Holding

The High Court cannot direct the filing of a protest petition or influence the magistrate’s decision; its order and the consequent magistrate order are set aside, and the magistrate must act independently, giving notice to the informant if not taking cognizance.

Summary

The son of the petitioner was injured in a firearm attack and a case was registered under IPC s.307. The investigating officer submitted a final report excluding the accused on the basis of an alibi, prompting the petitioner to file a writ petition under Art.226 seeking a fair investigation. The High Court directed the petitioner to file a protest petition before the trial magistrate and kept the writ pending, effectively indicating a desire to reject the police report. The Supreme Court held that the High Court had no authority to compel the informant to file a protest petition or to influence the magistrate’s decision, and that the magistrate must act independently, giving notice to the informant if he chooses not to take cognizance. It clarified that under CrPC s.173(2)(i) and s.190(1)(b) a magistrate may take cognizance even when the police report concludes no case, and must provide the informant an opportunity to be heard. Consequently, the High Court’s order and the magistrate’s subsequent order were set aside, the protest petition (if filed) to be considered uninfluenced, and the writ petition treated as disposed.

Issues considered

Whether a High Court can direct the informant to file a protest petition under the CrPC.
Whether a High Court can keep a writ petition pending and thereby influence the magistrate’s consideration of a police report.
Whether a magistrate must give notice to the informant and an opportunity to be heard when rejecting a police report under s.173.
Scope of the magistrate’s power to take cognizance of an offence under s.190(1)(b) despite the police report’s conclusion.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 169, s. 170, s. 173(2)(i), s. 190(1)(b), s. 190(1)(c), s. 200, s. 202
Constitution of Indias. Art.226
Indian Penal Code, 1860s. 307

Subjects

Art.226protest petitionpolice final reportSection 173Section 190magistrate cognizancenotice to informantCriminal ProcedureIPC 307alibifair investigation

Judgment

....--'I'

SANJAY BANSAL AND ANR. A
v.
JAWAHARLAL VATS AND ORS.

OCTOBER 22, 2007
,. [DR.ARIJITPASAYAT ANDLOKESHWARSINGHPANTA,JJ.]
B
...
Constitution ofIndia, I 950:
Art. 226-Son of Respondent No. I sustained fire-arm injuries- c
Case registered under s. 307 JPC-10. submittedfinal report excluding
accused-Appellants ofthe offence on basis ofalibi claimed by them-
Respondent No. I filed writ petition before High Court praying for
direction to investigating agency to proceed in the case in a "fair and
proper" manner-High Court directed Respondent No. I to file protest
,.... D
petition before Trial Magistrate and kept the writ petition pending/or
order of the Magistrate-Correctness of-Held, not correct-High
Court could not have directed Respondent No. I to lodge the protest
petition-It was for the informant to do so if he intended to do so-
High Court further could not have kept the matter pending and
indicated its anxiety to know the order passed by the Magistrate-It
E
is clearly indicative ofthe fact that the High Court wanted the rejection
of the final report though it was not spec~fically spelt out-Jn the
circumstances, order passed by High Court and the consequential order
,,. ) passed by Magistrate are set aside-Protest petition, ({filed, shall be
considered by the Magistrate in accordance with law uninfluenced by F
any observation made by High Court-Penal Code, I860-s.307-
Code ofCriminal Procedure, I973-ss. I56, I69, I73 & I90.

The son of Respondent No.1 sustained fire-arm injuries at the
hands of some miscreants. A case was registered under Section 307 G
i>·
IPC. The Investigating Officer submitted final report excluding the
" accused-Appellants of the offence on the basis of alibi claimed by
them. Respondent No.1 filed writ petition before High Court praying
for a direction to the investigating agency to proceed in the case in
591 H
~.
f-

592 SUPREME COURT REPORTS [2007] 11 S.C.R. ,__
~
t-
A a "fair and proper" manner. High Court directed Respondent No.1
~
to file protest petition before the Trial Magistrate and kept the writ
peti~ion pending for order of the Magistrate.

