VISHNU KUMAR TIWARI versus STATE OF UTTAR PRADESH THROUGH SECRETARY HOME, CIVIL SECRETARIAT LUCKNOW AND ANOTHER on 9 July 2019

[2019] 8 S.C.R.

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VISHNU KUMAR TIWARI

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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.]

CCode of Criminal Procedure, 1973:

s.173 – Final report under – Exonerating all the accused ofthe offences u/ss.498A, 304B and 201 IPC and ss.3 and 4 of DowryProhibition Act – Protest petition by complainant – Dismissed bythe Magistrate – Revision petition dismissed – Writ petition seekingDdirection to the Magistrate to look into the matter afresh for takingcognizance against the accused persons – High Court allowed thepetition – Appeal to Supreme Court – Held: High Court was in errorin concluding that protest petition was not considered by theMagistrate – The Magistrate had duly taken into consideration theprotest petition – Before a Magistrate proceeds to accept a finalEreport u/s.173 and exonerate the accused, it is incumbent upon himto apply his mind to the content of the protest petition – The duty ofthe Magistrate is not one limited to readily accepting the final report– It is open for the Magistrate either to accept the final report or toproceed to take cognizance u/s. 190(1)(b) of Cr.P.C. for which thereFis no necessity to examine the witnesses u/s.200 Cr.P.C. – But sincethe Magistrate cannot be compelled to treat the protest petition as acomplaint, the remedy for the complainant would be to file a freshcomplaint and invite the Magistrate to follow the procedure u/ss.200r/w. s.202 Cr.P.C. – If the protest petition fulfills the requirementsof a complaint, the Magistrate may treat the protest petition as aGcomplaint and deal with the same as required u/s.200 r/w. s.202Cr.P.C. – The protest petition in the present case did not fulfill therequirement of a complaint – Order of High Court is liable to be setaside.

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Constitution of India:

Art.226 – Jurisdiction under – Scope of – Held: High Courtwhile exercising powers u/Art.226 must bear in mind the limitednature of its jurisdiction when it deals with orders of subordinatecourts.

Allowing the appeal, the Court

HELD : 1. In the present case, following the FirstInformation Report, the Investigating Officer conducted aninvestigation. Statements were taken from the complainant, hiswife and his son. This is apart from the statements which weretaken from the Doctors who treated the daughter of the secondrespondent/complainant. The Investigation Officer concluded thatthere is no material which would warrant the accused being sentfor trial. When such a report is filed before the court, it is beyondthe shade of doubt that the Magistrate may still choose to rejectthe final report and proceed to take cognizance of the offences,which in his view, are seen committed. He may, on the otherhand, after pondering over the materials, which would includethe statements of witnesses collected by the Investigating Officer,decide to accept the final report. He may entertain the view thatit is a case where further investigation by the Officer is warrantedbefore a decision is taken as to whether cognizance is to be takenor not. [Para 25] [1132-E-G]

2. Thus, before a Magistrate proceeds to accept a finalreport under Section 173 Cr.P.C. and exonerate the accused, itis incumbent upon the Magistrate to apply his mind to thecontents of the protest petition and arrive at a conclusionthereafter. While the Investigating Officer may rest content byproducing the final report, which, according to him, is theculmination of his efforts, the duty of the Magistrate is not onelimited to readily accepting the final report. It is incumbent uponhim to go through the materials, and after hearing the complainantand considering the contents of the protest petition, finally decidethe future course of action to be, whether to continue with thematter or to bring the curtains down. [Para 26] [1132-H;1133-A-B]

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A3. In the present case, the Magistrate does refer to theprotest petition. The Magistrate, in fact, proceeded to take theview that Magistrate has to take cognizance on the basis of thestatements of the witnesses recorded by the Investigating Officerand materials collected. He further finds that if cognizance is takenon the basis of protest petition and documents annexed, that isBillegal. It is after that it was found that the deceased died due toher illness and no prima facie case was made out against theaccused persons. [Paras 27 and 29] [1133-C; 1134-B-C]

4. The High Court while exercising powers under Article226 of the Constitution of India, at any rate, must bear in mindCthe limited nature of its jurisdiction when it deals with orders ofsubordinate courts. The High Court was in clear error inconcluding that the protest petition was not considered. That theHigh Court may take one of the two views of the matter may bean unsafe premise for its interference with the orders passed by Dthe Magistrate, as affirmed by the Additional Sessions Judge.[Paras 30 and 32] [1134-E, G; 1135-A]

5. The Magistrate relying upon judgment passed by SingleJudge of Allahabad High Court in *Mohammed Yusuf case hadtaken the view that if cognizance is taken on the basis of theEprotest petition and the documents annexed with, that is illegal.He also took the view that the Magistrate has to take cognizanceon the basis of statements of witnesses recorded by theInvestigating Officer, in the case diary and the material collectedduring investigation. Thus, the Magistrate had adhered to thelaw laid down by the Single Judge of High Court. If the SingleFJudge, who has rendered the impugned judgment in the presentcase, had a different view, he ought to have referred the matterto a larger Bench. [Paras 34 and 36] [1135-G; 1136-A, F]

*Mohammed Yusuf and others v. State of Uttar Pradeshand others 2008 CriLJ 493 – referred to.

