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Vishnu Kumar Tiwari vs The State Of Uttar Pradesh on 9 July, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1015 OF 2019
(Arising out of SLP (Crl.) No.9654 of 2017)

VISHNU KUMAR TIWARI … APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH THROUGH
SECRETARY HOME, CIVIL SECRETARIAT
LUCKNOW AND ANOTHER … RESPONDENT(S)

J U D G M E N T

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
Signature Not Verified
The appellant married the second respondent’s daughter
Digitally signed by
NEELAM GULATI
Date: 2019.07.17
16:21:34 IST
Reason:

on 22.04.2004. The father of the appellant made a

1
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
2
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
3
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.

4

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:

“11. In the light of above law, I am of the
opinion that, if the protest petition was
submitted by the petitioner against the final
report submitted by the police, then it was
the duty of the learned Magistrate to go
through the protest petition and if there was
any substance in the protest petition then he
may took cognizance under Section 190(1)(b)
of Cr.P.C.

12. The perusal of the record of learned
Magistrate disclose that he has not taken
into consideration the protest petition of
the petitioner. Since there was a protest
petition that is why it was the pious duty of
the learned CJM to consider the facts
mentioned in the protest petition and to
decide it according to law.”

7. The order passed by the Chief Judicial Magistrate shows

that there is consideration of the protest petition.

Neither the Chief Judicial Magistrate nor the Additional
5
Sessions Judge have failed to apply the correct principles

of law. In this regard, it is apposite to notice the

following observations made in the impugned judgment of the

High Court:

“10. In the case 2001 (43) ACC 1096 Pakhando
others Vs State of UP another, it is opined
by the Court that in the case of final report
the Magistrate has four options:-
(1) He may agree with the conclusion of
the police and accept the final report and
drop the proceeding.

(2) He may take cognizance under Section
190(1)(b) Cr.P.C. and issue process
straightaway to the accused without being
bound by the conclusion of the
investigating agency where he is satisfied
that upon the facts discovered by the
police, there is sufficient ground to
proceed.

(3) He may order for further
investigation if he is satisfied that the
investigation was made in a perfunctory
manner.

(4) He may without issuing process and
dropping the proceedings under Section
190(1)(a) Cr.P.C. upon the original
complaint or protest petition treating the
same as complaint and proceed to act under
Sections 200 and 202 Cr.P.C. and thereafter
whether complaint should be dismissed or
process should be issued.”

6

8. He would emphasise that it is a case where the late wife

of the appellant/daughter of the second respondent had died

a natural death. There is a case for the appellant that the

marriage was solemnized in the year 2004. It was after some

time that the wife of the appellant conceived and the child

was delivered. It is further the case of the appellant that

unfortunately illness struck the daughter of the second

respondent. Treatment was afforded and, as found by the

Chief Judicial Magistrate, the complainant’s daughter died

due to her illness. There was no case made out for

interfering with the orders impugned before the High Court.

9. Per contra, the learned counsel appearing on behalf of

the second respondent/complainant drew our attention to the

death certificate issued by Priti Hospital:

“DEATH CERTIFICATE

This is to certify that Patient Smt. Jaya
Tiwari aged about 31 year, female W/o. Shri
Vishnu Tiwari. R/o Village Saorai, Saifabad,
Patti Pratapgarh U.P. Who was admitted in
this Trust on 09.10.07 at 10.29 P.M. as a case
of septicaemia c respiratory distress under
Doctor A. Gupta has expired on 10.10.2007 at
8.00 A.M. due to cardio pulmonary arrest.”

7

10. He would point out that on the one hand, there is
reference to the case of the daughter of the complainant

being one of septicaemia c respiratory distress but it is

also stated that the daughter of the second

respondent/complainant died due to cardio pulmonary

arrest. This raised questions which are not dealt with by

the orders impugned before the High Court.

11. He also referred to the statements given by the witness
to contend that there was material which should have

persuaded the Chief Judicial Magistrate to treat the

protest petition as a complaint and the matter should have

been proceeded on the said basis.

12. The court put a question to the appellant as to why the
Additional Sessions Judge has found that there is prima

facie no case made under Section 304B and 201 of the IPC

against the accused persons by the Chief Judicial

Magistrate but why there is no reference to Section 498A

of IPC. The learned counsel drew our attention to the order

passed by the Additional Sessions Judge and contended that

the second respondent/complainant did not press the case

8
under Section 498A of the IPC. The contention was confined

to Section 304B and 201 of the IPC.

A LOOK AT WHAT THIS COURT SPOKE IN THE MATTER

13. In Abhinandan Jha and others v. Dinesh Mishra 1 , the
question arose as to whether when a report is submitted that

there is no material that any case is made out for sending

the accused for trial, the Magistrate can direct the police

to submit a charge-sheet. This Court took the view that the

Magistrate cannot compel the Police to change their

opinion. However, it was held that the Magistrate is free

to not accept such report and he may take suitable action.

