SUPREME COURT SETS ASIDE SUMMONS ISSUED BY MAGISTRATE WITHOUT FOLLOWING PROCEDURE

In a recent case of Mukhtar Zaidi Vs The State of Uttar Pradesh, Criminal Appeal No. 2134 of 2024 arising from SLP (CRL) No. 9122 of 2021, a two Judge Bench of the Hon’ble Supreme Court comprising of Justice Vikram Nath and Justice Satish Chandra Sharma passed a Judgment dated 18-04-2024 and observed that (a) in the event the Ld. Magistrate’s Court disagrees with the conclusions arrived at by the investigating officer in his police report and (b) decides to treat the protest petition filed by the complainant in protest of such I.O.’s conclusions, as a private complaint under Section 200 of the Code of Criminal Procedure 1973 (CrPC) (Examination of complainant), (c) the Magistrate ought to follow the procedure prescribed in Chapter XV of CrPC (Complaints to magistrates) including examination of complainant and witnesses, etc before summoning the accused.

Facts

i) In the present case, the Respondent No. 2- Complainant, Munsif Hussain filed a Complaint in the Police Station, Civil Lines, District Aligarh against the Appellant- Mukhtar Zaidi stating that on 08-03-2020 at around 1.30 pm, the Appellant tried to kill the victim, as a result of which, the victim sustained injuries. The victim’s statement recorded under Section 161 of the Code of Criminal Procedure 1973 (CrPC) (Examination of witnesses by police) clearly mentioned the allegation of assault by the Appellant and the latter’s attempt to kill the victim.

ii) The Investigating Officer (O.) submitted a Final Report dated 02-06-2020 stating that no evidence could be collected against Appellant under Section 173 CrPC (Report of police officer on completion of investigation) before the Ld. Chief Judicial Magistrate, Aligarh (Trial Court) in State Vs. Mukhtar Zaidi & others, Crime No. 129 / 2020.

iii) Based on the said Final Report, the Trial Court issued notices to the Complainant i.e. the first Informant, whereafter, the Complainant filed a Protest Petition on the ground that the I.O. did not conduct a fair investigation and that the I.O. had not even recorded the statements of all the witnesses. Thus, the Complainant prayed that the Final Report be rejected and the Appellant be summoned to face trial.

iv) The Trial Court, vide Order dated 08-03-2021, rejected the Final Report of the I.O. and summoned the Appellant to face trial in accordance with Section 190(1)(b) CrPC[1] (Cognizance of offences by Magistrates).

v) Aggrieved by the Summoning Order dated 08-03-2021, the Appellant filed an Application under Section 482 CrPC (Saving of inherent power of High Court) before the Allahabad High Court in Mukhtar Zaidi vs State of U.P. and Anr. Case No. 5727 of 2021 seeking quashing of the Summoning Order and the entire proceedings arising from Crime No. 129 / 2020.

vi) The High Court, vide Order dated 24-08-2021, dismissed the Appellant’s Application on the ground that a prima facie case had been made out against the Appellant and that the Summoning Order was passed based on the evidence collected by the I.O. in accordance with Section 190(1)(b) CrPC, which is just, proper and legal.

Supreme Court Observations

Aggrieved by the High Court Order dated 24-08-2021, the Appellant filed SLP (CRL) No. 9122 of 2021 before the Hon’ble Supreme Court, which was registered as Criminal Appeal No. 2134 of 2024. The Apex Court, vide Order dated 18-04-2024, made the following observations:

1) That the Trial Court, while rejecting the I.O.’s Report and passing the Summoning Order, had taken into consideration the Complainant’s Protest Petition and the Affidavits of four witnesses filed along with such Petition. In short, the Trial Court had treated the Protest Petition as a Complaint before proceeding under Section 190 CrPC.

2) That the Supreme Court has in earlier cases observed as follows regarding protest petition being treated as a complaint by Magistrate’s Court:

a) 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.

b) 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.

c) In other words, necessarily, the complainant and his witnesses would have to be examined.

d) ..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.

3) That in the event that the Magistrate’s Court relies on the police report and rejects a protest petition, the complainant would still have the opportunity to file a fresh private complaint under Section 200 CrPC (Examination of complainant). “The right of the Complainant to file a petition under Section 200 Cr.P.C. is not taken away even if the Magistrate concerned does not direct that such a Protest Petition be treated as a complaint”.

4) However, in the present case, the Trial Court had recorded his satisfaction that the case was worth taking cognizance and was fit for summoning the Appellant-Accused, i.e. the Trial Court, in a way, had treated the Protest Petition as a private complaint, but failed to follow the subsequent procedures i.e. examination of the Complainant and the witnesses etc as laid down under Chapter XV of the CrPC.

Conclusion

Thus, based on the aforesaid observations, the Apex Court held that the Trial Court ought to have followed the procedure prescribed under Chapter XV of the CrPC before summoning the Appellant-Accused. But it would be now open for the Trial Court to treat the Protest Petition as a complaint and proceed in accordance with the law laid down under Chapter XV of CrPC. Accordingly, the Appeal filed by the Appellant-Accused was allowed and the High Court Order dated 24-08-2021 upholding the Trial Court’s Summoning Order dated 08-03-2021 were both set aside.

Editor’s Comments

In all criminal matters, the procedure set down by the law has to be followed not only by the police but also the Court. This is primarily because an alleged accused is deemed to be innocent until proven guilty. Hence, not only is recording of the evidence important but also following the step-by-step process is incumbent upon on the Police and the Court. Any deviation from the set-out procedure would be deemed to be a violation of the principles of natural justice.

 

Harini Daliparthy

Senior Associate

The Indian Lawyer

 

Edited by

Sushila Ram Varma

Chief Consultant

The Indian Lawyer

 

[1] Section 190 CrPC: 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.