Paragraph numbers below are the court’s original numbering, recovered from the source text.
21. This Court, in Gangadhar Janardan Mhatre (supra), also stressed on the need to issue notice to the informant in the following discussion: “12. Therefore, the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh case [(1985) 2 SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC 1285] the right is conferred on the informant and none else.” (Emphasis supplied)
22. In Kishore Kumar Gyanchandani v. G.D. Mehrotra5, a First Information Report was lodged in respect of certain offences. The Police filed a final report which came to be accepted. Nearly three months thereafter, a protest petition was filed. The Magistrate directed the same to be considered as a complaint. He held an inquiry under Section 202 of the Code and proceeded to take cognizance. Paragraph 4 is relevant and it reads as follows: “4. There is some controversy between the parties that before accepting the final form by the Magistrate on 27-1-1996 notice had been served on the complainant and the complainant did not file objections, whereas the case of the complainant is that he had not received any notice from the Court. Be that as it may, we are not entering into that controversy for deciding the present case as in our view it is not material either way nor does it oust the jurisdiction of the Magistrate on the basis of a complaint to take cognizance of the offence alleged to have been committed by the accused even if he had already accepted the final form, the same having been filed by the police.”
23. In fact, the case itself was decided by a Bench of three learned Judges of this Court in view of the divergence of opinion in the Court. The Court held as follows: “6. It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha[(1982) 3 SCC 510 : 1983 SCC (Cri) 110] whereunder the view of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid 5 (2011) 15 SCC 513 case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding.” (Emphasis supplied) This Court found that the High Court was in error in interfering with the cognizance taken by the Magistrate.
24. In Rakesh Kumar and another v. State of Uttar Pradesh and another6, on the basis of a First Information Report lodged by the Police after investigation, a final report came to be filed. The Magistrate accepted the final report. He, simultaneously, directed the case be proceeded with as a complaint case. Statements under Section 200 and 202 of the Code were recorded. The High Court turned down the plea of the accused to whom summons were issued. It was the contention of the accused that having accepted a negative final report, the court could not take action on the basis of the protest petition filed by the complainant. This Court refers to the judgment in H.S. Bains (supra). The principles of law laid down in paragraph 12 of Mahesh Chand (supra), which we have also referred to earlier, came to be approved. The order of the High Court was approved.
25. This is a case where following the First Information Report, the Investigating Officer conducted an investigation. Statements were taken from the complainant, his wife and his son. This is apart from the statements which were taken from the Doctors who treated the daughter of the second respondent/complainant. The Investigation Officer concluded that there is no material which would warrant the accused being sent for trial. When such a report is filed before the court, it is beyond the shade of doubt that the Magistrate may still choose to reject the final report and proceed to take cognizance of the offences, which in his view, are seen committed. He may, on the other hand, after pondering over the materials, which would include the statements of witnesses collected by the Investigating Officer, decide to accept the final report. He may entertain the view that it is a case where further investigation by the Officer is warranted before a decision is taken as to whether cognizance is to be taken or not.
26. It is undoubtedly true that before a Magistrate proceeds to accept a final report under Section 173 and exonerate the accused, it is 6 2014 (13) SCC 133 incumbent upon the Magistrate to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter. While the Investigating Officer may rest content by producing the final report, which, according to him, is the culmination of his efforts, the duty of the Magistrate is not one limited to readily accepting the final report. It is incumbent upon him to go through the materials, and after hearing the complainant and considering the contents of the protest petition, finally decide the future course of action to be, whether to continue with the matter or to bring the curtains down.
27. In this case, the High Court proceeded on the basis, as we have noticed, that the Magistrate has not taken into consideration the protest petition and it was his pious duty to consider the facts mentioned in the petition. We have examined the order passed by the Magistrate. He does refer to the protest petition. The contents therein are undoubtedly noticed. Magistrate says that he has gone through the First Information Report. He finds that the complainant is not an eyewitness in regard to the death of his daughter. He recorded that he has gone through the statements of witnesses given under Section 161. We may notice that the following findings were entered in regard to the case of torture committed against the complainant’s daughter: “… First of all I have gone through the statement of Sh Shiv Shankar Ojha who is complainant in this case. Although this witness has partly favoured the incident but here it is pertinent to mention that at the time of death of deceased Jaya, this witness was not present. When it was asked from this witness that whether after you received information of torture committed to you daughter, you had made any application anywhere or you had informed this through any relation etc. In reply to this question, he has stated that ‘no’. I have also duly gone through the statement of Smt. Shakuntala Devi mother of deceased. Mother of deceased has given statement to the investigating officer that my son in law is working in Haryana in a private job.”
