Madras High Court
Dhanapal vs State Rep. By on 17 February, 2021
Crl. OP No.20825 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.02.2021
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl. OP No.20825 of 2020
and Crl MP No. 8890 of 2020
Dhanapal ... Petitioner/Complainant
vs.
1. State rep. by
The Inspector of Police,
Sendurai Police Station,
Ariyalur District,
Crime No.187/2016
2. State rep. By
The Inspector of Police,
CBCID, Ariyalur District. ... Respondents 1 & 2/Complainants
3. Kumarasamy
4. Govindamsamy
5. Panneerselvam
6. Prabhakaran
7. Malarkodi
8. Bhanumathi ... Respondents 3 to 8/Accused 3 to 8
1/16
https://www.mhc.tn.gov.in/judis/
Crl. OP No.20825 of 2020
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to set aside the Final Report filed by the first
respondent herein and direct the first respondent to hand over the
Investigation to the second respondent to conduct the re-investigation in
C.C.No.30 of 2019, on the file of Judicial Magistrate, Sendurai, and filed a
Final Report as expeditiously as possible.
For Petitioner : Mr.R.Gokulakrishan
For Respondent : Mr.M.Mohamed Riyaz,
Addl. Public Prosecutor, for RR1 & 2
ORDER
This petition has been filed by the Defacto complainant challenging
the Final Report filed by the respondent Police and for a direction to order
further investigation by some other agency in Crime No.187 of 2016.
2. The petitioner is said to have been attacked with deadly weapons
and based on the statement recorded from the petitioner, while he was
admitted in the hospital, an FIR came to be registered in Crime No.187 of
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Crl. OP No.20825 of 2020
2016 for offences under Section 147, 148, 324, 506(ii) of IPC. There were
totally six accused persons in this case. On the completion of the
investigation, the Final Report was filed only as against two accused
persons and the names of the other accused persons were dropped.
3. The grievance of the petitioner is that when the Final Report was
filed by dropping the names of four accused persons, it was mandatory to
issue notice to the petitioner to enable him to file a Protest Petition.
However, no such notice was issued to the petitioner and the Court below
has mechanically taken cognizance of the Final Report in CC No.30 of 2019
as against two accused persons. Aggrieved by the same, the present petition
has been filed before this Court.
4. When the matter came up for hearing on 05.01.2021, this Court
passed the following order:
“The learned Additional Public Prosecutor
takes notice for respondents 1 and 2.
2. Notice to the respondents 3 to 8 returnable
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Crl. OP No.20825 of 2020
by 05.02.2021. Private notice is also permitted.
3. The main grievance that has been expressed
by the petitioner is that the final report was filed by
the first respondent by dropping the names of A3 to
A6 inspite of specific overt act attributed against
them. The further grievance of the petitioner is that
the Court below ought to have issued notice to the
petitioner who is the defacto complainant before
taking cognizance of the final report since the names
A3 to A6 was dropped. The learned counsel to
substantiate his submission, relied upon the
judgment of this Court in C.Ve.Shanmugam Vs.
The Deputy Superintendent of Police, Tindivanam
Sub-Division, Rosanai Police Station, Tindivanam,
Villupuram District reported in (2010) 2 MLJ Crl.
4. A prima facie case has been made out.
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Crl. OP No.20825 of 2020
There shall be an order of interim stay of all further
proceedings in C.C.No.30 of 2019, on the file of the
learned Judicial Magistrate, Sendurai.
5. The learned Judicial Magistrate, Sendurai
is directed to send a report to this Court by
explaining as to whether any notice was issued to
the petitioner while taking cognizance of the final
report filed by the first respondent Police by
dropping the names of A3 to A6. The report shall
reach this Court by the next date of hearing.
6. Post this case on 05.02.2021 under the
caption ''for orders''.”
5. Pursuant to the above order, a report was received from the Judicial
Magistrate, Sendurai, dated 23.01.2021. For proper appreciation the entire
Report is extracted hereunder:
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Crl. OP No.20825 of 2020
“I humbly submit that the Sub-Inspector of Police,
Sendurai Police Station has filed a Final Report against
the A1 Kumarasamy S/o.Velayutham, A2 Govinthasamy
S/o.Kumarasamy and dropping the names of A3
Pannerselvam S/o.Kumarasamy, A4 Prabakaran
S/o.Kumarasamy, A5 Malarkodi W/o. Kumarasamy, A6
Banumathi W/o.Kumarasamy, before the Judicial
Magistrate Court No.II, Ariyalur on 27.02.2017 and
taken on file in C.C.36/2017 on the file of Judicial
Magistrate Court No.II, Ariyalur on 14.03.2017 and issue
summons to the accused A1 and A2 on 24.04.2017.
