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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO. 1015 OF 2019  

(Arising out of SLP (Crl.) No.9654 of 2017)  

VISHNU KUMAR TIWARI      ...  APPELLANT(S)  

VERSUS  

STATE OF UTTAR PRADESH THROUGH  

SECRETARY HOME, CIVIL SECRETARIAT  

LUCKNOW AND ANOTHER         ... RESPONDENT(S)  

J U D G M E N T    

K.M. JOSEPH, J.  

1. The second respondent, in this appeal generated by  

special leave, got registered a First Information Report  

which invoked Sections 201, 304B and 498A of the Indian  

Penal Code, 1860 (hereinafter referred to as ‘the IPC’ for  

short) and Sections 3 and 4 of the Dowry Prohibition Act,  

1961. Briefly, the contents of the complaint are as follows  

The appellant married the second respondent’s daughter  

on 22.04.2004. The father of the appellant made a

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demand for an Alto car and Rs. 2 lakhs for admission  

of Vishnu in B.Ed. He did not accept the demand for  

dowry, and even at the time of marriage, he made a  

demand of Rs. 4 lakhs. There is reference to his  

daughter informing her mother that her mother-in-law,  

father-in-law, husband, brother-in-law and  

sister-in-law used to beat her and torture her to bring  

dowry. There is reference to telephone call that his  

daughter was critical. It was made on 08.09.2010 and  

when they reached there, the daughter was not there.  

Upon insisting, the mother-in-law of second  

respondent’s daughter told them that they had taken her  

somewhere to some hospital. Search was made at many  

hospitals but the daughter could not be found.  

Thereafter, they found that the daughter had died.  

Reference was made to the demand for dowry by appellant  

and father-in-law, mother-in-law, brother-in-law and  

sister-in-law of the second respondent’s daughter and  

that they have killed his daughter. It would appear  

that on the basis of the same, Crime No. 721 of 2007  

was registered. The Investigating Officer, however, on

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the basis of the investigation, after taking the  

statements, filed a final report under Section 178 of  

The Code of Criminal Procedure, 1973 (hereinafter  

referred to as ‘the Cr.PC.’ for short).  

2.   The second respondent thereupon filed a protest  

petition. The Chief Judicial Magistrate passed an order  

concluding that the daughter of the second  

respondent/complainant, wife of the appellant, died due to  

her illness. It was further found that the accused persons  

had not caused any harassment or torture to her nor has  

committed dowry death. There was no prima facie case made  

out against the accused persons under Section 498A, 304B  

and 201 of the IPC and Sections 3 and 4 of the Dowry  

Prohibition Act,1961. It was found that there is no  

sufficient ground made out for action and the protest  

petition was dismissed and final report accepted.  

3. The second respondent thereupon lodged revision  

petition before the Additional Sessions Judge. The  

Additional Sessions Judge did not find merit and dismissed  

the criminal application. This led to a writ petition before

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the High Court at Allahabad. This petition was filed  

invoking Article 226 of the Constitution of India. A Writ  

of Certiorari was sought to quash the impugned order passed  

by the Additional Sessions Judge and the order passed by  

the Chief Judicial Magistrate. A further direction was  

sought to be passed to investigate the case by taking  

statements of victim’s family and other witnesses and  

submit a report before the Chief Judicial Magistrate.  

Direction was sought to the Chief Judicial Magistrate for  

looking into the matter afresh for taking cognizance  

against the accused persons in the case.  

4. By the impugned judgment, the High Court set aside the  

orders passed by the Chief Judicial Magistrate and the  

Additional Sessions Judge. The Chief Judicial Magistrate  

was directed to consider the protest petition afresh in the  

light of the observations made therein. Feeling aggrieved  

by the said order, the special leave petition was filed,  

for which permission was sought and was granted by order  

dated 04.12.2017.

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5. We have heard the learned Counsel for the parties and  

granted leave in the matter.  

6. The learned Senior Counsel for the appellant would  

point out that the High Court has not noticed that the Chief  

Judicial Magistrate has in fact considered the protest  

petition. He makes the complaint in the light of the  

following findings recorded by the High Court:   

“11. In the light of above law, I am of the  

opinion that, if the protest petition was  

submitted by the petitioner against the final  

report submitted by the police, then it was  

the duty of the learned Magistrate to go  

through the protest petition and if there was  

any substance in the protest petition then he  

may took cognizance under Section 190(1)(b)  

of Cr.P.C.  

12. The perusal of the record of learned  

Magistrate disclose that he has not taken  

into consideration the protest petition of  

the petitioner. Since there was a protest  

petition that is why it was the pious duty of  

the learned CJM to consider the facts  

mentioned in the protest petition and to  

decide it according to law.”    

7. The order passed by the Chief Judicial Magistrate shows  

that there is consideration of the protest petition.  

