Document Fragment View

Matching Fragments

4. Learned counsel for the applicant has submitted that if the opposite party no.2 has filed application under Section 156(3) Cr.P.C. raising his grievance and concerned court considered the same and directed for lodging the first information report and thereafter by the order of the Court, Circle Officer investigated the matter and has submitted the final report against which, opposite party no.2 filed protest application on oath wherein he again raised the same grievance and the competent court was pleased to consider his grievance and passed the order dated 08.04.2017 thereby accepted the final report by holding that the investigation does not suffer from any infirmity, then applicant cannot file complaint on the same set of facts. He further submits that the revision filed by the opposite party No.2 against the order dated 08.04.2017 has also been dismissed on merit by the Additional Sessions Judge/F.T.C.-I, Pratapgarh.

7. On the other hand, learned counsel for opposite party no.2 has opposed the submissions made on behalf of the applicant and has submitted that the respectful submission of opposite party no.2/complainant in his criminal complaint, under Chapter XV and Chapter XVI of Cr.P.C., referable to Sections 200, 202, 203 and 204 Cr.P.C., is that the second Final Report/Closure Report dated 07.01.2017 in FIR/Police Case Crime No.344 of 2015, P.S. Lalganj, District Pratapgarh, and the filing of a protest application by opposite party no.2 against the said second Final Report/Closure Report, as well as the order dated 08.04.2017 accepting the Final Report/Closure Report, would not acquire the character of a criminal complaint within the meaning of Chapter XV and Chapter XVI of Cr.P.C. It is submitted that a criminal complaint contemplates an enquiry or trial by the Court itself into an offence, including examination of witnesses in support of the complaint and consideration of other materials such as documentary and medical evidence. The order passed by the Magistrate under Section 203 Cr.P.C. (dismissal of complaint) or under Section 204 Cr.P.C. (issuance of process) is a judicial order passed by a trial court in the exercise of its judicial wisdom. Such an order cannot be equated with the acceptance of a Final Report/Closure Report and protest application, as the conclusion of the Investigating Officer accepted by the Magistrate does not acquire the character of res judicata. Therefore, the Final Report/Closure Report and protest application cannot be termed as a first criminal complaint, and consequently, when a regular criminal complaint is filed by the complainant, the same cannot be termed as a second criminal complaint.

10. It is further submitted that the Magistrate, in his order dated 08.04.2017, relied upon the alleged statement of the Deputy Superintendent of Police favouring the accused persons, without considering its relevance. The statement of the Deputy S.P. was recorded nearly three months after the incident, and therefore, its relevance to the offence is questionable. The Magistrate appears to have been influenced by the delay in filing the application under Section 156(3) Cr.P.C. Consequently, the order dated 08.04.2017 accepting the Final Report/Closure Report cannot be termed as a well-reasoned order. The Magistrate also failed to correctly consider the protest application dated 29.03.2017 filed by opposite party no.2. It is thus submitted that the acceptance of the Final Report/Closure Report dated 08.04.2017 and the dismissal of the criminal revision on 01.08.2023 by the Additional Sessions Judge/FTC-1, Pratapgarh, would not create any hurdle in filing the present criminal complaint under Chapter XV and Chapter XVI of Cr.P.C., referable to Section 200 Cr.P.C.

12. Learned counsel for opposite party no.2 has also placed reliance upon Vishnu Kumar Tiwari v. State of U.P., Criminal Appeal No.1015 of 2019 (arising out of SLP (Crl.) No.9654 of 2017), decided on 09.07.2018. In the said case, the Supreme Court held in paragraph 51, while taking note of the judgment of the Additional Sessions Judge, that the complainant could very well file a criminal complaint under Section 200 Cr.P.C. In the said case, the complainant had filed an FIR under Section 304-B IPC. The Investigating Officer submitted a Final Report, which was accepted by the Chief Judicial Magistrate after dismissal of the protest application. The criminal revision filed by the complainant was also dismissed. A writ petition filed before the High Court was allowed, but the said judgment was challenged before the Supreme Court. The Supreme Court held that the High Court was incorrect in holding that the protest application was not considered. However, in paragraph 51 of the judgment, the Supreme Court clearly observed that the complainant was at liberty to file a criminal complaint under Section 200 Cr.P.C., despite acceptance of the Final Report and dismissal of the protest application.