MUKHTAR ZAIDIversusTHE STATE OF UTTAR PRADESH & ANR.

                  [2024] 4 S.C.R. 655 : 2024 INSC 316

                            Mukhtar Zaidi
                                   v.
                   The State of Uttar Pradesh & Anr.
                     (Criminal Appeal No. 2134 of 2024)
                                   18 April 2024
           [Vikram Nath* and Satish Chandra Sharma, JJ.]

                             Issue for Consideration
       Whether CJM as also the High Court fell in error in taking cognizance
       u/s. 190(1)(b) Cr.P.C. inasmuch as the CJM had relied upon not
       only the Protest Petition which was supported by affidavit of the
       complainant but also on the affidavits of witnesses which were
       filed along with the Protest Petition to support the contents of the
       complaint.

                                     Headnotes
       Code of Criminal Procedure, 1973 – s.190(1)(b), s.200 – FIR
       lodged – Police report filed u/s. 173(2) Cr.P.C. – I.O. found
       that no evidence could be collected which could substantiate
       the allegations made in the FIR – Protest Petition filed along
       with affidavit – The CJM rejected the police report u/s. 173(2)
       Cr.P.C., however, proceeded to take cognizance for offences u/
       ss. 147, 342, 323, 307, 506 of the IPC and u/s. 190 (1)(b) of the
       Cr.P.C. – Appellant contended that once the CJM was relying
       upon additional material in the form of evidence produced
       by the complainant along with the Protest Petition then the
       only option for the CJM was to treat it as a complaint u/s. 200
       Cr.P.C. and proceed accordingly following the due procedure
       in Chapter XV of the Cr.P.C. – Correctness:
       Held: The CJM had actually taken into consideration not only the
       Protest Petition but also the affidavit filed in support of the Protest
       Petition as well as the four affidavits of witnesses filed along with the
       Protest Petition – It was based on consideration of such affidavits
       that the CJM was of the view that the investigation was not a fair
       investigation and these affidavits made out a prima facie case for
       taking cognizance and summoning the accused – In the instant
       case as the Magistrate had already recorded his satisfaction that


* Author
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       it was a case worth taking cognizance and fit for summoning the
       accused, this Court is of the view that the Magistrate ought to
       have followed the provisions and the procedure prescribed under
       Chapter XV of the Cr.P.C. – Accordingly, impugned orders passed
       by the High Court and also the CJM are set aside. [Paras 7 and 11]

                                Case Law Cited
            Vishnu Kumar Tiwari v. State of Uttar Pradesh, through
            Secretary Home, Civil Secretariat, Lucknow & Anr.
            [2019] 8 SCR 1114 : (2019) 8 SCC 27 – relied on.

                                  List of Acts
       Code of Criminal Procedure, 1973.

                               List of Keywords
       FIR; Report of police officer on completion of investigation; Protest
       Petition; Witness; Additional materials; Cognizance; Summoning
       of accused; Complaints to magistrate.

                              Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2134
       of 2024
       From the Judgment and Order dated 24.08.2021 of the High Court
       of Judicature at Allahabad in A482 No.15273 of 2021
                           Appearances for Parties
       Vinod Prasad, Sr. Adv., Ajay Kumar Srivastava, Ms. Jyoti Tiwary,
       Rajesh Pandey, Advs. for the Appellant.
       Shashank Shekhar Singh, Shantanu Singh, Shekhar Prit Jha, S.S.
       Haider, Ms. Preeti Kumari, Advs. for the Respondents.
                  Judgment / Order of the Supreme Court

                                   Judgment
       Vikram Nath, J.
       Leave granted.
2.     This appeal assails the correctness of the order dated 24.08.2021
       passed by the Allahabad High Court dismissing the application under
[2024] 4 S.C.R.                                                         657

               Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.


      Section 482 of the Code of Criminal Procedure, 19731 filed by the
      appellant wherein a prayer was made to quash the Summoning Order
      dated 08.03.2021 by the Chief Judicial Magistrate2, Aligarh in Case
      No.129/2020 under Sections 147, 342, 323, 307, 506 of the Indian
      Penal Code, 18603 Police Station, Civil Lines, District Aligarh. There
      is an order dated 01.11.2021 passed by the High Court wherein the
      Case Number mentioned in the order dated 24.08.2021 was corrected
      as Case No.5727/2021.
3.    Respondent no.2 lodged a First Information Report4 bearing the
      aforesaid details whereupon the same was investigated and after
      investigation the police report under Section 173(2) Cr.P.C. was
      submitted according to which the Investigating Officer found that no
      evidence could be collected which could substantiate the allegations
      made in the FIR. The said report was submitted to the Court concerned
      whereupon notices were issued to the informant. The informant filed
      a Protest Petition along with affidavits to show that the investigation
      carried out by the Investigating Officer was not a fair investigation.
      He had completed the case diary sitting at the Police Station without
      actually recording the statements of the witnesses.
4.    The CJM, by order dated 08.03.2021 rejected the police report under
      Section 173(2) Cr.P.C. and further proceeded to take cognizance
      for offences under Sections 147, 342, 323, 307, 506 of the IPC and
      under Section 190 (1) (b) of the Cr.P.C. and also directed that the
      matter would continue as a State case. Accordingly, it summoned
      the accused, fixed 30th April, 2021. This order of cognizance and
      summoning the present appellant was assailed before the High
      Court by way of a petition under Section 482 Cr.P.C. registered as
      Application u/s.482 No.15273 of 2021. The said application has sine
      been dismissed by the High Court giving rise to the present appeal.
5.    Shri Vinod Prasad, learned senior counsel appearing for the appellant
      submitted that the CJM as also the High Court fell in error in taking
      cognizance under Section 190(1)(b) Cr.P.C. inasmuch as the CJM
      had relied upon not only the Protest Petition which was supported


