Zunaid vs State Of U.P.

2023INSC778 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.2628-2629 OF 2023 (@ SLP(CRL.) Nos.8506-8507/2022)

ZUNAID … APPELLANT(S)

VERSUS

STATE OF U.P. & ORS. … RESPONDENT(S)

O R D E R

1. Heard learned counsel for the parties.

2. Leave granted.

3. The two appeals arise out of the orders passed by the High

Court of Judicature at Allahabad in the Application No.14899/2022

filed by the respondents-accused under Section 482 of the Code of

Criminal Procedure, 1973 (for short, ‘Cr.P.C.’). These two appeals

have been filed by the appellant-complainant challenging the order

dated 21.07.2022 by which the High Court had granted the prayer

made by the respondents-accused to amend the application filed

under Signature Not Verified Section 482 Cr.P.C. and challenging the order dated Digitally signed by SWETA BALODI Date: 2023.08.31

22.07.2022 by which the High Court has set aside the orders dated 16:59:38 IST Reason:

15.11.2018 and dated 11.01.2022 passed by the Chief Judicial

Magistrate (for short, ‘CJM’) in Misc. Case No.06/11/2018 arising 2

out of Case Crime No.907/2017. The High Court vide the impugned

order further directed the concerned Magistrate to pass a fresh

order on the Protest Petition filed by the appellant-complainant in

the light of observations made by it in the impugned order.

4. The short facts giving rise to the present appeals are that on

16.08.2017, the appellant – Junaid Khan had lodged an FIR alleging

inter alia that the respondents–accused armed with sharp-edged

weapons had attacked him and his family and also abused them due to

an old enmity. As a result thereof, his family members got

seriously injured, and were sent to the hospital for treatment. The

said FIR was registered as Crime Case No.907 of 2017 for the

offence under Sections 147, 148, 149, 307, 323, 324, 504 IPC at

P.S. Kotwali Gursahaiganj, Kannauj. The Investigating Officer,

after completing the investigation, submitted the Final Report

bearing No.164/2017 on 13.11.2017.

5. Being aggrieved by the said report, the appellant-complainant

filed a Protest Petition being F.R. No.06/11/18 before the

concerned CJM. The concerned CJM vide order dated 15.11.2018

rejected the Final Report of the Investigating Officer and directed

that the Protest Petition be registered as the Complaint Case. The

said complaint case was registered and numbered as the Complaint

No.2783/2018.

6. The concerned CJM having regard to the provisions contained in

Sections 200 and 202 Cr.P.C. and after recording the statements of

the complainant and eight other witnesses, issued summons to the

respondents-accused vide order dated 11.01.2022 in the said 3

complaint case. Being aggrieved by the said order passed on

11.01.2022, the respondents-accused preferred an application under

Section 482 bearing No.14899/2022 before the High Court.

7. On 20.07.2022, the respondents-accused, who were the

applicants before the High Court, submitted an application seeking

amendment in the prayer clause of the application filed under

Section 482 and prayed for setting aside of the order dated

15.11.2018 as well. The said application for amendment came to be

allowed by the High Court vide the impugned order dated 21.07.2022.

On the very next day, the High Court after hearing the learned

counsel for the parties passed the impugned order on 22.07.2022,

allowing the said application under Section 482 as stated

hereinabove.

8. The High Court while passing the impugned order, observed as

under: -

“20. When the findings recorded by concerned Magistrate as noted above, are examined in the light of the observations contained in paragraph 28 of the judgement in Hari Ram (supra) do not fulfill the mandate of law which the Magistrate is required to comply while exercising jurisdiction under Section 190 (1) (b) Cr.P.C. No finding has been recorded by concerned Magistrate with regard to the papers accompanying the police report. Without recording any finding that there is no evidence against applicants in the papers accompanying police report, the conclusion drawn by Magistrate to treat the protest petition as a complaint is not only illegal, but also arbitrary. Once the Magistrate came to 4

prima facie conclusion that investigation of concerned case crime number is unsatisfactory or is the outcome of lackadaisical approach of investigating Officer, then in that eventuality, concerned Magistrate ought to have directed further investigation in the matter. The findings recorded by concerned Magistrate in support of his conclusion to treat the protest petition as a complaint are by themselves insufficient to proceed with the protest petition as a complaint.”

