S.Thangavelu vs The Sub-Inspector Of Police
2021 Latest Caselaw 23151 Mad

                                                                          Crl.R.C.No.1373 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 26.11.2021

                                                      CORAM

                                   THE HONOURABLE Ms.JUSTICE R.N.MANJULA

                                             Crl.R.C.No.1373 of 2017
                                                       and
                                             Crl.M.P.No.13384 of 2017


                     S.Thangavelu                                    ... Petitioner

                                                       Vs


                     1.The Sub-Inspector of Police,
                     District Crime Branch,
                     Coimbatore.
                     (Crime No.8/2005).

                     2.R.Krishnaveni

                     3.Rangasamy

                     4.Sundarammal

                     5.Subramaniam

                     6.Ganesan

                     7.R.S.Palanisamy



                     1/24


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                                                                                  Crl.R.C.No.1373 of 2017

                     8.K.Ramasamy

                     9.Venkatesan

                     10.Chitra                                               ... Respondents


                     PRAYER: This Criminal Revision Case is filed under Sections 397 and 401

                     of Cr.P.C., against order dated 05.07.2007 made in Crl.M.P.No.1391/2006

                     on the file of the learned Judicial Magistrate, Palladam, Tirupur District.

                                       For Petitioner     : Mr.P.M.Duraiswamy

                                        For Respondents   : Mr.A.Gopinath
                                                            Government Advocate (Crl.Side) [R1]
                                                            Mr.S.Kumaresan [R2 to R4]

                                                           Mr.K.Gangadaran
                                                           for Mr.A.Gokulakrishnan [R5 and R6]

                                                           Mr.M.Dinesh
                                                           for Mr.Ramprabhu [R7 and R9]

                                                           No Appearance for R10


                                                           ORDER

This Criminal Revision Case has been preferred challenging the order

of the learned Judicial Magistrate, Palladam, passed in Cr.M.P.No.1391 of

2006 dated 05.07.2007.

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2. The above impugned order has been passed by the learned

Magistrate on a protest petition, which was directed to be dealt as a private

complaint, by an order of the High Court. After having got the sworn

statement of the witness and satisfied that there are prima facie materials

available on record, the learned Magistrate has passed the following order:

''nkYk; tHf;fhtz';fs;. g[fhu;jhuu; jug;g[ rhl;rpa rhd;whtz';fs; guprPyid bra;jjpd; mog;gilapy; 1 Kjy; 9 tiuapyhd vjpupfSf;F vjpuhf g[fhu;jhuu; TWk; ,jr gpupt[fs; 120(gp). 417c-, 109. 420. 423. 467. 468. 34. 294(gp). 448. 506(ii) Mfpa Fw;wrhl;Lfspd; fPH; F/tp/K/r/ gpupt[ 204 d; fPH; miHg;ghiz mDg;gp tprhuiz bra;a nghJkhd Kfhe;jpu';fs; jw;nghija tHf;F R{H;epiyapy; ,y;iy. mJ rk;ge;jkhf TLjy; rhl;rpa rhd;whtz';fis g[fhu;jhuu; Kd;dpWj;jp tprhuiz bra;a Xu; tha;g;g[ mspf;fyhk; vd ,e;ePjpkd;wk; fUJfpwJ/ vdnt g[fhu;jhuu; jhf;fy; bra;Js;s ,f;Fw;wg;gy;tif kD vz;1391-2006 id (Protest Petition) jdpg;gpuhjhfnt ,e;ePjpkd;wj;jpy; nfhg;gpw;F vLf;fyhk; vd jPu;khdpf;ffg;gLfpwJ/ vdnt g[fhu;jhuu; jhf;fy; bra;Js;s Fw;wg;gy;tif kD vz;1391-

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2006 id Mz;Lg;gl;oif tHf;F vz; 130-2017. Mf ,jr 120(gp). 417c-, 109. 420. 423. 467. 468. 34. 294(gp).

