Appeal against the order under section 482 crpc to quash the summoning order
2. This appeal assails the correctness of the order dated 24.08.2021 passed by the Allahabad High Court dismissing the application under Section 482 of the Code of Criminal Procedure, 19731 filed by the appellant wherein a prayer was made to quash the Summoning Order dated 08.03.2021 by the Chief Judicial Magistrate, Aligarh in Case No.129/2020 under Sections 147, 342, 323, 307, 506 of the Indian Penal Code, 18603 Police Station, Civil Lines, District Aligarh. There is an order dated 01.11.2021 passed by the High Court wherein the Case Number mentioned in the order dated 24.08.2021 was corrected as Case No.5727/2021.
A final report (drop report) was lodged based on the information but a protest petition was filed as if the investigation was not fair
3. Respondent no.2 lodged a First Information Report4 bearing the aforesaid details whereupon the same was investigated and after investigation the police report under Section 173(2) Cr.P.C. was submitted according to which the Investigating Officer found that no evidence could be collected which could substantiate the allegations made in the FIR. The said report was submitted to the Court concerned whereupon notices were issued to the informant. The informant filed a Protest Petition along with affidavits to show that the investigation carried out by the Investigating Officer was not a fair investigation. He had completed the case diary sitting at the Police Station without actually recording the statements of the witnesses.
CJM rejected the police report and took cognizance and summoned the accused
4. The CJM, by order dated 08.03.2021 rejected the police report under Section 173(2) Cr.P.C. and further proceeded to take cognizance for offences under Sections 147, 342, 323, 307, 506 of the IPC and under Section 190 (1) (b) of the Cr.P.C. and also directed that the matter would continue as a State case. Accordingly, it summoned the accused, fixed 30th April, 2021. This order of cognizance and summoning the present appellant was assailed before the High Court by way of a petition under Section 482 Cr.P.C. registered as Application u/s.482 No.15273 of 2021. The said application has since been dismissed by the High Court giving rise to the present appeal.
CJM took consideration on protest petition and affidavits supported the protest petition and concluded the investigation was not fair
7. We have carefully examined the order dated 24.08.2021 passed by the CJM taking cognizance and summoning the police and we find that the CJM had actually taken into consideration not only the Protest Petition but also the affidavit filed in support of the Protest Petition as well as the four affidavits of witnesses filed along with the Protest Petition. It was based on consideration of such affidavits that the CJM was of the view that the investigation was not a fair investigation and these affidavits made out a prima facie case for taking cognizance and summoning the accused.
How to proceed on filing closure (final) report?
8. Once we have held as above without going into many judgments of this Court on the point as to how the Magistrate would proceed under Section 190 Cr.P.C. once the Investigating Officer had submitted a closure report under Section 173(2) Cr.P.C., we may briefly deal with the legal issue and refer to relevant paragraphs of a recent decision. In this connection, Section 190(1) (a) and (b) of Cr.P.C. is extracted hereunder:
190. Cognizance of offences by Magistrates. (1)Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence – (a)upon receiving a complaint of facts which constitute such offence; (b)upon a police report of such facts;….”
The magistrate has to treat the protest petition as a complaint
9. In the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh, through Secretary Home, Civil Secretariat, Lucknow & Anr. [(2019) 8 SCC 27] Justice K.M.Joseph, speaking for the Bench laid down the legal position relying upon previous judgments of this Court. In the said case the facts were quite similar to that of the present case where affidavits were filed along with the Protest Petition. The net result is that the Magistrate in the present case ought to have treated the Protest Petition as a complaint and proceeded according to Chapter XV of the Cr.P.C.. The relevant paragraphs dealing with the above aspect in the case of Vishnu Kumar Tiwari (supra), being paragraphs 42 to 46 are reproduced hereunder:
“paragraphs. 42 to 46”
The magistrate is also empowered to reject the protest petition and the complainant is at liberty to file a fresh complaint
10. From a perusal of the above opinion of this Court, it is also reflected that the Magistrate also had the liberty to reject the Protest Petition along with all other material which may have been filed in support of the same. In that event the Complainant would be at liberty to file a fresh complaint. The right of the Complainant to file a petition under Section 200 Cr.P.C. is not taken away even if the Magistrate concerned does not direct that such a Protest Petition be treated as a complaint.
Since the Magistrate considered the affidavits and protest petition Apex court has set aside the cognizance taken under section 190(1)(b) and directed to proceed as a complaint case
11. In the present case as the Magistrate had already recorded his satisfaction that it was a case worth taking cognizance and fit for summoning the accused, we are of the view that the Magistrate ought to have followed the provisions and the procedure prescribed under Chapter XV of the Cr.P.C. Accordingly, we allow this appeal, set aside the impugned orders passed by the High Court as also the CJM, Aligarh.
Party
MUKHTAR ZAIDI …APPELLANT VERSUS THE STATE OF UTTAR PRADESH & ANR. …RESPONDENTS – CRIMINAL APPEAL NO. OF 2024 (ARISING OUT OF SLP (CRL.) NO.9122 OF 2021) – 2024 INSC 316
https://main.sci.gov.in/supremecourt/2021/27886/27886_2021_8_1503_52280_Judgement_18-Apr-2024.pdf
Author’s note
In this case, the Investigation Officer has filed a closure report as a final report. The learned CJM by rejecting the final report has taken cognizance under section 190(1)(b) Cr.P.C and announced that the case would continue as a state case. Now the complainant has filed a protest petition along with the affidavits to it. The learned CJM after contemplating the affidavits has summoned the accused. Now the accused who was summoned has preferred a quash application before the Hon’ble High Court which was dismissed. Thereafter, the accused preferred SLP before the Hon’ble Supreme Court which was allowed by setting aside the orders of both the CJM and Hon’ble High Court and observed that since the CJM has decided to take cognizance then he must-have proceeded under section XV of the Code.
