Gujarat High Court
Altaf Mamad Uthat vs State Of Gujarat on 21 July, 2025
NEUTRAL CITATION
R/SCR.A/7562/2020 CAV JUDGMENT DATED: 21/07/2025
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Reserved On : 04/07/2025
Pronounced On : 21/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7562 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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ALTAF MAMAD UTHAT & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Applicant(s) No. 1,2
MR RAHUL K DAVE(3978) for the Applicant(s) No. 1,2
MR SALIM M SAIYED(5172) for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “the Code”),
the petitioner has prayed for quashing and setting aside order
dated 09.10.2020 passed by learned Trial Court below B
Summary report in connection with FIR being
C.R.No.11205031200622 of 2020 registered with Mandvi Police
Station and confirmed by learned Sessions Judge, Bhuj Kachchh
in Criminal Revision Application No.77 of 2020 dated
03.11.2020.
2. Brief facts of the case are as under:-
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2.1. Respondent no.2 filed FIR being C.R.No.11205031200622
of 2020 for the offence under sections 307, 114 of IPC and under
section 135 of GP Act against 3 persons on 20.05.2020 before
Mandavi Police Station. In the FIR 2 persons were named as
accused. Third person is stated as brother of accused no.1.
Accused no.1 Akbar is main accused. The petitioners are
brothers of him and it is claimed that they were on the spot of
incident and also assaulted respondent complainant. After
completion of investigation police submitted charge sheet qua
accused no.1. The police submitted report of ‘B’ summary for two
other accused i.e. the petitioners. Learned Magistrate passed
order on 09.10.2020 to register the case against the petitioners
and club it with criminal case pending against original accused
no.1 by issuing process to petitioners. The petitioners challenged
that order before learned Sessions Court, Bhuj by filing Criminal
Revision Application No.77 of 2020. Learned Sessions Judge
rejected the Revision Application by order dated 03.11.2020.
2.2. Hence, present petition.
3. Heard learned advocate Mr.Dave for the petitioner, learned
advocate Mr.Salim Saiyed for respondent no.2 and learned APP
for respondent – State.
4. Plank of argument of learned advocate Mr.Dave is that
learned Trial Court as well as learned Sessions Court have
committed serious error in issuing process against the petitioner
accused without conducting inquiry under section 202 of Cr.P.C.
Learned advocate Mr.Dave highlighting facts of the case would
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submit that though FIR was filed against three persons, at the
end of investigation, police filed report under section 173 of
Cr.P.C. against main accused Akbar and filed B summary for the
accused – Altaf and Ahmed believing that they were not present
at the spot of incident. Learned advocate Mr.Dave would further
submit that learned Trial Court on protest petition filed by the
complainant and after hearing both the sides, believed existence
of sufficient material to place petitioners for trial under section
307 and 114 of IPC. Learned advocate Mr.Dave would submit
that once B summary has been filed by investigating office, it
would be incumbent upon the learned Trial Court to treat
protest petition as private complaint and conduct inquiry under
section 202 of Cr.P.C. to find out truth and without following
said procedure, learned Trial Court directly cannot issue
process. It is argued that during investigation police has
recorded statement of several independent witnesses, some of
them were eye witness and some of them were passersby , all of
them have stated presence of main accused – Akbar Uthar only
who has given blow to the victim, however, none of the eye
witness spell about Altaf and his brother viz. petitioner no.2
herein and therefore, looking to this aspect, learned advocate
Mr.Dave submits that Investigating Officer has rightly filed B
summary which should not be overturned by learned Trial Court
without following procedure laid down in section 202 of Cr.P.C.
4.1. In view above, learned advocate Mr.Dave submitted that
learned Trial Court has committed serious error in issuing
process against the petitioner discarding B summary and error
further crept as said order is confirmed by learned Sessions
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court in Revision Application. Thus, it is submitted to allow the
petition and quash the order of issuance of process against the
petitioners.
5. Learned advocate Mr.Saiyed for complainant opposing
argument of learned advocate Mr.Dave submitted that name of
one of the petitioners is stated in the FIR since beginning. Name
of other petitioner is not specifically stated but it is stated as
brother of main accused. They are stated to be present on the
spot of incident. In complicity with each other while extending
help to main accused, his two brothers have also attempted
murder of husband of complainant. Therefore, it is submitted
that since there are sufficient material available from charge-
sheet to put accused for trial, learned Trial court has rightly
rejected B summary report and issued process which is
confirmed by learned Revisional Court.
