SUPREME COURT HOLDS HIGH COURT ERRED IN INTERFERING WITH TRIAL COURT ORDER OF ISSUE OF SUMMONS TO ACCUSED, AS PRIMA FACIE CASE WAS ESTABLISHED

INTRODUCTION

A two-Judge Bench of the Supreme Court comprising Justice Bela M. Trivedi and Justice Dipankar Datta passed an Order dated 29.08.2023 in Zunaid Vs. State of U.P and Ors. in Criminal Appeal Nos. 2628-2629 of 2023 (arising out of SLP (C.R.L) Nos. 8506-8507/2022) and held that the High Court ought not to have interfered with the decision of the Trial Court with regard to issue of summons to the Accused persons, as the same was done only after recording statements of the Complainant and witnesses and after having been prima facie satisfied about the commission of the alleged offence.

FACTS

(1) In the present case, one, Mr. Zunaid Khan (“Appellant”) filed a Complaint at the Kotwali Gursahaiganj, Kannuaj Police Station alleging that the 10 Respondents-Accused armed with sharp-edged weapons had attacked him and his family members and also abused them due to old enmity. Consequently, his family got injured and were admitted in a hospital for treatment. Based on the said Complaint, an F.I.R dated 16.08.2017 was registered as Crime No. 907 of 2017 for the offences under Sections 147 of the Indian Penal Code (“IPC”) (Punishment for rioting), 148 IPC (Rioting, armed with deadly weapon), 149 IPC (Every member of unlawful assembly guilty of offence commit­ted in prosecution of common object), 307 IPC (Attempt to Murder), 323 IPC (Punishment for voluntarily causing hurt), 324 IPC (Voluntarily causing hurt by dangerous weapons or means) and 504 IPC (Intentional insult with intent to provoke breach).

(2) Further, the Investigating officer, after the completion of the Investigation, submitted the Final Report bearing no. 164/2017 on 13.11.2017 under Section 173 of Cr. P.C. (Report of police officer on completion of investigation) before the Ld. Chief Judicial Magistrate, Kannuaj, U.P. (“CJM”). Aggrieved, the Appellant- Complainant filed a Protest Petition before the Ld. CJM.

(3) Thereafter, the Ld. CJM vide Order dated 15.11.2018 rejected the Final Report of the Investigating Officer (“O.”) and directed that the Protest Petition be registered as the Complaint Case. Subsequently, the said Complaint Case was registered and numbered as Complaint Case No. 2783/2018.

(4) Further, Ld. CJM, after considering the provisions contained in Sections 200 of the Code of Criminal Procedure 1973 (“P.C”) (Examination of complainant) and 202 of Cr. P.C (Postponement of issue of process) and after recording the statements of the Complainant and 8 other witnesses, issued Summons to the Respondents-Accused, vide Order dated 11.01.2022 in the said Complaint Case.

(5) Being aggrieved by the Order dated 11.01.2022 passed by Ld. CJM, the Respondents-Accused preferred Applications under Section 482 of Cr. P.C (Saving of inherent powers of High Court) in A482-14899-2022 before the High Court of Uttar Pradesh at Allahabad seeing quashing of the FIR and criminal proceedings arising thereof.

(6) Further, on 20.07.2022, the Respondents-Accused submitted Applications seeking amendment in the prayer clause of the aforementioned Applications filed under Section 482 to add a prayer clause seeking setting aside of the Ld. CJM’s Order dated 15.11.2018 that had rejected the Final Report of the I.O. The said amendment was allowed by the High Court, vide Order dated 21.07.2022.

(7) On the very next day, the High Court, after hearing the Ld. Counsel for the Parties, passed an Order dated 22.07.2022, and allowed the Applications filed by the Respondents-Accused under Section 482 CrPC and further, made the following observations;

“20. When the findings recorded by concerned Magistrate as noted above, are examined in the light of the observations contained in paragraph 28 of the judgement in Hari Ram (supra) do not fulfill the mandate of law which the Magistrate is required to comply while exercising jurisdiction under Section 190 (1) (b) Cr.P.C. No finding has been recorded by concerned Magistrate with regard to the papers accompanying the police report. Without recording any finding that there is no evidence against applicants in the papers accompanying police report, the conclusion drawn by Magistrate to treat the protest petition as a complaint is not only illegal, but also arbitrary. Once the Magistrate came to prima facie conclusion that investigation of concerned case crime number is unsatisfactory or is the outcome of lackadaisical approach of investigating Officer, then in that eventuality, concerned Magistrate ought to have directed further investigation in the matter. The findings recorded by concerned 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.”

SUPREME COURT ANALYSIS

Aggrieved by the High Court Orders dated 21.07.2022 and 22.07.2022, the Appellant-Complainant filed SLP (C.R.L) Nos. 8506-8507 of 2022 before the Hon’ble Supreme Court, which was registered as Criminal Appeal Nos. 2628-2629 of 2023. The Apex Court, vide Order dated 29.08.2023, made the following observations:

(i) That there remained no shadow of doubt that upon receipt of a police report under Section 173 of Cr. P.C., the Magistrate can exercise three powers, namely, a) he may decide that there was no sufficient ground for proceeding further and hence, drop the legal action; or b) he may take cognizance of the offence under Section 190 (1)(b)[1] of C.r.P.C. (Cognizance of offences by Magistrates) on the basis of the police report and issue process; or c) he may take cognizance of the offence under Section 190 (1) (a) r.P.C. on the basis of the original complaint and proceed to examine upon oath, the complainant and his witnesses under Section 200 C.r.P.C.

(ii) Further, the Bench was of the view that, even in a case where the final report of the Police under Section 173 C.r.P.C. is accepted and if the accused persons are discharged, the Magistrate has the power to take cognizance of the offence based on a complaint / protest petition / similar allegations made by complainant, after acceptance of final report.

(iii) Further, that 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.

(iv) That the Order passed by CJM dated 15.11.2018 was absolutely just, legal and proper in the facts and circumstances of the case. The said Order remained unchallenged at the instance of the Respondents-Accused. Later, the Respondents filed Applications before the High Court thereby challenging the CJM’s Order dated 11.01.2022 of issue of Summons to the Accused, wherein they further sought for setting aside of the CJM’s Order dated 15.11.2018 only by way of subsequent amendment i.e. 4 years after passing such Order.

(v) Further, the High Court should not have permitted the Respondents-Accused to amend the Application for challenging the Order dated 15.11.2018 after four years of its passing, and in any case should not have interfered with the discretion exercised by the CJM in issuing Summons to the Accused, only after recording statements of the Complainant and eight witnesses and having been prima facie satisfied about the commission of the alleged crime.

Conclusion

Thus, based on the aforesaid observations, the Supreme Court held that the High Court committed gross error in setting aside Orders dated 15.11.2018 and 11.01.2022 passed by Ld. CJM. Hence, the Appeals filed by Complainant were allowed and the High Court Orders dated 21.07.2022 and 22.07.2022 were set aside. The Apex Court also directed Ld. CJM to proceed with Complaint Case / 2783 / 2018 in accordance with law.

Kartik Khandekar

Associate

The Indian Lawyer

 

[1]  Section 190 of C.r.P.C.- Cognizance of offences by Magistrates–

(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;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try