Dismissed

Ram Bahor v. State of U.P.

Allahabad HC26 May 2023CRLA/972/2023

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal filed by a protest petitioner challenging the rejection of his petition and acceptance of the Final Report. The court held that the Special Court did not commit illegality as the investigative material was insufficient for cognizance. The appellant was advised to file a fresh complaint instead.

What did the court decide?

The criminal appeal was dismissed. The appellant is directed to file a fresh complaint if they wish to bring more material to the court.

Ram Bahor Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:118612

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Court No. - 81

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Case :- CRIMINAL APPEAL No. - 972 of 2023

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Appellant :- Ram Bahor Respondent :- State of U.P. Counsel for Appellant :- Shiv Ram Dubey,Naveen Kumar Shukla Counsel for Respondent :- G.A.,Damodar Singh,Devendra Vikram Singh

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Hon'ble Mohd. Faiz Alam Khan,J.

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Heard Shri Dharmendra Kumar Dubey, holding brief of Shri Shiv Ram Dubey, learned counsel for the appellant as well as learned A.G.A. for the State, Shri Devendra Vikram Singh, learned counsel for the respondent no.2 and perused the record.

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The instant criminal appeal under Section 14(A)(2) S.C./S.T. Act has been filed by the appellant namely Ram Bahor with the prayer to allow the appeal and set-aside the impugned judgement and order dated 05.09.2022 passed by learned Exclusive Special Judge (S.C./S.T. Act), Basti in Criminal Misc. Case No.87 of 2021 in Final Report No.254 of 2022 (Ram Bahor Vs. Udai Pratap and Others), arising out of Case Crime No.258 of 2021, under Sections 504, 506 I.P.C. and Section 3(1)(5) of the S.C./S.T. Act, Police Station Chhawni, District Basti, whereby the protest petition filed by the appellant has been rejected and further be pleased to direct the court below to direct the Station House Officer, Police Station Harraiya, District Basti to further investigate the case.

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Learned counsel for the appellant while referring to the impugned order of date 05.09.2022, whereby the protest petition preferred by the appellant/informant has been rejected and Final Report submitted by the investigating officer has been accepted, submits that the special court has committed manifest illegality in passing the impugned order as at first the investigating officer has not investigated the allegations of the F.I.R. in right perspective and has submitted Final Report and secondly the trial court has not considered the material collected by the investigating officer in right perspective and has failed in its duty to ascertain that it is a case, where direction for further investigation should have been made.

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It is further submitted that whenever a Final Report/Closure Report has been submitted by the investigating officer, various options are available to the magistrate or to the special court and one of the option is to make further investigation especially in those cases, where the investigating agency has not conducted the investigation with diligence.

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It is also submitted that if in the opinion of the special court, there was no sufficient material to take cognizace under Section 190(1)(b) Cr.P.C., the duty of the trial court was also to treat the protest petition as complaint and after providing an opportunity to the complainant and his witnesses any order may be passed under Sections 203 and 204 Cr.P.C. more so when the investigating officer has failed to collect requisite evidence/material, thus the trial court/special court has committed illegality in passing the impugned order and the same be set aside.

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Learned A.G.A. on the other hand supported the impugned order.

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Shri Devendra Vikram Singh, learned counsel for the respondent no.2 vehemently submits that no illegality has been committed by the special court in rejecting the protest petition filed by the appellant/informant as there was no sufficient material available in the case diary on the basis of which cognizance may be taken under Section 190(1)(b) Cr.P.C.

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It is further submitted that various submissions have been made by learned counsel for the appellant pertaining to the fact that it is a case, where further investigation should have been done or directed by the special court, but in the protest petition preferred by the informant, no prayer for further investigation was made which implies that the informant/appellant was satisfied with the investigation made in the instant case, thus no illegality or irregularity has been committed by the special court in passing the impugned order.

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Having heard learned counsel for the parties and having perused the record, it is evident that earlier the investigation had started on an F.I.R.

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lodged by the appellant/informant, however, after conducting the investigation, Closure Report/Final Report was filed by the investigating officer in favour of the accused persons and aggrieved by the same, the informant/appellant has moved a protest petition on 10.08.2022 along with an affidavit, however, after providing an opportunity of being heard, by passing the impugned order of date 05.09.2022, the special court has dismissed this protest petition and has accepted the Final Report submitted by the investigating officer.

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Hon'ble Supreme Court in ' Bhagwant Singh v. Commissioner of Police ' MANU/SC/0063/1985 held as under:-

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"4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of S. 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under subsection (3) of S. 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156 and require the police to make a further report."

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Where, in either of the these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed.

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But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that

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though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Informant Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part.

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Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in Sub-section (2) of Section 154, Sub-section (2) of Section 157 and Sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him.

