Madras High Court
Bhuavneswari vs Vijayakumar on 5 July, 2021
CrlOP(MD)No.7701 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.07.2021
CORAM
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CrlOP(MD)No.7701 of 2017
and
Crl.M.P(MD)No.5245 of 2017
Bhuavneswari ... Petitioner /Accused No.2
Vs.
Vijayakumar ... Respondent / Complainant
Prayer: Petition filed under Section 482 of the Criminal
Procedure Code, to call for the records
relating to C.C.No.20 of 2016 on the file of the Judicial
Magistrate No.1, Kulithalai and quash the private complaint
insofar as the petitioner alone.
For Petitioner : Mr.AN.Ramanathan
For Respondent : Mr.J.Anandhakumar,
Legal Aid Counsel
ORDER
This petition is filed as against the private
complaint taken on file by the learned Judicial Magistrate,
Kulithalai as against this petitioner and another for the
offence under Sections 447, 148, 506(ii) and 384 r/w 34
IPC.
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CrlOP(MD)No.7701 of 2017
2.The learned counsel for the petitioner
Mr.AN.Ramanathan submits that this petitioner Bhuvaneswari
[A2] wife of A1 has been unnecessarily roped in by the
complainant, since the complaint of the petitioner dated
26.05.2014 has been referred to as mistake of facts.
3.The learned Counsel further by referring the
complaint dated 26.05.2014 and the direction petition filed
by the complainant before this Court in Crl.O.P(MD)No.2477
of 2015 would submit that no where in the complaint and in
the direction petition, the petitioner's name is mentioned.
The complaint of the respondent is for the alleged
occurrence said to have taken place on 26.05.2014. The
complaint was originally sent to the respondent Police
through registered post on 29.05.2014. Thereafter, the
direction petition was filed by the respondent on
19.02.2015 in Crime No.2477 of 2015. The case of the
respondent in the said petition is that he was running a
saw mill in the name and style of Sri Ramajeyam Saw Mill at
Lalapet at Karur District in Survey No.179/10, 11 and 12 at
Krishnarayapuram Village, Karur - Trichy main road.
The petitioner has erected machineries and other fittings
to the tune of Rs.5,00,000/-, after obtaining due licence
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CrlOP(MD)No.7701 of 2017
and due to loss in his business, he could not pay the rent
to the petitioner. While so, on 26.05.2014 at about
10.30am, when the second respondent was in the saw mill,
the petitioner's husband one Boss Naicker and his men
trespassed into his saw mill, abused and necked him out of
the same mill that he has not paid the rent for four months
and the complainant was also criminally intimidated by the
said Boss Naicker and they also took away some of the
machineries from there.
4.For the aforesaid incident, the respondent lodged
a complaint before the Inspector of Police, Lalapet, but
the police refused to register a case and therefore, he
sent the complaint through registered post on 29.05.2014
and thereafter, filed a direction petition before this
Court. On the direction of this Court in the said petition
in Crl.O.P(MD)No.2477 of 2015, the Inspector
of Police, Lalapet Police station registered a case as
against the petitioner's husband one Boss Naicker and five
unknown persons in Crime No.55 of 2013 on 06.03.2015 for
the offence under Sections 447, 148, 506(ii) and 384 IPC.
The Police after conducting investigation filed the final
report referring the complaint as mistake of fact in RCS
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CrlOP(MD)No.7701 of 2017
No.4 of 2015 before the Judicial Magistrate No.1,
Kulithalai. As against the said RCS notice filed by the
Inspector of Police, Lalapet, this respondent filed a a
protest petition and the same was taken on file in
C.C.No.20 of 2016 as against this petitioner and her
husband Boss Naicker. Aggrieved over the same, the present
quash petition is filed by accused No.2.
5.Mr.AN.Ramanathan, learned Counsel for the
petitioner further submitted that the petitioner / wife of
the Boss Naikcer has been added in the private complaint
filed in the year 2016 only to harass the petitioner.
According to him in the earlier complaint dated 26.05.2014
of the respondent as well as in the direction petition
filed before this Court, this petitioner's name is not
mentioned.
6.Though the respondent has been served with notice
and he has also entered appearance through Advocate, there
was no representation for the respondent for several
hearings in the past and therefore, this Court by order
dated 28.06.2021 appointed Advocate Mr.J.Anandkumar, who is
having more than 20 years experience, as Legal Aid Counsel
to defend the respondent.