448. 506(ii) d; fPH; nfhg;gpw;F vLf;ft[k;. 1 Kjy; tiuapyhd vjpupfSf;F vjpuhf nkw;go Fw;wr;rhl;Lfspd; fPH; jw;nghJ F/tp/K/r/ gpupt[ 204 d; fPH; miHg;ghiz mDg;gp tprhuiz bra;a jw;nghJ nghjpa Kfhe;jpuk; ,y;yhjjhYk;. g[fhu;jhuu; mJrk;ge;jkhf jdJ jug;g[ rhl;rpa rhd;whtz';fis Kd;dpWj;jp tprhuiz bra;at[k;.

                                   mJtiu 1 Kjy; 9 tiuapyhd vjpupfSf;F F/tp/K/r/
                                   gpupt[    204     d;      fPH;      miHg;ghiz        mDg;g[tij
                                   xj;jpitf;ft[k;         F/tp/K/r/       gpupt[     202d;       fPH;

cj;jutplg;gLfpwJ/ g[fhu;jhuu; jug;gpy; F/tp/K/r/gpupt[ 202d; fPH; rhl;rpa rhd;whtz';fis Kd;dpWj;jp tprhuiz bra;a ,t;tHf;fpd; tprhuiz tUk; 03/08/2017 k; njjpf;F xj;jp itf;fg;gLfpwJ/''

3. In fact, this is an unfortunate petition which has seen several rounds

of litigation for getting repeated directions for dealing the protest petition in

accordance with law. The matter originated on a complaint given by the

petitioner/defacto complainant. On 04.08.2004, against the respondents on

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the allegation that they have committed certain offence. On the basis of the

said complaint First Information Report has been registered in Crime No.642

of 2004 for the offence under Sections 420, 423 and 417 of IPC against the

respondents/accused. As there was no further progress in the investigation,

the petitioner/defacto complainant filed Crl.O.P.No.17370 of 2005 for

seeking direction. Only during the said proceedings, it was informed by the

Prosecuting Agency that the investigation had already been completed and the

case has been referred as ''Mistake of Fact''. Though the case was initially

registered at Palladam Police Station, subsequently it got transferred to

District Crime Branch for investigation and at the conclusion of investigation,

final report has been filed as 'Mistake of Fact'. On getting such informations,

this Court has passed an order dated 04.07.2005 in Crl.O.P.No.17370 of

2005 by dismissing the petition. However, an opportunity was given to the

petitioner to file a protest petition on receipt of the referral notice, from

Police. It is alleged by the petitioner that they were never served with referral

notice. However, on getting the knowledge about the result of the

investigation, they had filed the Protest Petition. But, it was prayed to the

learned Magistrate, Palladam to reject the final report and to order re-

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investigation. The said petition was dismissed by the learned Magistrate by

stating that the Magistrate has no power to direct the Prosecuting Agency to

do reinvestigation.

4. Challenging the same, the defacto complainant filed a criminal case

in Crl.R.C.No.777 of 2006. In the said revision petition, order has been

passed on 28.11.2006 by dismissing the said revision case. However, the

learned Magistrate was given liberty to conduct an enquiry in the protest

petition by receiving oral and documentary evidence and proceeding in

accordance with law. On receipt of the said order, the defacto complainant

once again filed a protest petition before the learned Magistrate in the form of

a private complaint on 18.01.2007. The said petition was returned by the

learned Magistrate. Since the learned Magistrate has not followed the

direction given by the High Court in the order dated 28.11.2006 passed in

Crl.R.C.No.777 of 2006, the Defacto complainant once again filed

Crl.O.P.No.5094 of 2007 for seeking directions. The said Crl.O.P.No.5094 of

2007 was disposed of on 23.02.2007 and the learned Judicial Magistrate was

directed to comply the earlier order and to conduct an enquiry on the protest

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petition by receiving oral and documentary evidence.

