Madras High Court

Selvakani vs State Rep. By on 29 October, 2024

                                                                          Crl.R.C.(MD)No.751 of 2024

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                           Reserved on         : 18.09.2024

                                           Pronounced on       : 29.10.2024

                                                     CORAM:

                                  THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

                                           Crl.R.C.(MD)No.751 of 2024
                                                       and
                                           Crl.M.P.(MD)No.8072 of 2024


                    Selvakani                                                      ... Petitioner



                                                         Vs.

                    1.State rep. by
                      The Inspector of Police,
                      Kallikudi Police Station,
                      Madurai District.
                      (Crime No.41 of 2022)

                    2.Muthu Rakku                                                 ... Respondents

                    Prayer : This Criminal Revision Petition filed under Sections 438 r/w 442
                    B.N.S.S., to call for the records and set aside the order passed by the Court
                    of Judicial Magistrate, Tirumangalam, Madurai District in Crl.M.P.No.
                    5785 of 2022 on 08.05.2024 and allow this Criminal Revision Petition.



                    1/20
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                                                                         Crl.R.C.(MD)No.751 of 2024

                                   For Petitioner    : Mr.M.Jothi Basu

                                   For R1            : Mr.K.Sanjai Gandhi
                                                       Government Advocate (Crl. Side)

                                   For R2            : Mr.P.Veerapandi


                                                       ORDER

The Criminal Revision is directed against the order passed in

Crl.M.P.No.5785 of 2022 in C.C.No.224 of 2024 dated 25.03.2024 on the

file of the Judicial Magistrate Court, Tirumangalam.

2. On the basis of the complaint lodged by the second respondent,

FIR came to be registered in Crime No.41 of 2022 against 9 persons

including the petitioner for the alleged offences under Sections 147,148,

294(b), 323, 324 and 506(2) IPC and Section 4 of TN Prohibition of

Harassment of Women Act, 2002. The first respondent, after completing

the investigation, has filed a final report against 8 persons and also filed a

report deleting the petitioner/9th accused from the above case before the

jurisdictional Court. The learned Magistrate, after receipt of the charge

sheet as well as the deletion report, has issued notice to the second

respondent. The second respondent has entered into appearance and filed a

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protest petition in Crl.M.P.No.5785 of 2022 and the learned Magistrate,

after enquiry, has passed the impugned order dated 25.03.2024 by holding

that there existed prima facie case against the petitioner and ordered for

issuance of summons to all the accused including the petitioner. Aggrieved

by the order adding the petitioner as one of the accused and for issuance of

summons, the present revision came to be filed.

3. The learned counsel appearing for the petitioner would submit

that though the petitioner has been arrayed as 8 th accused in the FIR

registered in Crime No.41 of 2022, during investigation the investigating

officer, after finding that the petitioner was not at all available at the place

of occurrence, has filed the charge sheet only against 8 accused and also

filed deletion report deleting the petitioner from the above case, that once

a report has been filed under Section 190 Cr.P.C., 1973, it is the duty of the

Court to apply its mind to take cognizance of the case and ordered for

issuance of summons to the accused, that if any closure report has been

filed, it is the duty of the Court to issue summons to the defacto

complainant and after hearing the objections of the defacto complainant,

the Court has to decide as to whether the closure report has to be accepted

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or not, that if two reports one charge sheet against some of the accused

and other one closure report against some of the accused have filed, then it

is the duty of the Court to treat and consider both the reports separately

and independently and that the learned Magistrate, in the present case

without taking the charge sheet on file, has chosen to issue summons to

the second respondent and after filing of the protest petition filed by the

second respondent, the learned Magistrate has passed the impugned order

for adding the petitioner as 9th accused and converting the Crl.M.P.No.

5785 of 2022 as C.C.No.224 of 2024 and directed to issue summons to all

the accused and as such, the procedure adopted by the learned Magistrate

is illegal and liable to be set aside.

4. The learned counsel appearing for the petitioner would further

contend that in the protest petition, the complainant has to satisfy the

requirements of a complaint as defined in Section 2(d) Cr.P.C., that should

contain facts that constitute offence, for which, the learned Magistrate is

taking cognizance under Section 190(1)(a) Cr.P.C., that if the protest

petition has been filed without containing all the necessary particulars, it

cannot be constituted as a complaint filed under Section 200 Cr.P.C. and

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that the learned Magistrate only if the protest petition fulfils the

requirements of a complaint, can treat the protest petition as a complaint

and deal with the same as required under Sections 200 r/w 202 Cr.P.C.

5. The learned counsel appearing for the petitioner would further

submit that the present case in Crime No.41 of 2022 and the case in Crime

No.40 of 2022 are case and case in counter, that the sixth accused in the

present case has lodged a complaint and on that basis, FIR came to be

registered in Crime No.40 of 2022 and the said case is now pending before

the Mahila Court, Madurai in S.C.No.11 of 2024 and that since both are

case and case in counter, both cases should be tried jointly.

