High Court of Orissa
Case Details
IN THE HIG E HIGH COURT OF ORISSA AT CUTT CUTTACK CRLMC No. 4267 of 2023 Sukanta Kumar others mar Mohanty & …. Petitioners Mr. A.K. Mishra, , Advocate -versus- State of Odisha & Anr. …. Oppos pposite Parties Ms. S. Mohanty hanty, Addl. P.P . Bose, Advocate Mr. A.P. Bose, For O.P. No.2 For CORAM: THE HON’BLE BLE MR. JUSTICE CHITTARANJAN JAN DASH Date of Judgment: 17.10.2025 Chittaranjan Dash, ash, J. 1. 2. Heard learn rd learned counsels for both the parties. By means eans of this application the Petitioners see ers seek to quash the order of cogn f cognizance dated 14.02.2023 passed by t d by the learned J.M.F.C., Chhendi hhendipada in G.R. Case No.378 of 2021. T 021. The learned J.M.F.C., Chhendi hendipada vide the aforesaid order has been s been pleased to take cognizance of nce of the offences under Sections 417/420/ 7/420/409/506/34 of the IPC implica implicating the Petitioners on the basis of a is of a complaint made to that effec t effect by one Bansidhar Pradhan, the Opp e Opposite Party No.2 herein. 3. The backg
Facts
background facts of the case are that that Bansidhar Pradhan, the Opp e Opposite Party No.2 lodged a report wi ort with the IIC, Chhendipada P.S. a P.S. on 16.04.2021 alleging some irregula regularities in the functioning of the of the institution and misappropriation of t n of the fund of CRLMC No. 4267 of 7 of 2023 Page 1 of 8 the trust .e. Kalinga Institute of Mining Engine i.e. K Engineering and Technology (KIM (KIMET), a diploma institute. The said said report was treated as FIR an IR and Chhendipada P.S. Case No.215 of 215 of 2021 was registered and th nd the investigation commenced. In cou n course of the , investigation, the the investigating agency found no no supporting evidence in respe respect to the allegations and submitted itted the closure report (F.R) holdi holding the allegations to be a mistake o take of fact vide Chhendipada P.S. a P.S. F.F. No. 548 dated 30.11.2011 and and notice was served on the Co he Complainant along with the copy of y of the report. Pursuant to the cl the closure of the investigation and the sub he submission of the final report, port, the Opposite Party No.2 submitted mitted a Protest Petition before the ore the learned J.M.F.C., Chhendipada whe a whereupon, the learned court up t upon recording the initial stateme atement of the Complainant and t and that of the witnesses under Section 2 tion 202 Cr.P.C. found sufficient m ient material and strong ground and took cog ok cognizance. 4.
Legal Reasoning
a complaint and if prima facie case is m se is made out, to issue process. In t s. In the matter of Vishnu Kumar Tiwari v ari vs. State of Uttar Pradesh rep reported in (2019) 8 SCC 27, the Hon’b Hon’ble Supreme Court held that if that if a Protest Petition satisfies the require requirements of a complaint, the Ma he Magistrate may treat it as a complaint a laint and proceed with the same as r e as required under Section 200 read with with Section 202 of the Code. While deal le dealing with the maintainability of a seco a second Protest Petition, the Hon’ Hon’ble Supreme Court in Shiv Shankar nkar Singh vs. State of Bihar, , reported in (2012) 1 SCC 130, has has held that a Protest Petition ca can always be treated as a complaint and int and proceeded CRLMC No. 4267 of 7 of 2023 Page 4 of 8 with under Chapte Chapter XV Cr.P.C. Accordingly, where the ere there is a bar on entertaining a ing a second complaint on the same facts e facts, a second Protest Petition may also be entertained only under nder exceptional circumstances. It es. It has further been held that even even where the Magistrate has alr has already accepted the closure report/fina rt/final report of the police, the law the law on the point has also been set at set at rest by the Hon’ble Supreme preme Court in the matter of Kisho ishore Kumar Gyanchandani vs. i vs. G.D. Mehrotra and Anr. reported in rted in AIR 2002 SC 483, wherein erein it is held that the acceptance of the f the final report does not debar the bar the Magistrate from taking cognizance o ance on the basis of materials produ produced in a complaint proceeding, nor d , nor does it take away the compla omplainant’s right to file a regular comp complaint. The Hon’ble Supreme reme Court once again, relying on the said e said decision in the matter of Kish Kishore Kumar Gyanchandani (Supra) wh ra) while dealing a similar case in t se in the matter of Rakesh and Anr. vs. St s. State of U.P. reported in AIR 20 R 2014 STPL (Web) 524 SC, held that the hat the Magistrate does not become f ome functus officio in accepting the final re final report and is not denuded of all of all power to proceed in the matter. A similar v milar view has also been taken by the Hon’b Hon’ble Supreme Court in the matte matter of Mahesh Chand vs. B. Janardha rdhan Reddy & Anr., reported in ted in (2003) 1 SCC 734, wherein it is held is held