V. Chandrasekhara Pandian vs Muthukaruppa Thevar

This is a petition filed invoking the inherent powers of the High Court u/s 482, Cr.P.C. to quash the proceedings in Crl.M.P. 46 of 1982, on the

file of the Judicial Second Class Magistrate, Usilampatti, Madurai district.

The petition arises under the following circumstances. The respondent preferred a complaint on 25-5-1981, at the Uthappanaickanur police

station against 53 persons for offences under Sees. 147, 148, 452, 336, 324, 307 and 511, I.P.C. A case was registered by the police at 1-30

p.m. as Crime No. 40 of 1981; and investigation was taken up. After completion of the investigation, the police submitted the report as a mistake

of fact through the Inspector of Police, Usilampatti, before the Judicial Second Class Magistrate, Usilampatti, after serving Referred Charge-Sheet

notice to the respondent on 7-11-1981.

The learned Magistrate accepted the Referred Charge-Sheet and passed a final order treating it as a mistake of fact, after a perusal of the

documents and the reports submitted by the Police. No protest petition or any protest complaint was filed against the order of the learned

Magistrate dated 17-12-1981.

The respondent preferred a complaint on 11-1-1982, alleging the same facts and offences as in his police complaint before the Judicial Second

Class Magistrate. The learned Magistrate took cognisance of some offences and numbered the same as Crl.M.P. 46 of 1982, to start an enquiry

u/s 202, Cr.P.C. The petitioner became aware of this enquiry when a notice u/s 91, Cr.P.C. was served on his father for production of some

documents.

Mr. Sam V. Chelliah, learned counsel appearing for the petitioner, contended that the learned Magistrate ought to have given enough

opportunity to the respondent to file a complaint or protest petition before the acceptance of the final report of the police. The complaint preferred

after nearly two months of the acceptance of the final report shows the mala fide intention of the respondents to harass the petitioner his relations

and the womenfolk. He further submitted that the Magistrate, having accepted the final report of the police by his order dated 17-12-1981 and

having passed a judicial order, declining to take cognisance of the offences alleged has no right to revise his own order and take the complaint on

file for the same offences and on the same set of facts. Such cognisance of offences by the Magistrate and conducting an equiry is ab initio void

and without jurisdiction as it amounts to reviewing his own order. The only remedy, according to the learned counsel, open under such

circumstances is to file a revision petition against the order accepting the final report.

In support of his contention, the learned counsel first drew my attention to the decision in Lakshman Jena Vs. Sudhakar Paltasingh, , wherein it

is held that, where a final report is received from the police, the Magistrate may either accept it and close the proceeding or he may take the view,

on a consideration of the final report, that the opinion formed by the police is not based on full and complete investigation and may give directions

to the police u/s 156(3) Cr.P.C. to make a further investigation. In the present case, the learned Magistrate after exercising his judicial mind

thought fit to accept the final report of the police and close the proceeding. As it was thought no further investigation was necessary, the order of

the Magistrate was justified. Subsequently, the entertainment of the second complaint is not proper as it would amount to reviewing his previous

judicial discretion.

Reliance is placed on the following observations made in Banshi Modi and Others Vs. The State of Bihar and Another, -

.... once a final report has been submitted by the police, the court may accept the same or may differ with it and on the basis of the materials

already on the record i.e., police report, case diary and charge-sheet, it may take cognisance or may ask to make further investigation. Since none

of these courses were followed by the courts below but entertained the complaint petition, the court below was not competent to take cognisance

on the basis of the statements recorded by the police. There is no dispute about the legal position that if once a court accepts final report and

discharges the accused, it cannot, on the basis of complaint take cognisance these persons"".

In the above case, it should be noted that no order was passed on the final report submitted by the police but cognisance was taken on the

complaint.

To substantiate his argument that the order passed by the learned Magistrate accepting the final report of the police is a judicial order, the

learned counsel relied on the decision in Namasivayam Vs. State, , wherein M. A. Sather Sayeed J. observed as follows -

...... the police had once put up a detailed report after complete investigation and on the basis of the report filed by the respondent before the

Magistrate against in the petitioner, the Magistrate passes in order, which is judicial in nature, to the the effect that there is no case and the

complaint is recorded as ''mistake at law''. The Magistrate, while passing the order exercised his judicial power and discretion.

He further held that when once the Magistrate passed an order as mistake of law, on the report submitted by the police, it is a judicial order, for

the Magistrate has passed the said enter after applying his mind to the report.

My attention was also drawn to the decision in Bhuneshwar Prasad Sinha and Others Vs. The State of Bihar and Another, Wherein the learned

Judge held -

Where the final report by police holding the case against accused persons to be untrue, was accepted by the Magistrate earlier than the complaint

petition filed against the accused, the Magistrate would not be justified in taking cognisance on the basis of the complaint petition in respect of the

same facts constituting the offence which were mentioned in the final form when a judicial order was passed by accepting the final form.

