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Judgment
Chittaranjan Dash, J
Heard leaarned counsels for both the parties.
By meanns of this application the Petitioners seek to quash the order of coggnizance dated 14.02.2023 passed by the learned J.M.F.C., Chhendipada in G.R. Case No.378 of 2021. The learned J.M.F.C., Chhenddipada vide the aforesaid order has beeen pleased to take cognizance of the offences under Sections 417/4200/409/506/34 of the IPC impliicating the Petitioners on the basis of a complaint made to that effeect by one Bansidhar Pradhan, the Opposite Party No.2 herein.
The background facts of the case are thaat Bansidhar Pradhan, the Oppposite Party No.2 lodged a report with the IIC, Chhendipada P.S. on 16.04.2021 alleging some irregularities in the functioning of thhe institution and misappropriation of the fund of the trust i.e. Kalinga Institute of Mining Engineering and Technology (KIMET), a diploma institute. The saidd report was treated as FIR and Chhendipada P.S. Case No.215 of 2021 was registered and the investigation commenced. In coourse of the investigation, thhe investigating agency found no supporting evidence in resppect to the allegations and submitted the closure report (F.R) holding the allegations to be a mistake of fact vide Chhendipada P.S. F.F. No. 548 dated 30.11.2011 andd notice was served on the Complainant along with the copy off the report. Pursuant to the closure of the investigation and the suubmission of the final report,, the Opposite Party No.2 submitteed a Protest Petition before the learned J.M.F.C., Chhendipada whhereupon, the learned court upon recording the initial statemment of the Complainant andd that of the witnesses under Section 202 Cr.P.C. found sufficient material and strong ground and took coognizance.
Mr. Mishra, learned counsel for the Petitioners, while assailing the immpugned order, submitted inter allia that the cognizance takenn by the learned Court in the G.R. case itself is procedurally irreegular and could not have been prooceeded with against the Petitioners, particularly when the said G.R. case had culminated in a final report. Mr. Mishra, learned couunsel for the Petitioners, further submitted that the Protest Petition filed by the Opposite Party No.2 in response to the notice issued by the police under Section 173 Cr.P.C. ought to have been treated ass a complaint case, and that takking cognizance in the G.R. case itselff is unknown to law. Accordingly, he sought quashing of the same.
The learnned counsel for the Opposite Party No.2, along with the learned counnsel for the State, while not disputing the legal position regardinng the manner in which the learned Court treated the Protest Petition, submitted that the same amounts only to a curable irregularrity. It was further submitted that thhe impugned order taking coggnizance of the offence does not suffer from any infirmity and, therefore, the contention of the learnedd counsel for the Petitioners seeking quashing of the impugneed order is misconceived and cannot be sustained.
“Complaint” is defined under Section 2(d) of the Code of Criminal Procedure, 1973. The expression “Protest Petition” does not find place in the Code, yet it is a legally recognised and accepted practicee enabling the complainant or victim to oppose a closure/final report submitted by the police under Seection 173(2) Cr.P.C. The Honn’ble Supreme Court in the matter of Gangadhar Janardan Mharte vs. State of Maharashtra and Ors. reported in (2004) 7 SCC 7668, discussed the absence of any speciific provision in the Code relaating to the filing of a Protest Petition. Reference was made to the decision in the matter of Bhagwant Singh vs. Commissioner of Police and Anr. reported in 1983 (3) SCC 344, wherein the Honn’ble Court stressed on the desirabilitty of issuing intimation to thee informant when a report under Section 173(2) Cr.P.C. is under consideration. It was further held that where the Magistrate decides not to take cognizance and intendss to drop the proceedings against the persons named in the FIR, issuance of notice to the informant and grant of an opportunityy of hearing becomes mandatory. In the matter of Gangadhar Janardhan (Supra), the Honn’ble Supreme Court also dealt with the options available to a Magistrate when a report under Sectionn 173(2)(i) is submitted. In a situation where the report concludes that no offence appears to have been committed, the Magistrate may: (i) accept the report and drop the proceedings; or (ii) disagree with the report, take the view thaat there is sufficient ground to proceed further, take cognizance of the offence and issue process; or (iii) direct further investigation by the police under Section 156(3) Cr.P.C.
Accordingly, in a situation where a Protest Pettition is filed against a closure report stating that no case is made ouut against the accused and thaat no offence has been committed, the question whether such Prootest Petition can be treated as a complaint petition by the Magistratee has also been set at rest.
In this regard, the Hon’ble Supreme Court in Popular Muthiah vs. Statte Represented by Inspector of Policee, reported in (2006) 7 SCC 296 held that when the final form is filed, the Magistrate has juurisdiction, in the event, a fresh Petitioon is filed, to treat the same as a complaint and if prima facie case is made out, to issue process. In the matter of Vishnu Kumar Tiwari vs. State of Uttar Pradesh reeported in (2019) 8 SCC 27, the Hon’’ble Supreme Court held that if a Protest Petition satisfies the requirements of a complaint, the Magistrate may treat it as a complaint and proceed with the same as required under Section 200 read with Section 202 of the Code.
