Madras High Court
Muthaiah vs The Inspector Of Police on 8 July, 2021
Crl.O.P.(MD)No.8527 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE : 08.07.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.8527 of 2021
Muthaiah ... Petitioner/Defacto complainant
Vs.
1.The Inspector of Police,
Ponnamaravathi Police Station,
Pudukkottai District.
(Crime No.30 of 2018)
2.Raja Ambalakarar
3.Karu.Raja
4.R.M.R.Palaniyappan
5.S.P.Mani ... Respondents 1 to 5
Prayer:Criminal Original Petition is filed under Section 482 Cr.P.C., to set
aside the order of taking cognizance in C.C.No.26 of 2020 on the file of the
District Munsif cum Judicial Magistrate, Thirumayam and permit the
petitioner to file a protest petition to canvas his right in accordance with law
within the period that may be stipulated by this Court.
1/6
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.8527 of 2021
For Petitioner : Mr.R.Gandhi
For R1 : Mr.R.M.Anbu Nithi,
Additional Public Prosecutor.
ORDER
This Criminal Original Petition is filed to set aside the order of taking
cognizance in C.C.No.26 of 2020 on the file of the District Munsif cum
Judicial Magistrate, Thirumayam and permit the petitioner to file a protest
petition to canvas his right in accordance with law.
2. The case of the petitioner is that he is the defacto complainant in
Crime No.30 of 2018, which was registered against two persons for the
offences punishable under Sections 147, 148, 294 (B), 323, 324 and 506
(ii) IPC against one Sethupathi and 8 others. The statement of the petitioner
was also recorded under Section 161 (3) Cr.P.C. Apart from the names
mentioned in the final report, two other persons also attacked the petitioner
and so, sustained injuries. Because of the influence, made by the accused
persons, proper investigation was not conducted by the respondent police.
So, the names of the main accused were not included in the final report,
even though he has mentioned those persons' name in his statement. So, this
petition is filed seeking quashment of cognizance order.
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Crl.O.P.(MD)No.8527 of 2021
3. Heard both sides.
4. The only grievance that has been expressed by the learned counsel
for the petitioner, at the time of argument is that no opportunity was given
to him, when the final report was filed and cognizance was taken over the
deletion of the accused persons that have been mentioned by him, during the
course of investigation.
5. It has been mentioned in the final report to the effect that the said
accused persons namely, Raja Ambalakarar, Karu.Raja, M.R.Palaniyappan
and S.P.Mani did not take part in the occurrence and have been falsely
implicated in this case, because of their presence in the place of occurrence.
In fact, they did not make any assault and simply watching the occurrence.
So, on that ground, those persons were deleted from the final report.
6. Now, the grievance of the petitioner is that as per the settled
proposition of law, opportunity ought to have given to him before taking
cognizance by the learned Magistrate with regard to the omission of persons
mentioned. For that purpose, he would rely upon the judgment of this Court
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.8527 of 2021
in Crl.OP.No.2699 of 2019, dated 18.02.2019, in P.Venkatesh Vs.State of
Ercod Police Station, Selam District. In this case also a similar situation
arose. This Court came to the conclusion, on the basis of the judgment
reported in Bhagwant Singh Vs. Commissioner of Police AIR 1985 SC
1285, wherein, it has been observed that before accepting the final report,
the accused persons, whose name is mentioned in the final report, have been
omitted, the Magistrate, if take cognizance, must issue notice to the defacto
complainant. On receipt of the same, the defacto complainant is at liberty to
file a protest petition. Only after hearing him, the Magistrate, must take
cognizance of the offence. Based upon the judgment in the above said
Criminal Original Petition cognizance has been set aside.
7. When it is a settled proposition of law with regard to the point and
argument, now, I find a reason to set aside the order of cognizance with a
direction to the learned Judicial Magistrate, Thirumayam to issue notice to
the petitioner and the petitioner is at liberty to file a protest petition with
regard to the omission of other accused persons and decide the same on
merits and act upon the out come of the enquiry. The exercise shall be taken
within 15 days from the receipt of the notice.
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Crl.O.P.(MD)No.8527 of 2021
8. Considering the oldness of the crime, there shall be a direction to
the learned Judicial Magistrate, Thirumayam, to complete the process of
trial within six months thereafter.
9. In the result, this Criminal Original Petition is allowed.
08.07.2021
Internet:Yes
Index:Yes/No
Speaking order/Non-Speaking order
dss
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.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.8527 of 2021
G.ILANGOVAN,J.,
dss
To
1.The District Munsif cum Judicial Magistrate,
Thirumayam.
2. The Inspector of Police,
Ponnamaravathi Police Station,
Pudukkottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.O.P.(MD)No.8527 of 2021
08.07.2021
https://www.mhc.tn.gov.in/judis/
