Can magistrate take cognizance on the basis of a protest petition after negative report from police

(Arising out of SLP(CRL.) No.3308 of 2013)
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
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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
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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 Bihar1
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
[1981 Crl.LJ 795]
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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
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.
1982 (3) SCC 510
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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
(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
(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
[1980 Crl. LJ 1308],
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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.
[2004 (7) SCC 768] (para 9)
[2003 (1) SCC 734] (para 12)
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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
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.
[2011 (15) SCC 513]
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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.
[Sudhansu Jyoti Mukhopadhaya]
[Ranjan Gogoi]
New Delhi;
August 13, 2014.