If Magistrate Takes Cognizance Of Additional Materials Along With Protest Petition, Case Has To Proceed As Private Complaint : Supreme Court

The Supreme Court held that if the Magistrate takes cognizance of the offence and issues summons to an accused by recording satisfaction based on the additional evidence produced by way of a protest petition filed by the informant, then such a protest petition ought to be treated as a private complaint case under Section 200 of the Code of Criminal Procedure.

Reversing the findings of the High Court and Trial Court which had refused to consider the protest petition as a private complaint, the bench comprising Justices Vikram Nath and Satish Chandra Sharma observed that if the summons was issued by the magistrate by recording satisfaction based on the protest petition, then the Magistrate ought to have followed the procedure prescribed under Chapter XV of the Cr.P.C.

“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.”, the Judgment authored by Justice Vikram Nath said.

Background

In the present case, while rejecting the police report submitted under Section 173 of Cr.P.C., a summon was issued by the Magistrate to an accused based on the protest petition filed by the informant stating that the closure report was a result of the bad investigation carried out by the police.

While issuing summons to the accused, the Magistrate recorded satisfaction to take cognizance of Sections 147, 342, 323, 307, 506 IPC based on the protest petition filed by the informant, however, the Magistrate refused to deal with the case as the complaint case but directed that the matter would continue as a State case under Section 190 (1) (b) of the Cr.P.C.

The decision of the Magistrate to issue a summon based on the state case was assailed before the High Court under Section 482 Cr.P.C., resulting in dismissal. Pursuant to this, the appellant approached the Supreme Court.

Arguments

Before the Supreme Court, the appellant contended that the Magistrate as well as the High Court fell in grave error in not considering the protest petition as a private complaint. He stated that once the magistrate was relying upon additional material in the form of evidence produced by the complainant along with the Protest Petition then the only option for the magistrate was to treat it as a complaint under Section 200 Cr.P.C. and proceed accordingly.

Whereas, it was submitted by the State that the magistrate did not take into consideration any additional evidence filed in the form of affidavits along with the Protest Petition and had only relied upon the material collected during the investigation as contained in the case diary and based upon the same the satisfaction recorded by the magistrate to reject the police report and take cognizance was well within his domain and such cognizance would fall within Section 190(1)(b) Cr.P.C.

Supreme Court's Observation

Finding force in the appellant's contention, the Supreme Court held that the magistrate ought to have dealt with the protest petition as a private complaint under Section 200 Cr.P.C. and should have followed the procedures enshrined under Chapter XV of the Code.

The Court relied on its previous ruling of Vishnu Kumar Tiwari vs. State of UP to state that if the Magistrate takes additional documents/material along with a protest petition, he cannot take cognizance under Section 190(1)(b) Cr.P.C. but have to proceed under Section 200 Cr.P.C. as a complaint case.

“If a Protest Petition fulfils 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 the Code.”, the cCurt said in Vishnu Kumar Tiwari.

After recording that the Magistrate took cognizance of the offence and issued a summons to the appellant based on the additional documents in the form of the protest petition filed by the respondent-informant, the court held that the Magistrate ought to have followed the provisions and the procedure prescribed under Chapter XV of the Cr.P.C. for dealing with the private complaints.

Rejection Of Protest Petition Is No Bar To File Fresh Complaint U/s 200 of Cr.P.C.

The Court held that the Magistrate also had the liberty to reject the Protest Petition along with all other material that may have been filed in support of the same and clarified that 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.

Conclusion

The appeal was allowed with an observation that it was kept open for the Magistrate to treat the Protest Petition as a complaint and proceed in accordance with the law as laid down under Chapter XV of the Cr.P.C.

Counsels For Petitioner(s) Mr. Vinod Prasad, Sr. Adv. Mr. Ajay Kumar Srivastava, AOR Ms. Jyoti Tiwary, Adv. Mr. Rajesh Pandey, Adv.

Counsels For Respondent(s) Mr. Shashank Shekhar Singh, AOR Mr. Shantanu Singh, Adv. Mr. Shekhar Prit Jha, AOR Mr. S.s.haider, Adv. Ms. Preeti Kumari, Adv.

Case Title: MUKHTAR ZAIDI VS. THE STATE OF UTTAR PRADESH

CITATION : 2024 LiveLaw (SC) 315

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