Madras HC Upholds Magistrate’s Choice to Treat Protest Petition as Complaint, Rejects Demand for Direct Cognizance

In brief

The question

1. Whether, after a negative police report is filed, a Magistrate may be directed to take direct cognizance under Section 190(1)(b) Cr.P.C. on the basis of a protest petition.

The court held

The High Court answered the issues against the revision petitioner, holding that the Magistrate could not be compelled to take direct cognizance under Section 190(1)(b) Cr.P.C. after choosing to proceed on the protest petition as a complaint.

It also directed

The criminal revision was dismissed, and the Magistrate’s order was upheld.

01Facts

The police filed a negative report in Crime No. 217 of 2015, treating the case as a mistake of fact.

The de facto complainant, V. Gurusamy, challenged the report by filing a protest petition. The Magistrate declined to accept the negative report and treated the protest petition as a private complaint under Sections 200 and 202 Cr.P.C., directing the complainant to appear for examination on oath.

¶ 5 · p. 2

Gurusamy sought revision, asking the High Court to direct the Magistrate instead to take cognizance under Section 190(1)(b) Cr.P.C. and issue summons to the accused.

¶ 6, 12 · pp. 2, 4–5

02Issues

i.1. Whether, after a negative police report is filed, a Magistrate may be directed to take direct cognizance under Section 190(1)(b) Cr.P.C. on the basis of a protest petition.

¶ 10, 17 · p. 4, 6

ii.2. Whether a Magistrate who has chosen to treat a protest petition as a complaint under Section 190(1)(a) Cr.P.C. may be compelled to proceed instead under Section 190(1)(b) Cr.P.C.

¶ 17 · p. 6

03Law Applied

Under Section 190(1) Cr.P.C., a Magistrate may take cognizance upon a complaint, a police report, or other information or personal knowledge. On receiving a negative police report, the Magistrate may accept it and drop proceedings, order further investigation, take cognizance under Section 190(1)(b) if the materials warrant it, or proceed under Sections 200 and 202 Cr.P.C. by treating the protest petition as a complaint under Section 190(1)(a).

¶ 11, 14 · pp. 4–5

In Vishnu Kumar Tiwari v. State of Uttar Pradesh, (2019) 8 SCC 27, the Supreme Court held that a Magistrate cannot be compelled to treat a protest petition as a complaint; where the Magistrate does so, the procedure under Sections 200 and, where applicable, 202 must be followed.

¶ 18 · pp. 6–7

Cognizance under Section 190(1)(b) may be taken where the materials persuade the Magistrate to disagree with the police conclusion, but the choice of procedure is not to be imposed by compulsion.

¶ 18 · pp. 6–7

Provisions in the judgment · 6 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 438 Section 442

Code of Criminal Procedure, 1973 Section 200 Section 190 Section 161 Section 202

04Reasoning

The Magistrate rejected the negative report and chose the complaint procedure by treating the protest petition as a complaint under Sections 200 and 202 read with Section 190(1)(a) Cr.P.C.

¶ 13–15 · pp. 5–6

The revision petitioner’s request would require the Magistrate to abandon that option and adopt direct cognizance under Section 190(1)(b). Applying Vishnu Kumar Tiwari, the High Court held that the Magistrate could not be compelled to select a different cognizance procedure.

¶ 18 · pp. 6–7

It also noted the petitioner’s allegations that the investigation was defective and incomplete, but held that those allegations did not justify directing the Magistrate to take direct cognizance on the presupposition that sufficient material existed.

¶ 18–20 · pp. 6–8