The Magistrate may direct further investigation under

Section 156 (3) of the Code. It was further held that it

would be in a case where the Magistrate feels that the

investigation is unsatisfactory or incomplete. It may be

also in a case where there is scope for further

investigation.

1 AIR 1968 SC 117 / (1967) 3 SCR 668
9

14. It may not be inapposite that we refer to the following
discussion by this Court in Abhinandan Jha (supra) as to

what is a final report:

“13. It will be seen that the Code, as such,
does not use the expression ‘charge-sheet’ or
‘final report’. But it is understood, in the
Police Manual containing Rules and
Regulations, that a report by the police,
filed under Section 170 of the Code, is
referred to as a ‘charge-sheet’. But in
respect of the reports sent under Section 169
i.e. when there is no sufficient evidence to
justify the forwarding of the accused to a
Magistrate, it is termed variously, in
different States, as either ‘referred
charge’, ‘final report’, or ‘summary’.”

15. In H.S. Bains, Director, Small Saving-cum-Deputy
Secretary Finance, Punjab, Chandigarh v. State (Union

Territory of Chandigarh) 2 , the Police submitted a final

report. However, the Magistrate disagreed with the

conclusion of the Police and directed issue of process upon

taking cognizance of the case. A contention was taken that

the Magistrate acted illegally in not recording statements

on oath of the complainant and the witnesses under Section

200 of the Code and the Magistrate must, therefore, be

10
treated as having taken cognizance upon the Police report

for which he was not competent as it was not a report under

Section 173, but a final report within the meaning of

Section 169. It was contended that the Magistrate had only

two options before him – (i) he could either order further

investigation. (ii) He could also take cognizance as upon

a complaint but for the same the statements of the

complainant and witnesses had to be recorded.

16. This Court in the course of its judgment in H.S. Bains
(supra), held as follows:

“6. It is seen from the provisions to
which we have referred in the preceding paras
that on receipt of a complaint a Magistrate
has several courses open to him. He may take
cognizance of the offence and proceed to
record the statements of the complainant and
the witnesses present under Section 200.

Thereafter, if in his opinion there is no
sufficient ground for proceeding he may
dismiss the complaint under Section 203. If
in his opinion there is sufficient ground for
proceeding he may issue process under Section

204. However, if he thinks fit, he may
postpone the issue of process and either
enquire into the case himself or direct an
investigation to be made by a police officer
or such other person as he thinks fit for the

2 (1980) 4 SCC 631
11
purpose of deciding whether or not there is
sufficient ground for proceeding. He may then
issue process if in his opinion there is
sufficient ground for proceeding or dismiss
the complaint if there is no sufficient
ground for proceeding. On the other hand, in
the first instance, on receipt of a
complaint, the Magistrate may, instead of
taking cognizance of the offence, order an
investigation under Section 156(3). The
police will then investigate and submit a
report under Section 173(1). On receiving the
police report the Magistrate may take
cognizance of the offence under Section
190(1)(b) and straight away issue process.
This he may do irrespective of the view
expressed by the police in their report
whether an offence has been made out or not.
The police report under Section 173 will
contain the facts discovered or unearthed by
the police and the conclusions drawn by the
police therefrom. The Magistrate is not bound
by the conclusions drawn by the police and he
may decide to issue process even if the police
recommend that there is no sufficient ground
for proceeding further. The Magistrate after
receiving the police report, may, without
issuing process or dropping the proceeding
decide to take cognizance of the offence on
the basis of the complaint originally
submitted to him and proceed to record the
statements upon oath of the complainant and
the witnesses present under Section 200 of
the Criminal Procedure Code and thereafter
decide whether to dismiss the complaint or
issue process. The mere fact that he had
earlier ordered an investigation under
Section 156 (3) and received a report under
Section 173 will not have the effect of total
effacement of the complaint and therefore the
Magistrate will not be barred from proceeding
12
under Sections 200, 203 and 204. Thus, a
Magistrate who on receipt of a complaint,
orders an investigation under Section 156(3)
and receives a police report under Section
173(1), may, thereafter, do one of three
things: (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 process; this
he may do without being bound in any manner
by the conclusion arrived at by the police in
their report; (3) he may take cognizance of
the offence under Section 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 complaint or
issue process, as the case may be.”
(Emphasis supplied)

17. Thus, when he proceeds to take action by way of
cognizance by disagreeing with the conclusions arrived at

in the police report, he would be taking cognizance on the

basis of the police report and not on the complaint. And,

therefore, the question of examining the complainant or his

witnesses under Section 200 of the Code would not arise.

This was the view clearly enunciated.