Neither the Chief Judicial Magistrate nor the Additional

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Sessions Judge have failed to apply the correct principles  

of law. In this regard, it is apposite to notice the  

following observations made in the impugned judgment of the  

High Court:  

“10. In the case 2001 (43) ACC 1096 Pakhando  

& others Vs State of UP & another, it is opined  

by the Court that in the case of final report  

the Magistrate has four options:-  

(1) He may agree with the conclusion of  the police and accept the final report and  

drop the proceeding.  

(2) He may take cognizance under Section  190(1)(b) Cr.P.C. and issue process  

straightaway to the accused without being  

bound by the conclusion of the  

investigating agency where he is satisfied  

that upon the facts discovered by the  

police, there is sufficient ground to  

proceed.  

(3) He may order for further  investigation if he is satisfied that the  

investigation was made in a perfunctory  

manner.  

(4) He may without issuing process and  dropping the proceedings under Section  

190(1)(a) Cr.P.C. upon the original  

complaint or protest petition treating the  

same as complaint and proceed to act under  

Sections 200 and 202 Cr.P.C. and thereafter  

whether complaint should be dismissed or  

process should be issued.”   

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8. He would emphasise that it is a case where the late wife  

of the appellant/daughter of the second respondent had died  

a natural death. There is a case for the appellant that the  

marriage was solemnized in the year 2004. It was after some  

time that the wife of the appellant conceived and the child  

was delivered. It is further the case of the appellant that  

unfortunately illness struck the daughter of the second  

respondent. Treatment was afforded and, as found by the  

Chief Judicial Magistrate, the complainant’s daughter died  

due to her illness. There was no case made out for  

interfering with the orders impugned before the High Court.  

9. Per contra, the learned counsel appearing on behalf of  

the second respondent/complainant drew our attention to the  

death certificate issued by Priti Hospital:   

“DEATH CERTIFICATE  

This is to certify that Patient Smt. Jaya  

Tiwari aged about 31 year, female W/o. Shri  

Vishnu Tiwari. R/o Village Saorai, Saifabad,  

Patti Pratapgarh U.P. Who was admitted in  

this Trust on 09.10.07 at 10.29 P.M. as a case  

of septicaemia c respiratory distress under  

Doctor A. Gupta has expired on 10.10.2007 at  

8.00 A.M. due to cardio pulmonary arrest.”  

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10. He would point out that on the one hand, there is  

reference to the case of the daughter of the complainant  

being one of septicaemia c respiratory distress but it is  

also stated that the daughter of the second  

respondent/complainant died due to cardio pulmonary  

arrest. This raised questions which are not dealt with by  

the orders impugned before the High Court.  

11. He also referred to the statements given by the witness  

to contend that there was material which should have  

persuaded the Chief Judicial Magistrate to treat the  

protest petition as a complaint and the matter should have  

been proceeded on the said basis.   

12. The court put a question to the appellant as to why the  

Additional Sessions Judge has found that there is prima  

facie no case made under Section 304B and 201 of the IPC  

against the accused persons by the Chief Judicial  

Magistrate but why there is no reference to Section 498A  

of IPC. The learned counsel drew our attention to the order  

passed by the Additional Sessions Judge and contended that  

the second respondent/complainant did not press the case

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under Section 498A of the IPC. The contention was confined  

to Section 304B and 201 of the IPC.   

A LOOK AT WHAT THIS COURT SPOKE IN THE MATTER  

13. In Abhinandan Jha and others v. Dinesh Mishra1, the  

question arose as to whether when a report is submitted that  

there is no material that any case is made out for sending  

the accused for trial, the Magistrate can direct the police  

to submit a charge-sheet. This Court took the view that the  

Magistrate cannot compel the Police to change their  

opinion. However, it was held that the Magistrate is free  

to not accept such report and he may take suitable action.  

The Magistrate may direct further investigation under  

Section 156 (3) of the Code. It was further held that it  

would be in a case where the Magistrate feels that the  

investigation is unsatisfactory or incomplete. It may be  

also in a case where there is scope for further  

investigation.  

                                                           1 AIR 1968 SC 117 / (1967) 3 SCR 668

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14. It may not be inapposite that we refer to the following  

discussion by this Court in Abhinandan Jha (supra) as to  

what is a final report:  

“13. It will be seen that the Code, as such,  

does not use the expression ‘charge-sheet’ or  

‘final report’. But it is understood, in the  

Police Manual containing Rules and  

Regulations, that a report by the police,  

filed under Section 170 of the Code, is  

referred to as a ‘charge-sheet’. But in  

respect of the reports sent under Section 169  

i.e. when there is no sufficient evidence to  

justify the forwarding of the accused to a  

Magistrate, it is termed variously, in  

different States, as either ‘referred  

charge’, ‘final report’, or ‘summary’.”  