1    Cr.P.C.
2    CJM
3    IPC
4    FIR
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       by affidavit of the complainant but also on the affidavits of witnesses
       which were filed along with the Protest Petition to support the contents
       of the complaint. The submission was that once the CJM was relying
       upon additional material in the form of evidence produced by the
       complainant along with the Protest Petition then the only option for
       the CJM was to treat it as a complaint under Section 200 Cr.P.C. and
       proceed accordingly. The said case could not have been continued
       as a State case and should have been treated as a private complaint.
       It was also submitted that it was open for the CJM to have rejected
       the police report submitted under Section 173(2) Cr.P.C. for closure
       and relying upon the material in the case diary, (in effect, the material
       collected during investigation) could have taken cognizance but
       once additional evidence was being relied upon which had been
       filed along with the Protest Petition then the only option open was to
       treat it as a private complaint and after following the due procedure
       in Chapter XV of the Cr.P.C. proceeded to take cognizance under
       Section 190(1)(a) Cr.P.C.
6.     On the other hand, the submission advanced by the learned counsel
       for the State as also the Complainant – respondent no.2 was that
       the CJM did not take into consideration any additional evidence
       filed in the form of affidavits along with the Protest Petition and had
       only relied upon the material collected during the investigation as
       contained in the case diary and based upon the same the satisfaction
       recorded by the CJM to reject the police report and take cognizance
       was well within his domain and such cognizance would fall within
       Section 190(1)(b) Cr.P.C. It was thus submitted that the impugned
       order does not suffer from any infirmity.
7.     We have carefully examined the order dated 24.08.2021 passed
       by the CJM taking cognizance and summoning the police and we
       find that the CJM had actually taken into consideration not only the
       Protest Petition but also the affidavit filed in support of the Protest
       Petition as well as the four affidavits of witnesses filed along with
       the Protest Petition. It was based on consideration of such affidavits
       that the CJM was of the view that the investigation was not a fair
       investigation and these affidavits made out a prima facie case for
       taking cognizance and summoning the accused.
8.     Once we have held as above without going into many judgments of
       this Court on the point as to how the Magistrate would proceed under
[2024] 4 S.C.R.                                                             659

              Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.


      Section 190 Cr.P.C. once the Investigating Officer had submitted a
      closure report under Section 173(2) Cr.P.C., we may briefly deal
      with the legal issue and refer to relevant paragraphs of a recent
      decision. In this connection, Section 190(1) (a) and (b) of Cr.P.C. is
      extracted hereunder:
             190. 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;….”
9.    In the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh,
      through Secretary Home, Civil Secretariat, Lucknow & Anr.,5
      Justice K.M.Joseph, speaking for the Bench laid down the legal
      position relying upon previous judgments of this Court. In the said
      case the facts were quite similar to that of the present case where
      affidavits were filed along with the Protest Petition. The net result
      is that the Magistrate in the present case ought to have treated the
      Protest Petition as a complaint and proceeded according to Chapter
      XV of the Cr.P.C.. The relevant paragraphs dealing with the above
      aspect in the case of Vishnu Kumar Tiwari (supra), being paragraphs
      42 to 46 are reproduced hereunder:
             “42. In the facts of this case, having regard to the nature
             of the allegations contained in the Protest Petition and the
             annexures which essentially consisted of affidavits, if the
             Magistrate was convinced on the basis of the consideration
             of the final report, the statements under Section 161 of
             the Code that no prima facie case is made out, certainly
             the Magistrate could not be compelled to take cognizance
             by treating the Protest Petition as a complaint. The fact
             that he may have jurisdiction in a case to treat the Protest
             Petition as a complaint, is a different matter. Undoubtedly,


