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Patna High Court

Dharmendra Kumar @ Dharmendra Kumar Singh and OrsversusState Of Bihar and Anr

Decided
Disposal
DISMISSED

Holding

The magistrate was competent to treat the protest petition as a complaint and take cognizance despite having accepted the police final report, and no abuse of process was found.

Summary

The petitioners filed a criminal miscellaneous petition under Section 482 of the CrPC seeking to quash a Judicial Magistrate's order that took cognizance of offences under IPC sections 448, 323, 379 and 504 based on a protest petition filed by the opposite party, despite a police final report clearing the petitioners. The petitioners argued that the magistrate erred by treating the protest petition as a complaint after accepting the final report, citing the Patna High Court’s Surendra Pandit decision. The court held that, as per Supreme Court authority, acceptance of a final report does not bar a magistrate from taking cognizance on a complaint filed thereafter, and the magistrate correctly applied Sections 200 and 202 of the CrPC. The court further found no abuse of process, noting that the dispute was civil in nature but the complaint contained sufficient material to proceed. Consequently, the petition was dismissed on its merits.

Issues considered

  • Whether a magistrate can treat a protest petition as a complaint and take cognizance of offences after accepting the police final report under Section 173 of the CrPC.
  • Whether proceeding against the petitioners amounts to an abuse of the process of the court.

Legislation cited

Subjects

  • criminal procedure
  • Section 482
  • protest petition
  • final report
  • cognizance
  • abuse of process
  • landlord-tenant dispute
  • complaint proceeding
  • magistrate jurisdiction

Judgment

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CRIMINAL MISCELLANEOUS No.22855 of 2016
     Arising Out of PS. Case No.-84 Year-2015 Thana- KATIHAR COMPLAINT CASE District-
                                             Katihar
     ======================================================
1.    Dharmendra Kumar @ Dharmendra Kumar Singh, Son of Nagendra Prasad
      Singh.
2.   Panchanand Singh, Son of Late Rudal Singh
3.   Brij Mohan Singh @ Birju, Son of Panchanand Singh,
     All resident of Mohalla- Larkania Tola Police Station- Katihar Town,
     District- Katihar.

                                                                   ... ... Petitioner/s
                                         Versus
1.   The State of Bihar
2.   Chandra Sekhar, son of Late Ram Chandra Ray, Resident of Mohalla-
     Larkania Tola, P.O.- Katihar, P.S.- Katihar Town, District- Katihar.

                                            ... ... Opposite Party/s
     ======================================================
     Appearance :
     For the Petitioner/s   :       Mr. Jibendra Mishra, Adv.
     For the O.P. No. 2     :       Mr. Rananjay Kumar, Adv.
                                    Mr. H.C. Patel, Adv.
     For the State          :       Mr. Raj Ballabh Singh, APP
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
                          CAV JUDGMENT
      Date :         05-02-2026

                     Heard learned counsel for the petitioners, learned

      counsel for the O.P. No.2 and learned APP for the State.

                     2. The instant criminal miscellaneous petition has

      been preferred under Section 482 of the Code of Criminal

      Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), by the

      petitioners seeking quashing of the order dated 30.04.2015

      passed by the Court of the Judicial Magistrate, 1st Class,

      Katihar, in Complaint Case No. C.A. 84 of 2015, whereby the

      learned Magistrate has taken cognizance of offences punishable
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         under Sections 448, 323, 379, and 504 of the Indian Penal Code

         (hereinafter referred to as “IPC”) and summoned the petitioners

         to face trial for the said offences. The aforesaid order taking

         cognizance is under challenge in the present quashing

         application.