9. In our opinion, the above observations recorded by the High

Court are absolutely erroneous in view of the catena of decisions

of this Court.

10. In Rakesh & Another Vs. State of Uttar Pradesh & Another 1, it

is observed as under: -

“6. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, (1982) 3 SCC 510, notice must be had of the decision of this Court in H.S. Bains v. State (UT of Chandigarh) (1980) 4 SCC 631 wherein it was held that after receipt of the police report under Section 173, the Magistrate has three options: (H.S. Bains case (supra)

“6. …. (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue

1 (2014) 13 SCC 133 5

process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (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.”

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 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 v. State of Maharashtra (2004) 7 SCC 768. The following view may be specifically noted:

“9. ….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 6

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, (1989) 2 SCC 132]” (SCC P. 140, Para 16).”

11. In view of the above, 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. As held by this Court in Gopal Vijay Verma Vs.

Bhuneshwar Prasad Sinha and Others2, as followed in B. Chandrika

Vs. Santhosh and Another3, a Magistrate is not debarred from taking

cognizance of a complaint merely on the ground that earlier he had

declined to take cognizance of the police report. No doubt a

2 (1982) 3 SCC 510 3 (2014) 13 SCC 699 7

Magistrate while exercising his judicial discretion has to apply

his mind to the contents of the Protest Petition or the complaint

as the case may be.

12. So far as the facts of the present case are concerned, 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. It was

only when the concerned CJM after recording the statements of the

complainant and eight witnesses, issued summons on 11.01.2022, the

respondents filed the application challenging the said order dated

11.01.2022 under Section 482 before the High Court, and in the said

application, the order dated 15.11.2018 came to be challenged by

way of amendment. 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. The

discretionary order of 11.01.2022 passed by the concerned CJM

issuing summons to the accused, after recording statements of the

complainant and the eight witnesses and after recording prima facie

satisfaction about the commission of the alleged crime, also did

not warrant any interference by the High Court. In our opinion, 8

the High Court has committed gross error in setting aside the

orders dated 15.11.2018 and 11.01.2022 passed by the CJM.

13. In that view of the matter the impugned orders passed by the

High Court being highly erroneous, the same are quashed and set

aside. The concerned CJM is directed to proceed with the complaint

case in accordance with law. It shall be open for the respondents-

accused to respond to the summons and appear before the concerned

CJM within two weeks.

14. The appeals stand allowed accordingly.

15. Pending application(s), if any, also stand disposed of.

……………………………………………………J. [BELA M. TRIVEDI]

……………………………………………………J. [DIPANKAR DATTA]

NEW DELHI;

29TH AUGUST, 2023 9

ITEM NO.29 COURT NO.15 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 8506- 8507/2022

(Arising out of impugned final judgment and order dated 22-07-2022 in A482 No. 14899/2022 21-07-2022 in A482 No. 14899/2022 passed by the High Court of Judicature at Allahabad)

ZUNAID Petitioner(s)

VERSUS

STATE OF U.P. & ORS. Respondent(s)

(IA No. 134032/2022 - EXEMPTION FROM FILING O.T.)

Date : 29-08-2023 These matters were called on for hearing today.

CORAM : HON'BLE MS. JUSTICE BELA M. TRIVEDI HON'BLE MR. JUSTICE DIPANKAR DATTA

For Petitioner(s) Mr. Anurag Kishore, AOR Ms. Ritika Srivastava, Adv.

For Respondent(s) Mr. Salman Khurshid, Sr. Adv.

Mr. Misbah Bin Tariq, Adv.

Mr. Mohd. Amanullah, Adv.

Ms. Shabana Anjum, Adv.

Mr. Azhar Ali, Adv.

Mr. Saurabh Mishra, AOR

Mr. Ankit Goel, AOR Mr. Satyam Pandey, Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeals are allowed in terms of the signed reportable order.

Pending application(s), if any, also stand disposed of.

(SWETA BALODI) (R.S. NARAYANAN) COURT MASTER (SH) ASSISTANT REGISTRAR

(Signed reportable order is placed on the file)