Lastly, the learned counsel relied on a decision of their Lordships, of the Supreme Court reported in Kamlapati Trivedi Vs. State of West

Bengal, , and drew any attention to the following passage :-

...... in the case of an order passed by a Magistrate under sub-section (3) of Section 173 of the Code in agreement with the police report does

not call for any hearing or the production of any evidence on the part of the accused, as it goes in his favour. If the Magistrate, on the other hand,

disagrees with the report submitted by the police and takes cognisance of the offence, the accused comes into the picture and thereafter shall have

the right to be heard and to adduce evidence in support of his innocence. Viewed in this context, all orders passed by a Magistrate acting judicially

(such as orders of bail and those passed under sub-section (3) of Section 173 of the Code discharging an accused or orders taking cognisance of

the offence complained of) are parts of an integral whole which may end with a definite judgment after an inquiry or a trial, or earlier according to

the exigencies of the situation obtaining at a particular stage, and which involved, if need be, the adducing of evidence and the decision of the

Magistrate on an appreciation thereof. They cannot be viewed in isolation and given a character different from the entire judicial process of which

they are intended to form a part.

The Magistrate while passing an order discharging the accused, in pursuance of the report submitted by the police to the effect that the

evidence was insufficient to sustain a charge, acts judicially. There cannot be any doubt that the order passed by the Magistrate on the final report

submitted by the police is a judicial order, even though previously such orders were held to be administrative; vide Venkata Subba Rao v.

Anjaneyalu, 1932 MWN 100.

Mr. A. A. Selvam, learned counsel appearing for the respondent contended that, when once a Referred Charge-Sheet has been accepted by

the Magistrate, there is no prohibition under the Statute for the complainant to come up with another complaint, as there is no question of limitation

in such matters. The right of the complainant to get redress from a court of law should not be barred if for some reason or the other, the complaint

preferred by the police is investigated in a perfunctory manner or with an ulterior motive. It may not be possible for the complainant to come with a

protest petition before the final order of acceptance of the final report to the police is made as he would not be aware when the Magistrate is likely

to dispose of the case after the receipt of the final report. Acceptance of a Referred Charge-Sheet by a one line order ""treated as a mistake of

fact,"" by the Magistrate, cannot be said to be indicative that the Magistrate has applied his judicial mind. Such an order cannot also amount to an

order refusing to take cognisance prohibiting a second complaint.

In support of his contention, the learned counsel relied on the decision in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, , for

the proposition that the accused has no locus standi to appear and contest a criminal case before the issue of process. He does not come into the

picture at all till process is issued. Even though he may be allowed to be represented by counsel, he has no right to take part in the proceedings nor

has the Magistrate jurisdiction to permit him to do so. The Magistrate cannot put questions at the instance of a person named as accused but

against whom no process has been issued nor can he examine any witnesses at the instance of that person.

On the basis of the provisions under the Code of Criminal Procedure, the learned counsel contended that no notice need be given to the

accused at the time when the Referred Charge-Sheet is accepted by the Court nor at the time when the second complaint is entertained. The

accused comes into the picture only after the process is issued to him.

In this case, the learned Magistrate has agreed with the final report of the police and closed the proceeding. If upon information received from

any person other than the police officer he is entitled to take cognisance u/s 190(1)(c), Cr.P.C.; this is only as it should be as offences may not go

unpunished and justice may be invoked even where the police either wantonly or through a bona fide error do not file a charge-sheet. The

Magistrate cannot direct the police to submit a charge-sheet because the submission of the report depends entirely upon the opinion formed by the

police and not on the opinion of the Magistrate. The Magistrate if he disagrees with the report of the police can himself take cognisance of the

offence u/s 190(1)(a) or 190(1)(c) but he cannot compel the police to form a particular opinion on investigation and submit a report according to

such opinion. Vide Abhinandan Jha and Others Vs. Dinesh Mishra, .

Learned counsel heavily relied on the decision in Heramba Brahma and Another Vs. State of Assam, , therein Maheswaran J. observed that if

the Magistrate orders investigation u/s 156(3) Cr.P.C., he cannot be said to have taken cognisance of the offence and acceptance of a Referred

Charge-Sheet by an order stating ""Lodge the F.I.R.,"" is no bar from entertainment of a second complaint.

On notice being given to the learned Public Prosecutor, he placed before me a few authorities pertaining to the contentions raised by the

learned counsel on both sides. He submitted the Magistrate could take cognisance of an offence u/s 190(1)(c), Cr.P.C. on the basis of the

complainant''s protest petition, even if the final report submitted by the police is not accepted by him vide Mukhtar v. State of U.P., 1982 Cri LJ

45.

Whatever may be the nature of the report by the Police, the informant has to be informed of the same. If there is a final report, it is open to the

informant to appear before the Magistrate md submit a protest petition. The Magistrate has to number and treat it as complaint and examine the

petitioner u/s 200, Cr.P.C. and take cognisance u/s 190(1)(c), Cr.P.C.