that there can be any doubt doubt or dispute that only because the Mag e Magistrate has accepted the F.R., F.R., the same by itself would not stand in and in his way to take cognizance of nce of the offence on a Protest/Complaint Pe Petition. As far as th ar as the availability of the discretionary pow power with the Magistrate once th nce the Protest Petition is filed, the Hon’bl Hon’ble Supreme Court held in the m n the matter of Vishnu Kumar Tiwari (Supra (Supra) that if the CRLMC No. 4267 of 7 of 2023 Page 5 of 8 Magistrate is conv s convinced on the basis of the consideration ration of the F.R. the statement unde der Section 161 Cr.P.C. that no prima f rima facie case is made out, the Mag e Magistrate could not be compelled to take o take cognizance by treating the Pro Protest Petition as a complaint. Further, it ther, it is held that if the Magistrate t trate treats the Protest Petition as a complai mplaint, then the procedure prescrib rescribed under Section 200 and 202 Cr.P.C Cr.P.C. has to be followed and nec d necessarily Complainant and witnesses esses have to be examined. But, as ut, as the Magistrate could not be compelled pelled to treat the Protest Petition as tion as a complaint, the remedy of the C the Complainant would be to file fr file fresh complaint and invite the Magistrat gistrate to follow the procedure und re under Section 200 read with Section 2 tion 202 Cr.P.C. Thus, pointing out ng out an effective alternative remedy avail y available to the aggrieved party in arty instead of praying for treating the Prot Protest Petition as complaint. 8. From the d the discussion made hereinabove, it can v can very well be concluded that a hat a Protest Petition can be treated as a as a complaint petition if it fulfi t fulfills the requirements of a complaint. plaint. It is also settled that even even after acceptance of the closure repo e report or final report, the Magist agistrate can take cognizance of the Prote Protest Petition. However, though ough he has ample discretionary power, he er, he cannot be compelled to take take cognizance by treating the same as a e as a complaint. In any case, the , the remedy of the complainant is to f s to file a fresh complaint and inv nd invite the Magistrate to follow the proce procedure under Sections 200 and 2 and 202 Cr.P.C., instead of praying for cog for cognizance by treating the Protes Protest Petition as a complaint petition and n and examining witnesses. The de he deviation in the present case is that t that the learned Magistrate, while while accepting the Protest Petition filed b filed by Opposite Party No. 2 under under Section 173 Cr.P.C., instead of treatin treating the same CRLMC No. 4267 of 7 of 2023 Page 6 of 8 as a complaint pet int petition, took cognizance of the offences ences in the G.R. case itself, which a hich amounts to a procedural irregularity. It rity. It is trite law that substantial j ntial justice cannot be sacrificed at th at the altar of technicalities. In s. In the instant case, admittedly, upon t upon the closure report submitted itted by the police, the victim/complain plainant rightly submitted a Protes Protest Petition. The acceptance or non-acc acceptance of the Protest Petitio Petition in a particular format required und ed under law, as discussed above, bove, is the responsibility of the Cour Court, and the victim/complainan lainant has nothing to do with the same. Co e. Consequently, any irregularity i arity in the procedure cannot ipso facto facto affect the substance of the f the case. Therefore, the action of t of the learned Magistrate in adh in adhering to the procedure under Section ctions 200 read with 202 Cr.P.C. r.P.C. while taking cognizance of the offen offences against the petitioners in ers in the G.R. case has to be discontinue ntinued, and the Protest Petition shall be treated as a complaint. The The registration thereof be accordi ccordingly effected, and the entire exercise ercise undertaken in the G.R. case in case in taking cognizance of the offences be ces be made over to the said complai omplaint case. 9. As far as ar as the claim of the Petitioners herein as rein assailing the impugned order p rder praying for the discharge of the Petitio Petitioners under Section 239 Cr.P. Cr.P.C. is concerned, the law is well settl ll settled that the court while consid considering an application for discharge, nee ge, need not have to dwell into the o the pros and cons of the matter by exa y examining the defence of the accu he accused. The Court is required merely to e ly to examine the material placed by ced by the prosecution in order to determine rmine whether or not the grounds unds are sufficient to proceed against th inst the accused thereupon. Keepin Keeping in view the aforesaid principle ciple, when the Protest Petition fil ion filed by the Opposite Party No.2 is exa is examined, the CRLMC No. 4267 of 7 of 2023 Page 7 of 8 allegations made t made therein is sufficient to indict the con e conduct of the Petitioners in expla n explaining their innocence during trial. 10. Therefore, efore, the impugned order taking cogniz cognizance dated 14.02.2023 passed passed by the learned J.M.F.C., Chhendipa endipada in G.R. Case No.378 of 2 of 2021, also does not suffer from any in any infirmity on merit, save and ex and except as observed hereinabove. The he CRLMC is accordingly dispos