5.1. By making above submission, learned advocate Mr.Saiyed
submits to dismiss the petition.
6. Learned APP having adopted the argument of learned
advocate Mr.Saiyed would submit that there is no bar for taking
cognizance and issuing process against accused, even if B
summary is filed. He would submit that statement of first
informant and victim as well as son of victim recorded during
investigation earmark presence of petitioners on the spot of
incident. Statement of victim is sterling and has empathetic
evidentary value and stand on higher pedestal than other
witness. Learned Trial court has given detail and exhaustive
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order to issue process by referring judgment of Hon’ble Apex
Court. Therefore, there is no reason to interject said detailed
order under limited jurisdiction of Article 227 of the Constitution
of India.
6.1. By making above submissions, it is submitted to dismiss
the petition.
7. Having heard learned advocates for the parties and
considering orders placed on record and other documentary
evidence, at the outset, let me note that this petition is
essentially filed under Article 227 of the Constitution of India
challenging concurrent finding arrived by learned Trial Court
confirmed by learned Revisional Court.
8. Constitutional Bench of Hon’ble Apex Court in the case of
Waryam singh and Anr. v/s. Amarnath and Anr. (1954) 1 SCC
51 approved ratio laid down in the case of Dalmia Jain Airways
Ltd. Vs/. Sukumar Mukherjee [1950 SCC Online Cal. 88] and
held that power conferred by Article 227 of the Constitution of
India be exercised most sparingly and only in appropriate cases
in order to keep the subordinate Courts within bounds of their
authority and not for correcting mere errors. Para 13 of the said
judgment reads as under :-
“13. This power of superintendence conferred by article
227 is, as pointed out by Harries C. J., in Dalmia Jain
Airways Ltd. v. Sukumar Mukherjee(2), to be exercised most
sparingly and only in appropriate cases in order to keep the
Subordinate Courts within the bounds of their authority and
not for correcting mere errors. As rightly pointed out by thePage 5 of 17
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Judicial Commissioner in the case before us the lower courts
in refusing to make an order for ejectment acted arbitrarily.
The lower courts realised the legal position but in effect
declined to do what was by section 13 (2) (i) incumbent on
them to do and thereby refused to exercise jurisdiction
vested in them by law. It. was, therefore, a case which
called for an interference by the court of the Judicial
Commissioner and it acted properly in doing so. In our
opinion there is no ground on which in an appeal by special
leave under article 136 we should interfere. The appeal,
therefore, must stand dismissed with costs.”
9. Above said ratio is consistently followed in catena of
decisions of Hon’ble Apex Court. Recently, in the case of
Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4
SCC 181, Hon’ble Apex Court has discussed the nature of scope
of the supervisory jurisdiction under Article 227 of the
Constitution of India. Relevant discussion in para 15 and 16
reads thus:-
“15. Having heard the counsel for the parties, we are
clearly of the view that the impugned order is contrary to
law and cannot be sustained for several reasons, but
primarily for deviation from the limited jurisdiction
exercised by the High Court under Article 227 of the
Constitution of India. The High Court exercising supervisory
jurisdiction does not act as a court of first appeal to
reappreciate, reweigh the evidence or facts upon which the
determination under challenge is based. Supervisory
jurisdiction is not to correct every error of fact or even a
legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own
decision on facts and conclusion, for that of the inferior
court or tribunal [Celina Coelho Pereira (Ms) and Others v.
Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC
217]. The jurisdiction exercised is in the nature of
correctional1 jurisdiction to set right grave dereliction of
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of law or justice. The power under Article 227 is exercised
sparingly in appropriate cases, like when there is no
evidence at all to justify, or the finding is so perverse that
no reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It is
axiomatic that such discretionary relief must be exercised
to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227,
this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001)
8 SCC 97 has observed:-
“6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of
power under this article involves a duty on the High
Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do the
duty expected or required of them in a legal manner.