13

18. In Mahesh Chand v. B. Janardhan Reddy 3
, the

appellant/complainant had lodged report alleging

commission of offences by the respondent. Subsequently,

being dissatisfied with the investigation, he filed a

criminal complaint in the court of the Magistrate. In the

meantime, the Investigating Officer filed a final report

finding that the controversy was of a civil nature. The

appellant filed a protest petition. The final report was

accepted by the Magistrate. The complaint case filed by the

appellant was also closed. It became final. The appellant

filed a third complaint, as it were, under Section 200 of

the Code. On summons being issued, it was successfully

questioned before the High Court. We may notice the

following discussion by this Court profitably.

“12. 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.

3 (2003) 1 SCC 734

14
xxx xxx xxx

16. In Munilal Thakur case [1985 Cri LJ
437:1984 Pat LJR 774] the Division Bench of
the Patna High Court was concerned with the
question as to whether a Magistrate even
after accepting final report filed by the
police, can take cognizance of offence upon
a complaint or the protest petition on same
or similar allegations of fact; to which the
answer was rendered in the affirmative.

17. The question which has arisen for
consideration herein neither arose therein
nor was canvassed.

18. In Jayashankar Mund case [1989 Cri LJ
1578 : (1989) 67 Cut LT 426] the Orissa High
Court again did not have any occasion to
consider the question raised herein. The
Court held: (Cri LJ pp. 1582-83, para 6)

“Even though a protest petition is in
the nature of a complaint, it is
referable to the investigation
already held by the vigilance police
culminating in the final report and
because the informant was not
examined on solemn affirmation under
Section 202 of the Code, thereby no
illegality or prejudice was caused
to the accused. If such a view is
accepted and there is no reason why
such a view should not be accepted,
the necessary consequence in this
particular case shall be that the
protest petition which is of the
nature of a complaint petition filed
by the petitioner shall be in

15
continuation and in respect of the
case instituted and investigated by
the vigilance police.”

19. Keeping in view the settled legal
principles, we are of the opinion that the
High Court was not correct in holding that the
second complaint was completely barred. It is
settled law that there is no statutory bar in
filing a second complaint on the same facts.
In a case where a previous complaint is
dismissed without assigning any reasons, the
Magistrate under Section 204 CrPC may take
cognizance of an offence and issue process if
there is sufficient ground for proceeding. As
held in Pramatha Nath Talukdar case [AIR
1962 SC 876 : 1962 Supp (2) SCR 297 : (1962)
1 Cri LJ 770] second complaint could be
dismissed after a decision has been given
against the complainant in previous matter
upon a full consideration of his case.
Further, second complaint on the same facts
could be entertained only in exceptional
circumstances, namely, where the previous
order was passed on an incomplete record or
on a misunderstanding of the nature of
complaint or it was manifestly absurd, unjust
or where new facts which could not, with
reasonable diligence, have been brought on
record in the previous proceedings, have been
adduced. In the facts and circumstances of
this case, the matter, therefore, should have
been remitted back to the learned Magistrate
for the purpose of arriving at a finding as
to whether any case for cognizance of the
alleged offence had been made out or not.”

(Emphasis supplied)

16

19. In Gangadhar Janardan Mhatre v. State of Maharashtra4,
this Court reiterated that Magistrate can, faced with a

final report, independently apply his mind to the facts

emerging from investigation and take cognizance under

Section 190 (1)(b), and in this regard, is not bound to

follow the procedure under Sections 200 and 202 of the Code

for taking cognizance under Section 190(1)(b). It was,

however, open to the Magistrate to do so.

20. In regard to the filing of protest petition by the
informant who filed the First Information Report, it is

important to notice the following discussion by this Court:

“6. There is no provision in the Code to
file a protest petition by the informant who
lodged the first information report. But this
has been the practice. Absence of a provision
in the Code relating to filing of a protest
petition has been considered. This Court
in Bhagwant Singh v. Commr. of
Police [(1985) 2 SCC 537:1985 SCC (Cri) 267
: AIR 1985 SC 1285] stressed on the
desirability of intimation being given to the
informant when a report made under Section
173(2) is under consideration. The Court held
as follows: (SCC p. 542, para 4)

4 (2004) 7 SCC 768

17
“There can, therefore, be no
doubt that when, on a
consideration of the report made
by the officer in charge of a
police station under sub-section
(2)(i) of Section 173, the
Magistrate is not inclined to take
cognizance of the offence and
issue process, the informant must
be given an opportunity of being
heard so that he can make his
submissions to persuade the
Magistrate to take cognizance of
the offence and issue process. We
are accordingly of the view that in
a case where the Magistrate to whom
a report is forwarded under
sub-section (2)(i) of Section 173
decides not to take cognizance of
the offence and to drop the
proceeding or takes the view that
there is no sufficient ground for
proceeding against some of the
persons mentioned in the first
information report, the
Magistrate must give notice to the
informant and provide him an
opportunity to be heard at the time
of consideration of the report.”