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'There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under subsection (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process.

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We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report'."

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In India Carat Pvt. Ltd., M/s. v. State of Karnataka, 1989 CRI. L. J. 963, It is held by Honble Supreme Court that Upon receipt of a police report under S.173(2) a Magistrate is entitled to take cognizance of an offence under S.190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. S.190(1)(b) does not lay

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down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. 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, in exercise of his powers under S.190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Ss.200 and 202 of the Code for taking cognizance of a case under S.190(1)(a) though it is open to him to act under S.200 or S.202 also.

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In Pakhandu v. State of U.P. reported in 2002 CRI. L. J. 1210, the case relied on by the applicant a Divisional bench of this court opined as under:-

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"Where cognizance has been taken under S. 190(1)(b), Cr.P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to sub-sec. (2) of S. 202, Cr.P.C. shall have no application. Where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :- (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under S. 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police there is sufficient ground to proceed; or (III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under S. 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Ss. 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. Where the Magistrate decides to take cognizance of the case under S. 190(1)(b) of the Code ignoring the conclusions arrived at by the

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investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Ss. 200 and 202 of the Code, and consequently the proviso to S. 202(2), Cr.P.C. will have no application. For forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at the stage to make use of any material other than investigation records, unless he decides to take cognizance under S. 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under S. 200. From the above it is absolutely clear that proviso to sub-sec. (2) of S. 202 of the Code will apply only to a case where the Magistrate has taken cognizance under S. 190(1)(a) and has opted to hold inquiry under S. 202 after examining the complainant and witnesses present, if any, under S. 200, Cr.P.C."

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In Gangadhar Janardan Mhatre v. State of Maharashtra reported in AIR 2004 SC 4753 Honble Supreme Court held as under:-

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"When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused.

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Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. 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 of 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 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 M/s. India Sarat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)."

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In Minu Kumari and another Vs. State of Bihar and others ; MANU/SC/8098/2006 : 2006 (4) SCC 359, Supreme Court said as under:

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"11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an

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opinion that the investigation has made out a case against the accused. 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 of his powers under Section 190(1)(b) and direct the issue of process to the accused."

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In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, Hon'ble Single of this High Court Court held as under :

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"Where the magistrate decides to take cognizance under section 190(1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e., protest petition and affidavits while taking cognizance under section 190(1)(b) Cr.P.C., the impugned order is vitiated."

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In Abhinandan Jha and Ors. v. Dinesh Mishra MANU/SC/0054/1967 : AIR 1968 SC 117 : (1967) 3 SCR 668, the question arose as to whether when a report is submitted that there is no material that any case is made out for sending the Accused for trial, the Magistrate can direct the police to submit a charge-sheet. This Court took the view that the Magistrate cannot compel the Police to change their opinion. However, it was held that the Magistrate is free to not accept such report and he may take suitable action. The Magistrate may direct further investigation Under Section 156(3) of the Code. It was further held that it would be in a case where the Magistrate feels that the investigation is unsatisfactory or

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incomplete. It may be also in a case where there is scope for further investigation.

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In H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) MANU/SC/0126/1980 : (1980) 4 SCC 631, the Police submitted a final report. However, the Magistrate disagreed with the conclusion of the Police and directed issue of process upon taking cognizance of the case. A contention was taken that the Magistrate acted illegally in not recording statements on oath of the complainant and the witnesses Under Section 200 of the Code and the Magistrate must, therefore, be treated as having taken cognizance upon the Police report for which he was not competent as it was not a report Under Section 173, but a final report within the meaning of Section 169. It was contended that the Magistrate had only two options before him - (i) he could either order further investigation. (ii) He could also take cognizance as upon a complaint but for the same the statements of the complainant and witnesses had to be recorded. Hon’ble Supreme Court held as under:

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“6. It is seen from the provisions to which we have referred in the preceding paras that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present Under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint Under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process Under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation Under Section 156(3). The police will then investigate and submit a report Under Section 173(1). On receiving the police report the Magistrate may

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take cognizance of the offence Under Section 190(1)(b) and straight away issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report Under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present Under Section 200 of the Code of Criminal Procedure and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation Under Section 156 (3) and received a report Under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding Under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation Under Section 156(3) and receives a police report Under Section 173(1), may, thereafter, do one of three things: (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 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.”

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In Mahesh Chand v. B. Janardhan Reddy MANU/SC/1111/2002 : (2003)

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1 SCC 734, Hon’ble Supreme Court opined as under:

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“12. There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised.

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xxx xxx xxx

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In Munilal Thakur case [MANU/BH/0245/1984 : 1985 Cri LJ 437 : 1984 Pat LJR 774] the Division Bench of the Patna High Court was concerned with the question as to whether a Magistrate even after accepting final report filed by the police, can take cognizance of offence upon a complaint or the protest petition on same or similar allegations of fact; to which the answer was rendered in the affirmative.