6. It is evident from the records that the learned Magistrate, after

filing of the charge sheet as well as the report deleting the petitioner as

accused, has issued notice to the second respondent and after filing of the

protest petition filed by the second respondent, the same was taken on file

in Crl.M.P.No.5785 of 2022.

7. No doubt, as rightly pointed out by the learned counsel appearing

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for the petitioner, the learned Magistrate has not taken the charge sheet on

file before proceeding to decide as to whether the deletion report or

closure report as against the petitioner has to be accepted or not. As rightly

contended by the learned Government Advocate (Criminal Side), there is

no law which mandates the Magistrate to take the charge sheet on file and

then to proceed against the deletion report separately and independently.

The learned Magistrate, after finding that there existed prima facie case

against the petitioner, has taken the case on file as C.C.No.224 of 2024

and ordered for issuance of summons to all the accused including the

petitioner. Considering the above, in the absence of any legal mandate, the

procedure adopted by the learned Magistrate cannot be found fault with

and absolutely there is no illegality or irregularity in the proceedings

conducted.

8. The next contention of the petitioner is that the protest petition

filed by the second respondent does not contain the necessary particulars

which are required for a normal complaint as defined under Section 2(d)

Cr.P.C., that there is no list of witnesses annexed along with the protest

petition and as such, the same does not satisfy the requirements of a

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complaint and therefore the said protest petition cannot be treated as a

complaint for the purpose of proceeding under Section 200 Cr.P.C. and

that since the learned Magistrate has decided to issue summons to the

second respondent in the closure report, he is duty bound to follow the

procedure contemplated for private complaint.

9. No doubt, as rightly pointed out by the learned counsel appearing

for the petitioner, the learned Magistrate has not treated the protest

petition as a complaint under Section 200 Cr.P.C., but as rightly contended

by the learned Government Advocate (Criminal Side) and the learned

counsel appearing for the second respondent, the learned Magistrate,

considering the materials available on record and also the objections

raised in the protest petition, has come to a finding that there existed

prima facie case against the petitioner and on that basis, had taken the case

on file in C.C.No.224 of 2024 and ordered for issuance of summons.

10. At this juncture, it is necessary to refer the judgment of the

Hon'ble Supreme Court in the case of Vishnu Kumar Tiwari Vs. State of

Uttar Pradesh and another reported in 2019 (5) CTC 603 and the relevant

passages are extracted hereunder:-

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“41. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the

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Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.

42. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition. In Mahabir Prasad Agarwala v. State AIR 1958 Ori. 11, a learned Judge of the High Court of Orissa, took the view that a protest petition is in the nature of a complaint and should be examined in accordance with provisions of Chapter XVI of the Criminal Procedure Code. .....

43. We may also notice that in Veerappa and others v. Bhimareddappa 2002 CriLJ 2150 (Karnataka), the High Court of Karnataka observed as follows:

“9. From the above, the position that emerges is this: Where initially the complainant

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has not filed any complaint before the Magistrate under Section 200 of the Cr.P.C., but, has approached the police only and where the police after investigation have filed the 'B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) of the Cr.P.C. on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) of the Cr.P.C., and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) of the Cr.P.C. Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 of the Cr.P.C.”

....

45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under

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Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second respondent against the final report.”

11. The learned counsel appearing for the petitioner would also rely

on the recent decision of the Hon'ble Supreme Court in Mukhtar Zaidi Vs.

The State of Uttar Pradesh and another reported in 2024 SAR (Cri) 657,

wherein, Vishnu Kumar Tiwari's case judgment was referred. In the

above decision case, negative final report came to be filed and on that

basis, notices were issued to the informant, that the informant filed a

protest petition along with affidavits to show that investigation carried out

by the investigating officer was not a fair one, that the learned Chief

Judicial Magistrate has passed an order rejecting the police report under

Section 173(2) Cr.P.C. and further proceeded to take cognizance for the

offences under Sections 147, 342, 323, 307 and 506 IPC and under

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Section 190(1)(b) Cr.P.C. and also directed that the matter would continue

as a State case and that when the same was challenged before the High

Court, the same was dismissed and challenging the dismissal, an appeal

came to be filed before the Hon'ble Supreme Court. The learned Chief

Judicial Magistrate had actually taken into consideration the protest

petition and also the affidavit filed in support of the protest petition as

well as the four affidavits of witnesses filed along with the protest petition

and by observing that the investigation conducted by the police was not a

fair investigation and that the affidavits filed along with the protest

petition made out a prima facie case for taking cognizance, issued

summons to the accused.