9. When a report forwarded by the police
to the Magistrate under Section 173(2)(i) is
placed before him several situations arise.
The report may conclude that an offence
appears to have been committed by a
particular person or persons and in such a
case, the Magistrate may either (1) accept
the report and take cognizance of the offence
and issue process, or (2) may disagree with
the report and drop the proceeding, or (3) may
18
direct further investigation under Section
156(3) and require the police to make a
further report. The report may on the other
hand state that according to the police, no
offence appears to have been committed. When
such a report is placed before the Magistrate
he has again option of adopting one of the
three courses open i.e. (1) he may accept the
report and drop the proceeding; or (2) he may
disagree with the report and take the view
that there is sufficient ground for further
proceeding, take cognizance of the offence
and issue process; or (3) he may direct
further investigation to be made by the
police under Section 156(3). The position is,
therefore, now well settled that upon receipt
of a police report under Section 173(2) a
Magistrate is entitled to take cognizance of
an offence under Section 190(1)(b) of the
Code even if the police report is to the
effect that no case is made out against the
accused. The Magistrate can take into account
the statements of the witnesses examined by
the police during the investigation and take
cognizance of the offence complained of and
order the issue of process to the accused.
Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence
only if the investigating officer gives an
opinion that the investigation has made out
a case against the accused. The Magistrate
can ignore the conclusion arrived at by the
investigating officer and independently
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
procedure laid down in Sections 200 and 202
of the Code for taking cognizance of a case
19
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
Karnataka [(1989) 2 SCC 132 : 1989 SCC (Cri)
306 : AIR 1989 SC 885] .] The informant is not
prejudicially affected when the Magistrate
decides to take cognizance and to proceed
with the case. But where the Magistrate
decides that sufficient ground does not
subsist for proceeding further and drops the
proceeding or takes the view that there is
material for proceeding against some and
there are insufficient grounds in respect of
others, the informant would certainly be
prejudiced as the first information report
lodged becomes wholly or partially
ineffective. Therefore, this Court indicated
in Bhagwant Singh case [(1985) 2 SCC 537 :
1985 SCC (Cri) 267 : AIR 1985 SC 1285] that
where the Magistrate decides not to take
cognizance and to drop the proceeding or
takes a view that there is no sufficient
ground for proceeding against some of the
persons mentioned in the first information
report, notice to the informant and grant of
opportunity of being heard in the matter
becomes mandatory. As indicated above, there
is no provision in the Code for issue of a
notice in that regard.”
(Emphasis supplied)

21. This Court, in Gangadhar Janardan Mhatre (supra), also
stressed on the need to issue notice to the informant in

the following discussion:

20
“12. Therefore, the stress is on the issue of
notice by the Magistrate at the time of
consideration of the report. If the informant
is not aware as to when the matter is to be
considered, obviously, he cannot be faulted,
even if protest petition in reply to the
notice issued by the police has been filed
belatedly. But as indicated in Bhagwant
Singh case [(1985) 2 SCC 537 : 1985 SCC (Cri)
267 : AIR 1985 SC 1285] the right is conferred
on the informant and none else.”
(Emphasis supplied)

22. In Kishore Kumar Gyanchandani v. G.D. Mehrotra 5 , a
First Information Report was lodged in respect of certain

offences. The Police filed a final report which came to be

accepted. Nearly three months thereafter, a protest

petition was filed. The Magistrate directed the same to be

considered as a complaint. He held an inquiry under Section

202 of the Code and proceeded to take cognizance. Paragraph

4 is relevant and it reads as follows:

“4. There is some controversy between
the parties that before accepting the final
form by the Magistrate on 27-1-1996 notice
had been served on the complainant and the
complainant did not file objections, whereas
the case of the complainant is that he had not
received any notice from the Court. Be that
as it may, we are not entering into that

5(2011) 15 SCC 513

21
controversy for deciding the present case as
in our view it is not material either way nor
does it oust the jurisdiction of the
Magistrate on the basis of a complaint to take
cognizance of the offence alleged to have
been committed by the accused even if he had
already accepted the final form, the same
having been filed by the police.”

