Vishnu Kumar Tiwari vs State of Uttar Pradesh through Secretary Home, Civil Secretariat Lucknow and Another

HELD : 1. In the present case, 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. [Para 25] [1132-E-G]

2. Thus, before a Magistrate proceeds to accept a final report under Section 173 Cr.P.C. 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. [Para 26] [1132-H; 1133-A-B]

3. In the present case, the Magistrate does refer to the protest petition. The 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. [Paras 27 and 29] [1133-C; 1134-B-C]

4. 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. 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. [Paras 30 and 32] [1134-E, G; 1135-A]

5. The Magistrate relying upon judgment passed by Single Judge of Allahabad High Court in *Mohammed Yusuf case had 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. Thus, the Magistrate had adhered to the law laid down by the Single Judge of High Court. If the Single Judge, who has rendered the impugned judgment in the present case, had a different view, he ought to have referred the matter to a larger Bench. [Paras 34 and 36] [1135-G; 1136-A, F] *Mohammed Yusuf and others v. State of Uttar Pradesh and others 2008 CriLJ 493 – referred to.

6. In the facts of the present 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 consideration of the final report, the statements under Section 161 of Cr.P.C 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 Cr.P.C 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 Cr.P.C for which there is no necessity to examine the witnesses under Section 200 of Cr.P.C. But as the 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 Cr.P.C or Section 200 read with Section 202 of Cr.P.C. Therefore, in the facts of the present case, the decision of the High Court cannot be supported. [Para 41] [1137-E-H; 1138-A-B]

7. 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. A protest petition is in the nature of a complaint and should be examined in accordance with provisions of Chapter XVI of Cr.P.C. [Para 42] [1138-C-D]

8. 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 Cr.P.C. In the present case, there was 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. Thus, the protest petition in the present case, is summing up of the objections the second respondent against the final report. [Para 45] [1139-G; 1140-A-B]

9. 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. The 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. It may be true that till process is issued, the accused may not have the right to be heard. The High Court, in fact contemplated consideration of the protest petition so that cognizance may be taken under Section 190(1)(b) of Cr.P.C. This premise being without any basis even qua the other accused who are the relatives of the appellant, the impugned order must be set aside. Having regard to the nature of the allegations and in exercise of powers also under Article 142 of the Constitution of India, the Order of the High Court is set aside. [Paras 46, 47, 48 and 49] [1140-C-G]

Qasim and others v. The State and others 1984 CrlLJ 1677– relied on.

Mahabir Prasad Agarwala v. State AIR 1958 Ori. 11 ; Veerappa and others v. Bhimareddappa 2002 CriLJ 2150 (Karnataka) – approved.

Abhinandan Jha and others v. Dinesh Mishra [1967] 3 SCR 668 ; H.S. Bains, Director, Small Saving-cumDeputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) (1980) 4 SCC 631 : [1981] 1 SCR 935 ; Mahesh Chand v. B. Janardhan Reddy (2003) 1 SCC 734 : [2002] 4 Suppl. SCR 566 ; Gangadhar Janardan Mhatre v. State of Maharashtra (2004) 7 SCC 768 : [2004] 4 Suppl. SCR 772 ; Kishore Kumar Gyanchandani v. G.D. Mehrotra (2011) 15 SCC

513 ; Rakesh Kumar and another v. State of Uttar Pradesh and another (2014) 13 SCC 133 ; Iris

Computers Limited v. Askari Infotech Private Limited and others (2015) 14 SCC 399 ; Radhey Shyam &

another v. Chhabi Nath & others (2015) 5 SCC 423 : [2015] 3 SCR 197 ; Surya Dev Rai v. Ram Chander Rai & others (2003) 6 SCC 675 : [2003] 2 Suppl. SCR 290 – referred to.