The High Court is not vested with any unlimited
prerogative to correct all kinds of hardship or wrong
decisions made within the limits of the jurisdiction of
the subordinate courts or tribunals. Exercise of this
power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of
duty and flagrant violation of fundamental principles
of law or justice, where if the High Court does not
interfere, a grave injustice remains uncorrected. It is
also well settled that the High Court while acting
under this article cannot exercise its power as an
appellate court or substitute its own judgment in place
of that of the subordinate court to correct an error,
which is not apparent on the face of the record. The
High Court can set aside or ignore the findings of facts
of an inferior court or tribunal, if there is no evidence at
all to justify or the finding is so perverse, that no
reasonable person can possibly come to such a
conclusion, which the court or tribunal has come to.”
10. Keeping in mind aforesaid ratio decendandi, if we examine
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rival argument, main contention of learned advocate Mr.Dave
that learned Trial Court ought not to have issued process to the
petitioners overturning or rejecting B Summary without following
procedure laid down under section 202 of Cr.P.C.; peripheral
argument was that in the statement of various witnesses which
are forming part of the charge sheet points finger of accusation
only against accused no.1, presence of petitioners on the spot of
incident is not secured. In other words, various statement of
witness demonstrate that the petitioners were not present on the
spot of incident and therefore, summary report was rightly
placed.
11. FIR in question was lodged by Fatimaben, wife of Abdul
Kader; that she had overheard that Akbar, his brother Altaf and
third brother who are residing in Bhukampnagari have given
blow by sharp weapon to her husband on head and neck near
Navapura Sagarwadi. FIR was investigated by Investigating
Officer and recorded statement of witnesses, some of them stated
that two of the accused who are petitioners herein were not
present on the spot. These statements have led or triggered
Investigating Officer to file B summary. So far as victim of the
offence who has been assaulted is concerned, his statement was
recorded on 31.05.2020 and in his statement, he has narrated
version of incident as well as names of the petitioners alleging
that they have assaulted upon him. Thus involvement of
petitioners is clear from the statement of victim. In para 8 of the
impugned order, learned Trial Court has vividly discussed
statement of victim – Abdul Kader. Moreover, statement of victim
is duly supported by statement of son of victim – Sumer Abdul
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Kadar. This statement was recorded on 23.05.2020. In
investigation there is statement against statements. Two type of
statements are there, one inculpating the petitioners and
another exculpating the petitioners on the ground that they were
not present on the spot. Statement in investigation implicating
the petitioners comes from tongue of the victim. In offence of 307
of IPC, statement of victim admittedly stand on higher pedestal
and is required to impeached by leading cross examination. So
in case where statement of few witness favouring the petitioners
– accused and statement of other witness including victim, son of
complainant favouring the complaint, learned Trial Court is
required to appreciate both the statements during trial.
12. Learned Trial Court has recorded its own finding based
upon judgment of Hon’ble Apex Court which held that section
190 of Cr.P.C. empowers Magistrate or learned Magistrate of
First Class or Second Class specially empowered in this behalf
under sub-section (2) to take cognizance of any offence in three
contingencies viz. (i) 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
police in their report and (3) he may take cognizane of the
offence. The exhaustive order of learned Trial Court has been
confirmed by learned Revisional Court.
13. In case of H.S.Bains v/s. State (Union Territory of
Chandigarh) [AIR 1980 SC 1883] , Hon’ble Apex Court has held
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in para 6, 7 and 8 as under :-
“6.It is seen from the provisions to which we have referred in
the preceding paragraphs 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 Sec. 200. Thereafter, if in his opinion there is no
sufficient ground for proceeding he may dismiss the
complaint under Sec. 203. If in his opinion there is sufficient
ground for proceeding he may issue process under Sec.
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 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 Sec. 156(3). The police will then
investigate and submit a report under Sec. 173(1). On
receiving the police report the Magistrate may take
cognizance of the offence under Sec. 190(1)(b) and
straightaway 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 Sec. 173 will contain the facts discovered or
unearthed by the police and the conclusion 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 Sec.
200 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 Sec.
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156(3) and received a report under Sec. 173 will not have
the effect of total effacement of the complaint and therefore
the Magistrate will not be barred from proceeding
under Sections 200, 203 and 204. Thus, a Magistrate
who on receipt of a complaint, orders an investigation
under Sec. 156(3) and receives a police report under Sec.