23. In fact, the case itself was decided by a Bench of three
learned Judges of this Court in view of the divergence of

opinion in the Court. The Court held as follows:

“6. It is too well settled that when
police after investigation files a final form
under Section 173 of the Code, the Magistrate
may disagree with the conclusion arrived at
by the police and take cognizance in exercise
of power under Section 190 of the Code. The
Magistrate may not take cognizance and direct
further investigation in the matter under
Section 156 of the Code. Where the Magistrate
accepts the final form submitted by the
police, the right of the complainant to file
a regular complaint is not taken away and in
fact on such a complaint being filed the
Magistrate follows the procedure under
Section 201 of the Code and takes cognizance
if the materials produced by the complainant
make out an offence. This question has been
raised and answered by this Court in the case
of Gopal Vijay Verma v. Bhuneshwar Prasad
Sinha[(1982) 3 SCC 510 : 1983 SCC (Cri) 110]
whereunder the view of the Patna High Court
to the contrary has been reversed. The Court
in no uncertain terms in the aforesaid case
has indicated that the acceptance of final

22
form does not debar the Magistrate from
taking cognizance on the basis of the
materials produced in a complaint
proceeding.”
(Emphasis supplied)

This Court found that the High Court was in error in

interfering with the cognizance taken by the Magistrate.

24. In Rakesh Kumar and another v. State of Uttar Pradesh
and another6, on the basis of a First Information Report

lodged by the Police after investigation, a final report

came to be filed. The Magistrate accepted the final report.

He, simultaneously, directed the case be proceeded with as

a complaint case. Statements under Section 200 and 202 of

the Code were recorded. The High Court turned down the plea

of the accused to whom summons were issued. It was the

contention of the accused that having accepted a negative

final report, the court could not take action on the basis

of the protest petition filed by the complainant. This Court

refers to the judgment in H.S. Bains (supra). The principles

of law laid down in paragraph 12 of Mahesh Chand (supra),

6 2014 (13) SCC 133

23
which we have also referred to earlier, came to be approved.

The order of the High Court was approved.

25. This is a case where following the First Information
Report, the Investigating Officer conducted an

investigation. Statements were taken from the complainant,

his wife and his son. This is apart from the statements which

were taken from the Doctors who treated the daughter of the

second respondent/complainant. The Investigation Officer

concluded that there is no material which would warrant the

accused being sent for trial. When such a report is filed

before the court, it is beyond the shade of doubt that the

Magistrate may still choose to reject the final report and

proceed to take cognizance of the offences, which in his

view, are seen committed. He may, on the other hand, after

pondering over the materials, which would include the

statements of witnesses collected by the Investigating

Officer, decide to accept the final report. He may entertain

the view that it is a case where further investigation by

the Officer is warranted before a decision is taken as to

whether cognizance is to be taken or not.

24

26. It is undoubtedly true that before a Magistrate
proceeds to accept a final report under Section 173 and

exonerate the accused, it is incumbent upon the Magistrate

to apply his mind to the contents of the protest petition

and arrive at a conclusion thereafter. While the

Investigating Officer may rest content by producing the

final report, which, according to him, is the culmination

of his efforts, the duty of the Magistrate is not one limited

to readily accepting the final report. It is incumbent upon

him to go through the materials, and after hearing the

complainant and considering the contents of the protest

petition, finally decide the future course of action to be,

whether to continue with the matter or to bring the curtains

down.

27. In this case, the High Court proceeded on the basis,
as we have noticed, that the Magistrate has not taken into

consideration the protest petition and it was his pious duty

to consider the facts mentioned in the petition. We have

examined the order passed by the Magistrate. He does refer

to the protest petition. The contents therein are

25
undoubtedly noticed. Magistrate says that he has gone

through the First Information Report. He finds that the

complainant is not an eyewitness in regard to the death of

his daughter. He recorded that he has gone through the

statements of witnesses given under Section 161. We may

notice that the following findings were entered in regard

to the case of torture committed against the complainant’s

daughter:

“… First of all I have gone through the
statement of Sh Shiv Shankar Ojha who is
complainant in this case. Although this
witness has partly favoured the incident but
here it is pertinent to mention that at the
time of death of deceased Jaya, this witness
was not present. When it was asked from this
witness that whether after you received
information of torture committed to you
daughter, you had made any application
anywhere or you had informed this through any
relation etc. In reply to this question, he
has stated that ‘no’. I have also duly gone
through the statement of Smt. Shakuntala Devi
mother of deceased. Mother of deceased has
given statement to the investigating officer
that my son in law is working in Haryana in
a private job.”

28. Thereafter, he referred to the statement of the mother
and brother of the deceased. He refers to the statements

26
of the Doctors. The Doctors concluded that the deceased died

due to her illness. One of the Doctors have stated that the

mother of the patient Smt. Shakuntala had signed the

admission form. The patient was examined. The patient had

delivered a child two months ago by caesarean operation.

She was suffering from fever. She was breathing rapidly.