Arguments
Mr. Mishr Mishra, learned counsel for the Petition etitioners, while assailing the im e impugned order, submitted inter alia r alia that the cognizance taken taken by the learned Court in the G.R. ca .R. case itself is procedurally irreg irregular and could not have been proce proceeded with against the Petitio Petitioners, particularly when the said G.R id G.R. case had culminated in a fi in a final report. Mr. Mishra, learned coun d counsel for the Petitioners, further further submitted that the Protest Petition filed by the Opposite Party No rty No.2 in response to the notice issued by ued by the police under Section 173 n 173 Cr.P.C. ought to have been treated as a ted as a complaint case, and that taki t taking cognizance in the G.R. case itself i itself is unknown to law. Accordingl rdingly, he sought quashing of the same. CRLMC No. 4267 of 7 of 2023 Page 2 of 8 5. The learne learned counsel for the Opposite Party No.2, No.2, along with the learned couns counsel for the State, while not disputing sputing the legal position regarding arding the manner in which the learned Co ned Court treated the Protest Petitio Petition, submitted that the same amounts ounts only to a curable irregularit gularity. It was further submitted that the at the impugned order taking cogn cognizance of the offence does not suffe suffer from any infirmity and, ther d, therefore, the contention of the learned arned counsel for the Petitioners s ers seeking quashing of the impugned ugned order is misconceived and d and cannot be sustained. 6. “Complain mplaint” is defined under Section 2(d) of th ) of the Code of Criminal Procedur ocedure, 1973. The expression “Protest Pet Petition” does not find place in ace in the Code, yet it is a legally reco recognised and accepted practice actice enabling the complainant or victim t ctim to oppose a closure/final repor l report submitted by the police under Sect r Section 173(2) Cr.P.C. The Hon’ Hon’ble Supreme Court in the matter of of Gangadhar Janardan Mharte arte vs. State of Maharashtra and Ors. rs. reported in (2004) 7 SCC 768 768, discussed the absence of any specifi specific provision in the Code relati relating to the filing of a Protest Petition tition. Reference was made to the o the decision in the matter of Bhagwant want Singh vs. Commissioner of r of Police and Anr. reported in 1983 (3) (3) SCC 344, wherein the Hon’ Hon’ble Court stressed on the desirability ability of issuing intimation to the o the informant when a report under Sect r Section 173(2) Cr.P.C. is under c nder consideration. It was further held that ld that where the Magistrate decides ecides not to take cognizance and intends tends to drop the proceedings again against the persons named in the FIR, i FIR, issuance of notice to the info e informant and grant of an opportunity tunity of hearing becomes mandato andatory. In the matter of Gangadhar ar Janardhan (Supra), the Hon’ Hon’ble Supreme Court also dealt with t with the options CRLMC No. 4267 of 7 of 2023 Page 3 of 8 available to a Mag a Magistrate when a report under Section 1 ction 173(2)(i) is submitted. In a situ n a situation where the report concludes that es that no offence appears to have be ave been committed, the Magistrate may: (i) ay: (i) accept the report and drop th rop the proceedings; or (ii) disagree with with the report, take the view that that there is sufficient ground to proceed f ceed further, take cognizance of the of the offence and issue process; or (iii) di (iii) direct further investigation by th r.P.C. by the police under Section 156(3) Cr.P.C. Accordingl rdingly, in a situation where a Protest Petit t Petition is filed against a closure r sure report stating that no case is made out de out against the accused and that that no offence has been committed, th ted, the question whether such Prote Protest Petition can be treated as a compla omplaint petition by the Magistrate strate has also been set at rest. 7. In this re his regard, the Hon’ble Supreme Court i ourt in Popular Muthiah vs. State State Represented by Inspector of Police lice, reported in (2006) 7 SCC 29 C 296 held that when the final form is orm is filed, the Magistrate has jur as jurisdiction, in the event, a fresh Petition etition is filed, to treat the same as
Decision
disposed of. Bijay (Chittaranjan Da Judge n Dash) Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 22-Oct-2025 11:10:49 CRLMC No. 4267 of 7 of 2023 Page 8 of 8