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 Sec. 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 Sec. 190(1)(a) on the basis of the original complaint
and proceed to examine upon oath the complainant and his
witnesses under Sec. 200 If he adopts the third alternative,
he may hold or direct an inquiry under Sec. 202 if he thinks
fit. Thereafter he may dismiss the complaint or issue
process, as the case may be.
7. In Abhinandan Jha & Ors. v. Dinesh Mishra, (supra) the
question arose whether a Magistrate to whom a report
under Sec. 173(1) had been submitted to the effect that no
case had been made out against the accused, could direct
the police to file a charge-sheet, on his disagreeing with the
report submitted by the Police. This Court held that the
Magistrate had no jurisdiction to direct the police to submit a
charge-sheet. It was open to the Magistrate to agree
or disagree with the police report. If he agreed with the
report that there was no case made out for issuing process
to the accused, he might accept the report and close the
proceedings. If he came to the conclusion that further
investigation was necessary he might make an order to that
effect under Sec. 156(3). If ultimately the Magistrate was of
the opinion that the facts set out in the police report
constituted an offence he could take cognizance of the
offence, notwithstanding the contrary opinion of the police
expressed in the report. While expressing the opinion that
the Magistrate could take cognizance of the offence
notwithstanding the contrary opinion of the police the Court
observed that the Magistrate could take cognizance
under Sec. 190(1)(c)‘. We do not have any doubt that the
reference to ‘Sec. 190(1)(c)’ was a mistake for ‘Sec. 190(1)(b)’.
That appears to be obvious to us. But Shri Kapil Sibal urgedPage 11 of 17
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that the reference was indeed to Sec. 190(1)(c) since at that
time Sec. 190(1)(c) included the words ‘or suspicion’ and
the Court had apparently taken the view that the Magistrate
could take cognizance of the offence not under Sec. 190(1)
(b) as if on a police report but under Sec. 190(1)(c) as if on
suspicion’. We do not agree with this submission. Sec.
190(1)(c) was never intended to apply to cases where there
was a police report under Sec. 173(1). We find it impossible
to say that a Magistrate who takes cognizance of an offence
on the basis of the facts disclosed in a police report must be
said to have taken cognizance of the offence on suspicion
and not upon a police report merely because the Magistrate
and the Police arrived at different conclusions from the facts.
The Magistrate is not bound by the conclusions arrived at by
the police even as he is not bound by the conclusions arrived
at by the complainant in a complaint. If a complainant states
the relevant facts in his complaint and alleges that the
accused is guilty of an offence under Sec. 307 Indian Penal
Code the Magistrate is not bound by the conclusion of the
complainant. He may think that the facts disclose an offence
under Sec. 324 Indian Penal Code only and he may take
cognizance of an offence under Sec. 324 instead of Sec.
307. Similarly if a police report mentions that half a dozen
persons examined by them claim to be eye witnesses to a
murder but that for various reasons the witnesses could not
be believed, the Magistrate is not bound to accept the
opinion of the police regarding the credibility of the
witnesses. He may prefer ignore the conclusions of the police
regarding the credibility of the witnesses and take
cognizance of the offence. If he does so, it would be on the
basis of the statements of the witnesses as revealed by the
police report. He would be taking cognizance upon the facts
disclosed by the police report though not on the conclusions
arrived at by the police. It could not be said in such a case
that he was taking cognizance on suspicion.
8. In Tula Ram & Ors. v. Kishore Singh (supra) the
Magistrate, on receiving a complaint, ordered an
investigation under Sec. 156(3). The Police submitted a
report indicating that no case had been made out against
the accused. The Court, however, recorded the statements of
the complainant and the witnesses and issued process
against the accused. It was contended that the Magistrate
acted without jurisdiction in taking cognizance of the case as
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if upon a complaint when the police had submitted a report
that no case had been made out against the accused. This
Court held that the Magistrate acted within his powers and
observed that the complaint did not get exhausted as soon
as the Magistrate ordered an investigation under Sec.
156(3). We are, therefore unable to agree with the
submission of Shri Sibal that the Magistrate acted without
jurisdiction in taking cognizance of the offence and issuing
process to the accused notwithstanding the fact that the
police report was to the effect that no case had been made
out.”
