VISHNU KUMAR TIWARI versus STATE OF UTTAR PRADESH THROUGH SECRETARY HOME, CIVIL SECRETARIAT LUCKNOW AND ANOTHER

Citation: [2019] 8 S.C.R. 1114 · Decided: 09-07-2019 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 8 S.C.R.
VISHNU KUMAR TIWARI
v.
STATE OF UTTAR PRADESH THROUGH SECRETARY HOME,
CIVIL SECRETARIAT LUCKNOW AND ANOTHER
(Criminal Appeal No. 1015 of 2019)
JULY 09, 2019
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973:
s.173 – Final report under – Exonerating all the accused of
the offences u/ss.498A, 304B and 201 IPC and ss.3 and 4 of Dowry
Prohibition Act – Protest petition by complainant – Dismissed by
the Magistrate – Revision petition dismissed – Writ petition seeking
direction to the Magistrate to look into the matter afresh for taking
cognizance against the accused persons – High Court allowed the
petition – Appeal to Supreme Court – Held: High Court was in error
in concluding that protest petition was not considered by the
Magistrate – The Magistrate had duly taken into consideration the
protest petition – Before a Magistrate proceeds to accept a final
report u/s.173 and exonerate the accused, it is incumbent upon him
to apply his mind to the content of the protest petition – The duty of
the Magistrate is not one limited to readily accepting the final report
– It is open for the Magistrate either to accept the final report or to
proceed to take cognizance u/s. 190(1)(b) of Cr.P.C. for which there
is no necessity to examine the witnesses u/s.200 Cr.P.C. – But since
the Magistrate cannot be compelled to treat the protest petition as a
complaint, the remedy for the complainant would be to file a fresh
complaint and invite the Magistrate to follow the procedure u/ss.200
r/w. s.202 Cr.P.C. –  If the 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 u/s.200 r/w. s.202
Cr.P.C. – The protest petition in the present case did not fulfill the
requirement of a complaint – Order of High Court is liable to be set
aside.
   [2019] 8 S.C.R. 1114
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Constitution of India:
Art.226 – Jurisdiction under – Scope of – Held: High Court
while exercising powers u/Art.226 must bear in mind the limited
nature of its jurisdiction when it deals with orders of subordinate
courts.
Allowing the appeal, the Court
HELD : 1. In the present case, 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. [Para 25] [1132-E-G]
2. Thus, before a Magistrate proceeds to accept a final
report under Section 173 Cr.P.C. 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. [Para 26] [1132-H;
1133-A-B]
VISHNU KUMAR TIWARI v. STATE OF U. P. THR. SEC.
HOME, CIVIL SECRETARIAT LUCKNOW
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SUPREME COURT REPORTS
[2019] 8 S.C.R.
3. In the present case, the Magistrate does refer to the
protest petition. The  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
o

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