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(Arising o! o" SLP(CRL.# No.$$0% o" 201$#
J U D ) M E N T
1. Leave granted.
2. Whether a Magistrate after accepting a negative final
report submitted by the Police can take action on the basis
of the protest petition filed by the complainant/first
informant? The above question having been ansered in the
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affirmative by the !llahabad "igh #ourt$ this appeal has
been filed by the accused.
$. The bare facts that ould be required to be noticed are
as follos %
&espondent 'o.( herein lodged an )*& hich as
registered as #rime #ase 'o.+,- of (--- under .ection /0+
of the *ndian Penal #ode at the Police .tation 1osai 1an2
3istrict .ultanpur against the appellants and to other
accused persons. 4n completion of investigation$ the
investigating officer submitted a final report to the court that
no case is made out against the appellants and the other
to accused and that they have been falsely implicated in
the case. 5y order dated (0
'ovember$ (--($ the learned
Magistrate accepted the final report but simultaneously
directed that the case be proceeded ith as a complaint
case. The statements under .ections (-- and (-( of the
#ode of #riminal Procedure 6#r.P.#.7 ere recorded and the
accused ere summoned by the learned trial court to face
the trial. !gainst the aforesaid orders passed by the learned
Magistrate$ the present appellants moved the "igh #ourt of
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!llahabad raising the question noticed earlier. The "igh
#ourt having ansered the said question in the affirmative$
this appeal has been filed.
4. We have heard learned counsel for the parties.
+. *n B,n-s,./r Pr/s/0 Sin,/ 1s. S!/!- o" Bi,/r
the very same question came up for consideration before the
Patna "igh #ourt. The "igh #ourt ansered the question in
the negative by holding 8
9In 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 tae cogni!ance 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 "
#ec. $%&', that the final
form was accepted by the court earlier. If it is
so, then the Magistrate was not (ustified in
taing cogni!ance in respect of the same
facts constituting the offence which were
mentioned in the final form. In order to chec
:;<,; #rl.L= ><?@
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the litigation, it is necessary that when a
(udicial order is passed by accepting the final
form such order should not be set aside by
the Magistrate by taing cogni!ance on the
basis of the complaint petition.)
2. *n the appeal filed against the aforesaid order of the
Patna "igh #ourt$ this #ourt$ hoever$ held that 8
9The "igh #ourt as clearly in error in
thinking that the Magistrate could not take
cogniAance of a case upon complaint because
he had earlier refused to take cogniAance of
the case on a police report. The order of the
"igh #ourt is set aside. The matter is
remitted to the #hief =udicial Magistrate$
Patna for disposal according to la. *f the
accused have any further ob2ections to raise$
they may do so before the #hief =udicial
The decision of this #ourt is reported in )o3/4 (i5/6
(-r7/ 1s. B,n-s,./r Pr/s/0 Sin,/ ' Ors.
8. *f e are to go back to trace the genesis of the vies
eCpressed by this #ourt in 1opal Di2ay Derma 6supra7$ notice
must be had of the decision of this #ourt in H.S. B/ins 1s.
1982 (3) SCC 510
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S!/!- (Union T-rri!or6 o" C,/n0ig/r,#
herein it as
held that after receipt of the police report under .ection ;>/$
the Magistrate has three options 8
96$7 he may decide that there is no sufficient
ground for proceeding further and drop
6*7 he may take cogniAance of the offence
under .ection ;<- 6;76b7 on the basis of the
police report and issue processE this he may
do ithout being bound in any manner by the
conclusion arrived at by the police in their
6+7 he may take cogniAance of the offence
under .ection ;<-6;76a7 on the basis of the
original complaint and proceed to eCamine
upon oath the complainant and his itnesses
under .ection (--. *f he adopts the third
alternative$ he may hold or direct an inquiry
under .ection (-( if he thinks fit. Thereafter
he may dismiss the complaint or issue
process$ as the case may be.B
%. The second and third options available to the
Magistrate as laid don in H.S. B/ins 6supra7 has been
referred to and relied upon in subsequent decisions of this
#ourt to approve the action of the Magistrate in accepting
the final report and at the same time in proceeding to treat
:;<,- #rl. L= ;/-,@$
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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. &eference in this regard may be made to
the decision of this #ourt in )/ng/0,/r J/n/r0/n M,/!r-
1s. S!/!- o" M/,/r/s,!r/ ' Ors.
. The folloing vie may
be specifically noted F
9GGGGG.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 cogniAance of the case$ if he thinks fit$
eCercise his poers under .ection ;<-6;76b7
and direct the issue of process to the
accused. The Magistrate is not bound in such
a situation to follo the procedure laid don
in .ections (-- and (-( of the #ode for
taking cogniAance of a case under .ection
;<-6;76a7 though it is open to him to act
under .ection (-- or .ection (-( also.
India Carat ,P- .td. v. State of /arnataa@B
6Para 07
9. The vie eCpressed by this #ourt in )o3/4 (i5/6
(-r7/ 6supra7 has been folloed in M/,-s, C,/n0 1s.
B.J/n/r0,/n R-006 ' Anr.
and also in a somehat recent
pronouncement in &is,or- &7/r )6/n:,/n0/ni 1s.
:(--+ 6>7 .## >0,@ 6para <7
:(--/ 6;7 .## >/+@ 6para ;(7
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).D.M-,ro!r/ ' Anr.
. The clear eCposition of la in para
;( of M/,-s, C,/n0 6supra7 hich is eCtracted belo
ould leave no manner of doubt that the anser to the
question posed by the "igh #ourt is correct.
9There cannot be any doubt or dispute that
only because the Magistrate has accepted a
final report$ the same by itself ould not
stand in his ay to take cogniAance of the
offence on a protest/complaint petitionE but
the question hich is required to be posed
and ansered ould be as to under hat
circumstances the said poer can be
10. *n the present case$ the contention advanced on behalf
of the accused pertained to the question of 2urisdiction
aloneE it as urged that having accepted the final report the
learned Magistrate had become 9functus officioB and as
denuded of all poer to proceed in the matter. The above
stand taken and the anser provided by the "igh #ourt
ould not require us to consider the circumstances in hich
the eCercise of poer as made.
:(-;; 6;?7 .## ?;/@
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11. *n &is,or- &7/r (s3r/# the question has been
gone into again and reliance has been placed on )o3/4
(i5/6 (-r7/ 6supra7 to reiterate the same conclusion.
12. *n vie of the above$ it has to be held that this appeal is
ithout any merit or substance. *t is accordingly dismissed.
<S0,/ns J6o!i M=,o3/0,/6/>
<R/n5/n )ogoi>
N-. D-4,i?
Ags! 1$* 2014.