12. In the case on hand, the second respondent has only raised her

objections to the final report in the protest petition and she has neither

annexed any list of witnesses nor any other supporting materials. Since the

protest petition was not filed as a complaint as required under Section 2(d)

Cr.P.C., the question of the learned Magistrate treating the protest petition

as a complaint and to proceed under Section 200 Cr.P.C. does not arise at

all. Moreover, the learned Magistrate has only considered the objections

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raised in the protest petition, that the prosecution has filed the deletion

report on the ground that the petitioner was present in the school at the

time of occurrence, but the second respondent has raised objection that the

occurrence took place after working hours of the school and even as per

the prosecution case, the time of occurrence was shown to be after

working hours and on that basis, the learned Magistrate has recorded that

he found prima facie case against the petitioner. As rightly contended by

the learned counsel appearing for the second respondent, in the FIR as

well as in the final report, it has been specifically stated that the incident

was occurred at 04.45 p.m. on 28.02.2022 and that the prosecution has

also produced some materials to show that the school was closed at

04.10 p.m.

13. The second respondent has filed a counter affidavit stating that

even according to the version of the Headmaster of the school, the

petitioner was in the school till 04.10 p.m., but the occurrence took place

around 04.45 p.m., that the distance between the school and the

occurrence place is quite short, that therefore the conclusion of the first

respondent that the petitioner was not available at the occurrence place on

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the ground of alibi cannot be accepted and that there is no valid ground to

raise for setting aside the impugned order passed by the learned

Magistrate.

14. As per the settled legal position, above referred, it is not

mandatory that every protest petition must necessarily be treated as a

complaint and required to be proceeded under Section 200 Cr.P.C.

15. As rightly observed by the Hon'ble Supreme Court, in majority

of cases when a final report is submitted, the Magistrate has to simply

consider whether on the materials in the case diary no case is made out as

to accept the final report or whether case diary discloses a prima facie case

as to take cognizance and in that situation, the protest petition simply

serves the purpose of drawing Magistrate's attention to the materials in the

case diary and invite a careful scrutiny and exercise of the mind by the

Magistrate so it cannot be held that simply because there is a protest

petition the case has to become a complaint case.

16. The learned Magistrate, without treating the protest petition as a

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complaint, by considering the materials produced by the prosecution in the

final report and in the deletion report and taking note of the objections

raised by the second respondent in the protest petition, has rightly come to

a decision that there existed prima facie case against the petitioner and on

that basis, ordered for issuance of summons.

17. Considering the above, the impugned order adding the petitioner

as 9th accused and for issuance of summons to her cannot be found fault

with. Consequently, this Court concludes that the revision is devoid of

merits and the same is liable to be dismissed.

18. It is not in dispute that on the basis of the complaint given by the

sixth accused, counter FIR came to be registered in Crime No.40 of 2022

for the offences under Sections 147, 148, 294(b), 323, 324, 307 and 506(2)

IPC r/w Section 4 of TN Prohibition of Harassment of Women Act and

that after completing the investigation, charge sheet came to be filed and

the case is pending in S.C.No.11 of 2024 on the file of the Mahila Court,

Madurai.

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19. As rightly contended by the learned counsel appearing for the

petitioner, if both cases in Crime Nos.40 of 2022 and 41 of 2022 are case

and case in counter, it is settled law that both the cases are to be tried by

the same Court. As already pointed out, the present case in C.C.No.224 of

2024 is pending on the file of the Judicial Magistrate, Tirumangalam,

whereas, the counter case is pending in S.C.No.11 of 2024 on the file of

the Mahila Court, Madurai. At this juncture, it is necessary to refer the

judgment of the Hon'ble Supreme Court in the case of Sudhir and others

Vs. State of Madhya Pradesh and others reported in AIR 2001 SC 826,

wherein, the Hon'ble Apex Court in the situation like this, directed the

Magistrate to exercise special power conferred on him by virtue of Section

323 Cr.P.C. and he has to commit the case in counter, which is pending on

his file to the Sessions Court and the relevant passages are extracted

hereunder:-

“13. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court. The

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magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the magistrate has, nevertheless, power to commit the case to the court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus:

"If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of chapter XVIII shall apply to the commitment so made."

14. The above section does not make an inroad into Section 209 because the former is intended to cover cases to which Section 209 does not apply. When a

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magistrate has committed a case on account of his legislative compulsion by Section 209, its cross case, having no offence exclusively triable by the Sessions Court, must appear to the magistrate as one which ought to be tried by the same Court of Sessions. We have already adverted to the sturdy reasons why it should be so. Hence the magistrate can exercise the special power conferred on him by virtue of Section 323 of the Code when he commits the cross case also to the Court of Sessions. Commitment under Section 209 and 323 might be through two different channels, but once they are committed their subsequent flow could only be through the stream channelised by the provisions contained in Chapter XVIII.”

20. Considering the above, the learned Judicial Magistrate is to be

directed to follow the dictum laid down by the Hon'ble Supreme Court for

committing the case in counter which is pending on his file.

21. In the result, this Criminal Original Petition stands dismissed.

The learned Judicial Magistrate, Tirumangalam is directed to follow the

dictum laid down by the Hon'ble Supreme Court in Sudhir and others Vs.

State of Madhya Pradesh and others reported in AIR 2001 SC 826 and

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commit the case in C.C.No.224 of 2024 to the file of the Mahila Court,

Madurai, where S.C.No.11 of 2024 is pending. Consequently, connected

Miscellaneous Petition is closed.

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