5. Even thereafter, the learned Magistrate did not proceed to conduct

the enquiry as directed by this Court. Instead, he forwarded the petition to the

Inspector of Police, Palladam on 26.03.2007, for taking action under Section

156(3) Cr.P.C., and to file a report. Once again the defacto complainant

knocked the door of this Court by filing Crl.R.C.No.709 of 2007 and

challenging Order of the Magistrate dated 26.03.2007 in C.F.R.No.2434 of

2007 and the same was disposed of by this Court on 21.04.2008. It is

pertinent to note that at that point of time, the accused also challenged the

order of the learned Magistrate dated 26.03.2007 by way of filing Original

Petitions in Crl.O.P.No.12300 of 2007 and Crl.O.P.No.9134 of 2008. In view

of that, a common order has been passed in Crl.R.C.No.709 of 2007 and

Crl.O.P.No.12300 of 2007 and Crl.O.P.No.9134 of 2008 on 21.04.2008. In

the said order, the order of the learned Magistrate dated 26.03.2007 was set

aside once again and direction was given to the learned Magistrate to conduct

enquiry on the Protest Petition after giving due opportunity to the defacto-

complainant to produce both oral and documentary evidence. The above

order made it clear that the said direction would not in any way disturb the

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earlier order of the learned Magistrate which rejected the prayer for

reinvestigation.

6. Thereafter, the learned Magistrate had started to conduct the enquiry

on the protest petition which was filed in the form of a complaint under

Section 200 Cr.P.C. The sworn statement of PW1 and two other witnesses

were recorded and 14 documents have been received from the defacto

complainant. After appreciating the materials on record, the learned

Magistrate dismissed the petition, but on a strange finding that the petitioner

had no right to seek CBCID or any other independent Agency to reinvestigate

the case. The said finding has been given without notice of the earlier order

passed by the same Court on that aspect and which was also confirmed by the

order of the High Court dated 28.11.2006 in Crl.R.C.No.777 of 2006. In fact,

the impact of the order was once again reiterated by the High Court, in its

common order dated 21.04.2008 passed in Crl.R.C.No.709 of 2007,

Crl.O.P.No.12300 of 2007 and Crl.O.P.No.9134 of 2008. Had the learned

Magistrate perused the records completely and known about the earlier

proceedings connected to this case, he would have averted a repeated order

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about re-investigation. Curiously, the learned Magistrate also recorded a

finding that the protest petition itself is not maintainable. Aggrieved over that,

the defacto complainant filed Crl.R.C.No.375 of 2011for setting aside the

order of the learned Magistrate dated 31.03.2009. This Court has disposed

the Crl.R.C.No.375 of 2011 on 09.01.2017 by passing the following order:

''5. In the result, the order passed by the Court below

is liable to be set aside and accordingly it is set aside and

the matter is remanded to the learned Judicial Magistrate

and the learned Judicial Magistrate, Palladam is directed to

consider the protest petition on merits and in accordance

with law and pass a suitable order within a period of six

weeks from the date of receipt of a copy of this order.''

7. In pursuant to the above order, the learned Magistrate, Palladam had

passed an impugned order on 05.07.2017. In the impugned order, the learned

Judicial Magistrate has recorded that there are no prima facie grounds to

issue process to the accused under Section 204 Cr.P.C. However, he

proceeded to record that the protest petition is liable to be treated as a private

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complaint and that can be taken on file in C.C.No.130 of 2017 under Section

120 B, 417, r/w.109, 420, 423, 467, 468, 34, 294B, 448 and 506(ii) of IPC. It

is to be seen that the earlier order of the learned Magistrate dated 31.03.2009

was passed after completing the enquiry contemplated under Section 204

Cr.P.C. If the learned Magistrate found sufficient grounds for proceeding

further, he has to either issue process for enforcing the admission of the

accused, by way of ordering 'summon' or 'warrant' as the case may be. If the

materials produced before the learned Magistrate are found to be not

sufficient to make out a prima facie case, he could have reject the complaint.

8. But, in the impugned order, the learned Magistrate has taken

cognizance of the case and assigned a C.C. Number also. If the learned

Magistrate opts to take the case on file, the consequent order would be to

issue summons or warrant to the accused for ensuring his appearance and to

conduct trial in accordance with law.