15. In H.S. Bains, Director, Small Saving-cum-Deputy  

Secretary Finance, Punjab, Chandigarh v. State (Union  

Territory of Chandigarh)2, the Police submitted a final  

report. However, the Magistrate disagreed with the  

conclusion of the Police and directed issue of process upon  

taking cognizance of the case. A contention was taken that  

the Magistrate acted illegally in not recording statements  

on oath of the complainant and the witnesses under Section  

200 of the Code and the Magistrate must, therefore, be

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treated as having taken cognizance upon the Police report  

for which he was not competent as it was not a report under  

Section 173, but a final report within the meaning of  

Section 169. It was contended that the Magistrate had only  

two options before him – (i) he could either order further  

investigation. (ii) He could also take cognizance as upon  

a complaint but for the same the statements of the  

complainant and witnesses had to be recorded.  

16. This Court in the course of its judgment in H.S. Bains  

(supra), held as follows:   

“6. It is seen from the provisions to  

which we have referred in the preceding paras  

that on receipt of a complaint a Magistrate  

has several courses open to him. He may take  

cognizance of the offence and proceed to  

record the statements of the complainant and  

the witnesses present under Section 200.  

Thereafter, if in his opinion there is no  

sufficient ground for proceeding he may  

dismiss the complaint under Section 203. If  

in his opinion there is sufficient ground for  

proceeding he may issue process under Section  

204. However, if he thinks fit, he may  

postpone the issue of process and either  

enquire into the case himself or direct an  

investigation to be made by a police officer  

or such other person as he thinks fit for the  

                                                                                                                                                                                           2 (1980) 4 SCC 631

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purpose of deciding whether or not there is  

sufficient ground for proceeding. He may then  

issue process if in his opinion there is  

sufficient ground for proceeding or dismiss  

the complaint if there is no sufficient  

ground for proceeding. On the other hand, in  

the first instance, on receipt of a  

complaint, the Magistrate may, instead of  

taking cognizance of the offence, order an  

investigation under Section 156(3). The  

police will then investigate and submit a  

report under Section 173(1). On receiving the  

police report the Magistrate may take  

cognizance of the offence under Section  

190(1)(b) and straight away issue process.  

This he may do irrespective of the view  

expressed by the police in their report  

whether an offence has been made out or not.  

The police report under Section 173 will  

contain the facts discovered or unearthed by  

the police and the conclusions drawn by the  

police therefrom. The Magistrate is not bound  

by the conclusions drawn by the police and he  

may decide to issue process even if the police  

recommend that there is no sufficient ground  

for proceeding further. The Magistrate after  

receiving the police report, may, without  

issuing process or dropping the proceeding  

decide to take cognizance of the offence on  

the basis of the complaint originally  

submitted to him and proceed to record the  

statements upon oath of the complainant and  

the witnesses present under Section 200 of  

the Criminal Procedure Code and thereafter  

decide whether to dismiss the complaint or  

issue process. The mere fact that he had  

earlier ordered an investigation under  

Section 156 (3) and received a report under  

Section 173 will not have the effect of total  

effacement of the complaint and therefore the  

Magistrate will not be barred from proceeding

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under Sections 200, 203 and 204. Thus, a  

Magistrate who on receipt of a complaint,  

orders an investigation under Section 156(3)  

and receives a police report under Section  

173(1), may, thereafter, do one of three  

things: (1) he may decide that there is no  

sufficient ground for proceeding further and  

drop action; (2) he may take cognizance of the  

offence under Section 190 (1)(b) on the basis  

of the police report and issue process; this  

he may do without being bound in any manner  

by the conclusion arrived at by the police in  

their report; (3) 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. If he adopts the  

third alternative, he may hold or direct an  

inquiry under Section 202 if he thinks fit.  

Thereafter he may dismiss the complaint or  

issue process, as the case may be.”  

(Emphasis supplied)  

17. Thus, when he proceeds to take action by way of  

cognizance by disagreeing with the conclusions arrived at  

in the police report, he would be taking cognizance on the  

basis of the police report and not on the complaint. And,  

therefore, the question of examining the complainant or his  

witnesses under Section 200 of the Code would not arise.  

This was the view clearly enunciated.  

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18. In Mahesh Chand v. B. Janardhan Reddy 3 , the  

appellant/complainant had lodged report alleging  

commission of offences by the respondent. Subsequently,  

being dissatisfied with the investigation, he filed a  

criminal complaint in the court of the Magistrate. In the  

meantime, the Investigating Officer filed a final report  

finding that the controversy was of a civil nature. The  

appellant filed a protest petition. The final report was  

accepted by the Magistrate. The complaint case filed by the  

appellant was also closed. It became final. The appellant  

filed a third complaint, as it were, under Section 200 of  

the Code. On summons being issued, it was successfully  

questioned before the High Court. We may notice the  

following discussion by this Court profitably.  

“12. There cannot be any doubt or  

dispute that only because the Magistrate has  

accepted a final report, the same by itself  

would not stand in his way to take cognizance  

of the offence on a protest/complaint  

petition; but the question which is required  

to be posed and answered would be as to under  

what circumstances the said power can be  

exercised.  