Her body was suffering from jaundice. She was in need of

respiratory support machine. The disease of the patient was

septic shock and multiple organ failure. She died on

08.10.2017. The death was found to be due to her illness.

29. The Chief Judicial Magistrate, in fact, proceeded to
take the view that Magistrate has to take cognizance on the

basis of the statements of the witnesses recorded by the

Investigating Officer and materials collected. He further

finds that if cognizance is taken on the basis of protest

petition and documents annexed, that is illegal. It is after

that it was found that the deceased died due to her illness

and no prima facie case was made out against the accused

persons.

27

30. We may notice that against the order of the Chief
Judicial Magistrate and Additional Sessions Judge, the

second respondent has invoked jurisdiction under Article

226 of the Constitution of India. The relief sought in the

writ petition is one of certiorari to quash the orders. We

may indicate that in Radhey Shyam another v. Chhabi Nath

others7 , this Court, after overruling the judgment of this

Court in Surya Dev Rai v. Ram Chander Rai others8 in this

regard, it has been laid down that a Writ of Certiorari will

not lie to quash an order of a civil court. The High Court

while exercising powers under Article 226 of the

Constitution of India, at any rate, must bear in mind the

limited nature of its jurisdiction when it deals with orders

of subordinate courts.

31. In the facts of this case, the High Court concluded that
the Magistrate has not considered the protest petition by

the second respondent/complainant. Had it been the case

where protest petition had not been considered at all, it

may have been open to the court to came to the conclusion

7 (2015) 5 SCC 423
8 (2003)6 SCC 675
28
that an illegality had been committed in exercise of its

jurisdiction to deal with the final report. But it is

another matter when the Magistrate has undoubtedly

considered the protest petition to direct the court again

to consider the matter for action on the same, and for that

purpose, to set aside the proceedings.

32. We would think that, as noticed by us, the High Court
was in clear error in concluding that the protest petition

was not considered. That the High Court may take one of the

two views of the matter may be an unsafe premise for its

interference with the orders passed by the Magistrate, as

affirmed by the Additional Sessions Judge.

33. On the basis of the materials which include the
statements of the Doctors and after adverting to the

contentions of the protest petition, the Magistrate has

come to the conclusion that it is not a fit case for being

continued and the matter should end as the daughter of the

second respondent/complainant died due to illness. It is

a finding which is arrived at by the court with reference

to the statements of the medical practitioners. Equally,

29
in the circumstances which led to the unfortunate death of

the daughter of the second respondent/complainant, it is

found no case was made out under Section 201 of the IPC.

It would appear that before the Sessions Judge, the aspect

relating to Section 498A or in fact the provisions relating

to Sections 3 and 4 of the Dowry Prohibition Act, 1961, was

not pressed by the second respondent. That apart, we also

notice that Magistrate has referred to the statement of the

complainant that there was no complaint made about the

torture apparently based on dowry demand as alleged.

34. We have also gone through the protest petition along
with the counter affidavit. No doubt, in paragraph 2, there

is a general reference to demands for property from the

deceased and father of the deceased and torture. Paragraphs

3 to 15 thereafter relate to the circumstances relating to

the death of the daughter of the second respondent. In the

said paragraphs, the case is sought to be made out that

forged documents were produced before the Investigating

Officer. Affidavits of the mother and brother of the

deceased, inter alia, were also filed to project the case

30
of forgery. For instance, in the affidavit of the mother

of the deceased, she claims that she has not gone to the

hospital on the 9th and 10th of October, 2007, whereas,

according to the statement under Section 161 of the Code,

she is alleged to have stated that on 09.10.2007, the

deceased was admitted at Priti Hospital by them which

apparently includes the mother. We have noticed that in

regard to that no doubt the Chief Judicial Magistrate has

relied upon judgment in Mohammed Yusuf and others v. State

of Uttar Pradesh and others 9 and taken the view that if

cognizance is taken on the basis of the protest petition

and the documents annexed with, that is illegal. He also

took the view that the Magistrate has to take cognizance

on the basis of statements of witnesses recorded by the

Investigating Officer, in the case diary and the material

collected during investigation.

35. A learned Single Judge of the High Court of Allahabad,
in the aforesaid decision, had this to say in paragraph 11:

9 2008 CriLJ 493

31
“11. Where the Magistrate decides to
take cognizance under Section 190(1)(b)
ignoring the conclusions reached at by the
Investigating Officer and applying his mind
independently, he can act only upon the
statements of the witnesses recorded by the
police in the case-diary and material
collected during investigation. It is not
permissible at that stage to consider any
material other than that collected by the
investigation Officer. In the instant case
the cognizance was taken on the basis of the
protest petition and accompanying
affidavits. The Magistrate should have
adopted the procedure of complaint case under
Chapter XV of the Code of Criminal Procedure
and recorded the statements of the
complainant and the witnesses who had filed
affidavits under Sections 200 and 202 Cr.P.C.
The Magistrate could not take cognizance
under Section 190(1)(b) Cr.P.C. on the basis
of protest petition and affidavits filed in
support thereof. The Magistrate having taken
into account extraneous material i.e.
protest petition and affidavits while taking
cognizance under Section 190(1)(b) Cr.P.C.
the impugned order is vitiated.”
(Emphasis supplied)

36. The Chief Judicial Magistrate has adhered to the law
laid down by the learned Single Judge. In fact, we may notice

that in regard to this aspect, if the learned Single Judge,

who has rendered the impugned judgment in this case, had

32
a different view, he ought to have referred the matter to

a larger Bench.

