Madras High Court

Dorothi Manimuthu vs The State Of Tamil Nadu on 26 February, 2025

                                                                                       Crl.R.C.(MD)No.1299 of 2024


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                           Reserved on              : 13.02.2025

                                           Pronounced on            : 26.02.2025

                                                         CORAM:

                                  THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

                                          Crl.R.C.(MD)No.1299 of 2024
                                                      and
                                          Crl.M.P(MD).No.13224 of 2024
                                                    Against
                                               C.C.No.553 of 2024


                    Dorothi Manimuthu                            .. Petitioner/De-facto Complainant

                                                              Vs.
                    The State of Tamil Nadu
                    rep.by the Inspector of Police,
                    District Crime Branch,
                    Thoothukudi.                                  .. Respondent/Complainant

                    Prayer : This Criminal Revision Petition filed under Sections 438 r/w 442
                    B.N.S.S./397 r/w 401 of Cr.P.C, to call for the records pertaining to the
                    impugned docket order dated 25.09.2024 passed by the Judicial Magistrate
                    Court-IV, Thoothukudi in C.C.No.553 of 2024 and to set aside the same
                    and to direct the Judicial Magistrate Court – IV, Thoothukudi to provide
                    an opportunity to the petitioner to file the protest petition insofar as
                    leaving the name of said Muneeswari wife of Jayakumar while filing the
                    charge sheet.

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                                                                                         Crl.R.C.(MD)No.1299 of 2024


                                   For Petitioner        : Mr.M.P.Senthil

                                   For Respondent        : Ms.M.Aasha,
                                                           Government Advocate (Crl. Side)

                                                           ORDER

The Criminal Revision Case is directed against the order dated

25.09.2024, taking cognizance of the case in CC.No.553/2024 on the file

of the Court of the Judicial Magistrate No.IV, Tuticorin.

2. On the basis of the complaint lodged by the petitioner, an FIR

came to be registered in Cr.No.23/2021 on 11.08.2021 against the fifteen

(15) persons for the alleged offences under Sections 120 (B), 417, 420,

466, 468, 471, 166 (A) & 34 of IPC.

3. The Respondent-Police after completing the investigation has

filed a final report, against thirteen (13) persons for the alleged offences

under Sections 120 (B), 417, 420, 466, 468, 471, 166 (A) & 34 of IPC.

The Respondent Police in the final report has deleted the Accused Nos.

1,4,8,9,10,11,12 and 14 shown in the FIR but included six (6) other

accused who were not named in the FIR.

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4. The learned Judicial Magistrate, after receipt of the final report

sent a notice dated 22.08.2024 to the petitioner/de-facto complainant,

calling upon him to offer his objections with regard to the deletion and

inclusion of the accused, and directed him to appear on 06.09.2024.

5. It is evident from the records that the learned Judicial Magistrate

has sent a letter dated 09.09.2024 to the Respondent-Police directing them

to add the first accused Santhanamari wife of Murugesan shown in the FIR

and file additional charge-sheet and in pursuance of the same, the Sub-

Inspector of Police has submitted a letter to the learned Judicial Magistrate

stating that since the first accused Santhanamari wife of Murugesan was

already reported dead, they have deleted the said accused from the charge-

sheet.

6. The learned Judicial Magistrate has passed the impugned order

dated 25.09.2024 taking cognizance of the case for the offences under

Section 120(B), 420, 468, 471, 465 and 109 of IPC, 1860 as against the

charge-sheeted accused in CC.No.553/2021 and ordered for issuance of

summons to them.

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7. The learned counsel appearing for the petitioner would mainly

contend that the petitioner has entered into appearance before the learned

Judicial Magistrate on 06.09.2024, in pursuance of the notice received and

raised objections to the final report, that the learned Judicial Magistrate

adjourned the matter to 09.09.2024 and thereafter to 25.09.2021 on which

date, the impugned order came to be passed, that the petitioner was not

given any opportunity to file protest petition, that the learned Judicial

Magistrate without considering the objections raised and without any sort

of any enquiry, has mechanically directed to add the name of the first

accused Santhanamari wife of Murugesan who was already reported

dead.

8. As rightly contended by the learned counsel for the petitioner, the

learned Judicial Magistrate in the letters sent to the Respondent-Police has

observed that the defendant complainant entered into appearance and

raised objections for the deletion of the accused, but neither considered

nor decided the objections raised by the petitioner.

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9. The learned Judicial Magistrate has not assigned any reason for

rejecting the objections and for addition of the first accused alone. It is not

the case of the respondent that the learned Judicial Magistrate before

issuing the letter dated 09.09.2024 has passed any order with regard to the

deletion of the accused in the charge-sheet. As rightly contended by the

learned counsel for the petitioner, though the eight accused named in the

FIR was deleted in the charge-sheet, the petitioner was not given any

opportunity to file the protest petition, instead the learned Judicial

Magistrate, by sending a letter dated on 09.09.2024, has then proceeded to

pass the impugned order, taking cognizance.

10. Since the learned Judicial Magistrate has not considered the

reasons for deletion of eight accused in the charge-sheet and the objections

raised by the defendant/complainant, the impugned communication dated

09.09.2024 sent to the Respondent-Police cannot legally be sustained and

also the consequent order taking cognizance of the case.

11. It is pertinent to note that the learned Judicial Magistrate has

only used rubber stamp mode for passing the impugned order taking

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cognizance, by filling up the provisions of law, case number and the date.

This Court has again and again reiterated the legal position that order

taking cognizance is a Judicial Act, which requires application of mind

and the Court below must give some reasons for taking cognizance and

that they cannot pass a rubber stamp order.

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

Court in M/s.Osmed Formulations Pvt. Ltd. Vs. The Tamil Nadu State in

Crl.OP.No.16250 of 2023 dated 21.07.2023 wherein the Hon’ble Supreme

Court's decision in Pawan Kumar Sharma Vs. State of Uttaranchal in

Crl. Appeal No. 1692 of 2007(ASLP (Crl.) No. 4701 of 2007, was referred

to and the Hon’ble Apex Court has dealt with the said issue and the

relevant passages are extracted hereunder: -

“There exists a strange practice. The Magistrate take cognizance of offence and issue summons in terms of Section 202 of the Code of Criminal Procedure on “rubber stamped” orders.

A distinction exists between an order taking cognizance and an order issuing process. Before process is issued, the Court concerned must apply its judicial mind. It may, not only apply its mind as to whether on the basis of the allegations made in the complaint petition and the statements made by the complainant and his witnesses, a prima facie case has been made out for issuing processes but also must consider as to whether a case has been made out in terms of proper provisions of the Penal

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Statute for issuance of process for alleged commission of the offences vis-a-vis, the allegations made. Appellant herein seriously contend that even if the submissions made in the complaint petition are given face value and taken to be correct in their entirety, no case has been made out for taking cognizance under Section 304(B) of the IPC.

In State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728, this Court has clearly made out a distinction between an order taking CRL. O.P. No.1544/2018 cognizance of an offence and an order of issuance of process stating:

“13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out.”

13. Considering the legal position referred above, the impugned

order can only be termed as a rubber stamp order and the learned Judicial

Magistrate without recording his satisfaction, has sent the communication

and passed the impugned order and as such, the same are illgal. Hence,

this Court has no other option but to set aside the communication dated

09.09.2024 and the consequent order dated 25.09.2024 taking cognizance

on this case. Consequently, the petitioner is to be given an opportunity to

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file a protest petition, and the learned Judicial Magistrate is to be directed

to consider the same and then to pass order in accordance with law.

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

impugned order dated 25.09.2024 taking cognizance is set aside. The