Brief Facts
- In this case the Complainant/Appellant lodged an FIR for the offence under Sections 147, 148, 149, 307, 323, 324, 504 IPC. The Investigating Officer, after completing the investigation, submitted a Negative Final Report.
- Being aggrieved by the said report, the appellant-complainant filed a Protest Petition before the concerned CJM. The Magistrate rejected the final report submitted by the Investigating Officer and accepted the Protest Petition, and then Magistrate proceeded further under Section 200 and 202 Cr.P.C. and recorded the statements of complainant and eight witnesses. Thereafter, summons were issued to the respondent-accused persons which were challenged before the High Court. The High Court quashed the order concluding that the cognizance had been taken without taking into consideration the material filed along with the police report.
Issues
- What procedure is to be followed by the magistrate on the receipt of the police report?
- Whether the magistrate can take Cognizance of Protest Petition after rejecting Final Report?
- Whether the magistrate can take cognizance independently on the basis of protest petition and the statement recorded thereafter without considering the contents of negative final report?
Held
- The order of the High Court was quashed and set aside.
- There remains no shadow of doubt that on the receipt of the police report under Section 173 Cr.P.C., the Magistrate can exercise three options. Firstly, he may decide that there is no sufficient ground for proceeding further and drop action. Secondly, he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; and thirdly, 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. It may be noted that even in a case where the final report of the police under Section 173 is accepted and the accused persons are discharged, the Magistrate has the power to take cognizance of the offence on a complaint or a Protest Petition on the same or similar allegations even after the acceptance of the final report.
- The concerned CJM vide the detailed order passed on 15.11.2018 had rejected the final report submitted by the Investigating Officer and had accepted the Protest Petition, and decided to proceed further under Section 200 Cr.P.C. Such a course opted by the CJM was absolutely just, legal and proper in the facts and circumstances of the case. The said order dated 15.11.2018 remained unchallenged at the instance of the respondents-accused.
- As such, the High Court should not have permitted the respondents-accused to amend the Application for challenging the order dated 15.11.2018 after about four years of its passing, and in any case should not have interfered with the discretion exercised by the CJM within the four corners of law.
Relevant para no.
- 11 & 12