37. In H.S. Bains (supra), there was a private complaint
within the meaning of Section 190(1)(a) of the Code. The

matter was referred to the Police under Section 156(3). The

Investigating Officer filed a final report. Therein, the

court took the view that apart from the power of the

Magistrate to take cognizance notwithstanding the final

report, under Section 190(1)(b), he could also fall back

upon the private complaint which was initially lodged but

after examining the complainant and his witnesses, as

contemplated under Sections 200 and 202 of the Code. In

regard to taking cognizance under Section 190(1)(b) of the

Code of a final report, undoubtedly, it is not necessary

to examine the complainant or his witnesses though he may

do so.

38. In Mahesh Chand (supra), no doubt the matter was
commenced by a First Information Report and followed up by

the complainant in the court under Section 190(1)(a) of the

Code. On the First Information Report, after investigation,

33
a final report was filed. The final report came to be

accepted and it was closed. This is despite the fact that

there was the protest petition. A third complaint, as it

were, came to be filed by the complainant. This Court went

on to hold that acceptance of the final report would not

stand in the way of taking cognizance on a protest/complaint

petition.

39. In Kishore Kumar Gyanchandani (supra), after the final
report was accepted on a protest petition which was treated

as a complaint, evidence was taken within the meaning of

Section 200 of the Code.

40. In Rakesh Kumar (supra), the final report was filed
which was accepted by the Magistrate but he simultaneously

directed the case to be proceeded as a complaint case and

statements under Sections 200 and 202 of the Code came to

be recorded.

41. In the facts of this case, having regard to the nature
of the allegations contained in the protest petition and

the annexures which essentially consisted of affidavits,

if the Magistrate was convinced on the basis of the

34
consideration of the final report, the statements under

Section 161 of the Code that no prima facie case is made

out, certainly the Magistrate could not be compelled to take

cognizance by treating the protest petition as a complaint.

The fact that he may have jurisdiction in a case to treat

the protest petition as a complaint, is a different matter.

Undoubtedly, if he treats the protest petition as a

complaint, he would have to follow the procedure prescribed

under Section 200 and 202 of the Code if the latter Section

also commends itself to the Magistrate. In other words,

necessarily, the complainant and his witnesses would have

to be examined. No doubt, depending upon the material which

is made available to a Magistrate by the complainant in the

protest petition, it may be capable of being relied on in

a particular case having regard to its inherent nature and

impact on the conclusions in the final report. That is, if

the material is such that it persuades the court to disagree

with the conclusions arrived at by the Investigating

Officer, cognizance could be taken under Section 190(1)(b)

of the Code for which there is no necessity to examine the

witnesses under Section 200 of the Code. But as the
35
Magistrate could not be compelled to treat the protest

petition as a complaint, the remedy of the complainant would

be to file a fresh complaint and invite the Magistrate to

follow the procedure under Section 200 of the Code or

Section 200 read with Section 202 of the Code. Therefore,

we are of the view that in the facts of this case, we cannot

support the decision of the High Court.

42. It is true that law mandates notice to the

informant/complainant where the Magistrate contemplates

accepting the final report. On receipt of notice, the

informant may address the court ventilating his objections

to the final report. This he usually does in the form of

the protest petition. In Mahabir Prasad Agarwala v. State10,

a learned Judge of the High Court of Orissa, took the view

that a protest petition is in the nature of a complaint and

should be examined in accordance with provisions of Chapter

XVI of the Criminal Procedure Code. We, however, also

noticed that in Qasim and others v. The State and others11,

10 AIR 1958 Ori. 11
11 1984 CrlLJ 1677
36
a learned Single Judge of the High Court of Judicature at

Allahabad, inter alia, held as follows:

“4. … In the case of Abhinandan Jha
MANU/SC/0054/1967 (supra) also what was
observed was ‘it is not very clear as to
whether the Magistrate has chosen to treat
the protest petition as complaint.’ This
observation would not mean that every protest
petition must necessarily be treated as
complaint whether it satisfies the
conditions of the complaint or not. A private
complaint is to contain a complete list of
witnesses to be examined. A further
examination of complainant is made under
Section 200 Cr.P.C. If the Magistrate did not
treat the protest petition as a complaint,
the protest petition not satisfying all the
conditions of the complaint to his mind, it
would not mean that the case has become a
complaint case. In fact, in majority of cases
when a final report is submitted, the
Magistrate has to simply consider whether on
the materials in the case diary no case is
made out as to accept the final report or
whether case diary discloses a prima facie
case as to take cognizance. The protest
petition in such situation simply serves the
purpose of drawing Magistrate’s attention to
the materials in the case diary and invite a
careful scrutiny and exercise of the mind by
the Magistrate so it cannot be held that
simply because there is a protest petition
the case is to become a complaint case.”

