Case Note & Summary
The Supreme Court allowed the appeal filed by Mukhtar Zaidi against the order of the Allahabad High Court dismissing his petition under Section 482 Cr.P.C. The case arose from an FIR lodged by respondent no.2 under Sections 147, 342, 323, 307, 506 IPC. After investigation, the police submitted a closure report under Section 173(2) Cr.P.C., finding no evidence to substantiate the allegations. The informant filed a Protest Petition along with affidavits of witnesses alleging unfair investigation. The Chief Judicial Magistrate, Aligarh, by order dated 08.03.2021, rejected the police report and took cognizance under Section 190(1)(b) Cr.P.C., summoning the accused. The appellant challenged this order before the High Court, which dismissed the application. The Supreme Court examined the order of the CJM and found that the Magistrate had relied not only on the Protest Petition but also on the affidavits filed in support thereof and four affidavits of witnesses. The Court held that once the Magistrate relied on additional material beyond the case diary, the only option was to treat the Protest Petition as a complaint under Section 190(1)(a) Cr.P.C. and proceed under Chapter XV of the Cr.P.C., including examination under Section 200 Cr.P.C. The Court relied on Vishnu Kumar Tiwari v. State of Uttar Pradesh (2019) 8 SCC 27, which laid down that if the Magistrate is convinced on the basis of the final report and statements under Section 161 Cr.P.C. that no prima facie case is made out, he cannot be compelled to take cognizance by treating the Protest Petition as a complaint. However, if he chooses to rely on additional evidence like affidavits, he must follow the complaint procedure. The Supreme Court set aside the orders of the CJM and the High Court, allowing the appeal.
Headnote
A) Criminal Procedure - Cognizance of Offences - Section 190(1)(a) and (b) Cr.P.C. - Protest Petition - Where a Magistrate relies on additional material such as affidavits filed with a Protest Petition to disagree with the police closure report, the Magistrate must treat the Protest Petition as a complaint and proceed under Chapter XV of the Cr.P.C., including examination under Section 200 Cr.P.C. - Held that cognizance under Section 190(1)(b) Cr.P.C. is impermissible when the Magistrate considers evidence beyond the case diary (Paras 7-10). B) Criminal Procedure - Summoning Order - Validity - Section 190(1)(b) Cr.P.C. - The Magistrate's order taking cognizance and summoning the accused was set aside because the Magistrate relied on affidavits of witnesses filed with the Protest Petition, which constituted additional evidence not part of the police report - Held that the proper course was to treat the Protest Petition as a complaint and follow the procedure under Sections 200 and 202 Cr.P.C. (Paras 7-10).
Issue of Consideration
Whether the Chief Judicial Magistrate could take cognizance under Section 190(1)(b) Cr.P.C. after relying on affidavits filed along with the Protest Petition, or whether the Protest Petition should have been treated as a private complaint under Section 190(1)(a) Cr.P.C. and proceeded under Chapter XV of the Cr.P.C.
Final Decision
The Supreme Court allowed the appeal, set aside the order of the High Court dated 24.08.2021 and the order of the CJM dated 08.03.2021. The Court directed that the Protest Petition be treated as a complaint and the Magistrate shall proceed in accordance with law under Chapter XV of the Cr.P.C.
Law Points
- Protest Petition
- Cognizance under Section 190(1)(b) Cr.P.C.
- Private Complaint
- Section 200 Cr.P.C.
- Chapter XV Cr.P.C.
- Closure Report
- Fair Investigation
