Madras High Court
Ramesh Kumaran vs State Through The Inspector Of ... on 29 September, 2023
Crl.O.P(MD).No.15913 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 29.09.2023
CORAM:
THE HONOURABLE MR. JUSTICE P. DHANABAL
Crl.O.P(MD).No.15913 of 2019
and
Crl.M.P.(MD)No.9450 of 2019
1.Ramesh Kumaran
2.Natrayan ...Petitioners
Vs
1.State through the Inspector of Police,
Kodaikanal Police Station,
Kodaikanal, Dindigul District.
2.Ragavendran ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, praying this Court to call for the records and quash the
proceedings in S.T.C.No.607 of 2019 on the file of the learned District Munsif
cum Judicial Magistrate, Kodaikanal.
For Petitioners : Mr.G.Prabhu Rajadurai
For 1st Respondent : Mr.M.Sakthi Kumar
Government Advocate
For 2nd Respondent : No Appearance
ORDER
This petition is filed to quash charge sheet in S.T.C.No.607 of 2019 on the
file of the learned District Munsif cum Judicial Magistrate, Kodaikanal.
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Crl.O.P(MD).No.15913 of 2019
2.The case of the petitioners is that the second respondent filed a private
complaint as against these petitioners. Based on the complaint, the learned
Magistrate has taken cognizance for the offence under Section 294(b), 323
and 506(i) of IPC. In fact on 18.12.2017 when the first petitioner was walking
in Lake Road, Kodaikanal, the second respondent being the Bar President of
Advocate of Kodaikanal, at that time called the first petitioner and abused and
attacked him. The second petitioner is the father of the first petitioner. FIR has
been registered against the second respondent in Crime No.499 of 2017 and
the said case was investigated and charge sheet was filed before the learned
Judicial Magistrate, Kodaikanal. The second respondent is evading from
receiving summons for the past one year. In the meanwhile, the second
respondent in view of the complaint given by the petitioners against him, gave
a false complaint against these petitioners as if the petitioners abused and
attacked him. FIR was registered in Crime No.500 of 2017 on the file of the
first respondent police and the same was investigated and closed by the first
respondent as 'mistake of fact'. Thereafter, the second respondent preferred a
protest petition under Section 190 of Cr.P.C., and the learned Magistrate
without verifying the records taken a case under Section 200 of Cr.P.C., and
recorded the statements and then taken cognizance in S.T.C.No.607 of 2019
for the offence under Sections 294(b), 323 and 506(i) of IPC. The learned
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Crl.O.P(MD).No.15913 of 2019
Magistrate has failed to consider that no offence made out as per the
complaint and the present complaint preferred by him is against the earlier
complaint. The second respondent did not even reveal the hospital name, in
which he is trying to build up new version. This complaint is a counter blast
for the earlier complaint given by the petitioners. Therefore, the pending
S.T.C.No.607 of 2019 is liable to be quashed.
3.No counter was filed on the side of the respondents.
4.The learned counsel appearing for the petitioner has contended that
the second respondent on 18.02.2017 assaulted the petitioners and thereby, the
first petitioner lodged a complaint and FIR has been registered in Crime No.
499 of 2017 and thereafter, in order to counter blast to the complaint, the
second respondent also lodged a complaint against these petitioners and FIR
has been registered in Crime No.500 of 2017 and thereafter, the police
investigated the case and closed the case in Crime No.500 of 2007 as 'mistake
of fact'. Crime No.499 of 2017 was charge sheeted and the case is pending.
While so in order to counter blast, the aforesaid complaint given by the
petitioners, the present complaint has been lodged. The learned Magistrate
also without considering the materials taken cognizance and the same is
pending. Therefore, the charge sheet is abuse of process of law and the same
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Crl.O.P(MD).No.15913 of 2019
is liable to be quashed.
5.The learned Government Advocate appearing for the first respondent
contended that these petitioners gave a complaint against the second
respondent and FIR in Crime No.499 of 2019 was registered and investigated
by the first respondent and also filed charge sheet. In the meantime, the
second respondent also gave a complaint as against the petitioners and FIR in
Crime No.500 of 2017 was registered and after investigation, the same was
closed as 'mistake of fact'. Thereafter, the second respondent filed a protest
petition before the learned Magistrate and then it was taken on file and now
the case is pending.
6.No representation on the side of the second respondent.
7.In this case, the petitioner's contention is that already the first
petitioner had given complaint as against the second respondent and the case
was registered in Crime No.499 of 2017 and then charge sheet was filed and
the same is pending. Thereafter, this second respondent had also given
complaint against these petitioner and FIR was registered in Crime No.500 of
2017 and the case was investigated by the Investigating Officer and they filed
report stating that it was 'mistake of fact' and thereafter, the second respondent
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Crl.O.P(MD).No.15913 of 2019
filed protest petition and the same was allowed by the learned Magistrate. The
sworn statement of the witnesses were recorded and cognizance was taken by
the learned Magistrate. Now the petitioner have filed this petition stating that
no offence is made out as against the petitioners and the cognizance taken by
the learned Magistrate is liable to be quashed.
