Saturday, 14 November 2026

Supreme Court: Section 161 CrPC Statements Cannot Be Relied On At Trial But Can Be Considered At Cognizance Stage

 We find absolutely no reason to interfere with the

cognizance taken on the facts and circumstances as coming

forth. We make it very clear that the view taken by the

Additional Sessions Judge or by the learned Magistrate when

taking cognizance or by us, in affirming the cognizance taken,

shall not, in any manner, regulate or govern the trial. Section

161 CrPC statements, obviously, cannot be relied on at the

trial, but definitely could be gone into at the time of

cognizance, since that is the material available before the

Court, as produced by the Police along with the final report.

That the Court is entitled to take cognizance despite a closure

report by the police, requires no reiteration. {Para 12}

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2026

(Arising out of SLP (Crl) No.18490 of 2026)

Mrityunjay Kumar Chaudhary Vs  State of Bihar & Anr.

Dated: OCTOBER 09, 2026.


Leave granted.

2. The appeal is filed by a grieving father against the

order of the High Court quashing the cognizance taken under

Sections 302 and 201 of Indian Penal Code1 against the 2nd

respondent-accused; in an incident where the appellant’s son

drowned to death.

3. We heard learned Counsel for the appellant,

respondent-State and the 2nd respondent.

4. Learned Counsel for the 2nd respondent, at the outset,

submitted that there was cognizance taken by the Judicial

Magistrate First Class, IV, Darbhanga and hence, this appeal

1 In short ‘IPC’

Page 2 of 8

has become infructuous. Learned Counsel for the appellant

alertly pointed out that, in fact, the cognizance, is taken note of

in the impugned order at paragraph 4. The operative portion

not only set aside the revisional order of the 7th Additional

Sessions Judge, Darbhanga but also the order of the learned

Magistrate accepting the final report of the Police and

directing the protest petition to be registered as a complaint

case. Hence, there is no cognizance taken as of now and no

protest complaint pending.

5. We notice, on the facts of this case, that the appellant

was the first informant who spoke of the deceased having been

taken by the 2nd respondent from his house for a walk.

Subsequently, one Ashok Chaudhary informed the family

members that the first informant’s son was found drowning

near the State Boring and that despite his best efforts to save

the drowning boy, he could not. The father rushed to the site

and arranged boatmen to carry out a search in the river. The

attempts of the boatmen turned unsuccessful, since the boy

had disappeared having been swept away in the currents. This

was the First Information Statement leading to the FIR, as seen

from Annexure P1.

Page 3 of 8

6. The Police conducted the investigation and filed a final

report, upon which, the Court accepted the final report and

directed the protest petition filed to be numbered as

complaint by order dated 29.10.2021 and posted the

complaint on 01.12.2021 for examination of the complainant,

who was directed to be present.

7. A revision was taken from the order of the Judicial

Magistrate First Class, IV, Darbhanga, produced at Annexure

P5, which was disposed of by Annexure P6; by a detailed

order. The 7th Additional Sessions Court directed the

Magistrate’s Court to reconsider the final report, pointing out

the compelling circumstances which could commend

cognizance in the case. The learned Magistrate, on reexamination

of the materials, took cognizance, which has now

been set at naught by the High Court; according to us, in a very

casual manner, totally ignoring the compelling circumstances

as has been brought out in the revisional order of the 7th

Additional Sessions Judge.

8. On the consequence of a final report filed by the Police,

which is termed a ‘closure report’, we extract herein

paragraph 16 of Brajesh Kumar alias Birjesh Kumar Singh v.

Page 4 of 8

State of Bihar2, (authored by one of us, K. Vinod Chandran, J.)

:-

‘16. Ram Naresh Prasad v. State of Jharkhand(2009) 11 SCC 299

held that when the police file a report, colloquially termed

a ‘closure report’; finding no sustainable case made out,

the Court cannot direct a charge sheet to be filed, but

could always take cognizance on the basis of the material

in the report or direct further investigation. H.S. Bains v.

State (U.T. of Chandigarh) (1980) 4 SCC 631 & Ramswaroop Soni

v. State of M.P. (2020) 18 SCC 327 reiterated that when a closure

report is filed finding no offence made out, the Court has

three options; (i) to accept the same and close the

proceedings or (ii) take cognizance of the matter on the

materials in the report or (iii) direct further investigation.