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6. In the facts of the present case, having regard to thenature of the allegations contained in the protest petition and theannexures which essentially consisted of affidavits, if theMagistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of Cr.P.C thatno prima facie case is made out, certainly the Magistrate couldnot be compelled to take cognizance by treating the protestpetition as a complaint. The fact that he may have jurisdiction ina case to treat the protest petition as a complaint, is a differentmatter. Undoubtedly, if he treats the protest petition as acomplaint, he would have to follow the procedure prescribed underSection 200 and 202 of Cr.P.C if the latter Section also commendsitself to the Magistrate. In other words, necessarily, thecomplainant and his witnesses would have to be examined. Nodoubt, depending upon the material which is made available to aMagistrate by the complainant in the protest petition, it may becapable of being relied on in a particular case having regard to itsinherent nature and impact on the conclusions in the final report.That is, if the material is such that it persuades the court todisagree with the conclusions arrived at by the InvestigatingOfficer, cognizance could be taken under Section 190(1)(b) ofCr.P.C for which there is no necessity to examine the witnessesunder Section 200 of Cr.P.C. But as the Magistrate could not becompelled to treat the protest petition as a complaint, the remedyof the complainant would be to file a fresh complaint and invitethe Magistrate to follow the procedure under Section 200 ofCr.P.C or Section 200 read with Section 202 of Cr.P.C. Therefore,in the facts of the present case, the decision of the High Courtcannot be supported. [Para 41] [1137-E-H; 1138-A-B]

7. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting thefinal report. On receipt of notice, the informant may address thecourt ventilating his objections to the final report. This he usuallydoes in the form of the protest petition. A protest petition is inthe nature of a complaint and should be examined in accordancewith provisions of Chapter XVI of Cr.P.C. [Para 42] [1138-C-D]

8. If a protest petition fulfills the requirements of acomplaint, the Magistrate may treat the protest petition as acomplaint and deal with the same as required under Section 200read with Section 202 of Cr.P.C. In the present case, there wasno list of witnesses as such in the protest petition. The prayer in AB

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Athe protest petition is to set aside the final report and to allowthe application against the final report. Thus, the protest petitionin the present case, is summing up of the objections the secondrespondent against the final report. [Para 45] [1139-G;1140-A-B]

B9. The appeal is filed by the husband of the deceased, byspecial leave and permission. The allegations in the FirstInformation Report are raised against the other relatives of theappellants, viz., his parents and in-laws and his siblings also. Theyhave not challenged the order of the High Court. The Magistrateaccepted the final report and decided not to proceed against anyCof the accused including the appellant. This stood confirmed bythe Additional Sessions Judge. Before the High court, neitherthe appellant nor any of his relatives were made parties. It maybe true that till process is issued, the accused may not have theright to be heard. The High Court, in fact contemplatedDconsideration of the protest petition so that cognizance may betaken under Section 190(1)(b) of Cr.P.C. This premise beingwithout any basis even qua the other accused who are therelatives of the appellant, the impugned order must be set aside.Having regard to the nature of the allegations and in exercise ofpowers also under Article 142 of the Constitution of India, theEOrder of the High Court is set aside. [Paras 46, 47, 48 and 49][1140-C-G]

Qasim and others v. The State and others 1984 CrlLJ1677– relied on.

FMahabir Prasad Agarwala v. State AIR 1958 Ori. 11 ;Veerappa and others v. Bhimareddappa 2002 CriLJ2150 (Karnataka) – approved.

Abhinandan Jha and others v. Dinesh Mishra [1967] 3SCR 668 ; H.S. Bains, Director, Small Saving-cum-GDeputy Secretary Finance, Punjab, Chandigarh v. State(Union Territory of Chandigarh) (1980) 4 SCC 631 :[1981] 1 SCR 935 ; Mahesh Chand v. B. JanardhanReddy (2003) 1 SCC 734 : [2002] 4 Suppl. SCR 566 ;Gangadhar Janardan Mhatre v. State of Maharashtra(2004) 7 SCC 768 : [2004] 4 Suppl. SCR 772 ; KishoreHKumar Gyanchandani v. G.D. Mehrotra (2011) 15 SCC

VISHNU KUMAR TIWARI v. STATE OF U. P. THR. SEC.HOME, CIVIL SECRETARIAT LUCKNOW

513 ; Rakesh Kumar and another v. State of UttarPradesh and another (2014) 13 SCC 133 ; IrisComputers Limited v. Askari Infotech Private Limitedand others (2015) 14 SCC 399 ; Radhey Shyam &another v. Chhabi Nath & others (2015) 5 SCC 423 :[2015] 3 SCR 197 ; Surya Dev Rai v. Ram ChanderRai & others (2003) 6 SCC 675 : [2003] 2 Suppl.SCR 290 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1015 of 2019.

From the Judgment and Order dated 21.09.2017 of the High Courtof Judicature at Allahabad, Bench at Lucknow in Misc. Single No. 5202of 2008.

Ratnakar Das, Sr. Adv., Rohit Pandey, Prabhu Singh, Ms. SukritiChauhan, Jaykrishnan C.D., Ms. Taruna Ardhendumauli Prasad, VaradDwivedi, Advs. for the Appellant.

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AV. Shekhar, Sr. Adv., Ankur Prakash, Suryodaya Prakash Tiwari,Sanjay Kumar Dubey, Advs. for the Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. The second respondent, in this appeal generated by specialleave, got registered a First Information Report which invoked Sections201, 304B and 498A of the Indian Penal Code, 1860 (hereinafter referredto as ‘the IPC’ for short) and Sections 3 and 4 of the Dowry ProhibitionAct, 1961. Briefly, the contents of the complaint are as follows B

CThe appellant married the second respondent’s daughter on22.04.2004. The father of the appellant made a demand for anAlto car and Rs. 2 lakhs for admission of Vishnu in B.Ed. He didnot accept the demand for dowry, and even at the time of marriage,he made a demand of Rs. 4 lakhs. There is reference to hisdaughter informing her mother that her mother-in-law, father-in-Dlaw, husband, brother-in-law and sister-in-law used to beat herand torture her to bring dowry. There is reference to telephonecall that his daughter was critical. It was made on 08.09.2010 andwhen they reached there, the daughter was not there. Uponinsisting, the mother-in-law of second respondent’s daughter toldEthem that they had taken her somewhere to some hospital. Searchwas made at many hospitals but the daughter could not be found.Thereafter, they found that the daughter had died. Reference wasmade to the demand for dowry by appellant and father-in-law,mother-in-law, brother-in-law and sister-in-law of the secondrespondent’s daughter and that they have killed his daughter. ItFwould appear that on the basis of the same, Crime No. 721 of2007 was registered. The Investigating Officer, however, on thebasis of the investigation, after taking the statements, filed a finalreport under Section 178 of The Code of Criminal Procedure,1973 (hereinafter referred to as ‘the Cr.PC.’ for short).

