RAKESH &ANRversusSTATE OF U.P. &ANR.

                      [2014] 13 S.C.R.1072


A                        RAKESH &ANR
                                 v.
                      STATE OF U.P. &ANR.
               (Criminal Appeal No. 1412 of 2014)
B
                        AUGUST 13, 2014
          [SUDHANSU JYOTI MUKHOPADHAYA AND
                      RANJAN GOGOi, JJ]
c        Code of Criminal Procedure, 1973:
       . ss. 173, 190(1 )(a) and 190(1 )(b) - Jurisdiction of
  Magistrate to take cognizance, on a protest petition/complaint,
  of an offence in respect of which a final report u/s 173 had
  been accepted - Held: Only because Magistrate has
D accepted a final report, the same by itself would not stand in
  f1is way to take cognizance of the offence on a protesV
  complaint petition; bu( the question which is required to be
  posed and answered would be as to under what circumstances
  tl7e said power can be exercised.
E          Respondent No.2 lodged an FIR for offence
  punishable u/s 364 IPC against the appellants and two
  others. On completion of investigation, the Investigating
  Officer submitted a final report to the court that no case
  was made out against the persons accused and that they
F wc~re falsely implicated in the case. By order dated
  26.11.2002, the Magistrate accepted the final report but
  simultaneously directed that the case be proceeded with
  as a complaint case. The statements u/ss 200 and 202
  Cr.P.C.,were recorded and the accused were summoned
G by the trial court to face the trial. The appellants moved
  the High Court, which answered in affirmative the
  question as to 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
H complainant/first informant.
                               1072
        RAKESH &ANR v. STATE OF U.P. &ANR.                   1073


      In the instant appeal, it was contended for the A
accused-appellant that having accepted the final report,
the Magistrate had become "functus officio" and was
denuded of all powers to proceed in the matter.
     Dismissing the appeal, the Court
                                                             B
     HELD: 1.1 In Gopal Vijay Verma*, this Court 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. [Para 6)          c
[1076-C-D]
     *Gopal Vijay Verma v. Bhuneshwar Prasad Sinha
     & Ors. 1982 (3) SCC 510 ; H.S. Bains v.
     State (Union Territory of Chandigarh) 1980 Crl.
     LJ 1308; Gangadhar Janardan Mhatre v. State             D
     of Maharashtra & Ors. 2004 (4) Suppl.
     SCR 772 : 2004 (7) SCC 768 - relied on
     Bhuneshwar Prasad Sinha vs. State of Bihar 1981
     Crl.LJ 795, stood reversed.
                                                        E
      1.2 In Mahesh Chand**, this Court has held that
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 F
question which is required to be posed and answered
would be as to under what circumstances the said power
can be exercised. Therefore, the High Court has rightly
answered the question. [Para 9)(1078-A-C]
    **Mahesh Chand v. B.Janardhan Reddy & Anr.               G
    2002 (4) Suppl. SCR 566: 2003 (1) sec 734;
    Kumar Gyanchandani vs. GD. Mehrotra & Anr.
    2011 (15) sec 513 - relied on.

                                                             H
1074        SUPREME COURT REPORTS                  [2014} 13 S.C.R.


 A                    CASE LAW REFERENCE
       1981 Crl.LJ 795            relied on                 Para 5
       1982 (3) sec 510           stood disapproved         Para 9
       1980 Crl. LJ 1308          relied on                 Para 7
 8
       2004 (4) Suppl. SCR 772 relied on                    Para 9
       2002 (4) Suppl. SCR 566 relied on                    Para 9
       2011 (15) sec 513          relied on .               Para 9

 c         CRJMINAL APPELLATE JURISDICTION : Criminal
     · Appeal No(s). 1412 of2014.
             From the Judgment and Order dated 04.03.2013 of the
       High Court of Judicature at Allahabad, Lucknow Bench U. P.
       in Criminal Misc. Petition No. 64 of 2008.
 D          Shrish Kumar Misra, Adv., for the Appellants.
            Ms. Nidhi,Adv., for the Respondents.
            The Judgment of the Court was delivered by
            RANJAN GOGOi, J. 1. Leave granted.
 E
          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 complainanVfirst i~formant? The
    above question having been answered in the affirmative by
  F 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 :
  G       Respondent No.2 herein lodged an FtR which was
    registered as Crime Case NoA80 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
  H officer submitted a final report to the court that no case is made
         RAKESH &ANR v. STATE OF U.P. &ANR.                  1075
                 [RANJAN GOGOi, J.]

out against the appellants and the other two accused and that A
they have been falsely implicated in the case. By order dated
261h 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 B
(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 c
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 Bihari,
the very same question came up for consideration before the 0
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 ifthe Magistrate agrees with the opinion of the police
     he may accept the final report and close the E
     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 F
     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 G
     clear from the order dated 6m 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

1
[1981 Crl.LJ 795]
                                                              H
1076             SUPREME COURT REPORTS                  (2014] 13 S.C.R.


 A              respect of the same facts constituting the offence which
                were mentioned in the final form. In order to check 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
 B              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
 c              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
 D              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 Viiay
       Verma vs. Bhuneshwar Prasad Sinha & Ors. 2
         7. If we are to go back to trace the genesis of the views
 E expressed by this Court in Gopal Vijay Verma (supra), notice
   must be had of the decision of this Court in H.S. Bains vs.
   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 -
 F
                "( 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
 G              process; this he may do without being bound in any
                manner by the conclusion arrived at by the police in their
                report;

       2
           1982 (3) sec s10
       3
 H         [1980 Crl. LJ 1308].
          RAKESH &ANR v. STATE OF U.P. &ANR.                    1077
                  [RANJAN GOGOi, J.]

      (3) he may take cognizance ofthe offence under Section A
      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 B
      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 C
final report and at the same time in proceeding to treat 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 D
Maharashtra & Ors. 4 . The following view may be specifically
noted-
      " ................ The Magistrate can ignore the conclusion
      arrived at by the investigating officer and independently E
      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 F
     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 Kamataka]" (Para 6)
                                                                G
    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
[2004 (7) sec 768] (para 9)
4

[2003 (1) sec 734] (para 12)
5
                                                                H
1078 .        SUPREME COURT REPORTS                [2014] 13 S.C.R.


 A pronouncement in Kishore Kumar Gyanchandani vs.
   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.
 B       "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
 c            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;
 0 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
 E wasmade.
          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
  F is without any merit or substance. It is accordingly dismissed.

      Rajendra Prasad                                  Appeal dismissed.




      6
          (2011 (15) sec 513]