                      Arguments on behalf of the petitioners:-

                      3. Mr. Jibendra Mishra, learned counsel appearing for

         the petitioners, has submitted that the impugned order is wholly

         unsustainable in the eye of law, being contrary to the principles

         laid down by this Court in Surendra Pandit @ Soren Pandit &

         Ors. v. State of Bihar & Anr., passed in Cr. Misc. No. 42389 of

         2012. The relevant paragraph, upon which reliance has been

         placed, is reproduced hereinbelow:

                       "As properly advised, the 2nd respondent
                       filed a protest petition. The concerned
                       Court could have weighed the pros and
                       cons of the final report, on the one hand,
                       and the protest petition, on the other hand,
                       and taken a decision in this behalf. Even from
                       perusal of the order challenged in this
                       petition, it is evident that the trial Court
                       accepted the final report, despite there
                       being a protest petition. It only means that
                       protest petition was not found to be
                       acceptable.
                          Once the final report was accepted, the
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                       proceeding referable to the FIR stand
                       terminated. If the second respondent was
                       aggrieved on account of the acceptance of
                       the final report filed by the police, he ought
                       to    have      approached        this    Court   by
                       instituting        appropriate           proceedings.
                       However, on his insistence, the protest
                       petition was treated as a complaint under
                       Section 200 Cr.P.C. Whatever be the
                       possibility for the protest petition being
                       treated as a complaint under Section 200
                       Cr.P.C., once the final report has been
                       accepted, the question of keeping the
                       matter alive through a different channel
                       does not arise."


                      3.1. While referring to the aforesaid paragraph of the

         cited judgment, learned counsel for the petitioners has submitted

         that there existed a relationship of landlord and tenant between

         the petitioners and Opposite Party No. 2 during the relevant

         period. It has further been contended that Opposite Party No. 2

         had initially lodged Katihar P.S. Case No. 86 of 2014 alleging

         commission of offences punishable under Sections 406, 420,

         120(B), 452, 379, 504/34 of the IPC and Sections 24 and 25 of

         the Arms Act. The said case was investigated, and upon

         completion of investigation, the police submitted a final form
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         concluding that the dispute between the parties was of a civil

         nature and, accordingly, the petitioners were not sent up for trial.

         Thereafter, the learned Magistrate accepted the final form

         despite the filing of a protest petition. In view of the principles

         laid down by this Court in the case of Surendra Pandit (supra),

         the said protest petition ought to be deemed as having been not

         accepted; however, the learned Magistrate proceeded further on

         said protest petition and, after examining the inquiry witnesses,

         took cognizance of the alleged offences by passing the

         impugned order.

                      3.2. It has been further submitted that, in fact, there is

         no eyewitness to the alleged occurrence. All the witnesses cited

         in the protest petition and examined before the learned

         Magistrate during the course of inquiry at the instance of

         Opposite Party No. 2 are close relatives of Opposite Party No. 2.

                      Arguments on behalf of the O.P. No.2:-

                      4. On the other hand, Mr. Rananjay Kumar, learned

         counsel appearing for Opposite Party No. 2, has submitted that

         there is no illegality in the impugned order, as it is well settled

         that even after accepting the final form, the concerned

         Magistrate is competent to proceed on the protest petition and

         take cognizance of the offences if the commission thereof

         appears from the averments made in the protest petition and is
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         supported by the statements of the inquiry witnesses. It has

         further been submitted that there is sufficient material on record

         to proceed against the petitioners for the offences of which

         cognizance has been taken.

                      Consideration and analysis:-

                      5. I have heard learned counsels for the parties and

         perused the impugned order as well as the relevant materials on

         record. During the course of arguments, learned counsel for the

         petitioners, while placing reliance upon the judgment of this

         Court in Surendra Pandit (supra), contended that the approach

         adopted by the learned Magistrate in treating the protest petition

         filed by Opposite Party No. 2 as a complaint, despite the police

         having submitted a final report in favour of the petitioners

         declaring them innocent and the same having been accepted by

         the learned Magistrate, was improper and contrary to the

         principles settled by this Court in the aforesaid decision. I find

         no force in the above contention. It is well settled by a catena of

         judgments of the Hon’ble Supreme Court that if a protest

         petition satisfies the requirements of a complaint, the Magistrate

         is competent to treat the protest petition as a complaint and to

         proceed in accordance with the procedure prescribed under

         Sections 200 and 202 of the Cr.P.C. Acceptance of the final
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         report does not preclude or debar the Magistrate from taking

