Madras High Court
S.Anbu vs The State on 5 February, 2025
Crl.R.C.No.1795 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.01.2025
PRONOUNCED ON : 05.02.2025
CORAM
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Crl.R.C.No.1795 of 2024
and Crl.M.P.No.14711 of 2024
S.Anbu ... Petitioner/A4
Vs.
1. The State
Rep. by the Inspector of Police,
MKB Nagar Police Station,
Pulianthope District.
Tamil Nadu. … 1st Respondent/complainant
2. G.Jayapal … 2nd Respondent/Defacto complainant
PRAYER: Criminal Revision Petition filed under Section 438 r/w 442 of
BNSS, to call for the records relating to the order dated 20.12.2021 passed
in Crl.M.P.No.11959 of 2021 in CC No.9497 of 2021 pending before the
learned X Metropolitan Magistrate, Egmore, Chennai and set aside the same
by allowing the Revision Petition.
For Petitioner : Mr.S.Praveennath
For Respondents : Mr.S.Udaya Kumar (for R1)
Government Advocate (Crl.Side)
Page No.1 of 13
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Crl.R.C.No.1795 of 2024
Mr.B.Venugopal (for R2)
Page No.2 of 13
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Crl.R.C.No.1795 of 2024
ORDER
The Criminal Revision challenges the order dated 20.12.2021 passed
by the learned X Metropolitan Magistrate, Egmore, Chennai, taking
cognizance of offences under Sections 120-B, 109 and 420 of the IPC,
against the petitioner who was arrayed as A4 in the FIR.
2. The defacto complainant/2nd respondent herein had lodged a
complaint alleging that he was introduced to A1 by A2, who was employed
as a Typist in Tamil Nadu Textile Department; that A1 informed him that
State Government is inviting applications for providing jobs for youth, who
were below poverty line and she assured that she would obtain a job, for
which the defacto complainant has to pay Rs.1 Lakh, as a security deposit;
that believing the words of A1, the defacto complainant and about 34 others
paid Rs.1 Lakh each to A1; that A1 neither returned the amount nor
obtained a job as promised; and that A3 to A6 are related to A1 and when
the defacto complainant approached them through telephone, they
apologised for the delay and assured that A1 would either get a job or return
the amount. The petitioner was arrayed as A4 in the FIR.
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3. An FIR was registered in Cr.No.124 of 2020 on the direction of the
learned Magistrate under Section 156(3) of the Cr.P.C., on 25.02.2020 for
the offences under Sections 120(b), 465, 467, 468, 471, 109 and 420 of the
IPC.
4. On investigation, the 1st respondent filed a final report against A1
and A2 and deleted the names of the petitioner/A4, A3, A5 and A6.
Aggrieved by the said deletion the defacto complainant, the 2nd respondent
herein filed a protest petition stating that the 1st respondent had erroneously
deleted A3 to A6 from the final report, though there were allegations against
them. The 1st respondent objected to the said petition on the ground that the
investigation did not reveal the involvement of the petitioner and the other
accused and hence, they were deleted from the final report and that the
protest petition is without any merits and sought for dismissal.
5. The learned X Metropolitan Magistrate, Egmore, Chennai,
considered the rival submissions and held that the final report did not
contain sufficient materials to issue summons to A3 to A6 and that if
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evidence is let in during the course of trial, they could be summoned under
Section 319 of the Cr.P.C. The learned Magistrate also directed further
investigation by the 1st respondent to ascertain if the accused including the
petitioner who were deleted from the final report, were involved in the
offence. It appears that the 1st respondent had filed a further report
reiterating their findings in the earlier report.
6. The learned Magistrate therefore, treated the protest petition as a
complaint under Section 200 of the Cr.P.C., and examined seven witnesses
produced on the side of the defacto complainant and found that under
Section 210(2) of the Cr.P.C., the learned Magistrate is empowered to try
the complaint case and the case arising out of a police report as both the
cases are instituted on the police report and relied upon the judgment of the
Hon'ble Supreme Court in Sankaran Motira v. Sadhana Das & Another,
reported in (2006) 4 SCC 584 and further found that the defacto
complainant has made out a prima facie case, took cognizance of the
offences against the accused A3 to A6.
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7. Mr.Praveennath, the learned counsel for the petitioner/A4 would
submit that neither Section 210(2) of the Cr.P.C., nor the judgment of the
Hon'ble Supreme Court is applicable to the facts of the case; that the report
and the further report filed by the 1st respondent police would clearly show
that A3 to A6 were not involved in the offence and the procedure followed
by the learned Magistrate by trying the protest petition as a complaint under
Section 200 of the Cr.P.C., is not justified and contrary to the provisions of
the Code of Criminal Procedure; and hence, prayed for setting aside the
order.
8. Mr.S.Udaya Kumar, the learned Government Advocate (Crl.Side)
and Mr.B.Venugopal, the learned counsel for the defacto complainant/2nd
respondent submitted that the materials produced by the defacto
complainant revealed that the petitioner along with the other accused
deleted were also involved in the alleged offence; and that the Magistrate
was therefore justified in taking cognizance of the offence even as against
the petitioner and others and therefore, prayed for dismissal of the revision.
