Zunaid v. State of U.P. & Ors.

1. Heard learned counsel for the parties.

2. Leave granted.

3. The two appeals arise out of the orders passed by the High Court of Judicature at Allahabad in the Application No.14899/2022 filed by the respondents-accused under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’). These two appeals have been filed by the appellant-complainant challenging the order dated 21.07.2022 by which the High Court had granted the prayer made by the respondents-accused to amend the application filed under Section 482 Cr.P.C. and challenging the order dated 22.07.2022 by which the High Court has set aside the orders dated 15.11.2018 and dated 11.01.2022 passed by the Chief Judicial Magistrate (for short, ‘CJM’) in Misc. Case No.06/11/2018 arising out of Case Crime No.907/2017. The High Court vide the impugned order further directed the concerned Magistrate to pass a fresh order on the Protest Petition filed by the appellant-complainant in the light of observations made by it in the impugned order.

4. The short facts giving rise to the present appeals are that on 16.08.2017, the appellant – Junaid Khan had lodged an FIR alleging inter alia that the respondents–accused armed with sharp-edged weapons had attacked him and his family and also abused them due to an old enmity. As a result thereof, his family members got seriously injured, and were sent to the hospital for treatment. The said FIR was registered as Crime Case No.907 of 2017 for the offence under Sections 147, 148, 149, 307, 323, 324, 504 IPC at P.S. Kotwali Gursahaiganj, Kannauj. The Investigating Officer, after completing the investigation, submitted the Final Report bearing No.164/2017 on 13.11.2017.

5. Being aggrieved by the said report, the appellant-complainant filed a Protest Petition being F.R. No.06/11/18 before the concerned CJM. The concerned CJM vide order dated 15.11.2018 rejected the Final Report of the Investigating Officer and directed that the Protest Petition be registered as the Complaint Case. The said complaint case was registered and numbered as the Complaint No.2783/2018.

6. The concerned CJM having regard to the provisions contained in Sections 200 and 202 Cr.P.C. and after recording the statements of the complainant and eight other witnesses, issued summons to the respondents-accused vide order dated 11.01.2022 in the said complaint case. Being aggrieved by the said order passed on 11.01.2022, the respondents-accused preferred an application under Section 482 bearing No.14899/2022 before the High Court.

7. On 20.07.2022, the respondents-accused, who were the applicants before the High Court, submitted an application seeking amendment in the prayer clause of the application filed under Section 482 and prayed for setting aside of the order dated 15.11.2018 as well. The said application for amendment came to be allowed by the High Court vide the impugned order dated 21.07.2022. On the very next day, the High Court after hearing the learned counsel for the parties passed the impugned order on 22.07.2022, allowing the said application under Section 482 as stated hereinabove.

8. The High Court while passing the impugned order, observed as under: -

9. In our opinion, the above observations recorded by the High Court are absolutely erroneous in view of the catena of decisions of this Court.

10. In Rakesh & Another Vs. State of Uttar Pradesh & Another[1], it is observed as under: - “6. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, (1982) 3 SCC 510, notice must be had of the decision of this Court in H.S. Bains v. State (UT of Chandigarh) (1980) 4 SCC 631 wherein it was held that after receipt of the police report under Section 173, the Magistrate has three options: (H.S. Bains case (supra)

11. In view of the above, there remains no shadow of doubt 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; and 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. It may be noted 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. As held by this Court in Gopal Vijay Verma Vs. Bhuneshwar Prasad Sinha and Others[2], as followed in B. Chandrika Vs. Santhosh and Another[3], 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. No doubt 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.