Ali Haider Shah vs State of J&K & Ors

Rajesh Sekhri, J

Impugned in this petition is an order dated 08.08.2017, passed by learned Munsiff (Judicial Magistrate 1st Class), Mendhar, [“the trial court”], vide which cognizance came to be taken and process issued against the petitioner, in a closure report.

Before a closer look at the grounds urged in the memo of petition, it shall be expedient to have an overview of the background facts.

As factual narration of the present case would unfurl, the private respondent (“the complainant”), lodged a written report with Police Station Gursai, as a consequence whereof FIR No. 53/2016 for offences under Sections 376/341 RPC came to be registered and petitioner came to be arrested. However, since no case was made out in the investigation, he was given the benefit of Section 169 CrPC and was released, by virtue of order dated 07.10.2016, passed by learned Sessions Judge, Poonch. A closure report, as a consequence came to be filed by the concerned police station, as final report no. 03/2017 in the trial court. Learned trial court called the complainant, recorded her statement and admitted an affidavit of one Haji Manzoor Hussain and vide impugned order took cognizance and issued process against the petitioner.

This order has been called into question by the petitioner, primarily on the ground that learned trial court has committed grave illegality by taking cognizance of the closure report and issuing process by relying upon the statement of the prosecutrix and admitting the affidavit of independent witness. According to the petitioner, trial court is not authorized to create evidence.

It is contention of the petitioner that since repeated investigations, by four investigating officers, found the allegations untrue and he was accorded benefit of Section 169 CrPC and came to be released, pursuant to the order of learned Sessions Judge, after plea of the investigating agency was accepted, the impugned order is an illegal exercise of jurisdiction by the trial Magistrate.

According to the petitioner learned trial court, by virtue of the impugned order, has usurped powers of the investigating agency and delved into the province of investigation, which is not permissible in law. The comments of the trial court, according to the petitioner, regarding the manner of investigation are unwarranted in law.

Heard learned counsels for the parties and perused the record.

Mr. P.N Raina, learned senior counsel appearing for the petitioner has relied upon Mukhtar Zaidi vs. State of Uttar Pradesh and Anr; 2024 (4) SCR 665 to reiterate the grounds urged in the memo of petition.

Learned senior counsel has argued that though it was open for the trial court to disagree with the conclusion drawn by the Investigating Officer and reject the closure report submitted under Section 173(2) CrPC, however, since learned trial court relied upon the statement of the complainant and the affidavit of Haji Manzoor Hussain as additional material in the form of evidence produced by the complainant, the only option for the trial court was to treat it as a complaint under Section 200 CrPC and proceed accordingly, after following the due procedure contained in Chapter XV CrPC and take cognizance under Section 190(1)

Per contra, Mr. Qayoom Chowdhary, learned counsel for the respondent-prosecutrix has relied upon a verdict rendered by 05 judges Bench of Hon‟ble Supreme Court reported in Dharam Pal and Ors. vs. State of Haryana and Anr.; 2014 (3) SCC 306, to contend that Magistrate is not bound by the conclusion drawn by the investigating agency and if he is of the opinion that final report discloses the commission of offence by the accused, he is well within his right to issue process against him.

Ordinarily, the investigation of a crime is an exclusive domain of the police agency. It is an extensive process which involves various steps, the foremost being the lodgement of the First Information Report, which sets investigation into motion. Etymologically speaking, report means giving an amount of incident or informing someone about something in writing or in an oral manner. Section 173 CrPC provides for filing of a final report or charge-sheet when the offences alleged are made out in investigation. However, if the investigation does not yield any evidence relating to the commission of any offence, Section 169 CrPC allows the police agency to release a person after the completion of the investigation. Therefore, it can be said that investigation can be closed for want of evidence. Section 190 of the Code provides the procedure for a Magistrate to take cognizance of a case brought before him by way of police report or otherwise. The procedure to adjudicate a closure report also falls within the ambit of this provision, which for the ease of reference is extracted hereunder:-

“190. Cognizance of offences by Magistrate.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section.

(2) may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;..…”

The options available to a Magistrate on the presentation of final report under Section 173 (2) CrPC, both in case, an offence appears to have been committed by a particular person or persons, and in case the report states that no offence appears to have been committed, came to be discussed in Vishnu Kumar Tiwari vs. State of Uttar Pradesh & Ors.; AIR 2019 SC 3482. Relevant excerpt contained in Para 9, for the facility of reference is reproduced below:-

“9. 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 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 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......”