9. The learned counsel for the petitioner submitted that the impugned

order of the learned Magistrate has been passed in violation of the procedure

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contemplated under law. Since the revision petitioner was once again slapped

with a confusing order, he has prepared the revision case. He relied on the

decisions of the Hon'ble Supreme Court rendered in H.S.Bains Director

Small Saving-Cum-Deputy Secretary, Finan Vs. State (Union Territory of

Chandigarh) reported in 1980 AIR (SC) 1883, in support of his contentions

that the protest petition has to be treated like that of the petition under Section

200 Cr.P.C., and an enquiry has to be conducted under Section 202, if the

learned Magistrate thinks fit and thereafter, the only course open to the

learned Magistrate is to either dismiss the complaint or issue process. In the

said judgment, it is held as under:

''The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec.200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Sec.156(3) and received a report under Sec.173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred

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from proceeding under Section 200, 203 and 204. Thus, a magistrate who on receipt of a complaint, orders an investigation under Sec.156(3) and receives a police report under Sec.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 cognizance of the offence under Sec.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 cognizance of the offence under Sec.190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec.202 if he thinks fit.

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

10. The Hon'ble Supreme Court made it clear that even without

receiving the protest petition, the learned Magistrate on his own can issue

process, if the Police report is not agreeable and in his appreciation, the case

has to be dealt further. But, here is a case where the complainant himself has

filed a protest petition. In another judgment of the Full Bench of the Hon'ble

Supreme Court, passed in Bhagwant Singh Vs. Commissioner of Police &

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Another reported in 1985 (2) SCC 537, it is again made clear that every

protest petition should be treated as a private complaint and a proceedings

under Section 200 Cr.P.C., For the purpose of better appreciation, it is

relevant to extract paragraph No.4 of the above judgment as under:

''4. Now, when the report forwarded by the officer-in charge of a police station to the Magistrate under sub-

section (2)(i) 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 accept 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 proceeding 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

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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 recognised 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

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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 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 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

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him under sub-section (2) (i) of Section 173 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.''

11. In the above judgment, the Hon'ble Supreme Court had approved

the right of the complainant to receive referral notice. Having given a

complaint, the complainant has got a right to know about the result of his

complaint at the conclusion of the investigation. The right to file protest

petition follows as right to receive referral notice and once such petition is

filed, the learned Magistrate has to consider it like a private complaint filed

under Section 200 Cr.P.C.

12. At this juncture, the learned counsel for the respondents 2 to 4

submitted that it is always open to the learned Magistrate to postpone the

issuance of summons / warrant till the time, the complainant files the list of

witnesses under Section 204(2) Cr.P.C., and the legislation contemplates

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procedure to safeguard the interest of the accused as well. He invited the

attention of this Court to the judgment of the High Court of Orissa passed in

the case of Anil Kumar Singh Vs. Jagdish Pandey, dated 30.07.2014 in

Crl.M.C.Nos.3091, 3093 and 3095 of 2012, in support of his above

contentions. The learned counsel for the respondents 2 to 4 referred

paragraph No.14 of the above said judgment, in which, a reference was made

about the judgment of the Bombay High Court made in Pramila Mahesh

Shah v. Employees State Insurance and another (2002 CRI.L.J.2454).

''14. The Bombay High Court in Pramila Mahesh Shah v. Employees State Insurance and another 2002 CRI.L.J.2454, after taking note of the law laid down by the various Courts on the subject, has come to hold that the view expressed in Bhiku Yeshwant Dhangat (supra) is per incuriam. Hon'ble Court has proceeded to hold as under:

''xx xx xx

29. Coming to Section 204(2) of Cr.P.C., I must say that the non-compliance of this provision does not affect the jurisdiction of the Magistrate either to issue process or to try the case. This view has been taken by the Apex Court in Noorkhan v.State of Rajasthan, (1964 (1) Cri.L.J.167);

                                  Madhaorao          Pandurang          v.Yeshwant          (1969





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                                   Mah.L.J.(NOC)21);        Abdullah       Bhat     v.       Ghulam

Mohd.Wani(1972 Cri.L.J.277)J an K) (FB); and Shashi Nair v.R.C.Mehta(1982(1) Bom CR 358(Supra). The procedural laws are hand made of justice and the question of prejudice is of paramount consideration in respect of breach of procedural provisions. Therefore, even if it was to be held that the provisions of Section 204(2) are mandatory, that, by itself, would not vitiate the issue of process or the jurisdiction of the Court and where the matter is at the initial stage, directions can be given to furnish the copy of list of witnesses, if any, before the proceedings actually commenced. The stage of the proceedings is relevant to determine the prejudice, if any, caused to the accused. In the case under consideration, the substantive proceedings had not yet started. Therefore, in the circumstances, directions to the complainant to supply copy of witnesses, if any, within a period of four weeks from the receipt of the copy of the order by the trial Court would be considered as sufficient compliance of Section 204(2) of Cr.P.C., 1973.''

