Magistrate Can Take Cognizance Of Protest Petition After Rejecting Police Final Report : Supreme Court

The Supreme Court observed that on the receipt of final report, Magistrate can exercise his discretion to treat protest petition as a complaint case.

The bench of Justices Bela M Trivedi and Dipankar Datta noted 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;

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.

The court added 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. Further, 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, the court said.

However, it clarified that a 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.

In this case, the Magistrate 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. The High Court interfered with this order observing that the findings recorded by 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.

Allowing appeal against the High Court order, the Apex Court observed that the course opted by the CJM was absolutely just, legal and proper in the facts and circumstances of the case

Zunaid vs State of UP - 2023 LiveLaw (SC) 730 - 2023 INSC 778

Code of Criminal Procedure, 1973 ; Section 173, 190, 200 - 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 -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 - 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 -  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 -  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.

Click here to Read/Download Judgment