Monday, August 18, 2014

A Magistrate not become functus officio to proceed on a Protest Complaint just because he accepted a refer report from the police on the same matter

Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant?

Magistrate  had  not become  “functus officio” and was denuded of all power to proceed in the  matter. 

Supreme four of  India In Rakesh and another vs. State of UP the Supreme Court [Crl. Appeal 1412/2014]













IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1412 OF 2014
(Arising out of SLP(CRL.) No.3308 of 2013)

RAKESH & ANR ... APPELLANTS
VERSUS
STATE OF U.P. & ANR. ..

J U D G M E N T
RANJAN GOGOI, J.

1. Leave granted.

2. Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant? The above question having been answered in the affirmative by the Allahabad High Court, this appeal has been filed by the accused.

3. The bare facts that would be required to be noticed are as follows :

Respondent No.2 herein lodged an FIR which was registered as Crime Case No.480 of 2000 under Section 364 of the Indian Penal Code at the Police Station Gosai Ganj District Sultanpur against the appellants and two other accused persons. On completion of investigation, the investigating officer submitted a final report to the court that no case is made out against the appellants and the other two accused and that they have been falsely implicated in the case. By order dated 26th November, 2002, the learned Magistrate accepted the final report but simultaneously directed that the case be proceeded with as a complaint case. The statements under Sections 200 and 202 of the Code of Criminal Procedure (Cr.P.C.) were recorded and the accused were summoned by the learned trial court to face the trial. Against the aforesaid orders passed by the learned Magistrate, the present appellants moved the High Court of  Allahabad raising the question noticed earlier. The High Court having answered the said question in the affirmative, this appeal has been filed. 

4. We have heard learned counsel for the parties. 

5. In Bhuneshwar Prasad Sinha vs. State of Bihar 1 , the very same question came up for consideration before the Patna High Court. The High Court answered the question in the negative by holding – 

“In that case it has been held by the 
Supreme Court that if the Magistrate agrees 
with the opinion of the police he may accept 
the final report and close the proceedings. It 
will be deemed that the proceedings against 
the accused persons in respect of the facts
constituting the offence have been closed by 
the Magistrate in a Judicial-Proceeding. If it is 
so, such proceeding can only beset aside in 
revision by the higher authority unless and 
until the order is not set aside, the Magistrate 
is not entitled to take cognizance on the 
basis of the complaint petition or protest
petition in respect of the same facts 
constituting the offence as mentioned in the 
final form. In the present case, it is clear from 
the order dated 6th Dec. 1978, that the final 
form was accepted by the court earlier. If it is 
so, then the Magistrate was not justified in 
taking cognizance in respect of the same 
facts constituting the offence which were 
mentioned in the final form. In order to check
1 [1981 Crl.LJ 795] 
the litigation, it is necessary that when a 
judicial order is passed by accepting the final 
form such order should not be set aside by  
the Magistrate by taking cognizance on the 
basis of the complaint petition.” 
6. In the appeal filed against the aforesaid order of the 
Patna High Court, this Court, however, held that – 
“The High Court was clearly in error in 
thinking that the Magistrate could not take 
cognizance of a case upon complaint because 
he had earlier refused to take cognizance of
the case on a police report. The order of the 
High Court is set aside. The matter is 
remitted to the Chief Judicial Magistrate, 
Patna for disposal according to law. If the  
accused have any further objections to raise,
they may do so before the Chief Judicial 
Magistrate.” 

The decision of this Court is reported in Gopal Vijay 
Verma vs. Bhuneshwar Prasad Sinha & Ors. 2 .

7. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma (supra), notice must be had of the decision of this Court in H.S. Bains vs. 2 1982 (3) SCC 510 State (Union Territory of Chandigarh) 3 wherein it was
held that after receipt of the police report under Section 173, the Magistrate has three options –
“(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.”

8. The second and third options available to the Magistrate as laid down in H.S. Bains (supra) has been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat 3 [1980 Crl. LJ 1308],  either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein. Reference in this regard may be made to the decision of this Court in Gangadhar Janardan Mhatre vs. State of Maharashtra & Ors.4. The following view may be specifically noted –

“…………….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 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]”
(Para 6)

9. The view expressed by this Court in Gopal Vijay Verma (supra) has been followed in Mahesh Chand vs. B.Janardhan Reddy & Anr. 5 and also in a somewhat recent pronouncement in Kishore Kumar Gyanchandani vs. 4 [2004 (7) SCC 768] (para 9)
5 [2003 (1) SCC 734] (para 12) 6 G.D.Mehrotra & Anr.6. The clear exposition of law in para 12 of Mahesh Chand (supra) which is extracted below would leave no manner of doubt that the answer to the question posed by the High Court is correct.

“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.”

10. In the present case, the contention advanced on behalf of the accused pertained to the question of jurisdiction alone; it was urged that having accepted the final report the learned Magistrate had become “functus officio” and was denuded of all power to proceed in the matter. The above stand taken and the answer provided by the High Court would not require us to consider the circumstances in which the exercise of power was made. 6 [2011 (15) SCC 513]7

11. In Kishore Kumar (supra) the question has been gone into again and reliance has been placed on Gopal Vijay Verma (supra) to reiterate the same conclusion.

12. In view of the above, it has to be held that this appeal is
without any merit or substance. It is accordingly dismissed.
……..…..…………………………...J.
[Sudhansu Jyoti Mukhopadhaya]
……..…………………………….……J.
[Ranjan Gogoi]
New Delhi;
August 13, 2014.




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