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2. The second respondent thereupon filed a protest petition. TheChief Judicial Magistrate passed an order concluding that the daughterof the second respondent/complainant, wife of the appellant, died due toher illness. It was further found that the accused persons had not causedany harassment or torture to her nor has committed dowry death. Therewas no prima facie case made out against the accused persons under H

Section 498A, 304B and 201 of the IPC and Sections 3 and 4 of theDowry Prohibition Act,1961. It was found that there is no sufficientground made out for action and the protest petition was dismissed andfinal report accepted.

3. The second respondent thereupon lodged revision petition beforethe Additional Sessions Judge. The Additional Sessions Judge did notfind merit and dismissed the criminal application. This led to a writ petitionbefore the High Court at Allahabad. This petition was filed invokingArticle 226 of the Constitution of India. A Writ of Certiorari was soughtto quash the impugned order passed by the Additional Sessions Judgeand the order passed by the Chief Judicial Magistrate. A further directionwas sought to be passed to investigate the case by taking statements ofvictim’s family and other witnesses and submit a report before the ChiefJudicial Magistrate. Direction was sought to the Chief Judicial Magistratefor looking into the matter afresh for taking cognizance against the accusedpersons in the case.

4. By the impugned judgment, the High Court set aside the orderspassed by the Chief Judicial Magistrate and the Additional Sessions Judge.The Chief Judicial Magistrate was directed to consider the protest petitionafresh in the light of the observations made therein. Feeling aggrievedby the said order, the special leave petition was filed, for which permissionwas sought and was granted by order dated 04.12.2017.

5. We have heard the learned Counsel for the parties and grantedleave in the matter.

6. The learned Senior Counsel for the appellant would point outthat the High Court has not noticed that the Chief Judicial Magistratehas in fact considered the protest petition. He makes the complaint inthe light of the following findings recorded by the High Court:

“11. In the light of above law, I am of the opinion that, if theprotest petition was submitted by the petitioner against the finalreport submitted by the police, then it was the duty of the learnedMagistrate to go through the protest petition and if there was anysubstance in the protest petition then he may took cognizanceunder Section 190(1)(b) of Cr.P.C.

12. The perusal of the record of learned Magistrate disclose thathe has not taken into consideration the protest petition of thepetitioner. Since there was a protest petition that is why it was the A

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Apious duty of the learned CJM to consider the facts mentioned inthe protest petition and to decide it according to law.”

7. The order passed by the Chief Judicial Magistrate shows thatthere is consideration of the protest petition. Neither the Chief JudicialMagistrate nor the Additional Sessions Judge have failed to apply theBcorrect principles of law. In this regard, it is apposite to notice thefollowing observations made in the impugned judgment of the High Court:

“10. In the case 2001 (43) ACC 1096 Pakhando & others VsState of UP & another, it is opined by the Court that in the case offinal report the Magistrate has four options:- C

(1) He may agree with the conclusion of the police and acceptthe 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 beingbound by the conclusion of the investigating agency where heDis satisfied that upon the facts discovered by the police, thereis sufficient ground to proceed.

(3) He may order for further investigation if he is satisfied thatthe investigation was made in a perfunctory manner.

(4) He may without issuing process and dropping theproceedings under Section 190(1)(a) Cr.P.C. upon the originalcomplaint or protest petition treating the same as complaintand proceed to act under Sections 200 and 202 Cr.P.C. andthereafter whether complaint should be dismissed or processshould be issued.”

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8. He would emphasise that it is a case where the late wife of theappellant/daughter of the second respondent had died a natural death.There is a case for the appellant that the marriage was solemnized in theyear 2004. It was after some time that the wife of the appellant conceivedand the child was delivered. It is further the case of the appellant thatGunfortunately 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 casemade out for interfering with the orders impugned before the High Court.

9. Per contra, the learned counsel appearing on behalf of thesecond respondent/complainant drew our attention to the death certificateissued by Priti Hospital:

“DEATH CERTIFICATE

This is to certify that Patient Smt. Jaya Tiwari aged about 31year, female W/o. Shri Vishnu Tiwari. R/o Village Saorai,Saifabad, Patti Pratapgarh U.P. Who was admitted in this Truston 09.10.07 at 10.29 P.M. as a case of septicaemia c respiratorydistress under Doctor A. Gupta has expired on 10.10.2007 at 8.00

A.M. due to cardio pulmonary arrest.”

10. He would point out that on the one hand, there is reference tothe case of the daughter of the complainant being one of septicaemia crespiratory distress but it is also stated that the daughter of the secondrespondent/complainant died due to cardio pulmonary arrest. This raisedquestions which are not dealt with by the orders impugned before theHigh Court.

11. He also referred to the statements given by the witness tocontend that there was material which should have persuaded the ChiefJudicial Magistrate to treat the protest petition as a complaint and thematter should have been proceeded on the said basis.

12. The court put a question to the appellant as to why the AdditionalSessions Judge has found that there is prima facie no case made underSection 304B and 201 of the IPC against the accused persons by theChief Judicial Magistrate but why there is no reference to Section 498Aof IPC. The learned counsel drew our attention to the order passed bythe Additional Sessions Judge and contended that the second respondent/complainant did not press the case under Section 498A of the IPC. Thecontention 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 othersv. Dinesh Mishra1, the questionarose as to whether when a report is submitted that there is no materialthat any case is made out for sending the accused for trial, the Magistratecan direct the police to submit a charge-sheet. This Court took the viewthat the Magistrate cannot compel the Police to change their opinion.However, it was held that the Magistrate is free to not accept such 1 AIR 1968 SC 117 / (1967) 3 SCR 668

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Areport and he may take suitable action. The Magistrate may direct furtherinvestigation under Section 156 (3) of the Code. It was further held thatit would be in a case where the Magistrate feels that the investigation isunsatisfactory or incomplete. It may be also in a case where there isscope for further investigation.