5    (2019) 8 SCC 27
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       if he treats the Protest Petition as a complaint, he would
       have to follow the procedure prescribed under Sections 200
       and 202 of the Code if the latter section also commends
       itself to the Magistrate. In other words, necessarily,
       the complainant and his witnesses would have to be
       examined. No doubt, depending upon the material which
       is made available to a Magistrate by the complainant in
       the Protest Petition, it may be capable of being relied on
       in a particular case having regard to its inherent nature
       and impact on the conclusions in the final report. That
       is, 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. But as the
       Magistrate could not be compelled to treat the Protest
       Petition as a complaint, the remedy of the complainant
       would be to file a fresh complaint and invite the Magistrate
       to follow the procedure under Section 200 of the Code or
       Section 200 read with Section 202 of the Code. Therefore,
       we are of the view that in the facts of this case, we cannot
       support the decision of the High Court.
       43. It is true that law mandates notice to the informant/
       complainant where the Magistrate contemplates accepting
       the final report. On receipt of notice, the informant may
       address the court ventilating his objections to the final
       report. This he usually does in the form of the Protest
       Petition. In Mahabir Prasad Agarwala v. State [Mahabir
       Prasad Agarwala v. State, 1957 SCC OnLine Ori 5 : AIR
       1958 Ori 11] , a learned Judge of the High Court of Orissa,
       took the view that a Protest Petition is in the nature of a
       complaint and should be examined in accordance with the
       provisions of Chapter XVI of the Criminal Procedure Code.
       We, however, also noticed that in Qasim v. State [Qasim
       v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] ,
       a learned Single Judge of the High Court of Judicature at
       Allahabad, inter alia, held as follows: (Qasim case [Qasim
       v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] ,
       SCC OnLine All para 6)
[2024] 4 S.C.R.                                                             661

           Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.


           “6. … In Abhinandan Jha [Abhinandan Jha v. Dinesh
           Mishra, AIR 1968 SC 117 : 1968 Cri LJ 97 : (1967) 3
           SCR 668] also what was observed was “it is not very
           clear as to whether the Magistrate has chosen to treat
           the Protest Petition as complaint”. This observation would
           not mean that every Protest Petition must necessarily be
           treated as a complaint whether it satisfies the conditions
           of the complaint or not. A private complaint is to contain
           a complete list of witnesses to be examined. A further
           examination of complainant is made under Section 200
           CrPC. If the Magistrate did not treat the Protest Petition
           as a complaint, the Protest Petition not satisfying all the
           conditions of the complaint to his mind, it would not mean
           that the case has become a complaint case. 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.”
                                                   (emphasis supplied)
           44. We may also notice that in Veerappa v. Bhimareddappa
           [Veerappa v. Bhimareddappa, 2001 SCC OnLine Kar 447 :
           2002 Cri LJ 2150] , the High Court of Karnataka observed
           as follows: (SCC OnLine Kar para 9)
           “9. From the above, the position that emerges is this:
           Where initially the complainant has not filed any complaint
           before the Magistrate under Section 200 CrPC, but, has
           approached the police only and where the police after
           investigation have filed the ‘B’ report, if the complainant
           wants to protest, he is thereby inviting the Magistrate to take
           cognizance under Section 190(1)(a) CrPC on a complaint.
           If it were to be so, the Protest Petition that he files shall
           have to satisfy the requirements of a complaint as defined
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          in Section 2(d) CrPC, and that should contain facts that
          constitute offence, for which, the learned Magistrate is
          taking cognizance under Section 190(1)(a) CrPC. Instead,
          if it is to be simply styled as a Protest Petition without
          containing all those necessary particulars that a normal
          complaint has to contain, then, it cannot be construed as
          a complaint for the purpose of proceeding under Section
          200 CrPC.”
          45. “Complaint” is defined in Section 2(d) of the Code as
          follows:
          “2. (d) “complaint” means any allegation made orally or
          in writing to a Magistrate, with a view to his taking action
          under this Code, that some person, whether known or
          unknown, has committed an offence, but does not include
          a police report.
          Explanation.—A report made by a police officer in a case
          which discloses, after investigation, the commission of a
          non-cognizable offence shall be deemed to be a complaint;
          and the police officer by whom such report is made shall
          be deemed to be the complainant;”
          46. 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. In this
          case, in fact, there is no list of witnesses as such in the
          Protest Petition. The prayer in the Protest Petition is to
          set aside the final report and to allow the application
          against the final report. While we are not suggesting that
          the form must entirely be decisive of the question whether
          it amounts to a complaint or is liable to be treated as a
          complaint, we would think that essentially, the Protest
          Petition in this case, is summing up of the objections of
          the second respondent against the final report.”
10. From a perusal of the above opinion of this Court, it is also reflected
    that the Magistrate also had the liberty to reject the Protest Petition
    along with all other material which may have been filed in support
    of the same. In that event the Complainant would be at liberty to
    file a fresh complaint. The right of the Complainant to file a petition
[2024] 4 S.C.R.                                                     663

           Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.


     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.
11. In the present case as the Magistrate had already recorded his
    satisfaction that it was a case worth taking cognizance and fit for
    summoning the accused, we are of the view that the Magistrate
    ought to have followed the provisions and the procedure prescribed
    under Chapter XV of the Cr.P.C. Accordingly, we allow this appeal,
    set aside the impugned orders passed by the High Court as also
    the CJM, Aligarh.
12. However, we leave it open for the Magistrate to treat the Protest
    Petition as a complaint and proceed in accordance to law as laid
    down under Chapter XV of the Cr.P.C. We make it clear that we
    have not made any comments on the merits of the matter and
    any observations made would not influence the CJM in taking an
    appropriate decision as required above.


     Headnotes prepared by: Ankit Gyan                Result of the case:
                                                        Appeal allowed.