28. Thereafter, he referred to the statement of the mother and brother of the deceased. He refers to the statements of the Doctors. The Doctors concluded that the deceased died due to her illness. One of the Doctors have stated that the mother of the patient Smt. Shakuntala had signed the admission form. The patient was examined. The patient had delivered a child two months ago by caesarean operation. She was suffering from fever. She was breathing rapidly. Her body was suffering from jaundice. She was in need of respiratory support machine. The disease of the patient was septic shock and multiple organ failure. She died on 08.10.2017. The death was found to be due to her illness.
29. The Chief Judicial Magistrate, in fact, proceeded to take the view that Magistrate has to take cognizance on the basis of the statements of the witnesses recorded by the Investigating Officer and materials collected. He further finds that if cognizance is taken on the basis of protest petition and documents annexed, that is illegal. It is after that it was found that the deceased died due to her illness and no prima facie case was made out against the accused persons.
30. We may notice that against the order of the Chief Judicial Magistrate and Additional Sessions Judge, the second respondent has invoked jurisdiction under Article 226 of the Constitution of India. The relief sought in the writ petition is one of certiorari to quash the orders. We may indicate that in Radhey Shyam & another v. Chhabi Nath & others7 , this Court, after overruling the judgment of this Court in Surya Dev Rai v. Ram Chander Rai & others8 in this regard, it has been laid down that a Writ of Certiorari will not lie to quash an order of a civil court. The High Court while exercising powers under Article 226 of the Constitution of India, at any rate, must bear in mind the limited nature of its jurisdiction when it deals with orders of subordinate courts.
31. In the facts of this case, the High Court concluded that the Magistrate has not considered the protest petition by the second respondent/complainant. Had it been the case where protest petition had not been considered at all, it may have been open to the court to came to the conclusion that an illegality had been committed in exercise of its jurisdiction to deal with the final report. But it is another matter when the Magistrate has undoubtedly considered the protest petition to direct the court again to consider the matter for action on the same, and for that purpose, to set aside the proceedings.
32. We would think that, as noticed by us, the High Court was in clear error in concluding that the protest petition was not considered. That the High Court may take one of the two views of the matter may 7 (2015) 5 SCC 423 8 (2003) 6 SCC 675 be an unsafe premise for its interference with the orders passed by the Magistrate, as affirmed by the Additional Sessions Judge.
33. On the basis of the materials which include the statements of the Doctors and after adverting to the contentions of the protest petition, the Magistrate has come to the conclusion that it is not a fit case for being continued and the matter should end as the daughter of the second respondent/complainant died due to illness. It is a finding which is arrived at by the court with reference to the statements of the medical practitioners. Equally, in the circumstances which led to the unfortunate death of the daughter of the second respondent/complainant, it is found no case was made out under Section 201 of the IPC. It would appear that before the Sessions Judge, the aspect relating to Section 498A or in fact the provisions relating to Sections 3 and 4 of the Dowry Prohibition Act, 1961, was not pressed by the second respondent. That apart, we also notice that Magistrate has referred to the statement of the complainant that there was no complaint made about the torture apparently based on dowry demand as alleged.
34. We have also gone through the protest petition along with the counter affidavit. No doubt, in paragraph 2, there is a general reference to demands for property from the deceased and father of the deceased and torture. Paragraphs 3 to 15 thereafter relate to the circumstances relating to the death of the daughter of the second respondent. In the said paragraphs, the case is sought to be made out that forged documents were produced before the Investigating Officer. Affidavits of the mother and brother of the deceased, inter alia, were also filed to project the case of forgery. For instance, in the affidavit of the mother of the deceased, she claims that she has not gone to the hospital on the 9th and 10th of October, 2007, whereas, according to the statement under Section 161 of the Code, she is alleged to have stated that on 09.10.2007, the deceased was admitted at Priti Hospital by them which apparently includes the mother. We have noticed that in regard to that no doubt the Chief Judicial Magistrate has relied upon judgment in Mohammed Yusuf and others v. State of Uttar Pradesh and others9 and taken the view that if cognizance is taken on the basis of the protest petition and the documents annexed with, that is illegal. He also took the view that the Magistrate has to take cognizance on the basis of statements of witnesses 9 2008 CriLJ 493 recorded by the Investigating Officer, in the case diary and the material collected during investigation.
35. A learned Single Judge of the High Court of Allahabad, in the aforesaid decision, had this to say in paragraph 11: “11. Where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the Investigating Officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigation Officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Sections 200 and 202 Cr.P.C. The Magistrate could not take cognizance under Section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190(1)(b) Cr.P.C. the impugned order is vitiated.” (Emphasis supplied)
36. The Chief Judicial Magistrate has adhered to the law laid down by the learned Single Judge. In fact, we may notice that in regard to this aspect, if the learned Single Judge, who has rendered the impugned judgment in this case, had a different view, he ought to have referred the matter to a larger Bench.