B14. It may not be inapposite that we refer to the following discussionby 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 theexpression ‘charge-sheet’ or ‘final report’. But it is understood, inthe Police Manual containing Rules and Regulations, that a reportCby the police, filed under Section 170 of the Code, is referred toas a ‘charge-sheet’. But in respect of the reports sent underSection 169 i.e. when there is no sufficient evidence to justify theforwarding of the accused to a Magistrate, it is termed variously,in different States, as either ‘referred charge’, ‘final report’, or‘summary’.”D

15. In H.S. Bains, Director, Small Saving-cum-Deputy Secretary2Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh),the Police submitted a final report. However, the Magistrate disagreedwith the conclusion of the Police and directed issue of process upontaking cognizance of the case. A contention was taken that the MagistrateEacted illegally in not recording statements on oath of the complainantand the witnesses under Section 200 of the Code and the Magistratemust, therefore, be treated as having taken cognizance upon the Policereport for which he was not competent as it was not a report underSection 173, but a final report within the meaning of Section 169. It wasFcontended that the Magistrate had only two options before him – (i) hecould either order further investigation. (ii) He could also take cognizanceas upon a complaint but for the same the statements of the complainantand witnesses had to be recorded.

16. This Court in the course of its judgment in H.S. Bains(supra),held as follows:G

“6. It is seen from the provisions to which we have referred inthe preceding paras that on receipt of a complaint a Magistratehas several courses open to him. He may take cognizance of theoffence and proceed to record the statements of the complainant H2 (1980) 4 SCC 631

and the witnesses present under Section 200. Thereafter, if in hisopinion there is no sufficient ground for proceeding he may dismissthe complaint under Section 203. If in his opinion there is sufficientground for proceeding he may issue process under Section 204.However, if he thinks fit, he may postpone the issue of processand either enquire into the case himself or direct an investigationto be made by a police officer or such other person as he thinks fitfor the purpose of deciding whether or not there is sufficient groundfor proceeding.He may then issue process if in his opinion thereis sufficient ground for proceeding or dismiss the complaint if thereis no sufficient ground for proceeding. On the other hand, in thefirst instance, on receipt of a complaint, the Magistrate may, insteadof taking cognizance of the offence, order an investigation underSection 156(3). The police will then investigate and submit a reportunder Section 173(1). On receiving the police report the Magistratemay take cognizance of the offence under Section 190(1)(b) andstraight away issue process. This he may do irrespective of theview expressed by the police in their report whether an offencehas been made out or not. The police report under Section 173will contain the facts discovered or unearthed by the police andthe conclusions drawn by the police therefrom. The Magistrate isnot bound by the conclusions drawn by the police and he maydecide to issue process even if the police recommend that there isno sufficient ground for proceeding further. The Magistrate afterreceiving the police report, may, without issuing process or droppingthe proceeding decide to take cognizance of the offence on thebasis of the complaint originally submitted to him and proceed torecord the statements upon oath of the complainant and thewitnesses present under Section 200 of the Criminal ProcedureCode and thereafter decide whether to dismiss the complaint orissue process.The mere fact that he had earlier ordered aninvestigation under Section 156 (3) and received a report underSection 173 will not have the effect of total effacement of thecomplaint and therefore the Magistrate will not be barred fromproceeding under Sections 200, 203 and 204. Thus, a Magistratewho on receipt of a complaint, orders an investigation under Section156(3) and receives a police report under Section 173(1), may,thereafter, do one of three things: (1) he may decide that there is ABCDEFG

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Ano 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 dowithout being bound in any manner by the conclusion arrived atby the police in their report; (3) he may take cognizance of theoffence under Section 190(1)(a) on the basis of the originalBcomplaint and proceed to examine upon oath the complainant andhis 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 thecase may be.”

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17. Thus, when he proceeds to take action by way of cognizanceby disagreeing with the conclusions arrived at in the police report, hewould be taking cognizance on the basis of the police report and not onthe complaint. And, therefore, the question of examining the complainantDor his witnesses under Section 200 of the Code would not arise. Thiswas the view clearly enunciated.

18. In Mahesh Chandv. B. Janardhan Reddy3, the appellant/complainant had lodged report alleging commission of offences by therespondent. Subsequently, being dissatisfied with the investigation, heEfiled a criminal complaint in the court of the Magistrate. In the meantime,the Investigating Officer filed a final report finding that the controversywas of a civil nature. The appellant filed a protest petition. The finalreport was accepted by the Magistrate. The complaint case filed by theappellant was also closed. It became final. The appellant filed a thirdFcomplaint, as it were, under Section 200 of the Code. On summonsbeing issued, it was successfully questioned before the High Court. Wemay notice the following discussion by this Court profitably.

“12. There cannot be any doubt or dispute that only because theMagistrate has accepted a final report, the same by itself wouldGnot stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posedand answered would be as to under what circumstances the saidpower can be exercised.

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16. In Munilal Thakur case [1985 Cri LJ 437:1984 Pat LJR 774]the Division Bench of the Patna High Court was concerned withthe question as to whether a Magistrate even after accepting finalreport filed by the police, can take cognizance of offence upon acomplaint or the protest petition on same or similar allegations offact; to which the answer was rendered in the affirmative.

17. The question which has arisen for consideration herein neitherarose therein nor was canvassed.

18. In Jayashankar Mund case [1989 Cri LJ 1578 : (1989) 67Cut LT 426] the Orissa High Court again did not have any occasionto 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 vigilancepolice culminating in the final report and because the informantwas not examined on solemn affirmation under Section 202 ofthe Code, thereby no illegality or prejudice was caused to theaccused. If such a view is accepted and there is no reasonwhy such a view should not be accepted, the necessaryconsequence in this particular case shall be that the protestpetition which is of the nature of a complaint petition filed bythe petitioner shall be in continuation and in respect of the caseinstituted and investigated by the vigilance police.”

