LexZUNAID versus STATE OF UP. & ORS.
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[2023] 11 S.C.R. 715 : 2023 INSC 778 715 CASE DETAILS ZUNAID v. STATE OF UP. & ORS. (Criminal Appeal Nos. 2628-2629 of 2023) AUGUST 29, 2023 [BELA M. TRIVEDI AND DIPANKAR DATTA, JJ.] HEADNOTES Issue for consideration: CJM rejected the fi nal report submitted by the investigating offi cer and accepted the Protest Petition as the Complaint Case, whether the course opted by the CJM was just, legal and proper in the facts and circumstances of the case. Code of Criminal Procedure, 1973 – The Investigating Offi cer, after completing the investigation, submitted the Final Report – Appellant- complainant fi led a Protest Petition – The concerned CJM vide order dated 15.11.2018 rejected the Final Report of the Investigating Offi cer and directed that the Protest Petition be registered as the Complaint Case – High Court set aside the order dated 15.11.2018 u/s. 482 Cr.P.C.: Held: The concerned CJM vide the detailed order passed on 15.11.2018 had rejected the fi nal report submitted by the Investigating Offi cer and had accepted the Protest Petition, and decided to proceed further u/s. 200 Cr.P.C – Such a course opted by the CJM was absolutely just, legal and proper in the facts and circumstances of the case – The said order dated 15.11.2018 remained unchallenged at the instance of the respondents-accused – It was only when the concerned CJM after recording the statements of the complainant and eight witnesses, issued summons on 11.01.2022, the respondents fi led the application challenging the said order dated 11.01.2022 u/s. 482 before the High Court and in the said application, the order dated 15.11.2018 came to be challenged by way of amendment – As such, the High Court should not have permitted the respondents-accused to amend the Application for challenging the order dated 15.11.2018 after about four years of its passing – The discretionary order of 11.01.2022 passed by the concerned CJM issuing 716 SUPREME COURT REPORTS [2023] 11 S.C.R. summons to the accused, after recording statements of the complainant and the eight witnesses and after recording prima facie satisfaction about the commission of the alleged crime, also did not warrant any interference by the High Court – The impugned orders passed by the High Court being erroneous, the same are quashed and set aside. [Para 12] Code of Criminal Procedure, 1973 – s. 173 – Police report – Magistrate can exercise three options: Held: The receipt of the police report u/s. 173 Cr.P.C., the Magistrate can exercise three options – Firstly, he may decide that there is no suffi cient ground for proceeding further and drop action – Secondly, he may take cognizance of the off ence u/s. 190(1)(b) on the basis of the police report and issue process; and thirdly, he may take cognizance of the off ence u/s. 190(1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200.[Para 11] Code of Criminal Procedure, 1973 – s. 173 – After acceptance of Police report – Discharge of accused – Power of magistrate to take cognizance of the off ence on a complaint or a Protest Petition: Held: It may be noted that even in a case where the fi nal report of the police u/s. 173 is accepted and the accused persons are discharged, the Magistrate has the power to take cognizance of the off ence on a complaint or a Protest Petition on the same or similar allegations even after the acceptance of the fi nal report – A Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of the police report – No doubt a Magistrate while exercising his judicial discretion has to apply his mind to the contents of the Protest Petition or the complaint as the case may be. [Para 11] LIST OF CITATIONS AND OTHER REFERENCES Rakesh & Another v. State of Uttar Pradesh & Another (2014) 13 SCC 133 : [2014] 13 SCR 1072 – relied on. Gopal Vijay Verma v. Bhuneshwar Prasad Sinha and Others (1982) 3 SCC 510; B. Chandrika v. Santhosh and Another (2014) 13 SCC 699 : [2013] 12 SCR 588 – referred to. 717 ZUNAID v. STATE OF UP. & ORS. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 2628-2629 of 2023. From the Judgment and Order dated 22.07.2022 and dated 21.07.2022 in A482 No. 14899 of 2022 of the High Court of Judicature at Allahabad. Appearances: Anurag Kishore, Ms. Ritika Srivastava, Advs. for the A
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