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CrlOP(MD)No.7701 of 2017
7.Mr.J.Anandkumar, learned Legal Aid Counsel for the
respondent submitted that there is specific averment made
against this petitioner in the complaint that she also
accompanied other accused at the time of occurrence and she
instigated the other accused to commit the offence. He also
referred to the relevant portion from the complaint and
submitted that the police had intentionally suppressed the
material facts and closed the case as mistake of fact in
favour of the accused. Therefore, the
respondent /complainant has filed a protest petition before
the learned Judicial Magistrate No.I, Kulithalai and based
on the materials placed on record, the learned Judicial
Magistrate has taken cognizance of the issue as against
this accused and issued summons and therefore, based on the
materials available, the truth or otherwise of the
complaint can only be tested during the trial.
8.The learned Legal Aid Counsel in support of his
contention relied on the following judgments:
(I) Vishnu Kumar Tiwari Vs State of Uttar Pradesh,
through Secretary Home, Civil Secretariat, Lucknow,
reported in 2019(5) CTC 603 and the relevant portion are
extracted hereunder:
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CrlOP(MD)No.7701 of 2017
“18. In Mahesh Chand v. B. Janardhan
Reddy, the appellant/complainant had lodged
report alleging commission of offences by
the respondent. Subsequently, being
dissatisfied with the investigation, he
filed a criminal complaint in the court of
the Magistrate. In the meantime, the
Investigating Officer filed a final report
finding that the controversy was of a civil
nature. The appellant filed a protest
petition. The final report was accepted by
the Magistrate. The complaint case filed by
the appellant was also closed. It became
final. The appellant filed a third
complaint, as it were, under Section 200 of
the Code. On summons being issued, it was
successfully questioned before the High
Court. We may notice the following
(2003) 1 SCC 734
“12. There cannot be any doubt or dispute
that only because the Magistrate has
accepted a final report, the same by itself
would not stand in his way to take
cognizance of the offence on a
protest/complaint petition; but the question
which is required to be posed and answered
would be as to under what circumstances the
said power can be exercised.
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CrlOP(MD)No.7701 of 2017
15.xxx xxx xxx
16. In Munilal Thakur case [1985 Cri LJ
437:1984 Pat LJR 774] the Division Bench of
the Patna High Court was concerned with the
question as to whether a Magistrate even
after accepting final report filed by the
police, can take cognizance of offence upon
a complaint or the protest petition on same
or similar allegations of fact; to which the
answer was rendered in the affirmative.
17. The question which has arisen for
consideration herein neither arose therein
nor was canvassed.
18. In Jayashankar Mund case [1989 Cri LJ
1578 : (1989) 67 Cut LT 426] the Orissa High
Court again did not have any occasion to
consider the question raised herein. The
Court held: (Cri LJ pp. 1582-83, para 6)
“Even though a protest petition is in the
nature of a complaint, it is referable to
the investigation already held by the
vigilance police culminating in the final
report and because the informant was not
examined on solemn affirmation under Section
202 of the Code, thereby no illegality or
prejudice was caused to the accused. If such
a view is accepted and there is no reason
why such a view should not be accepted, the
necessary consequence in this particular
case shall be that the protest petition
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CrlOP(MD)No.7701 of 2017
which is of the nature of a complaint
petition filed by the petitioner shall be in
continuation and in respect of the case
instituted and investigated by the vigilance
police.”
19. Keeping in view the settled legal
principles, we are of the opinion that the
High Court was not correct in holding that
the second complaint was completely barred.
It is settled law that there is no statutory
bar in filing a second complaint on the same
facts. In a case where a previous complaint
is dismissed without assigning any reasons,
the Magistrate under Section 204 CrPC may
take cognizance of an offence and issue
process if there is sufficient ground for
proceeding. As held in Pramatha Nath
Talukdar case [AIR 1962 SC 876 : 1962 Supp
(2) SCR 297 : (1962) 1 Cri LJ 770] second
complaint could be dismissed after a
decision has been given against the
complainant in previous matter upon a full
consideration of his case. Further, second
complaint on the same facts could be
entertained only in exceptional
circumstances, namely, where the previous
order was passed on an incomplete record or
on a misunderstanding of the nature of
complaint or it was manifestly absurd,
unjust or where new facts which could not,
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CrlOP(MD)No.7701 of 2017
with reasonable diligence, have been brought
on record in the previous proceedings, have
been adduced. In the facts and circumstances
of this case, the matter, therefore, should
have been remitted back to the learned
Magistrate for the purpose of arriving at a
finding as to whether any case for
cognizance of the alleged offence had been
made out or not.”