While dealing with the maintainability of a seecond Protest Petition, the Hon’ble Supreme Court in Shiv Shankar Singh vs. State of Bihar, reported in (2012) 1 SCC 130, has held that a Protest Petition can always be treated as a complaint annd proceeded with under Chappter XV Cr.P.C. Accordingly, where there is a bar on entertaining a second complaint on the same faccts, a second Protest Petition may also be entertained only under exceptional circumstances. It has further been held that evenn where the Magistrate has already accepted the closure report/final report of the police, the law on the point has also been set at rest by the Hon’ble Supremme Court in the matter of Kishhore Kumar Gyanchandani vs. G.D. Mehrotra and Anr. reported in AIR 2002 SC 483, whereinn it is held that the acceptance of thee final report does not debar thhe Magistrate from taking cognizance on the basis of materials prodduced in a complaint proceeding, nor does it take away the complainant’s right to file a regular commplaint. The Hon’ble Supreme Court once again, relying on the said decision in the matter of Kishore Kumar Gyanchandani (Supra) while dealing a similar case in the matter of Rakesh and Anr. vs. State of U.P. reported in AIR 2014 STPL (Web) 524 SC, held that thhe Magistrate does not become functus officio in accepting the final report and is not denuded of alll power to proceed in the matter.
A similar view has also been taken by the Hon’’ble Supreme Court in the matter of Mahesh Chand vs. B. Janardhhan Reddy & Anr., reported in (2003) 1 SCC 734, wherein it is heeld that there can be any doubbt or dispute that only because the Magistrate has accepted the F.R., the same by itself would not stand in his way to take cognizance of the offence on a Protest/Complaint Petition.
As far as the availability of the discretionary poower with the Magistrate once the Protest Petition is filed, the Hon’’ble Supreme Court held in the matter of Vishnu Kumar Tiwari (Supra) that if the Magistrate is connvinced on the basis of the consideratioon of the F.R. the statement under Section 161 Cr.P.C. that no prima facie case is made out, the Maagistrate could not be compelled to take cognizance by treating the Prrotest Petition as a complaint. Further, it is held that if the Magistrate treats the Protest Petition as a complaaint, then the procedure prescribed under Section 200 and 202 Cr.P.C. has to be followed and neecessarily Complainant and witnessess have to be examined. But, as the Magistrate could not be compelleed to treat the Protest Petition as a complaint, the remedy of the Complainant would be to file fresh complaint and invite the Magistrrate to follow the procedure under Section 200 read with Section 202 Cr.P.C. Thus, pointing out an effective alternative remedy avaailable to the aggrieved party instead of praying for treating the Prootest Petition as complaint.
From the discussion made hereinabove, it can very well be concluded that a Protest Petition can be treated as a complaint petition if it fullfills the requirements of a complainnt. It is also settled that evenn after acceptance of the closure report or final report, the Magistrate can take cognizance of the Protest Petition. However, thoughh he has ample discretionary power, he cannot be compelled to take cognizance by treating the same as a complaint. In any case, the remedy of the complainant is to file a fresh complaint and innvite the Magistrate to follow the procedure under Sections 200 and 202 Cr.P.C., instead of praying for coognizance by treating the Proteest Petition as a complaint petition annd examining witnesses. The deviation in the present case is that the learned Magistrate, while accepting the Protest Petition filed by Opposite Party No. 2 undeer Section 173 Cr.P.C., instead of treatting the same as a complaint peetition, took cognizance of the offences in the G.R. case itself, whichh amounts to a procedural irregularity. It is trite law that substantial justice cannot be sacrificed at the altar of technicalities. In the instant case, admittedly, upon the closure report submittedd by the police, the victim/complaiinant rightly submitted a Protest Petition. The acceptance or non-acceptance of the Protest Petition in a particular format required under law, as discussed abovee, is the responsibility of the Couurt, and the victim/complainaant has nothing to do with the same. Consequently, any irregularity in the procedure cannot ipso facto affect the substance of thhe case. Therefore, the action of the learned Magistrate in addhering to the procedure under Sectioons 200 read with 202 Cr.P.C. while taking cognizance of the offences against the petitioners in the G.R. case has to be discontinuued, and the Protest Petition shall be treated as a complaint. Thee registration thereof be accorddingly effected, and the entire exercise undertaken in the G.R. case in taking cognizance of the offences be made over to the said compllaint case.
As far ass the claim of the Petitioners herein assailing the impugned order praying for the discharge of the Petittioners under Section 239 Cr.P.C. is concerned, the law is well setttled that the court while considering an application for discharge, need not have to dwell into the pros and cons of the matter by exxamining the defence of the accused. The Court is required merely to examine the material placed by the prosecution in order to determinne whether or not the groundss are sufficient to proceed against the accused thereupon. Keepping in view the aforesaid principlee, when the Protest Petition filed by the Opposite Party No.2 is examined, the allegations made therein is sufficient to indict the coonduct of the Petitioners in expplaining their innocence during trial.
Thereforee, the impugned order taking cogniizance dated 14.02.2023 passeed by the learned J.M.F.C., Chhendippada in G.R. Case No.378 of 2021, also does not suffer from any infirmity on merit, save and except as observed hereinabove. Thee CRLMC is accordingly dispoosed of.