14. Yet in another case of Gangadhar Janardan Mhatre v/s.
State of Maharashtra [(2004) 7 SCC 768], the Hon’ble Apex
Court examined the issue and observed in para 9 as under :-
“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 (i)
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 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(l)(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 thePage 13 of 17
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offence complained of and order the issue of process to the
accused. Section 190(l)(b) does not lay down that a
Magistrate can take cognizance of an offence only if the
Investigating Officers 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 of his powers under Section
190(l)(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 under Section 190(l)
(a) though it is open to him to act under Section
200 or Section 202 also. (See M/s. India Sarat Pvt. Ltd. \.
State of Karnataka and Another, 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‘s case (supra) 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 of issue of a notice
in that regard.”
15. There is no shadow of doubt that upon filing summary
report, learned Magistrate has power to take cognizance under
section 190 of Cr.P.C. and may disagree with conclusion arrived
by Investigating Officer and after independently applying mind,
the course open for the learned Magistrate is to follow procedure
laid down in section 200 and 202 of Cr.P.C. for taking
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cognizance of the offence. In given case, course open for him is
under section 190(A) of Cr.P.C. to take cognizance. [See : Meena
kumari v/s. State of Bihar (2006 (4) SCC 359].
16. Recently, Hon’ble Apex Court has reiterated aforesaid ratio
in the case of Zunaid v/s. State of Uttar Pradesh [2023 (14)
SCC 576]. Para 10 and 11 of the said judgment reads as under :
“10. In Rakesh & Another Vs. State of Uttar Pradesh &
Another 1, it is observed as under: –
“6. If we are to go back to trace the genesis of the
views expressed by this Court in Gopal Vijay Verma v.
Bhuneshwar Prasad Sinha, (1982) 3 SCC 510, notice
must be had of the decision of this Court in H.S. Bains
v. State (UT of Chandigarh) (1980) 4 SCC 631 wherein
it was held that after receipt of the police report
under Section 173, the Magistrate has three options:
(H.S. Bains case (supra) “6. …. (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 1 (2014) 13 SCC 133 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.” The second and third
options available to the Magistrate as laid down
in H.S. Bains (supra) has been referred to and relied
upon in subsequent decisions of this Court to approve
the action of the Magistrate in accepting the final report
and at the same time in proceeding to treat either the
police report or the initial complaint as the basis for
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levelled therein. Reference in this regard may be made
to the decision of this Court in Gangadhar Janardan
Mhatre v. State of Maharashtra (2004) 7 SCC 768.
The following view may be specifically noted:
“9. ….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 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]” (SCC P. 140, Para 16).”
11. In view of the above, there remains no shadow of doubt
that on the receipt of the police report under Section
173 Cr.P.C., the Magistrate can exercise three options.
Firstly, he may decide that there is no sufficient ground for
proceeding further and drop action. Secondly, he may take
cognizance of the offence under Section 190(1)(b) on the
basis of the police report and issue process; and thirdly, 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. It may be noted that even in a case
where the final report of the police under Section 173 is
accepted and the accused persons are discharged, the
Magistrate has the power to take cognizance of the offence
on a complaint or a Protest Petition on the same or similar
allegations even after the acceptance of the final report. As
held by this Court in Gopal Vijay Verma Vs. Bhuneshwar
Prasad Sinha and Others2, as followed in B. Chandrika Vs.
Santhosh and Another3, 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 2 (1982) 3 SCC 510 3 (2014) 13 SCC
699 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.”
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NEUTRAL CITATION
R/SCR.A/7562/2020 CAV JUDGMENT DATED: 21/07/2025
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17. In nutshell, it can be held that argument canvassed by
learned advocate Mr.Dave that in case of filing of ‘B’ summary
encountered by protest petition without following procedure laid
down under section 200 and 202 of Cr.P.C., learned Magistrate
cannot issue process directly is found ill and baseless as well as
merit-less. So far as factual aspect is concerned, this Court has
already observed that there is statement against statement in
charge sheet, in addition to statement of victim which has higher
evidentary value inculpating petitioners.
18. In view of above, this Court finds no reason to interfere
with the concurrent findings arrived by learned Trial Court
under limited jurisdiction under Article 227 of the Constitution
of India.
19. Resultantly, present petition stands dismissed. Rule is
discharged. Interim relief granted earlier, if any, stands vacated.
(J. C. DOSHI,J)
SATISH
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