                                                           3 (2003) 1 SCC 734

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xxx    xxx    xxx  

16. In Munilal Thakur case [1985 Cri LJ  

437:1984 Pat LJR 774] the Division Bench of  

the Patna High Court was concerned with the  

question as to whether a Magistrate even  

after accepting final report filed by the  

police, can take cognizance of offence upon  

a complaint or the protest petition on same  

or similar allegations of fact; to which the  

answer was rendered in the affirmative.    

17. The question which has arisen for  

consideration herein neither arose therein  

nor was canvassed.    

18. In Jayashankar Mund case [1989 Cri LJ  

1578 : (1989) 67 Cut LT 426] the Orissa High  

Court again did not have any occasion to  

consider the question raised herein. The  

Court held: (Cri LJ pp. 1582-83, para 6)  

“Even though a protest petition is in  

the nature of a complaint, it is  

referable to the investigation  

already held by the vigilance police  

culminating in the final report and  

because the informant was not  

examined on solemn affirmation under  

Section 202 of the Code, thereby no  

illegality or prejudice was caused  

to the accused. If such a view is  

accepted and there is no reason why  

such a view should not be accepted,  

the necessary consequence in this  

particular case shall be that the  

protest petition which is of the  

nature of a complaint petition filed  

by the petitioner shall be in

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continuation and in respect of the  

case instituted and investigated by  

the vigilance police.”  

19. Keeping in view the settled legal  

principles, we are of the opinion that the  

High Court was not correct in holding that the  

second complaint was completely barred. It is  

settled law that there is no statutory bar in  

filing a second complaint on the same facts.  

In a case where a previous complaint is  

dismissed without assigning any reasons, the  

Magistrate under Section 204 CrPC may take  

cognizance of an offence and issue process if  

there is sufficient ground for proceeding. As  

held in Pramatha Nath Talukdar case [AIR  

1962 SC 876 : 1962 Supp (2) SCR 297 : (1962)  

1 Cri LJ 770] second complaint could be  

dismissed after a decision has been given  

against the complainant in previous matter  

upon a full consideration of his case.  

Further, second complaint on the same facts  

could be entertained only in exceptional  

circumstances, namely, where the previous  

order was passed on an incomplete record or  

on a misunderstanding of the nature of  

complaint or it was manifestly absurd, unjust  

or where new facts which could not, with  

reasonable diligence, have been brought on  

record in the previous proceedings, have been  

adduced. In the facts and circumstances of  

this case, the matter, therefore, should have  

been remitted back to the learned Magistrate  

for the purpose of arriving at a finding as  

to whether any case for cognizance of the  

alleged offence had been made out or not.”  

(Emphasis supplied)  

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19. In Gangadhar Janardan Mhatre v. State of Maharashtra4,  

this Court reiterated that Magistrate can, faced with a  

final report, independently apply his mind to the facts  

emerging from investigation and take cognizance under  

Section 190 (1)(b), and in this regard, is not bound to  

follow the procedure under Sections 200 and 202 of the Code  

for taking cognizance under Section 190(1)(b). It was,  

however, open to the Magistrate to do so.  

20. In regard to the filing of protest petition by the  

informant who filed the First Information Report, it is  

important to notice the following discussion by this Court:  

“6. There is no provision in the Code to  

file a protest petition by the informant who  

lodged the first information report. But this  

has been the practice. Absence of a provision  

in the Code relating to filing of a protest  

petition has been considered. This Court  

in Bhagwant Singh v. Commr. of  

Police [(1985) 2 SCC 537:1985 SCC (Cri) 267  

: AIR 1985 SC 1285] stressed on the  

desirability of intimation being given to the  

informant when a report made under Section  

173(2) is under consideration. The Court held  

as follows: (SCC p. 542, para 4)  

                                                           4 (2004) 7 SCC 768

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“There can, therefore, be no  

doubt that when, on a  

consideration of the report made  

by the officer in charge of a  

police station under sub-section  

(2)(i) of Section 173, the  

Magistrate is not inclined to take  

cognizance of the offence and  

issue process, the informant must  

be given an opportunity of being  

heard so that he can make his  

submissions to persuade the  

Magistrate to take cognizance of  

the offence and issue process. We  

are accordingly of the view that in  

a case where the Magistrate to whom  

a report is forwarded under  

sub-section (2)(i) of Section 173  

decides not to take cognizance of  

the offence and to drop the  

proceeding or takes the view that  

there is no sufficient ground for  

proceeding against some of the  

persons mentioned in the first  

information report, the  

Magistrate must give notice to the  

informant and provide him an  

opportunity to be heard at the time  

of consideration of the report.”  

9. When a report forwarded by the police  

to the Magistrate under Section 173(2)(i) is  

placed before him several situations arise.  