13. The whole reading of the above observations made by the other

High Courts would only say that even if the jurisdictional Magistrate had

opted to issue process before filing of the list of witnesses by the prosecution

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that would not vitiate the proceedings. If the Magistrate slips to issue process

without receiving the list of witnesses, his proceedings cannot be set aside as

illegal. The accused has also got a right to get the copies of the statement of

the witnesses given during 202 proceedings. In the case in hand, the accused

has not filed any petition for seeking copies of sworn statement and prayed to

stop the proceedings. For the reasons are non-filing of list of witnesses as

contemplated under Section 204(2) Cr.P.C.

14. It is worthwhile to know that even when the defacto complainant

has filed his protest petition in the form of private complaint, he has given the

list of witnesses. The learned Magistrate has chosen to take the sworn

statement of three witnesses from the list and received 14 documents. It is

open for the learned Magistrate to restrict 202 enquiry to the point of

satisfaction about prima facie case. But, the learned Magistrate without

understanding the spirit of Sections 202 and 204 had raised a

self-contradiction order by taking cognizance of the case, but stopping the

process. If, the learned Magistrate is not satisfied with the evidence on

record, he ought not to have the case on file and kept 202 proceedings

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pending and called for the sworn statement of other witnesses as well. Once

the case is taken on file, and the list of witnesses have also been furnished by

the defacto complainant nothing could prevent the learned Magistrate to issue

summons or warrant as the case may be.

15. Once the summons or warrant is issued and the accused makes his

appearance and gets the copies of the papers, his right to participate in the

proceedings is assured. At this stage, it is not necessary for the learned

Magistrate to stop the process without assigning any acceptable reasons and

that too after taking the case on file.

16. On perusal of the impugned order of the learned Magistrate, it is

seen that the learned Magistrate has got himself satisfied to take the protest

petition on file by assigning C.C.No.130 of 2017 under Sections 120 B, 417

r/w. 109, 420, 423, 467, 468, 34, 294(b), 448 and 506(ii) of IPC. Having

taken the case on file, the learned Magistrate ought to have concluded the 202

proceedings and issue summon or warrant to the accused. Once again, the

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learned Magistrate seems to continue the 202 Cr.P.C., proceedings, for

examining further witnesses. If the learned Magistrate has not satisfied with

the materials already on record, his action of taking the case on file would be

contrary to his own intention.

17. Rightly or wrongly the case has been taken on file and C.C.number

has also been assigned. Now, the learned Magistrate has to follow the next

course of action in accordance with law by issuing the process. Since the

prosecution has also filed the list of witnesses, he need not stop the

proceedings under Section 204(ii) Cr.P.C. also. Hence, the order of the

learned Magistrate requires modification and to that extent, I feel that the

interference of this Court is warranted.

18. In the result, this Criminal Revision Case is partly allowed and the

impugned order of the learned Magistrate is modified to the extent of issuing

summons to the accused in C.C.No.130 of 2017. In compliance of the above

order, the learned Magistrate is directed to cause the summons to be issued to

the accused and dispose the case in C.C.No.130 of 2017 at the earliest.

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Consequently, connected criminal miscellaneous petition is closed.

26.11.2021

Index:Yes/No Speaking Order : Yes / No ssn

To

1. The learned Judicial Magistrate, Palladam, Tirupur District.

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2.The Sub-Inspector of Police, District Crime Branch, Coimbatore.

3. The Public Prosecutor, High Court of Madras, Chennai.

R.N.MANJULA, J., ssn

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Crl.R.C.No.1373 of 2017

26.11.2021

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