37

43. We may also notice that in Veerappa and others v.
Bhimareddappa12, the High Court of Karnataka observed as

follows:

“9. From the above, the position that
emerges is this: Where initially the
complainant has not filed any complaint
before the Magistrate under Section 200 of
the Cr. P.C., but, has approached the police
only and where the police after investigation
have filed the ‘B’ report, if the complainant
wants to protest, he is thereby inviting the
Magistrate to take cognizance under Section
190(1)(a) of the Cr. P.C. on a complaint. If
it were to be so, the protest petition that
he files shall have to satisfy the
requirements of a complaint as defined in
Section 2(d) of the Cr. P.C., and that should
contain facts that constitute offence, for
which, the learned Magistrate is taking
cognizance under Section 190(1)(a) of the Cr.
P.C. Instead, if it is to be simply styled as
a protest petition without containing all
those necessary particulars that a normal
complaint has to contain, then, it cannot be
construed as a complaint for the purpose of
proceeding under Section 200 of the Cr. P.C.”

44. Complaint is defined in Section 2(d) of the Code as
follows:

“(d) ” complaint” means any allegation made
orally or in writing to a Magistrate, with a

12 2002 CriLJ 2150 (Karnataka)

38
view to his taking action under this Code,
that some person, whether known or unknown,
has committed an offence, but does not
include a police report. Explanation.- A
report made by a police officer in a case
which discloses, after investigation, the
commission of a non- cognizable offence shall
be deemed to be a complaint; and the police
officer by whom such report is made shall be
deemed to be the complainant;”

45. If a protest petition fulfills the requirements of a
complaint, the Magistrate may treat the protest petition

as a complaint and deal with the same as required under

Section 200 read with Section 202 of the Code. In this case,

in fact, there is no list of witnesses as such in the protest

petition. The prayer in the protest petition is to set aside

the final report and to allow the application against the

final report. While we are not suggesting that the form must

entirely be decisive of the question whether it amounts to

a complaint or liable to be treated as a complaint, we would

think that essentially, the protest petition in this case,

is summing up of the objections the second respondent

against the final report.

39

46. This brings us to one aspect of the matter which in fact
was not argued at the Bar. The appeal is filed by the husband

of the deceased, by special leave and permission. The

allegations in the First Information Report are raised

against the other relatives of the appellants, viz., his

parents and in-laws and his siblings also. They have not

challenged the order of the High Court. Allegations are made

in respect of offences as committed by them also.

47. In this regard, we may notice, one facet. The Chief
Judicial Magistrate accepted the final report and decided

not to proceed against any of the accused including the

appellant. This stood confirmed by the Additional Sessions

Judge. Before the High court, neither the appellant nor any

of his relatives were made parties. When the order was

passed by the High Court accepting the report and directing

reconsideration, was it necessary for the second

respondent/complainant to implead the appellant and other

relatives? Can we set aside the judgment of the High Court

qua only the appellant, or can we in the facts in this case,

40
also interfere with the order of the High Court against all

the accused?

48. It may be true that till process is issued, the accused
may not have the right to be heard (See the judgment of this

court in Iris Computers Limited v. Askari Infotech Private

Limited and others13).

49. The High Court, in fact, at paragraph 11 of the impugned
order, which we have extracted at paragraph 6 of our

judgment, contemplated consideration of the protest

petition so that cognizance may be taken under Section

190(1)(b) of the Code. This premise being without any basis

even qua the other accused who are the relatives of the

appellant, we would think that the impugned order must be

set aside. Having regard to the nature of the allegations

and in exercise of our powers also under Article 142 of the

Constitution of India, we must set aside the Order of the

High Court.

50. We would think that in the facts of this case, the High
Court erred in intervening and that there was no

13 (2015) 14 SCC 399

41
justification in the facts for the High Court in setting

aside the orders.

51. Resultantly, the appeal will stand allowed, the
impugned order of the High Court will stand set aside. We,

however, make it clear that this would be without prejudice

to the rights of the second respondent to file a complaint

as already noticed in the order of the Additional Sessions

Judge.

………………J.

(SANJAY KISHAN KAUL)

………………J.

(K.M. JOSEPH)
New Delhi,
July 09, 2019.

42

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