19. Keeping in view the settled legal principles, we are of theopinion that the High Court was not correct in holding that thesecond complaint was completely barred. It is settled law thatthere is no statutory bar in filing a second complaint on the samefacts. In a case where a previous complaint is dismissed withoutassigning any reasons, the Magistrate under Section 204 CrPCmay take cognizance of an offence and issue process if there issufficient ground for proceeding. As held in Pramatha NathTalukdar case [AIR 1962 SC 876 : 1962 Supp (2) SCR 297 :(1962) 1 Cri LJ 770] second complaint could be dismissed after adecision has been given against the complainant in previous matterupon a full consideration of his case. Further, second complainton the same facts could be entertained only in exceptional AB

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Acircumstances, namely, where the previous order was passed onan incomplete record or on a misunderstanding of the nature ofcomplaint or it was manifestly absurd, unjust or where new factswhich could not, with reasonable diligence, have been brought onrecord in the previous proceedings, have been adduced.In thefacts and circumstances of this case, the matter, therefore, shouldBhave been remitted back to the learned Magistrate for the purposeof arriving at a finding as to whether any case for cognizance ofthe alleged offence had been made out or not.”

C19. In Gangadhar Janardan Mhatrev. State of Maharashtra4, thisCourt reiterated that Magistrate can, faced with a final report,independently apply his mind to the facts emerging from investigationand take cognizance under Section 190 (1)(b), and in this regard, is notbound to follow the procedure under Sections 200 and 202 of the Codefor taking cognizance under Section 190(1)(b). It was, however, open toDthe Magistrate to do so.

20. In regard to the filing of protest petition by the informant whofiled the First Information Report, it is important to notice the followingdiscussion by this Court:

E“6. There is no provision in the Code to file a protest petitionby the informant who lodged the first information report. But thishas been the practice.Absence of a provision in the Code relatingto filing of a protest petition has been considered. This Courtin Bhagwant Singh v. Commr. of Police [(1985) 2 SCC 537:1985SCC (Cri) 267 : AIR 1985 SC 1285] stressed on the desirability ofFintimation being given to the informant when a report made underSection 173(2) is under consideration. The Court held as follows:(SCC p. 542, para 4)

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“There can, therefore, be no doubt that when, on aconsideration of the report made by the officer in charge of aGpolice station under sub-section (2)(i) of Section 173, theMagistrate is not inclined to take cognizance of the offenceand issue process, the informant must be given an opportunityof being heard so that he can make his submissions to persuade 4 (2004) 7 SCC 768H

the Magistrate to take cognizance of the offence and issueprocess. We are accordingly of the view that in a case wherethe Magistrate to whom a report is forwarded under sub-section(2)(i) of Section 173 decides not to take cognizance of theoffence and to drop the proceeding or takes the view that thereis no sufficient ground for proceeding against some of thepersons mentioned in the first information report, the Magistratemust give notice to the informant and provide him an opportunityto be heard at the time of consideration of the report.”

9. When a report forwarded by the police to the Magistrateunder Section 173(2)(i) is placed before him several situationsarise. The report may conclude that an offence appears to havebeen committed by a particular person or persons and in such acase, the Magistrate may either (1) accept the report and takecognizance of the offence and issue process, or (2) may disagreewith the report and drop the proceeding, or (3) may direct furtherinvestigation under Section 156(3) and require the police to makea further report. The report may on the other hand state thataccording to the police, no offence appears to have beencommitted. When such a report is placed before the Magistratehe 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) hemay disagree with the report and take the view that there issufficient ground for further proceeding, take cognizance of theoffence and issue process; or (3) he may direct furtherinvestigation to be made by the police under Section 156(3). Theposition is, therefore, now well settled that upon receipt of a policereport under Section 173(2) a Magistrate is entitled to takecognizance of an offence under Section 190(1)(b) of the Codeeven if the police report is to the effect that no case is made outagainst the accused. The Magistrate can take into account thestatements of the witnesses examined by the police during theinvestigation and take cognizance of the offence complained ofand order the issue of process to the accused.Section 190(1)(b)does not lay down that a Magistrate can take cognizance of anoffence only if the investigating officer gives an opinion that theinvestigation has made out a case against the accused. TheMagistrate can ignore the conclusion arrived at by the investigatingofficer and independently apply his mind to the facts emerging A

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from the investigation and take cognizance of the case, if he thinksfit, exercise his powers under Section 190(1)(b) and direct theissue of process to the accused. The Magistrate is not bound insuch a situation to follow the procedure laid down in Sections 200and 202 of the Code for taking cognizance of a case under Section190(1)(a) though it is open to him to act under Section 200 orSection 202 also.[See India Carat (P) Ltd. v. State ofKarnataka [(1989) 2 SCC 132 : 1989 SCC (Cri) 306 : AIR 1989SC 885] .] The informant is not prejudicially affected when theMagistrate decides to take cognizance and to proceed with thecase. But where the Magistrate decides that sufficient grounddoes not subsist for proceeding further and drops the proceedingor takes the view that there is material for proceeding againstsome and there are insufficient grounds in respect of others, theinformant would certainly be prejudiced as the first informationreport 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 theMagistrate decides not to take cognizance and to drop theproceeding or takes a view that there is no sufficient ground forproceeding against some of the persons mentioned in the firstinformation report, notice to the informant and grant of opportunityof being heard in the matter becomes mandatory. As indicatedabove, there is no provision in the Code for issue of a notice inthat regard.”

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21. This Court, in Gangadhar Janardan Mhatre(supra), also stressedFon the need to issue notice to the informant in the following discussion:

“12. Therefore, the stress is on the issue of notice by theMagistrate at the time of consideration of the report. If theinformant is not aware as to when the matter is to be considered,obviously, he cannot be faulted, even if protest petition in reply tothe notice issued by the police has been filed belatedly. But asindicated in Bhagwant Singh case [(1985) 2 SCC 537 : 1985SCC (Cri) 267 : AIR 1985 SC 1285] the right is conferred on theinformant and none else.”