(Emphasis Supplied)

It is evident from the above that Magistrate is not bound by the conclusion drawn by the investigating agency. In either of the cases, whether the final report concludes that an offence appears to have been committed by a particular person or persons, or whether it states that no offence appears to have been committed, the Magistrate has various courses available to him; (i) he may agree with the conclusion of the investigating agency that there is insufficient evidence to proceed and formally close the case, or (ii) he may, finding gaps or lacunae in the investigation, order further investigation, in terms of Section 156(3) CrPC, or (iii) he may disagree with the findings of the investigating agency, take cognizance of the offence based on the Case Dairy and issue process against the accused.

Now, the question which arises for consideration is that in case a closure report is placed before the Magistrate and he disagrees with the conclusion drawn by the investigating agency and takes the view that there is sufficient ground for proceeding against the accused or accused persons and takes cognizance of the offence, what procedure is required to be adopted by him.

The legal position with respect to the procedure to the adopted by the Magistrate and the options available with him on the presentation of a closure report came to be thrashed in detail in Vishnu Kumar Tiwari

(supra).

Relevant observations captured in Paras 42 to 46 for the facility of reference, are reproduced below:-

“42. 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 have to follow the procedure prescribed under Sections 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.

It is true that law mandates notice to the informant/ complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the Protest Petition. In Mahabir Prasad Agarwala v. State [Mahabir Prasad Agarwala v. State, 1957 SCC OnLine Ori 5 : AIR 1958 Ori 11] , a learned Judge of the High Court of Orissa, took the view that a Protest Petition is in the nature of a complaint and should be examined in accordance with the provisions of Chapter XVI of the Criminal Procedure Code. We, however, also noticed that in Qasim v. State [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , a learned Single Judge of the High Court of Judicature at Allahabad, inter alia, held as follows: (Qasim case [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , SCC OnLine All para 6)

“6. … In Abhinandan Jha [Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : 1968 Cri LJ 97 : (1967) 3 SCR 668] also what was observed was “it is not very clear as to whether the Magistrate has chosen to treat the Protest Petition as complaint”. This observation would not mean that every Protest Petition must necessarily be treated as a complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made under Section 200 CrPC. If the Magistrate did not treat the Protest Petition as a complaint, the Protest Petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The Protest Petition in such situation simply serves the purpose of drawing Magistrate‟s attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a Protest Petition the case is to become a complaint case.”

We may also notice that in Veerappa v. Bhimareddappa [Veerappa v. Bhimareddappa, 2001 SCC OnLine Kar 447 : 2002 Cri LJ 2150] , the High Court of Karnataka observed as follows: (SCC OnLine Kar para 9)

“9. From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate under Section 200 CrPC, but, has approached the police only and where the police after investigation have filed the „B‟ report, if the

complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) CrPC on a complaint. If it were to be so, the Protest Petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) CrPC, and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) CrPC. Instead, if it is to be simply styled as a Protest Petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 CrPC.”

“Complaint” is defined in Section 2(d) of the Code as follows: “2. (d) “complaint” means any allegation made orally or in writing to a

Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.—A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;”

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. In this case, in fact, there is no list of witnesses as such in the Protest Petition. The prayer in the Protest Petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or is liable to be treated as a complaint, we would think that essentially, the Protest Petition in this case, is summing up of the objections of the second respondent against the final report.”

(Emphasis Supplied)

The aforesaid observations of Hon‟ble Supreme Court came to be relied with approval in Mukhtar Zaidi, relied by learned Sr. counsel for the petitioner.

It is manifest from the aforesaid principle of law enunciated by the Apex Court that the law mandates issuance of notice to the informant/complainant where the Magistrate disagrees with the closure report and contemplates taking cognizance of the offence and issuing process. Upon receipt of such notice, the complainant may cause appearance, address the Court and ventilate his grievance to the closure report, which is usually done by filing a protest petition.