Judicial Magistrate Court No.II, Ariyalur has not issued
any notice to the Defacto complainant regarding
dropping the names of A3 to A6 in the Final Report. On
01.08.2017 A1 alone appeared before the Judicial
Magistrate Court No.II, Ariyalur and summons not
served to A2.
I humbly submitted that the above C.C.No.36/2017
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Crl. OP No.20825 of 2020
is transferred to this new constituted District-Munsif-cum
Judicial Magistrate Court, Sendurai and new number
assigned as in C.C.No.30 of 2019 on 12.06.2019 by this
Court and Issue Notice to the A1, A2 on 06.07.2019. This
Court has not issued any notice regarding dropping of
the names of A3 to A6. On 21.10.2019 A1, A2 appeared
before this Court and copies furnished and posted for
charge framing on 22.10.2019. On 22.10.2019 charge
U/s.324, 506(ii)-IPC framed against the accused and
issue summons to the LW1 to LW6 and adjourned to
11.12.2019. A1, A2 appeared on 11.12.2019 and
08.01.2020 and 29.01.2020. On 29.01.2020 LW1 witness
summon served LW1 called absent. Issue witness
warrant against LW1 and also issue summons to LW2 to
LW6 adjourned to 04.03.2020. On 04.03.2020 A1, A2
present. LW1 present witness warrant against LW1
recalled and examined as PW1 Ex.P1 marked. Accused
side 309 Cr.P.C. Petition filed and adjourned to
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Crl. OP No.20825 of 2020
11.03.2020 and also issue summons to LW2 to LW6. On
11.03.2020 both accused absent. On 11.03.2020
adjourned to 18.03.2020. On 18.03.2020 A1 present. A2
absent. 317 Cr.P.C. Petition filed and allowed and issue
summons to LW2 to LW6 adjourned to 16.04.2020. On
16.04.2020 to 28.10.2020 due to COVID-19 accused
absent. On 28.10.2010 A1 present. A2 absent no
representation for A2 issue NBW against A2 and
adjourned 31.12.2020. On 31.12.2020 A1 present. NBW
pending against A2 adjourned to 16.03.2021.
This is for your honours kind submission.”
6. Heard Mr. R.Gokulakrishnan, learned counsel appearing for the
petitioner and Mr.M.Mohamed Riyaz, learned Additional Public Prosecutor
appearing for the respondents 1 & 2.
7. It is clear from the Report submitted by the Judicial Magistrate,
Senthurai, that initially the Final Report was filed before the Judicial
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Crl. OP No.20825 of 2020
Magistrate No.II, Ariyalur on 14.03.2017 only as against two accused
persons and admittedly no notice was issued to the petitioner regarding the
dropping of the names of A3 to A6 in the Final Report.
8. This Court had an occasion to consider a similar issue in the
Criminal Original Petition in Crl. OP. No.1856 of 2015, D.Subramanian v.
The Inspector of Police (Crime), Ambur Taluk Police Station, Vellore
District, and an order was passed on 22.07.2019. The relevant portions in
the order are extracted hereunder:
“18. It is relevant to rely upon the Judgement of this
Court in [C.Ve.Shanmugam S/o.Venugopal Vs. The Deputy
Superintendent of Police, Tindivanam Sub-division, Rosanai
Police Station, Tindivanam, Villupuram District and others] in
2010 2 MLJ Crl 833, in this regard. The relevant portions are
extracted hereunder :-
15. At the outset, I have to state that in the Code of
Criminal Procedure, there is no provision impelling the learned
Magistrate to issue notice to the de facto complainant before
accepting the final report of the police where either some of the
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Crl. OP No.20825 of 2020
accused against whom allegations were made in the FIR have
been omitted or the entire report is a negative report. The
Hon'ble Supreme Court,however, considering the said lacuna in
the Code, in Bhagawant Singh's case cited supra (AIR 1985 SC
1285) has held that such a notice is absolutely necessary. In para
4 of the judgement, the Hon'ble Supreme Court has laid down as
follows:-
"4. ....... 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 S.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 C.Ve.Shanmugam vs The Deputy Superintendent
Of ... on 21 January, 2010 Indian Kanoon -
http://indiankanoon.org/doc/699824/ 5 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 S.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
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Crl. OP No.20825 of 2020
to be given to the informant, it might result 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 beregarded 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 sub-section 2(i) of
S.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."
16. When the said law came to be again considered by the
Hon'ble Supreme Court in Union Public Service Commission v.