The report may conclude that an offence  

appears to have been committed by a  

particular person or persons and in such a  

case, the Magistrate may either (1) accept  

the report and take cognizance of the offence  

and issue process, or (2) may disagree with  

the report and drop the proceeding, or (3) may

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direct further investigation under Section  

156(3) and require the police to make a  

further report. The report may on the other  

hand state that according to the police, no  

offence appears to have been committed. When  

such a report is placed before the Magistrate  

he has again option of adopting one of the  

three courses open i.e. (1) he may accept the  

report and drop the proceeding; or (2) he may  

disagree with the report and take the view  

that there is sufficient ground for further  

proceeding, take cognizance of the offence  

and issue process; or (3) he may direct  

further investigation to be made by the  

police under Section 156(3). The position is,  

therefore, now well settled that upon receipt  

of a police report under Section 173(2) a  

Magistrate is entitled to take cognizance of  

an offence under Section 190(1)(b) of the  

Code even if the police report is to the  

effect that no case is made out against the  

accused. The Magistrate can take into account  

the statements of the witnesses examined by  

the police during the investigation and take  

cognizance of the offence complained of and  

order the issue of process to the accused.  

Section 190(1)(b) does not lay down that a  

Magistrate can take cognizance of an offence  

only if the investigating officer gives an  

opinion that the investigation has made out  

a case against the accused. The Magistrate  

can ignore the conclusion arrived at by the  

investigating officer and independently  

apply his mind to the facts emerging from the  

investigation and take cognizance of the  

case, if he thinks fit, exercise his powers  

under Section 190(1)(b) and direct the issue  

of process to the accused. The Magistrate is  

not bound in such a situation to follow the  

procedure laid down in Sections 200 and 202  

of the Code for taking cognizance of a case

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under Section 190(1)(a) though it is open to  

him to act under Section 200 or Section 202  

also. [See India Carat (P) Ltd. v. State of  

Karnataka [(1989) 2 SCC 132 : 1989 SCC (Cri)  

306 : AIR 1989 SC 885] .] The informant is not  

prejudicially affected when the Magistrate  

decides to take cognizance and to proceed  

with the case. But where the Magistrate  

decides that sufficient ground does not  

subsist for proceeding further and drops the  

proceeding or takes the view that there is  

material for proceeding against some and  

there are insufficient grounds in respect of  

others, the informant would certainly be  

prejudiced as the first information report  

lodged becomes wholly or partially  

ineffective. Therefore, this Court indicated  

in Bhagwant Singh case [(1985) 2 SCC 537 :  

1985 SCC (Cri) 267 : AIR 1985 SC 1285] that  

where the Magistrate decides not to take  

cognizance and to drop the proceeding or  

takes a view that there is no sufficient  

ground for proceeding against some of the  

persons mentioned in the first information  

report, notice to the informant and grant of  

opportunity of being heard in the matter  

becomes mandatory. As indicated above, there  

is no provision in the Code for issue of a  

notice in that regard.”  

(Emphasis supplied)  

21. This Court, in Gangadhar Janardan Mhatre (supra), also  

stressed on the need to issue notice to the informant in  

the following discussion:  

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“12. Therefore, the stress is on the issue of  

notice by the Magistrate at the time of  

consideration of the report. If the informant  

is not aware as to when the matter is to be  

considered, obviously, he cannot be faulted,  

even if protest petition in reply to the  

notice issued by the police has been filed  

belatedly. But as indicated in Bhagwant  

Singh case [(1985) 2 SCC 537 : 1985 SCC (Cri)  

267 : AIR 1985 SC 1285] the right is conferred  

on the informant and none else.”  

(Emphasis supplied)  

22. In Kishore Kumar Gyanchandani v. G.D. Mehrotra 5, a  

First Information Report was lodged in respect of certain  

offences. The Police filed a final report which came to be  

accepted. Nearly three months thereafter, a protest  

petition was filed. The Magistrate directed the same to be  

considered as a complaint. He held an inquiry under Section  

202 of the Code and proceeded to take cognizance. Paragraph  

4 is relevant and it reads as follows:  

“4. There is some controversy between  

the parties that before accepting the final  

form by the Magistrate on 27-1-1996 notice  

had been served on the complainant and the  

complainant did not file objections, whereas  

the case of the complainant is that he had not  

received any notice from the Court. Be that  

as it may, we are not entering into that  

                                                           5(2011) 15 SCC 513

22  

controversy for deciding the present case as  

in our view it is not material either way nor  

does it oust the jurisdiction of the  

Magistrate on the basis of a complaint to take  

cognizance of the offence alleged to have  

been committed by the accused even if he had  

already accepted the final form, the same  

having been filed by the police.”  

23. In fact, the case itself was decided by a Bench of three  

learned Judges of this Court in view of the divergence of  

opinion in the Court. The Court held as follows:  

“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 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[(1982) 3 SCC 510 : 1983 SCC (Cri) 110]  

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

23  

form does not debar the Magistrate from  

taking cognizance on the basis of the  

materials produced in a complaint  

proceeding.”  

(Emphasis supplied)  

This Court found that the High Court was in error in  

interfering with the cognizance taken by the Magistrate.  

24. In Rakesh Kumar and another v. State of Uttar Pradesh  

and another6, on the basis of a First Information Report  

lodged by the Police after investigation, a final report  

came to be filed. The Magistrate accepted the final report.  