The concept of protest petition is the result of judicial craftsmanship, which gives the victim a role in the criminal justice system. Though protest petition is not contemplated by the Code of Criminal Procedure, but it has the sanction of long-standing practice and the imprimatur of judicial approval. No legislation can be exhaustive enough to contemplate and anticipate unpredictable nuances and circumstances of real life. Therefore, it is trite that anything not prohibited by a statute would be permissible, provided it is not in conflict with any provision contained therein and is conducive to the advancement of justice. If a Magistrate, after the presentation of the closure report by the investigating agency, takes cognizance upon the examination of the complainant and admits any other evidence, he is in seisin of the case and an application to a Court which is in seisin of case can always be made. It was in this background that the concept of „Protest Petitions‟ came to be introduced with the seal of judicial approval in a long chain of decisions. The Calcutta High Court in Lachmi Shaw v. Emperor; AIR 1932 Cal 383 (1), Satkari Ghose v. Ramlakshman Dutta; AIR 1947 Cal 439, Akshoy Kumar V. Jogesh Chandra; AIR 1956 Cal 76 and Sushil Kumar v. Banka Mahto; AIR 1957 Cal 393, crafted the nomenclature for these petitions and called them „Narazi‟ petitions, which roughly translates in English to annoyed or offended or displeased. This concept of protest petitions further came to be expounded by Hon‟ble Supreme Court in Pramathanath v. Saroj Ranjan; AIR 1962 SC 976 and later in Bhagwant Singh vs. Commissioner of Police; AIR 1985 SC 1285, which approved the proposition whereby it was held that non-availability of a specific procedure cannot be a ground to do away with the principles of natural justice and the Apex Court felt the desirability of issuance of prior notice to the informant/complainant or victim to oppose the closure reports. The relevant excerpt of the said judgment, for the facility of reference, reads as below:-

“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. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Subsection (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding 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.”

It is evident from the observations of Hon‟ble Supreme Court, captured in Para 42 of Vishnu Kumar Tiwari (supra), that a protest petition is to be treated as a complaint. It is, however, pertinent to underline that magistrate cannot be compelled to treat every protest petition as a complaint and there are various options available to him. The Magistrate, in the situation of a closure report being filed, has the following options available before him: (a) to accept the closure report, (b) in the event of filing of a protest  petition, to treat the same as a complaint petition and issue process, if prima facie case is made out, (c) to take cognizance of the offence against the person, disagreeing with the closure report, if he is of the opinion that sufficient material exists in the Case Dairy and (d) to direct re-investigation into the matter.

Thus, it can be concluded that investigation in a criminal case can be closed without filing of a charge-sheet. The closure report is a recourse available to the investigating agencies when allegations are not substantiated during the investigation. Such a recourse of a closure report also acts as a preliminary step to prevent false and malicious criminal cases and to balance the rights of both the accused and victims. However, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 CrPC. In case the protest petition is dismissed by the Magistrate, the remedy available to the complainant is to file a fresh complaint and invite the Magistrate to follow the procedure envisaged under Section 200 read with Section 202 of the Code. It means that every protest petition cannot necessarily be treated as a complaint unless it satisfies the requirements of a complaint as defined under Section 2(d) CrPC. It is so, because a private complaint must contain a complete list of witnesses to be examined and must provide for further examination of the complainant in terms of Section 200 CrPC. Thus, a protest petition can be treated as a complaint only if it fulfills the requirements prescribed under Section 200 read with Section 202 of the Code.

In the present case, though the Magistrate issued notice to the complainant/private respondent, no protest petition was filed by the private respondent. However, learned trail court recorded the statement of the complainant and also admitted an affidavit of one Hazi Manzoor Hussain, whereby the complainant/private respondent protested against conclusion drawn by the investigating officer. It is evident from the aforesaid observations of Hon‟ble Supreme Court that if Magistrate intends to consider the protest petition or rely upon the statement of the complainant or any additional material in the form of evidence produced by the complainant, the said case cannot be continued as a State case and should be treated as a private complaint, to be dealt with in accordance with the provisions contained in Chapter XV CrPC, and cognizance be taken under Section 190 (1) (a) CrPC.

For the foregoing reasons, I am of the considered view that learned trial court, has failed to appreciate the legal position in correct perspective, misdirected itself and steered away from the real controversy and embarked upon an unchartered territory. The Magistrate has fallen in grave error of law in taking cognizance of the matter under Section 190 (1) (b) CrPC, because he not only relied upon the statement of the complainant but also the additional material in the shape of affidavit of an independent witness. Learned trial court ought to have treated the closure report along with the evidence produced by the complainant as a complaint and take cognizance under Section 190 (2) (a) CrPC and followed the procedure prescribed under Chapter XV CrPC.

Considered thus, the present petition is allowed and impugned order is set-aside. Learned trail court, however, shall be at liberty to proceed in accordance with the provisions and procedure laid down under Chapter XV CrPC.

Before parting, however, it is made clear that nothing observed in the present order shall be construed as an expression of opinion on the merits.

Disposed of.