The learned Public Prosecutor then cited the decision in Abdul Rahim v. Abdul Muktadin, AIR 1953 GUA 112 : 1983 Cri LJ 797, wherein

the learned Judges held -

Where a complainant who is dissatisfied with the report of police investigation u/s 173, Cr.P.C. files a complaint to the Magistrate, the latter

should dispose of the complaint in accordance with the provisions of Ch. 16 of the Code.

In Habib Shah Vs. Mehda Shah, wherein it is held -

On receipt of any report from the police u/s 173 recommending the dropping of the proceedings, it is for the Magistrate either to accept the same

or not. A Magistrate can take cognisance of an offence on the facts contained in the report of the police officer, although in the opinion of such

officer there is no evidence to justify taking further action. In the decision in H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance,

Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), their Lordships of the Supreme Court observed -

A Magistrate who on receipt of a complaint, orders an investigation u/s 156(3) and receives a police report u/s 173(1), may thereafter, do one of

three things - (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognisance of the offence

u/s 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at

by the police in their report; (3) he may take cognisance of the offence u/s 190(1)(a) on the basis of the original complaint and proceed to examine

upon oath the complainant and his witnesses u/s 200. If he adopts the third alternative, he may hold or direct an inquiry u/s 202 if he thinks fit.

Thereafter he may dismiss the complaint or issue process, as the case may be"".

Thus, the learned Judges have made it clear that the mere fact that a Magistrate had earlier ordered an investigation u/s 156(3), Cr.P.C. and

received a report u/s 173, Cr.P.C. will not have the effect of total effacement of the complaint. The Magistrate is not barred from proceeding

under Sections 200, 203 and 204 Cr.P.C.

When an Investigating Officer submits a report after he is directed to investigate u/s 156(3), Cr.P.C., the Magistrate does not proceed to act

mechanically in agreeing with the opinion formed by the police. He has to apply his mind and peruse the papers placed before him. An order as the

one passed in the instant case ''Treated on mistake of fact'' is no doubt, a judicial order presumed to be passed after exercising judicial discretion.

It would be better, as the learned counsel on both sides and the learned Public Prosecutor agree, if there is some material to show in the order

accepting the Referred Charge-Sheet that the learned Magistrate had applied his mind. Accordingly I am of the view that the Magistrate would do

well, if he, while accepting Referred Charge-Sheet, briefly records his reason for so doing. The Magistrate would do well to follow this procedure

in future. If it is a speaking order, the Magistrate applying his mind cannot be in question. It would be open for scrutiny whether the judicial

discretion was properly exercised or not.

As regards the contention raised that the Magistrate, before accepting the Referred Charge-Sheet has to give notice to the complainant, I am in

agreement with M. A. Sathar Sayeed, J., who made the following observations in his judgment in Crl.R.C. No. 790 of 1980 dated 23-11-1982.

When the Magistrate is to pass an order on the police report, he has to first issue a notice to the complainant before passing such an order. No

doubt, on this aspect the statute is silent, Nowhere, it is stated that notice should be given by the Magistrate. Yet the party, who has lodged the

complaint and who is affected by the process, should be heard in the interests of justice. The Statute does not expressly require a notice to be

issued or a hearing to be given to the parties adversely affected. But in the eye of law, it is just and necessary that when a petition, on the report of

the police, is to be dismissed by the Magistrate and when the parties, as in this case, are to be adversely affected by such dismissal, they should be

heard by court before making such an order of dismissal of the complaint filed by the petitioners.

Needless for me to add that the Magistrates in future shall comply with the directions given in the above observations.

Coming to the case on hand, on the direction given by the learned Magistrate u/s 156(3), Cr.P.C, the police investigated the case and

submitted the Referred Charge-Sheet as a mistake of fact. This has been accepted by an order dated 17-12-1981, by the learned Magistrate.

There is nothing on record to show that the investigation was perfunctory or not conducted with due diligence. I am also aware that the respondent

had not come to court in his belated complaint dated 11-1-1982, with clean hands inasmuch as he has added four women as accused, whose

names do not find a place in his original complaint. In spite of these circumstances, I am not inclined to interfere at this stage and quash the

proceedings pending against all the petitioners as the learned Magistrate had thought fit to take the complaint on file and issue notice to the

accused. Still, so far as the later implication of four women as accused is concerned, it is clearly an afterthought of the respondent. Hence, the

proceedings relating to accused 6 to 9 in the complaint (Vijayarani, Pushparani Subbuthayee and Pownthayee) are quashed. The case against the

rest of the accused shall proceed. The petition is partly allowed.

The learned Magistrate is at liberty to come to his own independent judicial discretion regarding the merit of the prosecution case, unfettered

by any observation I have made in disposing of this petition.

Petition partly allowed.