When police close a case, can a magistrate still summon the accused? SC says yes

The police said there was no case. The magistrate disagreed—and summoned the accused anyway.

Zunaid Khan had done what any victim of a violent attack is told to do: he went to the police. On 16 August 2017, he walked into the Kotwali Gursahaiganj police station in Kannauj, Uttar Pradesh, and filed an FIR (a written complaint that starts a police investigation). The station's heavy register, its pages smudged with ink and age, recorded his complaint as Crime Case No. 907/2017. His allegation was stark: the respondents—people he knew from an old enmity—had attacked him and his family with sharp weapons, causing serious injuries. The police registered the case under Sections 147, 148, 149, 307, 323, 324, and 504 of the Indian Penal Code, including Section 307 (attempt to murder).

And then, nothing happened. At least, nothing that looked like justice.

When the police report said "no case"

On 13 November 2017—three months after the FIR was registered—the investigating officer submitted Final Report No. 164/2017 under Section 173 of the CrPC (the police's closure report stating that no case is made out). The police had investigated, and their conclusion was that there was nothing to pursue. The accused, in the eyes of the law enforcement machinery, were free to walk.

But Zunaid Khan did not accept that. He filed a Protest Petition before the Chief Judicial Magistrate—essentially a formal objection saying: the police are wrong, I have a case, and you must look at it yourself.

The CJM did look. On 15 November 2018, the magistrate rejected the police's Final Report. The file on the desk was thin—just a few sheets of paper, the police's conclusion, and the complainant's plea. The CJM's chair creaked as he leaned forward to read the petition. Instead of accepting the police's version, the CJM directed that Zunaid's Protest Petition be registered as Complaint No. 2783/2018—meaning the magistrate would now act as the independent judicial authority examining whether a crime had occurred, without relying on the police's assessment.

Under Section 190(1)(a) of the CrPC (the provision that allows a magistrate to take cognizance of an offence based on a complaint, not a police report), the CJM recorded the statements of the complainant and eight witnesses. The courtroom was quiet, the only sound the rustle of paper and the magistrate's pen moving across the page. A clerk's footsteps echoed briefly as he brought in the next file. Then, on 11 January 2022—over four years after the attack—the magistrate issued summons to the accused, ordering them to appear in court. The silence after the summons was read felt heavy, as if the room itself acknowledged the weight of the order.

That should have been the end of the procedural drama. It was not.

The High Court's intervention—and the legal puzzle

The accused—the people Zunaid had named in his FIR—did not simply appear in court. They went to the Allahabad High Court and filed a petition under Section 482 of the CrPC (the High Court's inherent power to quash proceedings that are an abuse of process). Their argument was clever and technical: the CJM, they said, had failed to follow the correct legal route.

The accused argued that once a police report under Section 173 is filed, the magistrate has only two options under Section 190(1)(b) (cognizance on a police report): either accept the report and drop the case, or reject it and take cognizance. By treating the Protest Petition as a complaint under Section 190(1)(a), the CJM had, according to them, bypassed the mandatory procedure laid down in a previous Supreme Court judgment called Hari Ram. The High Court agreed. On 22 July 2022, it set aside both the CJM's 2018 order rejecting the Final Report and the 2022 order issuing summons.

Zunaid Khan was back to square one—worse, because now even the magistrate's independent assessment had been erased.

Why the Supreme Court reversed the High Court

The Supreme Court bench—Justice Bela M. Trivedi and Justice Dipankar Datta—heard the appeal on 29 August 2023. Their judgment, reported as Zunaid v. State of U.P. & Ors. (2023 LiveLaw SC 730), did something rare: it called the High Court's approach "highly erroneous" and restored the CJM's orders in full.

The court's reasoning rested on a well-settled principle from the 1980 judgment H.S. Bains v. State (UT of Chandigarh). When a magistrate receives a police report under Section 173, the magistrate has not two but three options:

• Option one: Drop action if the grounds are insufficient.
• Option two: Take cognizance under Section 190(1)(b) based on the police report itself—meaning the magistrate agrees with the police that there is a case.
• Option three: Take cognizance under Section 190(1)(a) based on the original complaint or Protest Petition, and then examine the complainant under Section 200 (the magistrate's examination of the complainant to verify the allegations), with the option to hold an inquiry under Section 202 (a further investigation or witness examination ordered by the magistrate before issuing process).

The CJM had chosen option three. That was perfectly lawful. The Supreme Court clarified that even if a magistrate accepts a Final Report and discharges the accused, the magistrate is not barred from later taking cognizance on a complaint or Protest Petition containing the same or similar allegations. The two routes—police report and complaint—are independent tracks, not mutually exclusive gates.

The Three Options Explained

For practitioners, the distinction between these three options is critical. Option one is a dead end for the complainant—the magistrate drops the matter entirely. Option two keeps the case alive on the police's terms, meaning the magistrate agrees that the police report itself discloses an offence. But option three is the most powerful tool for a complainant whose FIR has been closed: it allows the magistrate to set aside the police's assessment entirely and treat the matter as a private complaint. The magistrate then conducts an independent inquiry under Sections 200 and 202, examining the complainant and any witnesses before deciding whether to issue process. In this case, the CJM examined eight witnesses—a thorough exercise that the Supreme Court found more than sufficient.

The court also relied on Gopal Vijay Verma v. Bhuneshwar Prasad Sinha (1982) and Gangadhar Janardan Mhatre v. State of Maharashtra (2004), both of which affirmed that a magistrate's discretion to choose among the three options is broad and should not be lightly interfered with. The judgment in India Carat (P) Ltd. v. State of Karnataka (1989) and Rakesh & Another v. State of Uttar Pradesh (2014) further reinforced that the High Court's inherent powers under Section 482 should not be used to second-guess a magistrate's reasoned decision.

What the High Court got wrong

The High Court had held that the CJM failed to comply with the mandate under Section 190(1)(b) as laid down in Hari Ram. But the Supreme Court pointed out that the CJM had not acted under Section 190(1)(b) at all. The CJM had acted under Section 190(1)(a)—the complaint track. The High Court, in effect, had forced the wrong legal framework onto the magistrate's decision.

The Supreme Court also rejected the argument that the accused had been prejudiced. The CJM had followed the procedure under Sections 200 and 202—examining the complainant and eight witnesses before issuing summons. That was more than enough judicial oversight. The accused would get their chance to respond when they appeared before the magistrate.

The real lesson for practitioners

This judgment is a reminder that a magistrate's discretion to choose among the three options on receiving a police report is broad—and the High Court should not interfere with it when exercised within the four corners of law. For advocates representing complainants whose FIRs have been closed by the police, the path is clear: file a Protest Petition, ask the magistrate to treat it as a complaint, and insist on the procedure under Sections 200 and 202. The magistrate has the power to do this even after accepting the Final Report.

The Supreme Court's operative order directed the CJM to proceed with the complaint case in accordance with law, and gave the accused two weeks to appear before the magistrate. The appeals were allowed, and the High Court's orders—both the 2022 summons order and the 2018 order rejecting the Final Report—were quashed.

THE PLAY: When the police file a closure report, do not appeal the report itself—file a Protest Petition and ask the magistrate to take cognizance under Section 190(1)(a) as a complaint, which the magistrate can do even after accepting the police's Final Report.

The CJM now has his case back. The accused have two weeks to appear. And the law has its answer: a magistrate can say no to the police, and yes to the victim.