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The question which has arisen for consideration herein neither arose therein nor was canvassed.

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In Jayashankar Mund case [MANU/OR/0151/1989 : 1989 Cri LJ 1578 : (1989) 67 CLT 426] the Orissa High Court again did not have any occasion to consider the question raised herein. The Court held: (Cri LJ pp. 1582-83, para 6)

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Even though a protest petition is in the nature of a complaint, it is referable to the investigation already held by the vigilance police culminating in the final report and because the informant was not examined on solemn affirmation Under Section 202 of the Code, thereby no illegality or prejudice was caused to the Accused. If such a view is accepted and there is no reason why such a view should not be accepted, the necessary consequence in this particular case shall be that the protest petition which is of the nature of a complaint petition filed by the Petitioner shall be in continuation and in respect of the case instituted and investigated by the vigilance police.

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Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate Under Section 204 Code of Criminal Procedure may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar case [MANU/SC/0149/1961 : AIR 1962 SC 876: 1962 Supp (2) SCR 297: (1962) 1 Cri LJ 770] second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which

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could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not.”

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In Kishore Kumar Gyanchandani v. G.D. Mehrotra MANU/SC/1478/2001 : (2011) 15 SCC 513, Hon’ble Supreme Court held as under:

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“4. There is some controversy between the parties that before accepting the final form by the Magistrate on 27-1-1996 notice had been served on the complainant and the complainant did not file objections, whereas the case of the complainant is that he had not received any notice from the Court. Be that as it may, we are not entering into that controversy for deciding the present case as in our view it is not material either way nor does it oust the jurisdiction of the Magistrate on the basis of a complaint to take cognizance of the offence alleged to have been committed by the Accused even if he had already accepted the final form, the same having been filed by the police.”

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“6. It is too well settled that when police after investigation files a final form Under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power Under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter Under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure Under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha [MANU/SC/0069/1982 : (1982) 3 SCC 510 : 1983 SCC (Cri) 110] whereunder the view of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding.”

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In Vishnu Kumar Tiwari Vs. State of Uttar Pradesh and others; MANU/SC/0916/2019, Hon’ble Supreme Court held as under:

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“24 In Rakesh Kumar and Anr. v. State of Uttar Pradesh and Anr. MANU/SC/0689/2014 : 2014 (13) SCC 133, on the basis of a First Information Report lodged by the Police after investigation, a final report came to be filed. The Magistrate accepted the final report. He, simultaneously, directed the case be proceeded with as a complaint case. Statements Under Section 200 and 202 of the Code were recorded. The High Court turned down the plea of the Accused to whom summons were issued. It was the contention of the Accused that having accepted a negative final report, the court could not take action on the basis of the protest petition filed by the complainant. This Court refers to the judgment in H.S. Bains (supra). The principles of law laid down in paragraph 12 of Mahesh Chand (supra), which we have also referred to earlier, came to be approved. The order of the High Court was approved.

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This is a case where following the First Information Report, the Investigating Officer conducted an investigation. Statements were taken from the complainant, his wife and his son. This is apart from the statements which were taken from the Doctors who treated the daughter of the second Respondent/complainant. The Investigation Officer concluded that there is no material which would warrant the Accused being sent for trial. When such a report is filed before the court, it is beyond the shade of doubt that the Magistrate may still choose to reject the final report and proceed to take cognizance of the offences, which in his view, are seen committed. He may, on the other hand, after pondering over the materials, which would include the statements of witnesses collected by the Investigating Officer, decide to accept the final report. He may entertain the view that it is a case where further investigation by the Officer is warranted before a decision is taken as to whether cognizance is to be taken or not.

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It is undoubtedly true that before a Magistrate proceeds to accept a final report Under Section 173 and exonerate the Accused, it is incumbent upon the Magistrate to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter. While the Investigating Officer may rest content by producing the final report, which, according to him, is the culmination of his efforts, the duty of the Magistrate is not one limited to readily accepting the final report. It is incumbent upon him to go through the materials, and after hearing the complainant and considering the contents of the protest petition, finally

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decide the future course of action to be, whether to continue with the matter or to bring the curtains down.

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In H.S. Bains (supra), there was a private complaint within the meaning of Section 190(1)(a) of the Code. The matter was referred to the Police Under Section 156(3). The Investigating Officer filed a final report. Therein, the court took the view that apart from the power of the Magistrate to take cognizance notwithstanding the final report, Under Section 190(1)(b), he could also fall back upon the private complaint which was initially lodged but after examining the complainant and his witnesses, as contemplated Under Sections 200 and 202 of the Code. In regard to taking cognizance Under Section 190(1)(b) of the Code of a final report, undoubtedly, it is not necessary to examine the complainant or his witnesses though he may do so.

