Alagu Murugesan and Others vs A. Thanga Pandian

B. Akbar Basha Khadiri, J.—The petitioners who stand charged as accused in P.R.C. No. 17 of 1994 have comeforward to quash the

proceedings in S. C. No. 120 of 1996 pending on the file of the Asst. Sessions Judge, Madurai.

The facts leading to the institution of the Criminal Original Petition briefly stated are as under :-

There had been dispute between the petitioners and one Thangapandian the respondent and his party. An occurrence took place on 5-2-1994.

The petitioners and other preferred a complaint to the police against Thangapandian and others alleging that they have committed offence under

Sections 147, 148, 447, 341. 324, 354, 307 and 506(ii), I.P.C. on the basis of the complaint, the Elumalai Police registered a crime in Crime No.

31 of 1994 under the above said provisions of the Indian Penal Code. On the same day, the respondent Thangapandian preferred a complaint

against the petitioners herein which was also received by the same police. They registered a crime in Crime No. 32 of 1994 u/s 324, I.P.C. After

enquiry, the concerned police submitted final report to the Judicial Magistrate concerned to the effect that so far as Crime No, 31 of 1994 is

concerned, a prima facie case has been made out, which the learned Judicial Magistrate took on file and it was committed to sessions. The learned

Assistant. Sessions Judge, Madurai, took the matter on file in S. C. No. 119 of 1994.

So far as the complaint preferred by Thangapandian the respondent herein is concerned, the police referred the same as mistake of fact. But, on

24-8-1994, Thangapandian and others preferred a private complaint before the same Judicial Magistrate, who took the matter on file in P.R.C.

No. 17 of 1994 After examination of the witnesses mentioned in the complaint, the learned Judicial Magistrate opined that a case under Sections

341, 323, 324, 307 r/w 34,1.P.C. has been made out and committed the same to the same Sessions Judge, who took the case on file in S. C. No.

120 of 1996. Now, the petitioners have come forward with the instant Criminal Original petition to quash the proceedings on the ground that once

when the complaint preferred by the respondent to the police had been referred as mistake of fact, a second complaint would not lie regarding the

same occurrence.

Heard both sides. In respect of his contentions that a second complaint would not lie, the learned counsel for the petitioners drew my attention

to various judicial pronouncements in this regard. In A. Krishna Rao Vs. L. S. Kumar, , wherein Thangaraj, J. has held that once when the first

complaint was referred as mistake of fact where no steps were taken for setting aside the earlier order passed by the learned Judicial Magistrate in

the referred charge sheet, subsequent complaint regarding the very same occurrence is not maintainable. The learned Judge has referred to an

earlier decision reported in Murugesan and Others Vs. Kothandam, wherein the same view had been expressed. In Mariaglory v. John Britto alias

John 1995 (2) MWN 89, V. Rengasamy, J. has held that once when the police have referred the first complaint, second investigation by the police

and filing of a charge sheet after the second investigation and the Magistrate taking Cognizance of the offence in pursuance of the second

chargesheet is an illegality. My attention was also drawn to the decision rendered by C. Shivappa, J. in Cri. O. P. No. 10411 of 1994 on 8-11-

1995, wherein, the learned Judge has stated that after acceptance of final report, by the Court on a complaint, a second complaint for the same

offence cannot be re-entertained and taken cognizance of, my attention was also drawn to the decision reported in Namasivayam Vs. State,

wherein Sather Sayeed, J. has pointed out that once when the Magistrate recorded on the charge sheet as mistake of law, such recording being a

judicial order, further investigation or filing second charge sheet is not legal. In Ramasubbu, K. v. State through the Inspector of Police 1987 MLW

79 : 1988 Cri LJ 214, the same view has been reiterated by K. M. Natarajan, J. also. In short the judicial pronouncements are to the effect that

once when police referred the matter as mistake of fact or mistake of law and if the Court takes note of such reference and drops further

proceedings after recording on the chargesheet as ''mistake of fact'' or mistake of Law'', whatever it might be, then it would amount to applying the

judicial mind and* amounts to pronouncement of judicial verdict. But, the trend of the decisions is to the effect that it is sine quo non that reference

of the case as mistake of fact by the police is not sufficient, but the learned Judicial Magistrate should have applied his mind and passed some

order.