Appellant contended before this Court that the directions given
by High Court could not be sustained since it indirectly directed
B
rejection of the final report submitted by the Investigating Officer .J~
"·
which was evident from the fact that the High Court exp~essed its ., I
•
anxiety to know the order passed by the Magistrate and kept the
writ petition pending for order of the Magistrate. It was submitted
that in view of the clear indication of view made by the High Court,
c the Trial Magistrate was bound to be influenced.
Disposing of the appeal, the Court
... ~
'' HELD: 1.1. When a report forwarded by the police to the
Magistrate under Section 173(2)(i) CrPC is placed before him
D 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 direct
E 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
~ j-
F 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
G 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. [Para 8] [598-C, D, E, F, G]
1.2. The Magistrate can take into account the statements of the
H
I

j
SANJAYBANSAL v. JAWAHARLAL VATS 593
~

witnesses examined by the police during the investigation and take A
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 B
., conclusion arrived at by the Investigating Officer and independently
apply his mind to the facts emerging from the investigation and take
1'
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 c
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. [Para 8] [598-G, H; 599-A, B]
1 1.3. The informant is not prejudicially affected when the
Magistrate decides to take cognizance and to proceed with the case. D
I

1 ,. But where the Magistrate decides that sufficient ground does not
_J 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 E
becomes wholly or partialfy ineffective. [Para 8] [599-B, C, D]
1.4. 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
-1 ·~
F
First Information Report, notice to the informant and grant of
....i
opportunity of being heard in the matter becomes mandatory .
mi.
[Para 8] (599-D, E]

1.5. The expressions 'charge-sheet' or 'final report' are not
used in the Code, but it is understood in Police Manuals of several G
;- States containing the Rules and the Regulations to be a report by
" the police filed under Section 170 of the Code, described as a
'charge-sheet'. In case of reports sent under Section 169, i.e., where
there is no sufficiency of evidence to justify forwarding of a case to
H
\
594 SUPREME COURT REPORTS [2007] 11 S.C.R.

{V

A a Magistrate, it is termed variously i.e., referred charge, final report
or summary. Section 173 in terms does not refer to any notice to be
given to raise any protest to the report submitted by the police.
Though the notice issued under some of the Police Manuals states
it to be a notice under Section 173 of the Code, there is nothing in
B Section 173 specifically providing for such a notice.
(Para 9] (599-E, F, G]
-"'·
1.6. The Magistrate has to give the notice to the informant and ~

provide an opportunity to be heard at the time of consideration of
c the report. 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 the right t-
D is conferred on the informant and none else.

~
[Paras 10and11] [600-A, B, C]
...
Bhagwant Singh v. Commissioner ofPolice and Anr., AIR (1985)
SC 1285; Abhinandan Jha and Anr. v. Dinesh Mishra, AIR (1968) SC
"
[
117; Mis. India Saraf Pvt. Ltd. v. State of Karnataka and Anr., AIR
E Ir-
.__
(1989) SC 885 and Gangadhar Janardan Mhatre v. State of
~
Maharashtra and Ors., [2004] 7 SCC 768, relied on.

2.1. The High Court could not have directed the writ petitioner
to lodge the protest petition. It was for the informant fo do so if he
F intended to do so. The High Court further could not have kept the
matter pending and in<.iicated its anxiety to know the order passed
~ >- >
t
~-
by the Magistrate. It is clearly indicative of the fact that the High
Court wanted the rejection of the final report though it was not .I-
specifically spelt out. [Para 13] [600-D, E]
G
~
2.2. In the circumstances, the order passed by the High Court
and the consequential order passed by the Magistrate are set aside. >-' ~
The protest petition, if filed, shall be considered by the Magistrate
in accordance with law uninfluenced by any observation made by the
H
J
i
SAN.TA YBANSAL v. JAWAHARLAL VATS[PASA YAT,J.] 595
y-,.