(Emphasis supplied)
19. In Gangadhar Janardan Mhatre v.
State of Maharashtra4, this Court reiterated
that Magistrate can, faced with a final
report, independently apply his mind to the
facts emerging from investigation and take
cognizance under Section 190 (1)(b), and in
this regard, is not bound to follow the
procedure under Sections 200 and 202 of the
Code for taking cognizance under Section
190(1)(b). It was, however, open to the
Magistrate to do so.
20. In regard to the filing of
protest petition by the informant who filed
the First Information Report, it is
important to notice the following discussion
by this Court:
“6. There is no provision in the Code
to file a protest petition by the informant
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CrlOP(MD)No.7701 of 2017
who lodged the first information report. But
this has been the practice. Absence of a
provision in the Code relating to filing of
a protest petition has been considered. This
Court in Bhagwant Singh v. Commr. of Police
[(1985) 2 SCC 537:1985 SCC (Cri) 267 : AIR
1985 SC 1285] stressed on the desirability
of intimation being given to the informant
when a report made under Section 173(2) is
under consideration. The Court held as
follows: (SCC p. 542, para 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 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
proceeding 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
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CrlOP(MD)No.7701 of 2017
notice to the informant and provide him an
opportunity to be heard at the time of
consideration of the report.”
9. When a report forwarded by the police to
the Magistrate under Section 173(2)(i) is
placed before him several situations 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 either (1) accept
the report and take cognizance of the
offence and issue process, or (2) may
disagree with the report and drop the
proceeding, or (3) may direct further
investigation under Section 156(3) and
require the police to make a further report.
The report may on the other hand state that
according to the police, no offence appears
to have been committed. When such a report
is placed before the Magistrate he has again
option of adopting one of the three courses
open i.e. (1) he may accept the report and
drop the proceeding; or (2) he may disagree
with the report and take the view that there
is sufficient ground for further proceeding,
take cognizance of the offence and issue
process; or (3) he may direct further
investigation to be made by the police under
Section 156(3). The position is, therefore,
now well settled that upon receipt of a
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CrlOP(MD)No.7701 of 2017
police report under Section 173(2) a
Magistrate is entitled to take cognizance of
an offence under Section 190(1)(b) of the
Code even if the police report is to the
effect that no case is made out against the
accused. The Magistrate can take into
account the statements of the witnesses
examined by the police during the
investigation and take cognizance of the
offence complained of and order the issue of
process to the accused. Section 190(1)(b)
does not lay down that a Magistrate can take
cognizance of an offence only if the
investigating officer gives an opinion that
the investigation has made out a case
against the accused. The Magistrate can
ignore the conclusion arrived at by the
investigating officer and independently
apply his mind to the facts emerging from
the investigation and take cognizance of the
case, if he thinks fit, exercise his powers
under Section 190(1)(b) and direct the issue
of process to the accused. The Magistrate is
not bound in such a situation to follow the
procedure laid down in Sections 200 and 202
of the Code for taking cognizance of a case
under Section 190(1)(a) though it is open to
him to act under Section 200 or Section 202
also. [See India Carat (P) Ltd. v. State of
Karnataka [(1989) 2 SCC 132 : 1989 SCC (Cri)
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CrlOP(MD)No.7701 of 2017
306 : AIR 1989 SC 885] .] The informant is
not prejudicially affected when the
Magistrate decides to take cognizance and to
proceed with the case. But where the
Magistrate decides that sufficient ground
does not subsist for proceeding further and
drops the proceeding or takes the view that
there is material for proceeding against
some and there are insufficient grounds in
respect of others, the informant would
certainly be prejudiced as the first
information report lodged becomes wholly or
partially ineffective. Therefore, this Court
indicated in Bhagwant Singh case [(1985) 2
SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC
1285] that where the Magistrate decides not
to take cognizance and to drop the
proceeding or takes a view that there is no
sufficient ground for proceeding against
some of the persons mentioned in the first
information report, notice to the informant
and grant of opportunity of being heard in
the matter becomes mandatory. As indicated
above, there is no provision in the Code for
issue of a notice in that regard.”
(ii) Pratibha Vs Rameshwari Devi and Others,
reported in (2008) 1 SCC (Cri) 399, the Hon'ble Supreme
Court has held as follows:
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“For the reasons aforesaid, we are
inclined to interfere with the order of the
High Court and hold that the High Court in
quashing the FIR in the exercise of its
inherent powers under Section 482 of the
Code by relying on the investigation report
and the findings made therein has acted
beyond its jurisdiction. For the purpose of
finding out the commission of a cognizable
offence, the High Court was only required to
look into the allegations made in the
complaint or the FIR and to conclude whether
a prima facie offence had been made out by
the complainant in the FIR or the complaint
or not.