The learned counsel for the respondent cited an authority reported in Abhinandan Jha and Others Vs. Dinesh Mishra, wherein while dealing with

identical question. Their Lorships of the Apex Court have referred to the scheme of the Chapter XIV of the Code of Criminal Procedure and also

the earlier judgment rendered in H.N. Rishbud and Inder Singh Vs. The State of Delhi, and pointed out that once when police submits a report, the

Magistrate has no power to call upon the police to submit a charge sheet and that the Magistrate if disagrees with with the report can take

cognizance u/s 190(1)(c) or may order further investigation u/s 156(3), Cri. P.C. The learned counsel for the respondent submitted that in the

instant case, there is nothing to show that the learned Judicial Magistrate had passed any final order, in that there is nothing to show that after the

police referred the matter as mistake of fact, the learned Judicial Magistrate has given an opportunity to complainant therein to putforth his case

and satisfy the Court as to why the matter should not be dropped. In support of such contention, the learned counsel cited a decision reported in

Bhagwant Singh Vs. Commissioner of Police and Another, wherein the Apex Court has held as under at pages 1523-1524; of Cri LJ:-

Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under Sub-section (2) (1)of Section 173 comes

up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been

committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may acqept the report and take

cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further

investigation under Sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in

the opinion of the police, no offence appears to have been committed and where such a report has been made the magistrate again has an option

to adopt one of three courses : (1) he may accept the report and drop the proceedings or (2) he may disagree with the report and taking the View

that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to

be made by the police under Sub-section (3) of Section 156 - Where, in either of these two situations, the Magistrate decides to take cognizance

of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased

aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the

Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view, that though there is

sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the first information report

the informant would certainly be prejudiced because the First information Report lodged by him would have failed of its purpose, wholly or in part.

Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly

recognized by the provisions contained in Sub-section (2) of Section 154 Sub-section (2) of Section 157 and Sub-section (2) (ii) of Section 173,

it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process,

because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration

of the report made by the officer in charge of a police station under Sub-section (2)(i) of police station under Sub-section (2)(i) of Section 173 the

Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he

can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a

case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence

and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First

Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the

report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in

unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid

objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be

communicated to the informant and a copy of the report has to be supplied to him under subSection (2)(i) of Section 173 and if that be so, we do

not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the

difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard

at the time when the report is considered by the Magistrate.

The learned counsel for the respondent also relied another decision reported in Nallaya Gounder v. Thiruvengadam (1992) MLW 316, where

following the decision cited supra, T. S. Arunachalam, J. had also reiterated that once when the police sent referred notice to the Court as mistake

of law, it is incumbent upon the Court to issue notice to the complainant to hear him and then pass orders and that passing of such order will be

judicial order and there afterwards, the complainant may not have any right to re-agitate the same.

In the instant case, it is stated that the police have referred the case in Crime No. 32/94. There is no material on record to show that refer notice

was served on the respondent. I feel that mere service of refer notice stating that the matter has been referred to as mistake of fact by itself would

not be sufficient. If the police official is to file a report before the learned Judicial Magistrate giving all the reasons as to how he came to the

conclusion that the matter should be referred as mistake of fact, such report should also be communicated to the complainant to enable him to file

his protest. A blank reference as mistake of facts would not be sufficient for the complainant to put forth his protest without knowing the reasons as

to why it is referred as mistake of facts. I feel, when a matter is referred to, the Court or the concerned police official should also send a copy of

that report to the complainant to enable him to go through the report and protest as how he differs with the report. Evidently that has not been

done in this case. Further, there is no evidence to show that the learned Judicial Magistrate has passed any final orders on the charge sheet to close

the doors of the complainant. When there is nothing to show that final judicial order has been passed by the learned Judicial Magistrate in Crime

No. 32 of 1994, it cannot be said that the respondent is prohibited from filing a private complaint before the Magistrate. Further, it appears, in

Crime No. 32 of 1994, the police have registered a case u/s 324 I.P.C. only, whereas the private complaint has been preferred to the effect that

offence under Sections 341, 323, 324, 307 r/w. 34 IPC had been committed. The learned Judicial Magistrate has examined all the witnesses

mentioned in the complaint and after satisfying himself about the existence of the prima facie case, taken the matter in file in P.R.C. No. 17 of

1994. Thus, the second complaint, namely, the private complaint contains more details than what was contained in the F.I.R. in Crime No. 32 of

1994. It therefore cannot be said that the first complainant and the second complaint contains the same allegations. In that view of the matter, I

hold that the second complaint is maintainable and consequentially the proceedings in S. C. No. 120 of 1996 on the file of the Assistant Sessions

Judge, Madurai are not liable to be quashed. This Criminal Original Petition is, therefore, dismissed.