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In Mahesh Chand (supra) , no doubt the matter was commenced by a First Information Report and followed up by the complainant in the court Under Section 190(1)(a) of the Code. On the First Information Report, after investigation, a final report was filed. The final report came to be accepted and it was closed. This is despite the fact that there was the protest petition. A third complaint, as it were, came to be filed by the complainant. This Court went on to hold that acceptance of the final report would not stand in the way of taking cognizance on a protest/complaint petition.

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In Kishore Kumar Gyanchandani (supra) , after the final report was accepted on a protest petition which was treated as a complaint, evidence was taken within the meaning of Section 200 of the Code.

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In Rakesh Kumar (supra) , the final report was filed which was accepted by the Magistrate but he simultaneously directed the case to be proceeded as a complaint case and statements Under Sections 200 and 202 of the Code came to be recorded.

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In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements Under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would

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have to follow the procedure prescribed Under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer, cognizance could be taken Under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses Under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure Under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.”

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Having perused the record it becomes evident that as per own contention of the appellant/informant, the investigating officer has not conducted the investigation with diligence and has not collected the requisite evidence/material. The special court while passing the impugned order has discussed the statement of the alleged eye witnesses Pradeep Kumar as well as Ram Naresh Singh and thereafter has also considered the statement of Sukhdev Singh, Ramshankar Singh, Ram Sumer, Satyaprakash Singh @ Ranu Singh, Smt. Chandrawati Singh, Rajesh Kumar, Surya Prakash Singh @ Monu, who have stated that the appellant was even not present at the spot and neither Udai Pratap Singh nor any family member of his family had abused the appellant. Thus it is manifestly evident that there was no material before the special court collected by the investigating officer in the case diary on the basis of which the cognizance under Section 190(1)(b) Cr.P.C. may be taken and process may be issued against the respondent nos.2 to 5. In this scenario when special court was convinced having regard to the statement of the witnesses recorded under Section 161 Cr.P.C., he could not be compelled to take cognizance by treating the protest petition as complaint more so

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in the background of the fact when the protest petition is not containing the incident in detail.

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It is also evident from the above placed law and facts that while exercising jurisdiction under Section190(1)(b) Cr.P.C., the trial court can not consider any material, other than, what has been collected by the investigating officer and if the material is not sufficient, he may give opportunity to the informant to file complaint and bring any new material on record and may take cognizance under Section 190(1)(a) Cr.P.C. and after recording of the statement of the complainant under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C. or even after enquiry as contemplated under Section 202 Cr.P.C., he may dismiss the complaint under Section 203 Cr.P.C. or may summon the accused persons under Section 204 Cr.P.C. but the court cannot be compelled to treat the protest petition as complaint more so when the protest petition is not disclosing the alleged incident in detail.

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A Full Bench of this Court in Naresh Kumar Valmiki Vs. State of U.P. and others and connected matters ; 2022 SCC Online All 927 and Division Bench of this Court in Gyanendra Maurya Vs. Union of India and others; 2023 SCC Online All 46 has categorically opined that an application under Section 156(3) Cr.P.C. pertaining to the commission of offences defined under S.C./S.T. Act may be treated as complaint and cognizance may also be taken of such offences on a complaint under Section 190(1)(a) Cr.P.C. on the occasion of filing of complaint case by the complainant/informant. Thus it is settled that having regard to the peculiar facts and circumstances of the case even if the ‘Final Report’ has been accepted and the court has refused to take cognizance under Section 190(1)(b) Cr.P.C. even in that scenario complaint case may validly lie and is maintainable even with regard to the offences committed under S.C./S.T. Act.

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Thus keeping in view all the facts and circumstances of the case, I do not find any illegality in the impugned order as the material collected by the investigating officer appears to be not sufficient for summoning the respondent no.2 to 5 and thus proper course, which is available to the appellant to approach the special court by filing complaint, if he so wishes, in order to bring some more material/evidence for persuading the special court to take cognizance of offences under Section 190(1)(b) Cr.P.C.

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In result, the appeal lacks merits and is hereby dismissed .

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Mere dismissal of this appeal shall not preclude the appellant/informant to prefer any complaint in the matter subject to the law of limitation.

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All observations made herein-above are only for the disposal of this appeal and shall not be construed as an opinion on merits of this Court..

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Order Date :- 26.5.2023 Anupam S/-

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Digitally signed by :- ANUPAM SINGH PATEL High Court of Judicature at Allahabad

Ram Bahor v. State of U.P.

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Ram Bahor v. State of U.P.

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