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22. In Kishore Kumar Gyanchandaniv. G.D. Mehrotra5, a FirstInformation Report was lodged in respect of certain offences. The Policefiled a final report which came to be accepted. Nearly three monthsthereafter, a protest petition was filed. The Magistrate directed the sameto be considered as a complaint. He held an inquiry under Section 202 ofthe Code and proceeded to take cognizance. Paragraph 4 is relevantand it reads as follows:

“4. There is some controversy between the parties that beforeaccepting the final form by the Magistrate on 27-1-1996 noticehad been served on the complainant and the complainant did notfile objections, whereas the case of the complainant is that he hadnot received any notice from the Court. Be that as it may, we arenot entering into that controversy for deciding the present case asin our view it is not material either way nor does it oust thejurisdiction of the Magistrate on the basis of a complaint to takecognizance of the offence alleged to have been committed by theaccused even if he had already accepted the final form, the samehaving been filed by the police.”

23. In fact, the case itself was decided by a Bench of three learnedJudges 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 investigationfiles a final form under Section 173 of the Code, the Magistratemay disagree with the conclusion arrived at by the police andtake cognizance in exercise of power under Section 190 of theCode. The Magistrate may not take cognizance and direct furtherinvestigation in the matter under Section 156 of the Code. Wherethe Magistrate accepts the final form submitted by the police, theright of the complainant to file a regular complaint is not takenaway and in fact on such a complaint being filed the Magistratefollows the procedure under Section 201 of the Code and takescognizance if the materials produced by the complainant makeout an offence.This question has been raised and answered bythis Court in the case of Gopal Vijay Verma v. BhuneshwarPrasad Sinha[(1982) 3 SCC 510 : 1983 SCC (Cri) 110]whereunder the view of the Patna High Court to the contrary hasbeen reversed. The Court in no uncertain terms in the aforesaid 5 (2011) 15 SCC 513

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Acase has indicated that the acceptance of final form does notdebar the Magistrate from taking cognizance on the basis of thematerials produced in a complaint proceeding.”

(Emphasis supplied)

This Court found that the High Court was in error in interferingBwith the cognizance taken by the Magistrate.

24. In Rakesh Kumar and anotherv. State of Uttar Pradesh andanother6, on the basis of a First Information Report lodged by the Policeafter investigation, a final report came to be filed. The Magistrate acceptedthe final report. He, simultaneously, directed the case be proceeded withCas a complaint case. Statements under Section 200 and 202 of the Codewere recorded. The High Court turned down the plea of the accused towhom summons were issued. It was the contention of the accused thathaving accepted a negative final report, the court could not take actionon the basis of the protest petition filed by the complainant. This CourtDrefers to the judgment in H.S. Bains(supra). The principles of law laiddown in paragraph 12 of Mahesh Chand(supra), which we have alsoreferred to earlier, came to be approved. The order of the High Courtwas approved.

25. This is a case where following the First Information Report,Ethe Investigating Officer conducted an investigation. Statements weretaken from the complainant, his wife and his son. This is apart from thestatements which were taken from the Doctors who treated the daughterof the second respondent/complainant. The Investigation Officerconcluded that there is no material which would warrant the accusedbeing sent for trial. When such a report is filed before the court, it isFbeyond the shade of doubt that the Magistrate may still choose to rejectthe final report and proceed to take cognizance of the offences, which inhis view, are seen committed. He may, on the other hand, after ponderingover the materials, which would include the statements of witnessescollected by the Investigating Officer, decide to accept the final report.GHe may entertain the view that it is a case where further investigationby the Officer is warranted before a decision is taken as to whethercognizance is to be taken or not.

26. It is undoubtedly true that before a Magistrate proceeds toaccept a final report under Section 173 and exonerate the accused, it isH6 2014 (13) SCC 133

incumbent upon the Magistrate to apply his mind to the contents of theprotest petition and arrive at a conclusion thereafter. While theInvestigating Officer may rest content by producing the final report,which, according to him, is the culmination of his efforts, the duty of theMagistrate is not one limited to readily accepting the final report. It isincumbent upon him to go through the materials, and after hearing thecomplainant and considering the contents of the protest petition, finallydecide the future course of action to be, whether to continue with thematter or to bring the curtains down.

27. In this case, the High Court proceeded on the basis, as wehave noticed, that the Magistrate has not taken into consideration theprotest petition and it was his pious duty to consider the facts mentionedin the petition. We have examined the order passed by the Magistrate.He does refer to the protest petition. The contents therein are undoubtedlynoticed. Magistrate says that he has gone through the First InformationReport. He finds that the complainant is not an eyewitness in regard tothe death of his daughter. He recorded that he has gone through thestatements of witnesses given under Section 161. We may notice thatthe following findings were entered in regard to the case of torturecommitted against the complainant’s daughter:

“… First of all I have gone through the statement of Sh ShivShankar Ojha who is complainant in this case. Although thiswitness has partly favoured the incident but here it is pertinent tomention that at the time of death of deceased Jaya, this witnesswas not present. When it was asked from this witness that whetherafter you received information of torture committed to you daughter,you had made any application anywhere or you had informed thisthrough any relation etc. In reply to this question, he has statedthat ‘no’. I have also duly gone through the statement of Smt.Shakuntala Devi mother of deceased. Mother of deceased hasgiven statement to the investigating officer that my son in law isworking in Haryana in a private job.”

28. Thereafter, he referred to the statement of the mother andbrother of the deceased. He refers to the statements of the Doctors.The Doctors concluded that the deceased died due to her illness. One ofthe Doctors have stated that the mother of the patient Smt. Shakuntalahad signed the admission form. The patient was examined. The patient AB

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Ahad delivered a child two months ago by caesarean operation. She wassuffering from fever. She was breathing rapidly. Her body was sufferingfrom jaundice. She was in need of respiratory support machine. Thedisease of the patient was septic shock and multiple organ failure. Shedied on 08.10.2017. The death was found to be due to her illness.

B29. The Chief Judicial Magistrate, in fact, proceeded to take theview that Magistrate has to take cognizance on the basis of the statementsof the witnesses recorded by the Investigating Officer and materialscollected. He further finds that if cognizance is taken on the basis ofprotest petition and documents annexed, that is illegal. It is after that itwas found that the deceased died due to her illness and no prima facieCcase was made out against the accused persons.