High Court. [Para 14] [600-F] A

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1453of2007.
From the Judgment and final Order dated 16.3.2007 of the High
Court of Judicature at Allahabad in Cr!. Misc. W.P. No. 13182/2006. B
/" Mukul Rohatgi, Vinay Arora, Ramesh Sinha, Sudershan Singh
r Rawat, Mukesh Kumar and Sanjay Jain for the Appellants.
R.K:Gupta, Rajiv Dubey, Kamlendra Mishra, Manoj K. Mishra,
Javed M. Rao, Jitendra Mohan Sharma and Ajit Sharma for the c
Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
D
2. Challenge in this appeal is to the order passed by a Division Bench
-/" of the Allal1abad High Court in Criminal Misc. Writ Petition No.13182
of 2006 which was filed under Article 226 of the Constitution of India,
1950 (in short the 'Constitution'). In the writ petition, the writ petitioner,
i.e. respondent No. I, had prayed for a direction to the investigating agency E
to proceed with "fair and proper investigation in case No.147of2006
under Section 307 of the Indian Penal Code, 1860 (in short the 'IPC')
registered at Police Station Nauchandi, district Meerut". The writ petitioner
alleged that his son had sustained fire arm injuries at the hands of some
unknown miscreants on 30.3.2006 at 10.00 a.m. and in regard to it a
I
... ~ case was registered. Initially, Sri RP. Singh, Station Officer, Nauchandi
F
had recorded the statement of the informant and the injured-Dhananjay
who had categorically stated that the present appellants had caused fire
arm injuries on him. Subsequently, the investigation was undertaken by
one Chet Singh, SI who submitted the final report excluding the afore-
nan1ed accused i.e. the present appellants in the offence. The final report G
.... was on the basis of alibi claimed by the accused persons. The High Court
....' ~
was of the view that from the beginning the writ petitioner was apprehending
that there would be no fair and proper investigation into the case as the
accused persons are influential persons. The High Court was of the view
, H
596 SUPREME COURT REPORTS [2007] 11 S.C.R.

A that whether any alibi can be accepted is for the trial court to decide.
Accordingly, the High Court inter alia gave the following directions:
"In above view of the matter the petitioner is directed to
approach the learned Magistrate concerned within 10 days and
file protest petition and the learned Magistrate concerned taking
B into account the statement of the injured and the injury report press
a proper and appropriate order in accordance with law within a
week thereafter and till then the final report No.32 of2006 shall
not be given effect to and in case the final report has already been
accepted the same shall be treated to have been rejected.
c
This Court is anxious to know the order passed by the learned
Magistrate, list this writ petition before us on 20th April, 2007 for
the report of the learned Magistrate concerned."
3. In support of the appeal, learned counsel for the appellants
D submitted that the directions given by the High Court are not sustainable
in law. The course to be adopted when the final report is submitted has
been indicated by this Court in several cases. In this case what the High
Court indirectly directed was rejection of the final report as would be
evident from the fact that the High Court expressed its anxiety to know
E the order passed by the Magistrate and kept the writ petition pending for
report of the concerned learned Magistrate. It was submitted that in view
of the clear indication of view made by the High Court, the trial court
was bound to be influenced. In fact the order by the High Court was
passed on 16.3.2007. This Court directed interim stay of the High Court's
F order by order dated 20th April, 2007. Before the said order could be
passed, the trial court in fact had rejected the final report by order dated
16th April, 2007. In the said order, the learned Magistrate categorically
referred to the order passed by the High Court. Therefore, there was no
independent application of mind.
G
4. In response, learned counsel for respondent No. l has submitted
that the Magistrate has decided the matter uninfluenced by any observation
of the High Court and he exercised the jurisdiction de hors the High
Court's order.
H 5. There is no provision in the Code of Criminal Procedure, 1973
f
SANJA YBANSAL v. JAWAHARLAL VATS [PASAYAT,J.] 597
...,......
(in short the 'Code') to file a protest petition by the infonnant who lodged A
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. Commiss_ioner of Police
and Anr., AIR (1985) SC 1285, stressed on the desirability of intimation
being given to the informant when a report made under Section 173(4) is B
under consideration. The Court held as follows:
r
1 " .... 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 Magistrat~ is
not inclined to take cognizance of the offence and issue process, c
the informant must be given an opportunity of being heard so that
he can make his submission 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 D
·I' to take cognizance of the offence and to drop the proceeding or
takes the view that there is no sufficient ground for proceedi.-ig
against some of the persons mentioned in the First Infonnation
Report, the Magistrate must give notice to the informant and
provide him an opportunity to be heard at the time of consideration E
of the report ... "
6. Therefore, there is no shadow of doubt that the informant is
entitled to a notice and an opportunity to be heard at the time of
consideration of the report. This Court further held that the position },s
F
. "'
..J
different so far as an injured person or a relative of the deceased, who i's
not an informant, is concerned. They are not entitled to any notice. This
Court felt that the question relating to issue of notice and grant of
opportunity as afore-described was of general importance and directed
that copies of the judgment be sent to the High Courts in all the States so
that the High Courts in their tum may circulate the same among th~ G
..... Magistrates within their respective jurisdictions.
..\,
~

