RAKESH vs. STATE OF U.P.

1 REPORTABLE IN THE SUPREME COURT OF INDIA

RAKESH & ANR ... APPELLANTS VERSUS STATE OF U.P. & ANR. .. RESPONDENTS J U D G M E N T RANJAN GOGOI, J. JUDGMENT 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 Page 1 2 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 th the case. By order dated 26 November, 2002, the learned JUDGMENT 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 Page 2 3 Allahabad raising the question noticed earlier. The High Court having answered the said question in the affirmative, this appeal has been filed.

1 [1981 Crl.LJ 795] Page 3 4

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 JUDGMENT 2 Verma vs. Bhuneshwar Prasad Sinha & Ors. . 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 Page 4 5 3 State (Union Territory of Chandigarh) wherein it was held that after receipt of the police report under Section 173, the Magistrate has three options –

( 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.” JUDGMENT 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], Page 5 6 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

4 vs. State of Maharashtra & Ors. . 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. JUDGMENT State of Karnataka ]” (Para 6) 9. The view expressed by this Court in Gopal Vijay Verma (supra) has been followed in Mahesh Chand vs. 5 B.Janardhan Reddy & Anr. 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) Page 6 7 6 G.D.Mehrotra & Anr. . 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

“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 JUDGMENT 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] Page 7 8 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. JUDGMENT Page 8