Acceptance of a charge sheet does not debar Magistrate from taking cognizance

Acceptance of a charge sheet does not debar Magistrate from taking cognizance written by Himanshu Garg student of Maharashtra National Law University Aurangabad

KISHORE KUMAR GYANCHANDANI v. G.D. MEHROTRA AND ORS. (2011) 15 SCC 513

RELEVANT FACTS

One person G.D. Mehrotra (Respondent) is charged under section 279 and 338 of Indian Penal Code, 1860 for rash and negligent driving on the public road. A charge sheet/final form was filed in the court by the police after investigation. After submitting the final form, the complainant/ appellant filed a protest petition as a complaint under court. On this complaint, Respondent filed a petition under Hon’ble High Court to dissolve this complaint which was filed after the submitting final form. High Court by the impugned order, having set aside the order taking cognizance and issuance of the process in the complaint proceedings. Now, the complainant appeals to the Hon’ble Supreme Court to assail the order of the High Court under Section 202 of Cr. P.C.

ISSUES

Whether the court can allow the complaint filed by the complainant after submission of the final file under section 202 of Cr.P.C.?

RULE OF LAW

• Section 156, 173, 190, 201, and 202 of the Code of Criminal Procedure, 1973.
• Section 279 and 338 of Indian Penal Code, 1860.

JUDGEMENT WITH REASONING

• In the concerned case, the main point of contention is related to the complaint which was filed by the complainant after submitting the final form of investigation by police.
• Learned counsel of the Appellant/ complainant referred the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha and Others, in this case, it was held that Acceptance of final form does not debar the Magistrate from taking cognizance based on the materials produced in a complaint proceeding.
• There is police filed a final form after an investigation under section 173 of the Cr.P.C. and 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 Cr.P.C. and takes cognizance of the materials produced by the complainant make out an offense.
• And the learned counsel of the Respondent referred to the case law Abhinandan Jha and others v. the State of Bihar and another, in this case, the court stated that the after acceptance of final form Magistrate cannot direct the investigation agency to file a charge-sheet. But Magistrate has separate power to direct the investigation agency to further investigation into the matter or even to take cognizance on the basis of the materials produced even though the police might have filed the final form.
• Based on all of these arguments, the Hon’ble Supreme Court finally allowed the appeal filed by the complainant under section 202 of Cr. P.C.