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9. Heard the learned counsel on either side and perused the materials
available on record.
10. When the protest petition was initially filed, the learned
Magistrate vide order dated 30.06.2021 had directed the 1st respondent to
conduct further investigation and file a report. The 1st respondent on further
investigation filed a report reiterating the findings in their earlier report. The
learned Magistrate thereafter, treating the protest petition as a complaint and
by following the procedure under Section 200 of the Cr.P.C., had examined
all the witnesses produced on the side of the defacto complainant. The
learned Magistrate thereafter, applied Section 210(2) of the Cr.P.C., to hold
that the Magistrate can try the complaint case and the case arising out of a
police report, as if both the cases were instituted on the police report and
considering the materials produced by the defacto complainant during
enquiry under Section 200 of the Cr.P.C., took cognizance of the offence
against A3 to A6.
11. It is well settled that the protest petition can be treated as a
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complaint only if it fulfils the requirement of a complaint and then deal with
the same under Section 200 r/w 202 of the Cr.P.C. This position was
reiterated by the Hon'ble Supreme Court in Vishnu Kumar Tiwari vs. State
of Uttar Pradesh, reported in (2019) 8 SCC 27 and the relevant paragraph
reads as follows:
“46. 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 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.”
12. However, the question in this case is not whether the protest
petition satisfies the requirements of Section 200 of the Cr.P.C. This is a
case where a police report has already been filed and cognizance has been
taken of the offence under Sections 120B, 109 and 420 of the IPC against
A1 and A2. The question is whether the provisions of Section 210(2) of the
Cr.P.C., can be applied to summon additional accused.
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13. Section 210 of the Cr.P.C., reads as follows:
“210. Procedure to be followed when there is a complaint case and
police investigation in respect of the same offence.
(1) When in a case instituted otherwise than on a police report
(hereinafter referred to as a complaint case), it is made to appear to the
Magistrate, during the course of the inquiry or trial held by him, that an
investigation by the police is in progress in relation to the offence which is the
subject-matter of the inquiry or trial held by him, the Magistrate shall stay the
proceedings of such inquiry or trial and call for a report on the matter from
the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section
173 and on such report cognizance of any offence is taken by the Magistrate
against any person who is an accused in the complaint case, the Magistrate
shall inquire into or try together the complaint case and the case arising out of
the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint
case or if the Magistrate does not take cognizance of any offence on the police
report, he shall proceed with the inquiry or trial, which was stayed by him, in
accordance with the provisions of this Code.
14. The above would show that in order to invoke Section 210 of the
Cr.P.C., there must be a complaint pending for enquiry or trial and also an
investigation must be in progress in relation to the same offence and the
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further condition is that the Magistrate must have already taken cognizance
of an offence against the persons who are accused in the complaint case.
However, in this case, a final report was already filed and there was no
complaint pending at that stage. The protest petition was treated as a
complaint and the accused named in the protest petition were sought to be
summoned by treating the complaint case as one to be tried along with the
police report. This procedure is not in accordance with Section 210 of the
Cr.P.C., and therefore the learned Magistrate ought not to have invoked
Section 210 Cr.P.C., to summon additional accused on the basis of the
protest petition. This Court is of the view that the learned Magistrate ought
to have seen that the judgment of the Hon'ble Supreme Court in Sankaran
Motira's case [cited supra] would not be applicable to the facts of this case.
The first condition that the complaint must be pending and the police report
must be filed later, has not been satisfied in this case. Therefore, this Court
is of the view that the impugned order by relying upon Section 210 of the
Cr.P.C., cannot be sustained.
15. Accordingly, the order dated 20.12.2021 passed by the learned X
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Metropolitan Magistrate, Egmore, Chennai, taking cognizance of offences
under Sections 120-B, 109 and 420 of the IPC, against the petitioner who
was arrayed as A4 in the FIR, is set aside. It is made clear that the
cognizance taken by the learned Magistrate for the offences under Sections
120B, 109 and 420 of the IPC against A1 and A2, is confirmed and if during
the course of trial, it appears from the evidence that any other person has
committed the offence, it is open to the learned Magistrate to summon the
said person, under Section 319 of the Cr.P.C.
16. With the above observations, the Criminal Revision Case stands
allowed. Consequently, the connected Criminal Miscellaneous Petition is
closed.
05.02.2025
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
ars
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SUNDER MOHAN, J.
ars
To
1.The X Metropolitan Magistrate,
Egmore, Chennai.
2.The Inspector of Police,
MKB Nagar Police Station,
Pulianthope District.
Tamil Nadu.
3.The Public Prosecutor,
High Court, Madras.
Pre-delivery order in
https://www.mhc.tn.gov.in/judis
05.02.2025
https://www.mhc.tn.gov.in/judis