Before parting with this judgment,
we may also remind ourselves that the power
under Section 482 of the Code has to be
exercised sparingly and in the rarest of
rare cases. In our view, the present case
did not warrant such exercise by the High
Court. For the reasons aforesaid, we are
unable to sustain the order of the High
Court and the impugned order is accordingly
set aside.
The appeal is allowed to the extent
indicated above. The learned Magistrate is
directed to proceed with the case
inaccordance with law. It is expected that
the Magistrate shall dispose of the criminal
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CrlOP(MD)No.7701 of 2017
proceedings as expeditiously as possible
preferably within six months from the date
of communication of this judgment.”
9. This Court paid its anxious consideration to the
rival submissions and also perused the materials placed on
record.
10.This private complaint is filed by the respondent
in the year 2016 for the alleged occurrence taken place on
26.05.2014. Admittedly, the respondent was the tenant of
the petitioner and he was running a saw mill in the
petitioner's land. It is the case of the respondent that he
was not in a position to pay rent due to loss in his
business. However, the petitioner and his husband
trespassed into his saw mill, intimidated him and also took
away the machineries from his saw mill. For this occurrence
said to have taken place on 26.05.2014, a complaint was
lodged by registered post on 29.05.2014, but the case was
not registered initially. Therefore, the respondent has
filed a direction petition before this Court in
Crl.O.P(MD)No.2477 of 2015 and pursuant to the direction of
this court, the said complaint was registered in
Crime No.55 of 2015 and the police after investigation
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CrlOP(MD)No.7701 of 2017
filed the final report referring the matter as mistake of
facts. As against the same, the protest petition is filed,
which has been taken on file as a private complaint as
against this petitioner and her husband.
11.The learned Counsel for the respondent placed
reliance on the above cited judgments of the Hon'ble
Supreme Court, wherein the right of a complainant in filing
the protest petition has been reiterated and the Courts are
expected to take cognizance of the issue, despite the final
report filed by the Police concerned. But in this issue on
hand, the respondent / complainant overstated his complaint
by adding this petitioner also as an accused, as if, this
petitioner has accompanied the other accused and also
instigated other accused to commit the offence. Therefore,
the judgments relied on by the learned Counsel are not
applicable to the case on hand.
12.The occurrence in this case has taken place on
26.05.2014 at about 10.30 hours. The complaint was sent
through registered post after three days on 29.05.2014.
Thereafter, a direction petition was filed before this
Court in Crl.O.P(MD)No.2477 of 2015 on 09.02.2015.
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CrlOP(MD)No.7701 of 2017
As rightly pointed by the learned Counsel for the
petitioner, either in the complaint sent on 29.05.2014 or
in the direction petition filed before this Court on
09.02.2015, there is no reference about this petitioner
that this petitioner also accompanied other accused and has
also indulged in the commission of offence. Pursuant to the
directions of this Court, the respondent Police registered
a case in Crime No.55 of 2015 on 06.03.2015. The petitioner
is not shown as accused in the said crime number.
The complainant/ respondent did not raise any objection to
the same at that very point of time. The case in Crime No.
55 of 2013, after investigation was closed as mistake of
facts. Thereafter, this private complaint is filed on
03.12.2015 with averments as if, this petitioner has also
accompanied other accused at the time of commission of
offence and instigated other accused to commit the offence.
The events referred to above clearly expose the manner in
which, the petitioner has been roped in and therefore, this
Court is inclined to allow this petition.
13.Accordingly, the criminal original petition is
allowed and the proceedings as against this petitioner in
C.C.No.20 of 2016 on the file of the Judicial Magistrate
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CrlOP(MD)No.7701 of 2017
No.1, Kulithalai is hereby quashed with a direction to the
trial court to proceed with the trial as against other
accused on a day to day basis. Consequently, connected
miscellaneous petition is closed.
14.This Court places its appreciation on record to
Mr.J.Anand Kumar, learned Legal Aid Counsel and the Legal
Services Authority is directed to pay a sum of Rs.10,000/-
[Rupees Ten Thousand] to the learned Counsel.
Index : Yes/No 05.07.2021
Internet : Yes/No
dsk
NOTE: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that
the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Judicial Magistrate No.1,
Kulithalai
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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CrlOP(MD)No.7701 of 2017
B.PUGALENDHI,J.,
dsk
CrlOP(MD)No.7701 of 2017
05.07.2021
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