30. We may notice that against the order of the Chief JudicialMagistrate and Additional Sessions Judge, the second respondent hasinvoked jurisdiction under Article 226 of the Constitution of India. Therelief sought in the writ petition is one of certiorari to quash the orders.DWe may indicate that in Radhey Shyam & anotherv. Chhabi Nath &others7 , this Court, after overruling the judgment of this Court in SuryaDev Raiv. Ram Chander Rai & others8in this regard, it has been laiddown that a Writ of Certiorari will not lie to quash an order of a civilcourt. The High Court while exercising powers under Article 226 of theEConstitution of India, at any rate, must bear in mind the limited nature ofits jurisdiction when it deals with orders of subordinate courts.

31. In the facts of this case, the High Court concluded that theMagistrate has not considered the protest petition by the secondrespondent/complainant. Had it been the case where protest petitionFhad not been considered at all, it may have been open to the court tocame to the conclusion that an illegality had been committed in exerciseof its jurisdiction to deal with the final report. But it is another matterwhen the Magistrate has undoubtedly considered the protest petition todirect the court again to consider the matter for action on the same, andfor that purpose, to set aside the proceedings.G

32. We would think that, as noticed by us, the High Court was inclear 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 7 (2015) 5 SCC 423

H8 (2003) 6 SCC 675

be an unsafe premise for its interference with the orders passed by theMagistrate, as affirmed by the Additional Sessions Judge.

33. On the basis of the materials which include the statements ofthe 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 forbeing continued and the matter should end as the daughter of the secondrespondent/complainant died due to illness. It is a finding which is arrivedat by the court with reference to the statements of the medicalpractitioners. Equally, in the circumstances which led to the unfortunatedeath of the daughter of the second respondent/complainant, it is foundno case was made out under Section 201 of the IPC. It would appearthat before the Sessions Judge, the aspect relating to Section 498A or infact the provisions relating to Sections 3 and 4 of the Dowry ProhibitionAct, 1961, was not pressed by the second respondent. That apart, wealso notice that Magistrate has referred to the statement of thecomplainant that there was no complaint made about the tortureapparently based on dowry demand as alleged.

34. We have also gone through the protest petition along with thecounter affidavit. No doubt, in paragraph 2, there is a general referenceto demands for property from the deceased and father of the deceasedand torture. Paragraphs 3 to 15 thereafter relate to the circumstancesrelating to the death of the daughter of the second respondent. In thesaid paragraphs, the case is sought to be made out that forged documentswere produced before the Investigating Officer. Affidavits of the motherand brother of the deceased, inter alia, were also filed to project thecase of forgery. For instance, in the affidavit of the mother of thedeceased, she claims that she has not gone to the hospital on the 9[th] and10[th] of October, 2007, whereas, according to the statement under Section161 of the Code, she is alleged to have stated that on 09.10.2007, thedeceased was admitted at Priti Hospital by them which apparentlyincludes the mother. We have noticed that in regard to that no doubt theChief Judicial Magistrate has relied upon judgment in Mohammed Yusufand othersv. State of Uttar Pradesh and others9 and taken the view thatif cognizance is taken on the basis of the protest petition and thedocuments annexed with, that is illegal. He also took the view that theMagistrate has to take cognizance on the basis of statements of witnesses 9 2008 CriLJ 493

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Arecorded by the Investigating Officer, in the case diary and the materialcollected during investigation.

35. A learned Single Judge of the High Court of Allahabad, in theaforesaid decision, had this to say in paragraph 11:

“11. Where the Magistrate decides to take cognizance underBSection 190(1)(b) ignoring the conclusions reached at by theInvestigating Officer and applying his mind independently, he canact only upon the statements of the witnesses recorded by thepolice in the case-diary and material collected during investigation.It is not permissible at that stage to consider any material otherCthan that collected by the investigation Officer. In the instant casethe cognizance was taken on the basis of the protest petition andaccompanying affidavits.The Magistrate should have adoptedthe procedure of complaint case under Chapter XV of the Codeof Criminal Procedure and recorded the statements of thecomplainant and the witnesses who had filed affidavits underDSections 200 and 202 Cr.P.C. The Magistrate could not takecognizance under Section 190(1)(b) Cr.P.C. on the basis of protestpetition and affidavits filed in support thereof. The Magistratehaving taken into account extraneous material i.e. protest petitionand affidavits while taking cognizance under Section 190(1)(b)”ECr.P.C. the impugned order is vitiated.

36. The Chief Judicial Magistrate has adhered to the law laiddown by the learned Single Judge. In fact, we may notice that in regardto this aspect, if the learned Single Judge, who has rendered the impugnedFjudgment in this case, had a different view, he ought to have referred thematter to a larger Bench.

37. In H.S. Bains(supra), there was a private complaint withinthe meaning of Section 190(1)(a) of the Code. The matter was referredto the Police under Section 156(3). The Investigating Officer filed aGfinal report. Therein, the court took the view that apart from the powerof the Magistrate to take cognizance notwithstanding the final report,under Section 190(1)(b), he could also fall back upon the private complaintwhich was initially lodged but after examining the complainant and hiswitnesses, as contemplated under Sections 200 and 202 of the Code. In H

regard to taking cognizance under Section 190(1)(b) of the Code of afinal report, undoubtedly, it is not necessary to examine the complainantor his witnesses though he may do so.

38. In Mahesh Chand(supra), no doubt the matter was commencedby a First Information Report and followed up by the complainant in thecourt under Section 190(1)(a) of the Code. On the First InformationReport, after investigation, a final report was filed. The final report cameto be accepted and it was closed. This is despite the fact that there wasthe protest petition. A third complaint, as it were, came to be filed by thecomplainant. This Court went on to hold that acceptance of the finalreport would not stand in the way of taking cognizance on a protest/complaint petition.

39. In Kishore Kumar Gyanchandani(supra), after the final reportwas 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 whichwas accepted by the Magistrate but he simultaneously directed the caseto be proceeded as a complaint case and statements under Sections 200and 202 of the Code came to be recorded.