7. In Abhinandan Jha and Anr. v. Dinesh Mishra, AIR (1968)
SC 117, this Court while considering the provisions of Sections 156(3),
169, 178 and 190 of the Code held that there is no power, expressly or H
.~
598 SUPREME COURT REPORTS [2007] 11 S.C.R.
-r-"{

A impliedly conferred, under the Code, on a Magistrate to call upon the
police to submit a charge sheet, when they have sent a report under
Section 169 of the Code, that there is no case made out for sending up
an accused for trial. The functions of the Magistrate and the police are
entirely different, and the Magistrate cannot impinge upon the jurisdiction
B of the police, by compelling them td change their opinion so as. to accord
with his view. However, he is not deprived of the power to proceed with
~
the matter. There is no obligation on the Magistrate to accept the report
i
if he does not agree with the opinion formed by the police. The power to
take cognizance notwithstanding formation of the opinion by the police
c which is the final stage in the investigation has been provided for in Section
190(1)(c).
8. 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
D 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
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
E 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,
F 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 I'vfagistrate is entitled to take cognizance of an
offence under Section 190(1)(b) of the Code even if the police report is
G 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
).~. i
police during the investigation and take cognizance of the offence r"

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
H an offence only if the Investigating Officer gives an opinion that the
f
SANJAYBANSAL v. JAWAHARLAL VATS [PASAYAT,J.] 599
~

investigation has made out a case against the accused. The Magistrate A
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, ifhe thinks fit, exercise of his power~
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 B
laid down in Sections 200 and 202 of the Code for taking cognizance of
I'
, a case under Section 190(1)(a) though it is open to him to act under
Section 200 or Section 202 also. [See Mis. India Saraf Pvt. Ltd v.
State of Karnataka and Anr., AIR (1989) SC 885]. The informant is.
not prejudicially affected when the Magistrate decides to take cognizance c
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 D
becomes wholly or partially ineffective. Therefore, this Court indicated
I' in Bhagwant Singh 's case (supra) that where the Magistrate decides not
to take cognizance and to drop the proceeding or takes a view that the~
is no sufficient ground for proceeding against some of the persons
mentioned in the First Information Report, notice to the informant and
E
grant of opportunity of being heard in the matter becomes mandat01y.
As indicated above, there is no provision in the Code for issue of a notice
in that regard.
9. We may add here that the expressions 'charge-sheet' or 'final
_j report' are not used in the Code, but it is understood in Police Manuals F
-~
of several States containing the Rules and the Regulations to be a report
by the police filed under Section 170 of the Code, described as a "charge-
sheet". In case of reports sent under Section 169, i.e., where there is no
sufficiency of evidence to justify forwarding of a case to a Magistrate, it
is termed variously i.e., referred charge, final report or summary. Section Q
.....lo, 173 in terms does not refer to any notice to be given to raise any protest
.... to the report submitted by the police. Though the notice issued under some
of the Police Manuals states it to be a notice under Section 173 of the
Code, though there is nothing in Section 173 specifically providing for
such a notice. H
600 SUPREME COURT REPORTS [2007] 11 S.C.R.

A 10. As decided by this Court in Bhagwant Singh 's case (supra),
the Magistrate has to give the notice to the informant and provide an
opportunity to be heard at the time of consideration of the report. It was
noted as follows:-
" ....the Magistrate must give notice to the informant and provide
B him an opportunity to be heard at the time of consideration of the
report... "

11. 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
c 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 's case (supra) the
right is conferred on the informant and none else.
12. The aforesaid position was highlighted by this Court in
D Gangadhar Janardan Mhatre v. State of Maharashtra and Ors.,
[2004] ? sec 768.
13: The High Court could not have directed the writ petitioner to
lodge the protest petition. It was for the informant to do so if he intended
E to do so. The High Court further could not have kept the matter pending
·and indicated its anxiety to know the order passed by the learned
Magistrate: As rightly contended by learned counsel for the appellants it
is clearly indicative of the fact that the High Court wanted the rejection
of the final report though it was not specifically spelt out.
F 14. In the circumstances, we set aside the order passed by the High
Court and the consequential order dated 16.4.2007 passed by the
Magistrate. The protest petition, if filed, shall be considered by the learned
Magistrate in accordance with law. Uninfluenced by any ()bservation made
by the High Court. We make it clecrr that ~e h~ve riot expressed any
G opinion on the merits of the case. The Writ petition filed before the High
Court shall be treated to have been disposed of and not pending.
15. The appeal is accordingly disposed of.
B.B.B. Appeal disposed of.
H