37. In H.S. Bains (supra), there was a private complaint within the meaning of Section 190(1)(a) of the Code. The matter was referred to the Police under Section 156(3). The Investigating Officer filed a final report. Therein, the court took the view that apart from the power of the Magistrate to take cognizance notwithstanding the final report, under Section 190(1)(b), he could also fall back upon the private complaint which was initially lodged but after examining the complainant and his witnesses, as contemplated under Sections 200 and 202 of the Code. In regard to taking cognizance under Section 190(1)(b) of the Code of a final report, undoubtedly, it is not necessary to examine the complainant or his witnesses though he may do so.
38. In Mahesh Chand (supra), no doubt the matter was commenced by a First Information Report and followed up by the complainant in the court under Section 190(1)(a) of the Code. On the First Information Report, after investigation, a final report was filed. The final report came to be accepted and it was closed. This is despite the fact that there was the protest petition. A third complaint, as it were, came to be filed by the complainant. This Court went on to hold that acceptance of the final report would not stand in the way of taking cognizance on a protest/ complaint petition.
39. In Kishore Kumar Gyanchandani (supra), after the final report was accepted on a protest petition which was treated as a complaint, evidence was taken within the meaning of Section 200 of the Code.
40. In Rakesh Kumar (supra), the final report was filed which was accepted by the Magistrate but he simultaneously directed the case to be proceeded as a complaint case and statements under Sections 200 and 202 of the Code came to be recorded.
41. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.
42. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition. In Mahabir Prasad Agarwala v. State10, a learned Judge of the High Court of Orissa, took the view that a protest petition is in the nature of a complaint and should be examined in accordance with provisions of Chapter XVI of the Criminal Procedure Code. We, however, also noticed that in Qasim and others v. The State and others11, a learned Single Judge of the High Court of Judicature at Allahabad, inter alia, held as follows: “4. … In the case of Abhinandan Jha MANU/SC/0054/1967 (supra) also what was observed was ‘it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint.’ This observation would not mean that every protest petition must necessarily be treated as & complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made under Section 200 Cr.P.C. If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take 10 AIR 1958 Ori. 11 11 1984 CrlLJ 1677 cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate’s attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case.”
43. We may also notice that in Veerappa and others v. Bhimareddappa12, the High Court of Karnataka observed as follows: “9. From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate under Section 200 of the Cr. P.C., but, has approached the police only and where the police after investigation have filed the ‘B’ report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) of the Cr. P.C. on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) of the Cr. P.C., and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) of the Cr. P.C. Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 of the Cr. P.C.”
44. Complaint is defined in Section 2(d) of the Code as follows: “(d) “ complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;”
45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of 12 2002 CriLJ 2150 (Karnataka) the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second respondent against the final report.
46. This brings us to one aspect of the matter which in fact was not argued at the Bar. The appeal is filed by the husband of the deceased, by special leave and permission. The allegations in the First Information Report are raised against the other relatives of the appellants, viz., his parents and in-laws and his siblings also. They have not challenged the order of the High Court. Allegations are made in respect of offences as committed by them also.
47. In this regard, we may notice, one facet. The Chief Judicial Magistrate accepted the final report and decided not to proceed against any of the accused including the appellant. This stood confirmed by the Additional Sessions Judge. Before the High court, neither the appellant nor any of his relatives were made parties. When the order was passed by the High Court accepting the report and directing reconsideration, was it necessary for the second respondent/complainant to implead the appellant and other relatives? Can we set aside the judgment of the High Court qua only the appellant, or can we in the facts in this case, also interfere with the order of the High Court against all the accused?
48. It may be true that till process is issued, the accused may not have the right to be heard (See the judgment of this court in Iris Computers Limited v. Askari Infotech Private Limited and others13).
49. The High Court, in fact, at paragraph 11 of the impugned order, which we have extracted at paragraph 6 of our judgment, contemplated consideration of the protest petition so that cognizance may be taken under Section 190(1)(b) of the Code. This premise being without any basis even qua the other accused who are the relatives of the appellant, we would think that the impugned order must be set aside. Having regard to the nature of the allegations and in exercise of our powers also under Article 142 of the Constitution of India, we must set aside the Order of the High Court. 13 (2015) 14 SCC 399
50. We would think that in the facts of this case, the High Court erred in intervening and that there was no justification in the facts for the High Court in setting aside the orders.
51. Resultantly, the appeal will stand allowed, the impugned order of the High Court will stand set aside. We, however, make it clear that this would be without prejudice to the rights of the second respondent to file a complaint as already noticed in the order of the Additional Sessions Judge. Kalpana K. Tripathy Appeal allowed.