He, simultaneously, directed the case be proceeded with as  

a complaint case. Statements under Section 200 and 202 of  

the Code were recorded. The High Court turned down the plea  

of the accused to whom summons were issued. It was the  

contention of the accused that having accepted a negative  

final report, the court could not take action on the basis  

of the protest petition filed by the complainant. This Court  

refers to the judgment in H.S. Bains (supra). The principles  

of law laid down in paragraph 12 of Mahesh Chand (supra),  

                                                           6  2014 (13) SCC 133

24  

which we have also referred to earlier, came to be approved.  

The order of the High Court was approved.  

25. This is a case where following the First Information  

Report, the Investigating Officer conducted an  

investigation. Statements were taken from the complainant,  

his wife and his son. This is apart from the statements which  

were taken from the Doctors who treated the daughter of the  

second respondent/complainant. The Investigation Officer  

concluded that there is no material which would warrant the  

accused being sent for trial. When such a report is filed  

before the court, it is beyond the shade of doubt that the  

Magistrate may still choose to reject the final report and  

proceed to take cognizance of the offences, which in his  

view, are seen committed. He may, on the other hand, after  

pondering over the materials, which would include the  

statements of witnesses collected by the Investigating  

Officer, decide to accept the final report. He may entertain  

the view that it is a case where further investigation by  

the Officer is warranted before a decision is taken as to  

whether cognizance is to be taken or not.

25  

26. It is undoubtedly true that before a Magistrate  

proceeds to accept a final report under Section 173 and  

exonerate the accused, it is incumbent upon the Magistrate  

to apply his mind to the contents of the protest petition  

and arrive at a conclusion thereafter. While the  

Investigating Officer may rest content by producing the  

final report, which, according to him, is the culmination  

of his efforts, the duty of the Magistrate is not one limited  

to readily accepting the final report. It is incumbent upon  

him to go through the materials, and after hearing the  

complainant and considering the contents of the protest  

petition, finally decide the future course of action to be,  

whether to continue with the matter or to bring the curtains  

down.       

27. In this case, the High Court proceeded on the basis,  

as we have noticed, that the Magistrate has not taken into  

consideration the protest petition and it was his pious duty  

to consider the facts mentioned in the petition. We have  

examined the order passed by the Magistrate. He does refer  

to the protest petition. The contents therein are

26  

undoubtedly noticed. Magistrate says that he has gone  

through the First Information Report. He finds that the  

complainant is not an eyewitness in regard to the death of  

his daughter. He recorded that he has gone through the  

statements of witnesses given under Section 161. We may  

notice that the following findings were entered in regard  

to the case of torture committed against the complainant’s  

daughter:  

“… First of all I have gone through the  

statement of Sh Shiv Shankar Ojha who is  

complainant in this case. Although this  

witness has partly favoured the incident but  

here it is pertinent to mention that at the  

time of death of deceased Jaya, this witness  

was not present. When it was asked from this  

witness that whether after you received  

information of torture committed to you  

daughter, you had made any application  

anywhere or you had informed this through any  

relation etc. In reply to this question, he  

has stated that ‘no’. I have also duly gone  

through the statement of Smt. Shakuntala Devi  

mother of deceased. Mother of deceased has  

given statement to the investigating officer  

that my son in law is working in Haryana in  

a private job.”  

28. Thereafter, he referred to the statement of the mother  

and brother of the deceased. He refers to the statements

27  

of the Doctors. The Doctors concluded that the deceased died  

due to her illness. One of the Doctors have stated that the  

mother of the patient Smt. Shakuntala had signed the  

admission form. The patient was examined. The patient had  

delivered a child two months ago by caesarean operation.  

She was suffering from fever. She was breathing rapidly.  

Her body was suffering from jaundice. She was in need of  

respiratory support machine. The disease of the patient was  

septic shock and multiple organ failure. She died on  

08.10.2017. The death was found to be due to her illness.   

29. The Chief Judicial Magistrate, in fact, proceeded to  

take the view that Magistrate has to take cognizance on the  

basis of the statements of the witnesses recorded by the  

Investigating Officer and materials collected. He further  

finds that if cognizance is taken on the basis of protest  

petition and documents annexed, that is illegal. It is after  

that it was found that the deceased died due to her illness  

and no prima facie case was made out against the accused  

persons.  

28  

30. We may notice that against the order of the Chief  

Judicial Magistrate and Additional Sessions Judge, the  

second respondent has invoked jurisdiction under Article  

226 of the Constitution of India. The relief sought in the  

writ petition is one of certiorari to quash the orders. We  

may indicate that in Radhey Shyam & another v. Chhabi Nath  

& others7 , this Court, after overruling the judgment of this  

Court in Surya Dev Rai v. Ram Chander Rai & others8 in this  

regard, it has been laid down that a Writ of Certiorari will  

not lie to quash an order of a civil court. The High Court  

while exercising powers under Article 226 of the  

Constitution of India, at any rate, must bear in mind the  

limited nature of its jurisdiction when it deals with orders  

of subordinate courts.  