It is thus open to the Magistrate on submission of a closure

report to look into the material facts disclosed in the report

and form an opinion as to whether it constitutes an offence

and take cognizance of the offence under Section

190(1)(b). To buttress this position, Abhinandan Jha1967 SCC

OnLine SC 107 made reference to Section 169 of the Code

which provides that even if the police officer finds on

investigation that there is no reasonable ground or

sufficient evidence to put the accused on trial, the officer

while releasing the accused has to take a bond for

appearance before the Magistrate, if required. The

primacy of the Court to take cognizance or deny it is the

law discernible from the very provisions of the CrPC.’

9. With the above principle in mind, we look at the

impugned order of the learned Single Judge. The impugned

order first found that the postmortem did not suggest anything

sinister, since the ‘death was due to asphyxia and ventricular

fibrillation as a result of drowning in water’. We are afraid that

the assumption is wrong, insofar as even if a person is pushed

2 2026 SCC OnLine 1311

Page 5 of 8

into the water deliberately with the intention of drowning him,

there would be nothing sinister coming forth in the

postmortem report, which however, has to be tested on the

attendant circumstances. Merely because the postmortem

indicated death by drowning, it cannot be assumed that there

was absolutely no foul play, since the specific contention taken

up was that the deceased was taken by the 2nd respondent, and

a little later, he was found drowning and there were attempts

by third parties to save him. There were two witnesses who

also spoke of having seen the 2nd respondent fleeing from the

scene of occurrence; which makes it sinister and a trial,

expedient to unravel the mystery regarding the death.

Especially when the 2nd respondent who took the deceased

from his house, with whom he was last seen, should proffer an

explanation, more so, when he was found running away from

the spot.

10. The further reasoning in the impugned judgment is that

the FIR was lodged after the father of the deceased received

information of the drowning of his son, which information was

not disclosed in the FIR. A reading of the FIR, produced as

Annexure P1, clearly indicates that the information was passed

on to the father through one Ashok Chaudhary, who informed

Page 6 of 8

the family members of the appellant. On such information

having been received, he rushed to the spot and arranged

boatmen to search for his son. The search having turned futile,

a complaint was registered, specifically speaking of the 2nd

respondent having picked up the deceased from the

appellant’s doorsteps, and a little later, Ashok Chaudhary

having informed the drowning of his son. The finding of the

High Court is flawed insofar as the documents having not been

read properly.

11. We also find that the High Court has not looked at the

order of the 7th Additional Sessions Judge, Darbhanga, despite

it being noticed in the order; which lists out the compelling

circumstances to suspect the closure report filed by the Police.

We would not explain the circumstances which were relied

upon by the 7th Additional Sessions Judge, Darbhanga, in

Annexure P6-order to direct reconsideration of the issue by

the learned Magistrate; lest the observations, at least by

default, govern the trial. Suffice it to notice that the revisional

order was in detail and specifically dealt with the statements

recorded under Section 161 of Code of Criminal Procedure3

and took a prima facie view that there was material to enable a

3 In short ‘CrPC’

trial. The decisions with respect to cognizance despite a

closure report, were also noticed by the Additional Sessions

Judge, all of which were casually brushed aside by the High

Court. The Additional Sessions Judge found very compelling

circumstances, on a prima facie consideration and the

revisional order directed consideration of the final report

afresh by the learned Magistrate.

12. We find absolutely no reason to interfere with the

cognizance taken on the facts and circumstances as coming

forth. We make it very clear that the view taken by the

Additional Sessions Judge or by the learned Magistrate when

taking cognizance or by us, in affirming the cognizance taken,

shall not, in any manner, regulate or govern the trial. Section

161 CrPC statements, obviously, cannot be relied on at the

trial, but definitely could be gone into at the time of

cognizance, since that is the material available before the

Court, as produced by the Police along with the final report.

That the Court is entitled to take cognizance despite a closure

report by the police, requires no reiteration.

13. We, hence, proceed to set aside the order of the High

Court and remand the matter for expediting the trial. The 2nd

respondent shall appear before the learned Magistrate, within

two weeks who shall carry out the committal proceedings in

accordance with law. If the 2nd respondent does not appear

within the time provided, then he shall be taken into custody

and produced before the learned Magistrate for appropriate

steps. On appearance or on production, the 2nd respondent

shall be released on bail on such conditions as the Court

deems fit, subject to co-operation in the trial.

14. The appeal stands allowed.

15. Pending application(s), if any, shall stand rejected.

.......…….……………………. J.

(J. B. PARDIWALA)

....……….……………………. J.

(K. VINOD CHANDRAN)

NEW DELHI;

OCTOBER 09, 2026.


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