Page No.# 1/8 vs The State Of Assam And Anr
2025 Latest Caselaw 4863 Gua

Gauhati High Court

Page No.# 1/8 vs The State Of Assam And Anr on 21 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                        Page No.# 1/8

GAHC010200792024




                                                                  2025:GAU-AS:6355

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Pet./1196/2024

            NEKIBAR RAHMAN AND ANR
            S/O LATE ABDUL GAFFAR
            R/O NORTH BARPETA,
            P.S. AND DIST. BARPETA, ASSAM

            2: TAYABAR RAHMAN
             S/OLATE GHENA SHEIKH
            R/O GANDHI NAGAR

            P.S. AND DIST. BARPETA
            ASSA

            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PP, ASSAM

            2:DINESH LAHKAR
             S/O LATE DEEP CH. LAHKAR
            VILL- BAREIGAON
            P.S. TAMULPUR
            DIST. BAKSA
             BTAD
            ASSAM
            PIN-78136

Advocate for the Petitioner   : MR. R ALI, MR H A AHMED

Advocate for the Respondent : PP, ASSAM, MR. A CHOUDHURY (R-2),MR S ISLAM(R-2)

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:: PRESENT ::

HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Petitioners : Mr. R. Ali, Advocate.

                  For the Respondent No.1 :           Mr. P. Borthakur,
                                                      Addl. P.P. Assam.

                   For the Respondent No.2:           Mr. A Choudhury,
                                                      Advocate.

                  Date of Hearing             :       01.05.2025.
                  Date of Judgment            :       21.05.2025.


                          JUDGMENT AND ORDER (CAV)

Heard Mr. R. Ali, the counsel appearing for the petitioners. Also heard Mr. P. Borthakur, the learned Addl. Public Prosecutor, Assam representing Respondent No.1 as well as Mr. A. Choudhury, the learned counsel representing Respondent No.2.

2. This is an application under Section 528 of the BNSS, 2023 praying for quashing the entire proceedings of Complaint Case No.96/2021 pending in the court of the learned Chief Judicial Magistrate, Barpeta.

3. The Respondent No.2 is a contractor working under the PWD. In the district of Barpeta, he was executing a project. He appointed the petitioner Nekibar Rahman as his assistant to look after the work. In the meantime, the Respondent No.2 was in need of money. He discussed the matter with Nekibar Rahman and the latter told him that he can bring money from his brother-in-law/the other petitioner Tayabar Rahman. It was also informed that the Respondent No.2 has to pay an interest @ 5%. The Respondent No.2 agreed. As told by Nekibar Rahman, in order to give the money, the Respondent No.2 gave a blank signed cheque and a blank signed stamp paper to him. Accordingly, the Respondent No.2 received 4 lakhs of rupees. He never met Tayabar Page No.# 3/8

Rahman.

4. In the meantime, the project executed by the Respondent No.2 was completed and the total bill amount of ₹19,05,000/- was sanctioned to be paid to the Respondent No.2. The money was meant to be credited into the State Bank of India account of the Respondent No.2 at Kokrajhar.

5. The money was actually credited into the bank account of the Respondent No.2. But the same was withdrawn by presenting the cheque, which he earlier gave to Nekibar Rahman to get the loan of ₹4 lakh.

6. The Respondent No.2 alleges that for receiving the money, he never signed any documents in the office of the Executive Engineer, PWD (Rural Road), Barpeta Division. The Respondent No.2 has alleged that by using the aforementioned blank signed cheque and the blank signed stamp paper, Nekibar Rahman and Tayabar Rahman managed to misappropriate ₹19,05,000/-.

7. On the basis of the said FIR, police registered the Barpeta P.S. Case No.663/2017. On conclusion of investigation, police filed a Final Report stating that there were no materials under Sections 420 and 406 of the Indian Penal Code in the said case.

8. The Respondent No.2 filed a Protest Petition in the court of the Chief Judicial Magistrate, Barpeta. The case was sent back to police for further investigation. Again, police filed a Final Report on the ground that the case came into being because of mistake of facts. This time, the learned court below accepted the Final Report and directed registration of a complaint case. Three witnesses were examined before taking cognizance of any offence against the present petitioners.

9. In the meantime, the petitioner Tayabar Rahman filed an application before the court of the Chief Judicial Magistrate stating that during police investigation, his SBI Barpeta Bank Account was frozen and therefore, since the Final Report has been accepted by the court, the bank account should be defrozen. The court below listed Page No.# 4/8

the case on 9th April, 2021 for hearing the parties on the aforesaid prayer.

10. Aggrieved by the aforesaid facts, the present criminal petition has been filed praying for quashing the entire proceedings on certain grounds, which this Court does not find necessary to be discussed in this judgment.