31. In the facts of this case, the High Court concluded that  

the Magistrate has not considered the protest petition by  

the second respondent/complainant. Had it been the case  

where protest petition had not been considered at all, it  

may have been open to the court to came to the conclusion  

                                                           7 (2015) 5 SCC 423  8 (2003)6 SCC 675

29  

that an illegality had been committed in exercise of its  

jurisdiction to deal with the final report. But it is  

another matter when the Magistrate has undoubtedly  

considered the protest petition to direct the court again  

to consider the matter for action on the same, and for that  

purpose, to set aside the proceedings.  

32. We would think that, as noticed by us, the High Court  

was in clear error in concluding that the protest petition  

was not considered. That the High Court may take one of the  

two views of the matter may be an unsafe premise for its  

interference with the orders passed by the Magistrate, as  

affirmed by the Additional Sessions Judge.  

33. On the basis of the materials which include the  

statements of the Doctors and after adverting to the  

contentions of the protest petition, the Magistrate has  

come to the conclusion that it is not a fit case for being  

continued and the matter should end as the daughter of the  

second respondent/complainant died due to illness. It is  

a finding which is arrived at by the court with reference  

to the statements of the medical practitioners. Equally,

30  

in the circumstances which led to the unfortunate death of  

the daughter of the second respondent/complainant, it is  

found no case was made out under Section 201 of the IPC.  

It would appear that before the Sessions Judge, the aspect  

relating to Section 498A or in fact the provisions relating  

to Sections 3 and 4 of the Dowry Prohibition Act, 1961, was  

not pressed by the second respondent. That apart, we also  

notice that Magistrate has referred to the statement of the  

complainant that there was no complaint made about the  

torture apparently based on dowry demand as alleged.   

34. We have also gone through the protest petition along  

with the counter affidavit. No doubt, in paragraph 2, there  

is a general reference to demands for property from the  

deceased and father of the deceased and torture. Paragraphs  

3 to 15 thereafter relate to the circumstances relating to  

the death of the daughter of the second respondent. In the  

said paragraphs, the case is sought to be made out that  

forged documents were produced before the Investigating  

Officer. Affidavits of the mother and brother of the  

deceased, inter alia, were also filed to project the case

31  

of forgery. For instance, in the affidavit of the mother  

of the deceased, she claims that she has not gone to the  

hospital on the 9th and 10th of October, 2007, whereas,  

according to the statement under Section 161 of the Code,  

she is alleged to have stated that on 09.10.2007, the  

deceased was admitted at Priti Hospital by them which  

apparently includes the mother. We have noticed that in  

regard to that no doubt the Chief Judicial Magistrate has  

relied upon judgment in Mohammed Yusuf and others v. State  

of Uttar Pradesh and others9 and taken the view that if  

cognizance is taken on the basis of the protest petition  

and the documents annexed with, that is illegal. He also  

took the view that the Magistrate has to take cognizance  

on the basis of statements of witnesses recorded by the  

Investigating Officer, in the case diary and the material  

collected during investigation.  

35. A learned Single Judge of the High Court of Allahabad,  

in the aforesaid decision, had this to say in paragraph 11:  

                                                           9 2008 CriLJ 493

32  

“11. Where the Magistrate decides to  

take cognizance under Section 190(1)(b)  

ignoring the conclusions reached at by the  

Investigating Officer and applying his mind  

independently, he can act only upon the  

statements of the witnesses recorded by the  

police in the case-diary and material  

collected during investigation. It is not  

permissible at that stage to consider any  

material other than that collected by the  

investigation Officer. In the instant case  

the cognizance was taken on the basis of the  

protest petition and accompanying  

affidavits. The Magistrate should have  

adopted the procedure of complaint case under  

Chapter XV of the Code of Criminal Procedure  

and recorded the statements of the  

complainant and the witnesses who had filed  

affidavits under Sections 200 and 202 Cr.P.C.  

The Magistrate could not take cognizance  

under Section 190(1)(b) Cr.P.C. on the basis  

of protest petition and affidavits filed in  

support thereof. The Magistrate having taken  

into account extraneous material i.e.  

protest petition and affidavits while taking  

cognizance under Section 190(1)(b) Cr.P.C.  

the impugned order is vitiated.”  

(Emphasis supplied)  

36. The Chief Judicial Magistrate has adhered to the law  

laid down by the learned Single Judge. In fact, we may notice  

that in regard to this aspect, if the learned Single Judge,  

who has rendered the impugned judgment in this case, had

33  

a different view, he ought to have referred the matter to  

a larger Bench.  

37. In H.S. Bains (supra), there was a private complaint  

within the meaning of Section 190(1)(a) of the Code. The  

matter was referred to the Police under Section 156(3). The  

Investigating Officer filed a final report. Therein, the  

court took the view that apart from the power of the  

Magistrate to take cognizance notwithstanding the final  

report, under Section 190(1)(b), he could also fall back  

upon the private complaint which was initially lodged but  

after examining the complainant and his witnesses, as  

contemplated under Sections 200 and 202 of the Code. In  

regard to taking cognizance under Section 190(1)(b) of the  

Code of a final report, undoubtedly, it is not necessary  

to examine the complainant or his witnesses though he may  

do so.   