8.On perusal of the records, it is seen that the learned Magistrate has
rejected the final report filed by the respondents and thereafter, treated the
protest petition as private complaint and sworn statement was recorded and
taken cognizance. As per sworn statement, some of the offences are made out.
9.The learned Government Advocate appearing for the first respondent
relied upon the decision of the Hon'ble Supreme Court in the case of Zunaid
v. State of U.P. And Others in Criminal Appeal Nos.2628 – 2629 of 2013,
wherein the Hon'ble Supreme Court in para nos.11 and 12 held as follows:-
“11. In view of the above, there remains no shadow of doubt
that on the receipt of the police report under Section 173 Cr.P.C.,
the Magistrate can exercise three options. Firstly, he may decide
that there is no sufficient ground for proceeding further and drop
action. Secondly, he may take cognizance of the offence under
Section 190(1)(b) on the basis of the police report and issue
process; and thirdly, he may take cognizance of the offence under
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Crl.O.P(MD).No.15913 of 2019
Section 190(1)(a) on the basis of the original complaint and
proceed to examine upon oath the complainant and his witnesses
under Section 200. It may be noted that even in a case where the
final report of the police under Section 173 is accepted and the
accused persons are discharged, the Magistrate has the power to
take cognizance of the offence on a complaint or a Protest
Petition on the same or similar allegations even after the
acceptance of the final report. As held by this Court in Gopal
Vijay Verma Vs. Bhuneshwar Prasad Sinha and Others 2, as
followed in B. Chandrika Vs. Santhosh and Another3, a
Magistrate is not debarred from taking cognizance of a complaint
merely on the ground that earlier he had declined to take
cognizance of the police report. No doubt a Magistrate while
exercising his judicial discretion has to apply his mind to the
contents of the Protest Petition or the complaint as the case may
be.
12. So far as the facts of the present case are concerned, the
concerned CJM vide the detailed order passed on 15.11.2018 had
rejected the final report submitted by the Investigating Officer and
had accepted the Protest Petition, and decided to proceed further
under Section 200 Cr.P.C. Such a course opted by the CJM was
absolutely just, legal and proper in the facts and circumstances of
the case. The said order dated 15.11.2018 remained unchallenged
at the instance of the respondents-accused. It was only when the
concerned CJM after recording the statements of the complainant
and eight witnesses, issued summons on 11.01.2022, the
respondents filed the application challenging the said order dated
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Crl.O.P(MD).No.15913 of 2019
11.01.2022 under Section 482 before the High Court, and in the
said application, the order dated 15.11.2018 came to be
challenged by way of amendment. As such, the High Court should
not have permitted the respondents-accused to amend the
Application for challenging the order dated 15.11.2018 after
about four years of its passing, and in any case should not have
interfered with the discretion exercised by the CJM within the four
corners of law. The discretionary order of 11.01.2022 passed by
the concerned CJM issuing summons to the accused, after
recording statements of the complainant and the eight witnesses
and after recording prima facie satisfaction about the commission
of the alleged crime, also did not warrant any interference by the
High Court. In our opinion, the High Court has committed gross
error in setting aside the orders dated 15.11.2018 and 11.01.2022
passed by the CJM.”
10.It is well settled law that on the receipt of the police report under
Section 173 Cr.P.C., the Magistrate can exercise three options. Firstly, he may
decide that there is no sufficient ground for proceeding further and drop
action. Secondly, he may take cognizance of the offence under Section 190(1)
(b) of Cr.P.C., on the basis of the police report and issue process; and thirdly,
he may take cognizance of the offence under Section 190(1)(a) of Cr.P.C., on
the basis of the original complaint and proceed to examine upon oath the
complainant and his witnesses under Section 200 of Cr.P.C. Further even in a
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Crl.O.P(MD).No.15913 of 2019
case where the final report of the police under Section 173 of Cr.P.C., is
accepted and the accused persons are discharged, the Magistrate has the
power to take cognizance of the offence on a complaint or a Protest Petition
on the same or similar allegations even after the acceptance of the final report.
In the case on hand also, the final report filed by the police was not accepted
by the learned Magistrate and then the protest petition was filed and the same
was treated as private complaint and sworn statements were recorded and then
taken cognizance. Hence, the aforesaid case law is squarely applicable to the
present facts of the case. The order passed by the learned Magistrate is just
and proper in the facts and circumstances of the case. Therefore, there is no
infirmity in the order passed by the learned Judicial Magistrate.
11.In view of the above judgment and as discussed supra, this Criminal
Original Petition is dismissed. Consequently, connected miscellaneous
petitions are closed.
29.09.2023
NCC : Yes/No
Internet : Yes/No
Index : Yes/No
Mrn
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Crl.O.P(MD).No.15913 of 2019
To
1.The Judicial Magistrate, Kodaikanal.
2.The Inspector of Police,
Kodaikanal Police Station,
Kodaikanal, Dindigul District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P(MD).No.15913 of 2019
P. DHANABAL,J.
Mrn
Crl.O.P(MD).No.15913 of 2019
29.09.2023
https://www.mhc.tn.gov.in/judis