11. I have considered the submissions made by the learned counsel of both sides.

12. In Mukhtar Zaidi v. State of Uttar Pradesh & Anr., reported in (2024) 0 Supreme (SC) 353, the Hon'ble Supreme Court has held as under:

"8. Once we have held as above without going into many judgments of this Court on the point as to how the Magistrate would proceed under Section 190 Cr.P.C. once the Investigating Officer had submitted a closure report under Section 173(2) Cr.P.C., we may briefly deal with the legal issue and refer to relevant paragraphs of a recent decision. In this connection, Section 190(1) (a) and (b) of Cr.P.C. is extracted hereunder:

190. Cognizance of offences by Magistrates.

(1)Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -

(a)upon receiving a complaint of facts which constitute such offence;

(b)upon a police report of such facts;...."

9. In the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh, through Secretary Home, Civil Secretariat, Lucknow & Anr.,5 Justice K.M.Joseph, speaking for the Bench laid down the legal position relying upon previous judgments of this Court. In the said case the facts were quite similar to that of the present case where affidavits were filed along with the Protest Petition. The net result is that the Magistrate in the present case ought to have treated the Protest Petition as a complaint and proceeded according to Chapter XV of the Cr.P.C.. The relevant paragraphs dealing with (2019) 8 SCC 27 the above aspect in the case of Vishnu Kumar Tiwari (supra), being paragraphs 42 to 46 are reproduced hereunder:

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42. In the facts of this case, having regard to the nature of the allegations contained in the Protest Petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the Protest Petition as a complaint. The fact that he may have jurisdiction in a case to treat the Protest Petition as a complaint, is a different matter. Undoubtedly, if he treats the Protest Petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 of the Code if the latter section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the Protest Petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the Protest Petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.

43. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the Protest Petition. In Mahabir Prasad Agarwala v. State [Mahabir Prasad Agarwala v. State, 1957 SCC OnLine Ori 5 :

AIR 1958 Ori 11] , a learned Judge of the High Court of Orissa, took the view that a Protest Petition is in the nature of a complaint and should be examined in accordance with the provisions of Chapter XVI of the Criminal Procedure Code. We, however, also Page No.# 6/8

noticed that in Qasim v. State [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , a learned Single Judge of the High Court of Judicature at Allahabad, inter alia, held as follows: (Qasim case [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , SCC OnLine All para 6) "6. ... In Abhinandan Jha [Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : 1968 Cri LJ 97 : (1967) 3 SCR 668] also what was observed was "it is not very clear as to whether the Magistrate has chosen to treat the Protest Petition as complaint". This observation would not mean that every Protest Petition must necessarily be treated as a complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made under Section 200 CrPC. If the Magistrate did not treat the Protest Petition as a complaint, the Protest Petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The Protest Petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a Protest Petition the case is to become a complaint case." (emphasis supplied)

44. We may also notice that in Veerappa v. Bhimareddappa [Veerappa v. B himareddappa, 2001 SCC OnLine Kar 447 :

2002 Cri LJ 2150] , the High Court of Karnataka observed as follows: (SCC OnLine Kar para 9) "9. From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate under Section 200 CrPC, but, has approached the police only and where the police after investigation have filed the 'B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) CrPC on a complaint. If it were to be so, the Protest Petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) CrPC, and that should contain facts that constitute offence, Page No.# 7/8

for which, the learned Magistrate is taking cognizance under Section 190(1)(a) CrPC. Instead, if it is to be simply styled as a Protest Petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 CrPC."

45. "Complaint" is defined in Section 2(d) of the Code as follows: "2. (d) "complaint"

means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation.--A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;"

46. If a Protest Petition fulfils the requirements of a complaint, the Magistrate may treat the Protest Petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code.

In this case, in fact, there is no list of witnesses as such in the Protest Petition. The prayer in the Protest Petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or is liable to be treated as a complaint, we would think that essentially, the Protest Petition in this case, is summing up of the objections of the second respondent against the final report."

13. The Magistrate has the power to reject a Protest Petition. In that event the complainant has the liberty to file a petition under Section 200 of the CrPC. This right is not taken away even if the Magistrate concerned does not direct that such a Protest Petition be treated as a complaint. In the case in hand, the learned Magistrate has directed registration of a complaint case and examined three witnesses before taking cognizance of any offence against the present petitioners. The learned Magistrate has not committed any error. The Magistrate is working lawfully. There is nothing wrong in the impugned order of the Magistrate.

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14. This Court is of the opinion that the present criminal petition is devoid of merit and stands dismissed and disposed of accordingly. If there is any interim order passed by this court earlier, the same shall stand vacated. The trial court shall expeditiously dispose of the case within next 6(six) months of receiving this judgment.

JUDGE

Comparing Assistant