38. In Mahesh Chand (supra), no doubt the matter was  

commenced by a First Information Report and followed up by  

the complainant in the court under Section 190(1)(a) of the  

Code. On the First Information Report, after investigation,

34  

a final report was filed. The final report came to be  

accepted and it was closed. This is despite the fact that  

there was the protest petition. A third complaint, as it  

were, came to be filed by the complainant. This Court went  

on to hold that acceptance of the final report would not  

stand in the way of taking cognizance on a protest/complaint  

petition.  

39. In Kishore Kumar Gyanchandani (supra), after the final  

report was accepted on a protest petition which was treated  

as a complaint, evidence was taken within the meaning of  

Section 200 of the Code.  

40. In Rakesh Kumar (supra), the final report was filed  

which was accepted by the Magistrate but he simultaneously  

directed the case to be proceeded as a complaint case and  

statements under Sections 200 and 202 of the Code came to  

be recorded.  

41. 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

35  

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, if he treats the protest petition as a  

complaint, he would have to follow the procedure prescribed  

under Section 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

36  

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.  

42. 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. State10,  

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 provisions of Chapter  

XVI of the Criminal Procedure Code. We, however, also  

noticed that in Qasim and others v. The State and others11,  

                                                           10 AIR 1958 Ori. 11  11 1984 CrlLJ 1677

37  

a learned Single Judge of the High Court of Judicature at  

Allahabad, inter alia, held as follows:    

“4. … In the case of Abhinandan Jha  

MANU/SC/0054/1967 (supra) 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 &  

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 Cr.P.C. 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.”  

38  

43. We may also notice that in Veerappa and others v.  

Bhimareddappa12, the High Court of Karnataka observed as  

follows:   

“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 of  

the Cr. P.C., 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) of the Cr. P.C. 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 in  

Section 2(d) of the Cr. P.C., and that should  

contain facts that constitute offence, for  

which, the learned Magistrate is taking  

cognizance under Section 190(1)(a) of the Cr.  

P.C. 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 of the Cr. P.C.”  

44. Complaint is defined in Section 2(d) of the Code as  

follows:  

“(d) " complaint" means any allegation made  

orally or in writing to a Magistrate, with a  

                                                           12 2002 CriLJ 2150 (Karnataka)

39  

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;”  

45. If a protest petition fulfills 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 liable to be treated as a complaint, we would  

think that essentially, the protest petition in this case,  

is summing up of the objections the second respondent  

against the final report.   

40  

46. This brings us to one aspect of the matter which in fact  

was not argued at the Bar. The appeal is filed by the husband  

of the deceased, by special leave and permission. The  

allegations in the First Information Report are raised  

against the other relatives of the appellants, viz., his  

parents and in-laws and his siblings also. They have not  

challenged the order of the High Court. Allegations are made  

in respect of offences as committed by them also.  

47. In this regard, we may notice, one facet. The Chief  

Judicial Magistrate accepted the final report and decided  

not to proceed against any of the accused including the  

appellant. This stood confirmed by the Additional Sessions  

Judge. Before the High court, neither the appellant nor any  

of his relatives were made parties. When the order was  

passed by the High Court accepting the report and directing  

reconsideration, was it necessary for the second  

respondent/complainant to implead the appellant and other  

relatives? Can we set aside the judgment of the High Court  

qua only the appellant, or can we in the facts in this case,

41  

also interfere with the order of the High Court against all  

the accused?    

48. It may be true that till process is issued, the accused  

may not have the right to be heard (See the judgment of this  

court in Iris Computers Limited v. Askari Infotech Private  

Limited and others13).  

49. The High Court, in fact, at paragraph 11 of the impugned  

order, which we have extracted at paragraph 6 of our  

judgment, contemplated consideration of the protest  

petition so that cognizance may be taken under Section  

190(1)(b) of the Code. This premise being without any basis  

even qua the other accused who are the relatives of the  

appellant, we would think that the impugned order must be  

set aside. Having regard to the nature of the allegations  

and in exercise of our powers also under Article 142 of the  

Constitution of India, we must set aside the Order of the  

High Court.   

50. We would think that in the facts of this case, the High  

Court erred in intervening and that there was no  

                                                           13 (2015) 14 SCC 399

42  

justification in the facts for the High Court in setting  

aside the orders.  

51. Resultantly, the appeal will stand allowed, the  

impugned order of the High Court will stand set aside. We,  

however, make it clear that this would be without prejudice  

to the rights of the second respondent to file a complaint  

as already noticed in the order of the Additional Sessions  

Judge.        

..................J.  

                  (SANJAY KISHAN KAUL)  

..................J.  

                                   (K.M. JOSEPH)  

New Delhi,  

July 09, 2019.