5727/2021.
3. Respondent no. 2 lodged a First Information Report4 [FIR] bearing the aforesaid details whereupon the same was investigated and after investigation the police report under Section 173(2) Cr.P.C. was submitted according to which the Investigating Officer found that no evidence could be collected which could substantiate the allegations made in the FIR. The said report was submitted to the Court concerned whereupon notices were issued to the informant. The informant filed a Protest Petition along with affidavits to show that the investigation carried out by the Investigating Officer was not a fair investigation. He had completed the case diary sitting at the Police Station without actually recording the statements of the witnesses.
4. The CJM, by order dated 08.03.2021 rejected the police report under Section 173(2) Cr.P.C. and further proceeded to take cognizance for offences under Sections 147, 342, 323, 307, 506 of the IPC and under Section 190 (1) (b) of the Cr.P.C. and also directed that the matter would continue as a State case. Accordingly, it summoned the accused, fixed 30th April, 2021. This order of cognizance and summoning the present appellant was assailed before the High Court by way of a petition under Section 482 Cr.P.C. registered as Application u/s. 482 No. 15273 of 2021. The said application has sine been dismissed by the High Court giving rise to the present appeal.
5. Shri Vinod Prasad, learned senior counsel appearing for the appellant submitted that the CJM as also the High Court fell in error in taking cognizance under Section 190(1)(b) Cr.P.C. inasmuch as the CJM had relied upon not only the Protest Petition which was supported by affidavit of the complainant but also on the affidavits of witnesses which were filed along with the Protest Petition to support the contents of the complaint. The submission was that once the CJM was relying upon additional material in the form of evidence produced by the complainant along with the Protest Petition then the only option for the CJM was to treat it as a complaint under Section 200 Cr.P.C. and proceed accordingly. The said case could not have been continued as a State case and should have been treated as a private complaint. It was also submitted that it was open for the CJM to have rejected the police report submitted under Section 173(2) Cr.P.C. for closure and relying upon the material in the case diary, (in effect, the material collected during investigation) could have taken cognizance but once additional evidence was being relied upon which had been filed along with the Protest Petition then the only option open was to treat it as a private complaint and after following the due procedure in Chapter XV of the Cr.P.C. proceeded to take cognizance under Section 190(1)(a) Cr.P.C.
6. On the other hand, the submission advanced by the learned counsel for the State as also the Complainant-respondent no. 2 was that the CJM did not take into consideration any additional evidence filed in the form of affidavits along with the Protest Petition and had only relied upon the material collected during the investigation as contained in the case diary and based upon the same the satisfaction recorded by the CJM to reject the police report and take cognizance was well within his domain and such cogni