41. In the facts of this case, having regard to the nature of theallegations contained in the protest petition and the annexures whichessentially consisted of affidavits, if the Magistrate was convinced onthe basis of the consideration of the final report, the statements underSection 161 of the Code that no prima facie case is made out, certainlythe Magistrate could not be compelled to take cognizance by treatingthe protest petition as a complaint. The fact that he may have jurisdictionin 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 wouldhave to follow the procedure prescribed under Section 200 and 202 ofthe Code if the latter Section also commends itself to the Magistrate. Inother words, necessarily, the complainant and his witnesses would haveto be examined. No doubt, depending upon the material which is madeavailable to a Magistrate by the complainant in the protest petition, itmay be capable of being relied on in a particular case having regard toits inherent nature and impact on the conclusions in the final report. Thatis, if the material is such that it persuades the court to disagree with the A

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Aconclusions arrived at by the Investigating Officer, cognizance could betaken under Section 190(1)(b) of the Code for which there is no necessityto examine the witnesses under Section 200 of the Code. But as theMagistrate could not be compelled to treat the protest petition as acomplaint, the remedy of the complainant would be to file a freshcomplaint and invite the Magistrate to follow the procedure under SectionB200 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 cannotsupport the decision of the High Court.

42. It is true that law mandates notice to the informant/complainantwhere the Magistrate contemplates accepting the final report. On receiptCof notice, the informant may address the court ventilating his objectionsto the final report. This he usually does in the form of the protest petition.In Mahabir Prasad Agarwalav. State10, a learned Judge of the HighCourt of Orissa, took the view that a protest petition is in the nature of acomplaint and should be examined in accordance with provisions ofDChapter XVI of the Criminal Procedure Code. We, however, also noticedthat in Qasim and othersv. The State and others11, a learned SingleJudge of the High Court of Judicature at Allahabad, inter alia, held asfollows:

“4. … In the case of Abhinandan Jha MANU/SC/0054/1967E(supra) also what was observed was ‘it is not very clear as towhether the Magistrate has chosen to treat the protest petition ascomplaint.’ This observation would not mean that every protestpetition must necessarily be treated as & complaint whether itsatisfies the conditions of the complaint or not. A private complaintis to contain a complete list of witnesses to be examined.A furtherFexamination of complainant is made under Section 200 Cr.P.C. Ifthe Magistrate did not treat the protest petition as a complaint, theprotest petition not satisfying all the conditions of the complaint tohis mind, it would not mean that the case has become a complaintcase. In fact, in majority of cases when a final report is submitted,Gthe Magistrate has to simply consider whether on the materials inthe 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 servesthe purpose of drawing Magistrate’s attention to the materials inthe case diary and invite a careful scrutiny and exercise of themind by the Magistrate so it cannot be held that simply becausethere is a protest petition the case is to become a complaint case.”

43. We may also notice that in Veerappa and othersv.Bhimareddappa12, the High Court of Karnataka observed as follows:

“9. From the above, the position that emerges is this: Whereinitially the complainant has not filed any complaint before theMagistrate under Section 200 of the Cr. P.C., but, has approachedthe police only and where the police after investigation have filedthe ‘B’ report, if the complainant wants to protest, he is therebyinviting 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 protestpetition that he files shall have to satisfy the requirements of acomplaint as defined in Section 2(d) of the Cr. P.C., and that shouldcontain facts that constitute offence, for which, the learnedMagistrate is taking cognizance under Section 190(1)(a) of theCr. P.C. Instead, if it is to be simply styled as a protest petitionwithout containing all those necessary particulars that a normalcomplaint has to contain, then, it cannot be construed as a complaintfor 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 writingto a Magistrate, with a view to his taking action under this Code,that some person, whether known or unknown, has committed anoffence, but does not include a police report. Explanation.- A reportmade by a police officer in a case which discloses, afterinvestigation, the commission of a non- cognizable offence shallbe deemed to be a complaint; and the police officer by whomsuch 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 dealwith the same as required under Section 200 read with Section 202 of 12 2002 CriLJ 2150 (Karnataka)

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Athe Code. In this case, in fact, there is no list of witnesses as such in theprotest petition. The prayer in the protest petition is to set aside the finalreport and to allow the application against the final report. While we arenot suggesting that the form must entirely be decisive of the questionwhether 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 summingBup of the objections the second respondent against the final report.

46. This brings us to one aspect of the matter which in fact wasnot argued at the Bar. The appeal is filed by the husband of the deceased,by special leave and permission. The allegations in the First InformationReport are raised against the other relatives of the appellants, viz., hisCparents and in-laws and his siblings also. They have not challenged theorder of the High Court. Allegations are made in respect of offences ascommitted by them also.

47. In this regard, we may notice, one facet. The Chief JudicialMagistrate accepted the final report and decided not to proceed againstDany of the accused including the appellant. This stood confirmed by theAdditional Sessions Judge. Before the High court, neither the appellantnor any of his relatives were made parties. When the order was passedby the High Court accepting the report and directing reconsideration,was it necessary for the second respondent/complainant to implead theEappellant and other relatives? Can we set aside the judgment of theHigh Court qua only the appellant, or can we in the facts in this case,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 nothave the right to be heard (See the judgment of this court in Iris ComputersFLimitedv. Askari Infotech Private Limited and others13).

49. The High Court, in fact, at paragraph 11 of the impugnedorder, which we have extracted at paragraph 6 of our judgment,contemplated consideration of the protest petition so that cognizancemay be taken under Section 190(1)(b) of the Code. This premise beingGwithout any basis even qua the other accused who are the relatives ofthe appellant, we would think that the impugned order must be set aside.Having regard to the nature of the allegations and in exercise of ourpowers also under Article 142 of the Constitution of India, we must setaside the Order of the High Court.

50. We would think that in the facts of this case, the High Courterred in intervening and that there was no justification in the facts forthe High Court in setting aside the orders.

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51. Resultantly, the appeal will stand allowed, the impugned orderof the High Court will stand set aside. We, however, make it clear thatthis would be without prejudice to the rights of the second respondent toBfile a complaint as already noticed in the order of the Additional SessionsJudge.

Kalpana K. Tripathy

Appeal allowed.

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