         cognizance on the basis of materials brought on record in a

         complaint proceeding, as the right of the informant/complainant

         to file a protest petition in the nature of a complaint is not

         extinguished merely because the final form submitted by the

         police has been accepted. In this regard, reference may be made

         to the observations of the Hon’ble Supreme Court in Kishore

         Kumar Gyanchandani v. G.D. Mehrotra & Anr., reported in

         (2011) 15 SCC 513, wherein the relevant observations made in

         paragraph 6 are reproduced hereinbelow:-

                             "6. It is too well settled that when police
                       after investigation files a final form under
                       Section 173 of the Code, the Magistrate may
                       disagree with the conclusion arrived at by the
                       police and take cognizance in exercise             of
                       power under Section 190 of the Code. The
                       Magistrate may not take cognizance and
                       direct further investigation in the matter
                       under Section 156 of the Code. Where the
                       Magistrate accepts the final form submitted
                       by the police, the right of the complainant to
                       file a regular complaint is not taken away and
                       in fact on such a complaint being filed the
                       Magistrate follows the procedure under
                       Section      201     of    the     Code   and   takes
                       cognizance if the materials produced by the
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                       complainant make out an offence. This
                       question has been raised and answered by
                       this Court in the case of Gopal Vijay Verma v.
                       Bhuneshwar Prasad Sinha whereunder the
                       view of the Patna High Court to the contrary
                       has been reversed. The Court in no uncertain
                       terms in the aforesaid case has indicated that
                       the acceptance of final form does not debar
                       the Magistrate from taking cognizance on the
                       basis of the materials produced in a
                       complaint proceeding."

                      6. Thus, the learned Magistrate has not committed any

         error in treating the protest petition filed by Opposite Party No.

         2 as a complaint. Accordingly, there is no substance in the

         aforesaid contention. The next question for consideration is

         whether subjecting the petitioners to criminal prosecution for

         the alleged offences, of which cognizance has been taken,

         amounts to an abuse of the process of the Court or not. It is an

         admitted position that during the relevant period of time there

         existed a relationship of landlord and tenant between the

         petitioners and Opposite Party No. 2. According to the

         petitioners, Opposite Party No. 2 was their tenant who had taken

         the concerned premises on rent but failed to vacate the same.

         The said dispute might be a reason to commit the alleged

         occurrence by the petitioners. Opposite Party No. 2 has levelled
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         several allegations against the petitioners disclosing prima facie

         commission of the alleged offences of which cognizance has

         been taken as well as petitioners' involvement in the said

         occurrence. Some of the witnesses cited in the complaint/protest

         petition were also examined during the course of inquiry, and

         their statements lend support to the allegations made by

         Opposite Party No. 2. Although it has been contended by

         learned counsel for the petitioners that Opposite Party No. 2 is a

         practicing advocate and that there are certain contradictions

         between the averments made in the complaint petition and the

         statements of the inquiry witnesses but the same, at this stage,

         cannot be made a ground to exonerate the petitioners from the

         criminal liability arising against them out of the alleged

         occurrence. It was further submitted during the course of

         arguments that all the witnesses examined at the instance of

         Opposite Party No. 2 during the inquiry inimically disposed

         towards the petitioners. However, the petitioners have failed to

         disclose the basis or reasons for such alleged enmity, and the

         said assertion in the present petition is unsupported by any

         material on record.

                      Conclusion:-

                       7. Accordingly, I find no reason to interfere with the
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                      impugned order. The instant petition is, therefore, dismissed on

                      merits.


                                                 (Shailendra Singh, J)


Rajiv/-
AFR/NAFR                AFR
CAV DATE                27.01.2026
Uploading Date          05.02.2026
Transmission Date       05.02.2026


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