S.Papaiah 1998(3) Crimes 40 (SC), the same was reaffirmed.
There are several such judgements rendered subsequently
wherein the Hon'ble Supreme Court has followed the said law
laid down in Bhagawant Singh's case [AIR 1985 SC 1285]. Thus,
undoubtedly, it is a settled law as of now that before accepting a
final report, where some of the accused, whose names find a
place in the FIR, have been omitted, the learned Magistrate must
issue notice to the de facto complainant. On receipt of such
notice, the de facto complainant has got right to file a petition
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Crl. OP No.20825 of 2020
known as 'protest petition'. Only after hearing him, the learned
Magistrate has to pass an order either accepting the final report
in its entirety or rejecting the same and to proceed to take
cognizance of the offence on the basis of the materials on record
and the Court can direct further investigation or to treat the
protest petition as a complaint in terms of Chapter XV of the
Code of Criminal Procedure.
17. In para 16 of the judgement in S.Papaiah's case cited supra,
the Hon'ble Supreme Court has held as follows:-
"Thus, for what we have said above we are of the opinion that the
learned Magistrate was not justified in accepting the final report
of the C.B.I. and closing the case without any notice to the
appellant and behind its back. The order of the learned
Magistrate dated March 6, 1995 closing the case and of
November 4, 1995 dismissing the petition filed by the appellant
as well as the order of the learned Sessions Judge dated March 8,
1996 dismissing the revision petition are set aside. The matter is
remitted to the earned Metropolitan Magistrate for its disposal in
accordance with law.
......."
18. Applying the above law laid down in Bhagwant Singh's case
cited supra and followed in the other cases cited supra to the
present case, it is crystal that the order of the learned Magistrate
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Crl. OP No.20825 of 2020
accepting the final report without notice to the petitioner is
absolutely illegal and the same is, therefore, liable to be set
aside. Consequentially, the order of committal of the case to the
Court of Sessions for trial C.Ve.Shanmugam vs The Deputy
Superintendent Of ... on 21 January, 2010 Indian Kanoon -
http://indiankanoon.org/doc/699824/ 6 and all the consequential
proceedings before the Court of Sessions are liable to be set
aside.
19. Now, yet another question arises as to whether, in the
absence of any specific challenge to the order of the learned
Magistrate taking cognizance and the order of committal by filing
appropriate petition, in this revision, which questions only the
legality and correctness of the order passed by the learned
Additional Sessions Judge, this Court can set aside the above
orders of the learned Magistrate and the consequential
proceedings. In this regard, it needs to be pointed out that though
separate petition has not been filed to challenge the above
proceedings, nevertheless, a specific ground has been taken
before the learned Additional Sessions Judge as well as in this
revision that the orders of the learned Magistrate are vitiated for
want of notice as laid down in Bhagwant Singh's case.”
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Crl. OP No.20825 of 2020
9. It is clear from the above order that where the names of some of the
accused persons are dropped from the Final Report, there is a mandate to
issue notice to the Defacto Complainant to enable him to file a Protest
Petition as against dropping the names of certain accused persons. Only on
consideration of the Protest Petition, the concerned Court must take a
decision, as to whether, the Final Report filed by the respondent Police can
be sustained or the cognizance has to be taken against all the accused
persons. This mandatory procedure has not been followed in the present
case. Therefore, the cognizance of the Final Report taken by the Court
below stands vitiated and it requires the interference of this Court and
accordingly the same is set aside.
10. The petitioner is directed to file a Protest Petition before the
learned Judicial Magistrate, Senthurai, on or before 08.03.2021.
Immediately on receipt of the Protest Petition, the Court below shall
consider the same along with the materials collected by the respondent
Police in the course of investigation and take a decision on the Protest
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Crl. OP No.20825 of 2020
Petition in accordance with law. This process shall be completed within a
period of 6 weeks from the date of the filing of the Protest Petition by the
petitioner.
11. This Criminal Original Petition is allowed with the above
directions. Consequently the connected miscellaneous petition is closed.
17.02.2021
jv
Index :Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
To
1. The Inspector of Police,
Sendurai Police Station,
Ariyalur District,
Crime No.187/2016
2. The Inspector of Police,
CBCID, Ariyalur District.
3. The Public Prosecutor,
High Court of Madras,
Chennai 600 104.
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Crl. OP No.20825 of 2020
N. ANAND VENKATESH, J.
jv
Crl. OP No.20825 of 2020
and Crl MP No. 8890 of 2020
17.02.2021
https://www.mhc.tn.gov.in/judis/
