Orissa High Court: Magistrate Cannot Take Cognizance in G.R. Case After Closure Report; Protest Petition to Be Treated as Fresh Complaint for Cognizance
Safiya Malik
The High Court of Orissa, Single Bench of Justice Chittaranjan Dash held that a Court cannot take cognizance in a General Register (G.R.) case after accepting a police closure report for lack of evidence. The Court clarified that when the informant files a protest petition challenging such closure, it may be treated as a complaint under Section 2(d) of the Code of Criminal Procedure (or Section 2(h) of the Bharatiya Nagarik Suraksha Sanhita), enabling the Magistrate to take fresh cognizance based on that complaint. Accordingly, the Court directed that the protest petition in the present matter be treated as a complaint case and disposed of the petition seeking to quash the cognizance order.
The petitioners, Sukanta Kumar Mohanty and others, approached the High Court seeking to quash the order of cognizance dated February 14, 2023, passed by the learned Judicial Magistrate First Class (J.M.F.C.), Chhendipada, in connection with a case arising from a complaint by one Bansidhar Pradhan. The complaint alleged irregularities and misappropriation of funds in the functioning of Kalinga Institute of Mining Engineering and Technology (KIMET), a diploma institution.
The initial report lodged on April 16, 2021, was treated as a First Information Report (FIR) and registered as Chhendipada P.S.After investigation, the police found no supporting evidence and submitted a closure report terming the allegations a mistake of fact. A notice of the closure was served on the complainant.
Following the closure, the complainant filed a protest petition before the J.M.F.C., Chhendipada. The Magistrate recorded statements of the complainant and witnesses under Section 202 Cr.P.C. and took cognizance of offences under Sections 417, 420, 409, 506, and 34 of the Indian Penal Code (IPC). The petitioners challenged this order, contending that cognizance in the G.R. case after a final report was procedurally irregular and contrary to law.
Counsel for the petitioners argued that once the investigation had concluded with a closure report, any further proceeding should have been initiated as a separate complaint case. They asserted that treating a protest petition as part of the G.R. case was an error that invalidated the cognizance order. Conversely, the State and counsel for the opposite party contended that the irregularity was curable and that the impugned order did not suffer from any legal infirmity.
The Court noted: "‘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 practice enabling the complainant or victim to oppose a closure/final report submitted by the police under Section 173(2) Cr.P.C."
Referring to Gangadhar Janardhan Mharte vs. State of Maharashtra and Bhagwant Singh vs. Commissioner of Police, the Court recorded that a magistrate, when considering a final report, may either accept it, disagree and take cognizance, or direct further investigation. It observed that “where the Magistrate decides not to take cognizance and intends to drop the proceedings, issuance of notice to the informant and grant of an opportunity of hearing becomes mandatory.”
Justice Dash cited Muthiah vs. State Represented by Inspector of Police (2006) 7 SCC 296, Vishnu Kumar Tiwari vs. State of Uttar Pradesh (2019) 8 SCC 27, and Shiv Shankar Singh vs. State of Bihar (2012) 1 SCC 130, reiterating that “a Protest Petition can always be treated as a complaint and proceeded with under Chapter XV Cr.P.C.”
The Court further noted the principle from Kishore Kumar Gyanchandani vs. G.D. Mehrotra (AIR 2002 SC 483) and Rakesh vs. State of U.P. (AIR 2014 STPL Web 524 SC) that “acceptance of the final report does not debar the Magistrate from taking cognizance on the basis of materials produced in a complaint proceeding, nor does it take away the complainant’s right to file a regular complaint.” The Court held that a magistrate’s acceptance of a closure report does not render him functus officio, and the magistrate is “not denuded of all power to proceed in the matter.”
Justice Dash clarified, “It is settled that even after acceptance of the closure report or final report, the Magistrate can take cognizance of the Protest Petition. However, though he has ample discretionary power, he cannot be compelled to take cognizance by treating the same as a complaint.” The Court stated that if a magistrate is satisfied that no prima facie case exists, the complainant’s remedy is to file a fresh complaint inviting the court to follow procedures under Sections 200 and 202 Cr.P.C.
The High Court found that the Magistrate, while dealing with the protest petition under Section 173 Cr.P.C., “instead of treating the same as a complaint petition, took cognizance of the offences in the G.R. case itself, which amounts to a procedural irregularity.” Justice Dash remarked that “substantial justice cannot be sacrificed at the altar of technicalities.” He noted that the complainant had exercised the lawful right to submit a protest petition after the closure report, and any irregularity in the court’s procedure could not defeat the substance of the complaint.
Accordingly, the Court ordered that “the action of the learned Magistrate in adhering to the procedure under Sections 200 read with 202 Cr.P.C. while taking cognizance of the offences against the petitioners in the G.R. case has to be discontinued. The Protest Petition shall be treated as a complaint, the registration thereof be accordingly effected, and the entire exercise undertaken in the G.R. case in taking cognizance of the offences be made over to the said complaint case.”
“The court while considering an application for discharge need not have to dwell into the pros and cons of the matter by examining the defence of the accused. The Court is required merely to examine the material placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused.”
“Keeping in view the aforesaid principle when the Protest Petition filed by the Opposite Party No.2 is examined, the allegations made therein is sufficient to indict the conduct of the Petitioners in explaining their innocence during trial. Therefore, the impugned order taking cognizance dated 14.02.2023 passed by the learned J.M.F.C., Chhendipada in G.R. Case No.378 of 2021, also does not suffer any infirmity on merit, save and except as observed hereinabove accordingly disposed of.”
Advocates Representing the Parties
For the Petitioners: Mr. A.K. Mishra, Advocate
For the Respondents: Ms. S. Mohanty, Additional Public Prosecutor; Mr. A.P. Bose, Advocate.
Case Title: Sukanta Kumar Mohanty & Others vs. State of Odisha & Another
Case Number: CRLMC No. 4267 of 2023
Bench: Justice Chittaranjan Dash
