Smt. Kalpana Tiwari vs State of U.P. and Others

Vijay Kumar Verma, J.—By means of this revision preferred u/s 397 of the Code of Criminal Procedure (in short the ''Cr.P.C.''), order dated 08.05.2000 passed by the 2nd Additional Chief Metropolitan Magistrate Kanpur Nagar in the criminal case arising out of Crime No. 641 of 1999, under Sections 498-A, 325, 594 IPC and Section 3/4 of Dowry Prohibition Act, P.S. Naubasta, District Kanpur Nagar has been challenged.

By the impugned order, final report submitted by the police in the aforesaid case has been accepted without passing any order on the protest petition filed by the revisionist against the said final report.

Shorn of unnecessary details, the facts emerging from the record leading to the filing of this revision, in brief, are that an application u/s 156(3) Cr.P.C. was moved by the revisionist (hereinafter to be referred as ''the complainant'') impleading 1. Sri Brinda Prasad Tiwari, 2. Ram Sewak, 3. Devi Sewak, 4. Durga Sewak, 5. Badri Narain, 6. Smt. Kamla, 7. Smt. pamlal, 8. Smt. Lata, 9. Smt. Sarita and 10. Smt. Pramil as opposite parties.

on the basis of the order passed by the magistrate concerned on that application, an FIR was lodged on 19.07.1999 at P.S. Naubasta, Kanpur Nagar, where a case under! Section 498A, 323 IPC and 3/4 Dowry Prohibition Act was registered at Crime No. 641 of 1999 against the aforesaid persons. After investigation, the police submitted final report, against which the complainant filed protest petition on 10.11.1999, in support whereof she filed her affidavit. The court below vide impugned order without passing any order on the protest petition filed by the complainant, accepted the final report vide impugned order dated 08.05.2000. Hence this revision.

When the revision was taken up for hearing in the revised list, the Counsel for the respondents did not appear. Hence I have heard arguments of Sri Mayank Bhushan learned Counsel for the revisionist and learned AGA for the State. Otherwise also the accused persons/respondents have no right to contest this revision, as no process has been issued against them so for to summon them to face the trial.

The main submission made by the learned Counsel for the revisionist was that the court below was under obligation to treat the protest petition of the complainant as complaint and to pass order u/s 203 or 204 Cr.P.C. after following the procedure laid down in Chapter XV Cr.P.C. at the time of disposal of the final report submitted by the police in case Crime No. 641 of 1999, but the learned magistrate without passing any order on the protest petition of the complainant accepted the final report, which is wholly illegal.

The contention of the learned Counsel was that if the complainant has filed protest petition against final report and the magistrate decides to accept the said final report and drop the proceedings, then in that case the protest petition filed by the complainant ought to have been registered as complaint and after following the procedure laid down in Chapter XV Cr.P.C., it must be decided whether the complaint should be dismissed or process should be issued and since this procedure was not adopted by the learned magistrate in the present case, hence the impugned order being illegal should be set-aside and the case be sent back to the lower court concerned for passing fresh order after following the procedure laid down in Chapter XV Cr.P.C.

Having given my thoughtful consideration to the submissions made by the learned Counsel for the revisionist, I am of the opinion that the impugned order is wholly illegal and unjustified. The lower court record has been summoned. It is revealed from the record that on submission of the final report by the police in Case Crime No. 641 of 1999, the complainant Smt. Kalpana Tiwari had filed protest petition on 10.11.1999, which was supported with her affidavit. But at the time of passing the impugned order the learned court below did not pass any order on the said protest petition. Hence on this ground alone, the impugned order is liable to be set-aside and it is not necessary to go into the merit of the case.

The Division Bench of this Court in the case of Pakhando and Ors. v. state of U.P. and Anr. 2001(43) ACC 1096 had the occasion to consider the matter regarding the procedure to be adopted by the Magistrate/Court on submission of the final report by the police. Having taken various authorities into consideration, the following observations have been made by the Division Bench in para 15 of the judgement at page 1100 of the report:

From the aforesaid decisions, it is thus clear that 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 u/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 u/s 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

As would appear from the observations made by the Division Bench in the case of Pakhando v. State (supra), the learned court below ought to have registered the protest petition .of the complainant against the final report as complaint and after following the procedure laid down in Section 200 and 202 Cr.P.C, it should have been decided whether the complaint should be dismissed or process should be issued.

The Hon''ble Apex Court in the case of Mahesh Chand v. B. Janardhan Reddy and Anr. 2003 (46) ACC 182 has held that even after accepting the final report, cognizance of the offence can be taken on the complaint/protest petition filed by the complainant on the same or similar allegations.

Therefore, having regard to the law laid down by the Hon''ble Apex Court in the case of Mahesh Chand v. B. Janardhan Reddy (supra) and the observations made by the Division Bench of this Court in the case of Pakhando v. State (supra), it would be in the interest of justice to send the case back to the court below for passing order on the protest petition filed by the complainant against final report treating the same as complaint and following the procedure laid down in Chapter XV Cr.P.C.

Consequently, the revision is partly allowed. Modifying the impugned order, the court below is directed to pass order on the protest petition filed by the revisionist/complainant against final report in case Crime No. 641 of 1999 of P.S. Naubasta (Kanpur-Nagar) treating the same as complaint and following the procedure laid down u/s 200 and 202 Cr.P.C.

The Office is directed to return lower court record expeditiously along with a copy of this judgement for further necessary action.