Madras High Court
Muthusami ... Revision vs Gurusamy (Retd on 26 March, 2025
Crl.R.C.(MD).No.296 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 7.03.2025
PRONOUNCED ON :26.03.2025
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.296 of 2025
Muthusami ... Revision Petitioner / Petitioner
Vs.
1.Gurusamy (Retd., DSP)
2.Immanuel
3.Aarthi
4.Mohandas
5.Angammal
6.Anitha
7.Daughter of 1st Accused
8.Military Ganesan
9.Tamilselvi : Respondents 1 to 9/Accused 1 to 9
10.State represented by
The Deputy Superintendent of Police,
Puliyangudi Sub Division,
Puliyangudi. : Respondent No.10/Complainant
1/15
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Crl.R.C.(MD).No.296 of 2025
PRAYER: Criminal Revision Petition has been filed under Section 438 r/w 442
of BNSS, 2023 and Section 397 r/w 401 Cr.P.C., to call for the records from the
lower Court in Cr.M.P.No.2350 of 2024, dated 19.10.2024, on the file of the
learned Judicial Magistrate Court, Sivagiri, Tenkasi District and set aside the
same.
For Petitioner : Mr.C.Kathirvelu
Senior Counsel
for Mr.K.Prabhu
For Respondents : Mr.B.Thanga Aravindh
Government Advocate(Crl.Side)
for R.10
ORDER
This Criminal Revision is directed against the order passed in Crl.M.P.No.
2350 of 2024, dated 19.10.2024, on the file of the Court of the Judicial
Magistrate, Sivagiri.
2. The case of the petitioner is that the first respondent is a retired Deputy
Superintendent of Police and the respondents 2 to 9 are his family members, that
the first respondent approached the petitioner in 2020 promising that he will
arrange for a job in Thoothukudi Port for the petitioner's daughter and demanded
a sum of Rs.5,00,000/- and the petitioner believing the words of the first
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respondent, gave the said amount to the first respondent, that the first respondent
had also requested the petitioner to refer his relatives for the post of Constable,
Sub Inspector of Police and Inspector of Police, as there are vacancies in the
police department and he will make arrangements for the job, that the petitioner
believing the words of the first respondent, informed the same to his relatives,
that the petitioner's relative namely Murugesan has given a sum of Rs.6,00,000/-
for the post of Sub Inspector of Police and other relatives namely Palanivel,
Rahul, Seenivasan and Guruvaiya have given a sum of Rs.3,00,000/- each totally
a sum of Rs.23,00,000/- to the first respondent and the same came to be received
at the petitioner's house, that the first respondent's sons and daughter-in-laws
were very much present at the time of receiving the amount and the eighth
respondent has also received a sum of Rs.1,10,000/- from the petitioner, that
since the respondents did not make any arrangements for the job as promised by
them, the petitioner and his relatives enquired about the nature of the job, that
the first respondent had taken all the persons to Chennai alleging that the job
order came to be received and made them to stay for a week and thereafter
informed that he could not get the job at that time, directed them to return to
their places, that subsequently the first respondent had taken them to Trivandrum
and issued order copy and directed them to proceed to the ground, where the
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selection was going on and left that place, that the petitioner and his relatives
subsequently came to know that the order given by the first respondent are fake
orders, that when the petitioner and his relatives had demanded for return of
amount, they have been postponing the same on some pretext or other, that
subsequently the first respondent informed that the entire amount was locked in
the post office and he was in need of Rs.2,00,000/- to get the entire amount and
believing the words, the petitioner and his relatives have given Rs.2,00,000/- and
at that time, the first respondent executed a document and also a promissory note
promissing to return the amount within a week, that when the petitioner and his
relatives had approached the respondents again, all the accused had abused them
in filthy language using caste name and caused criminal intimidation, that they
have sent a complaint to the District Superintendent of Police on 26.08.2024 and
since there was no action, the petitioner was constrained to file the above
application under Section 175(3) BNSS for registration of the case and for
investigation.
3. The learned Judicial Magistrate, taking the petition filed under Section
175(3) BNSS on file in Crl.M.P.No.2350 of 2024 and upon perusing the
petitioner's petition, affidavit and other materials, has passed the impugned order
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dated 19.10.2024, by holding that the petition cannot blindly be forwarded for
the purpose of registration of F.I.R., passed the impugned order directing to treat
the petition as a private complaint under Section 200 Cr.P.C., and adjourned the
matter for recording of sworn statement of the complainant and his witnesses.
Aggrieved by the impugned order treating the petition filed under Section 175(3)
BNSS as private complaint under Section 200 Cr.P.C., the present revision came
to be filed.
4. The learned Counsel for the petitioner would submit that the learned
Magistrate is duty bound to see whether any cognizable offence is made out, that
the entire reading of the petition would reveal the commission of offence
punishable under Sections 318, 351(3) BNSS and Section 3(1)(s) of SC/ST
(POA) Act, that the petitioner has specifically alleged that it is a clear case of
cheating and amount involved is Rs.23,00,000/- and for recovery of the said
amount, the registration of F.I.R., and custodial interrogation is very much
necessary, that though the petitiner has sent a complaint to the Superintendent of
Police, since the first respondent is a retired Deputy Superintendent of Police,
the Superintendent of Police supporting the first respondent, has not taken any
action, which is very much against law, that the learned Magistrate failed to
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consider that it is very difficult to produce the witnesses in these type of
offences, as the occurrence took place in the house of the petitioner and the
affected parties only would know the fact and that the learned Judicial
Magistrate without considering the above aspects in proper perspective has
passed the impugned order in a mechanical manner.
5. The learned Counsel for the petitioner would rely on the judgment of
the Hon'ble Supreme Court in Mona Panwar Vs. High Court of Judicature of
Allahabad through its Registrar and others reported in (2011)3 SCC 496. In
the said decision case, the third respondent filed a petition under Section 156(3)
Cr.P.C., complaining about the rape committed on her by her father-in-law, that
the learned Magistrate, after the receipt of the report from the concerned police,
has passed an order directing that the application submitted under Section 156(3)
of the Code be registered as complaint and further ordered the Registry to
present the file before her for recording the statement of the complainant under
Section 200 Cr.P.C., and aggrieved by the said order, the third
respondent/complainant filed a petition before the High Court of Allahabad and
sought for quashing of the order passed by the learned Magistrate and that the
High Court, while setting aside the order of the Magistrate, has passed serious
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remarks against the Judicial Magistrate. When the learned Magistrate has filed a
criminal appeal to expunge the remarks made by the learned Single Judge of the
Allahabad High Court, the Hon'ble Supreme Court, while setting aside the order
of the High Court making remarks against the learned Magistrate, has
specifically observed that if the Magistrate finds that the allegations in the
complaint discloses of cognizable offence and forwarding of the complaint to the
police for investigation under section 156(3) Cr.P.C., will not be conducive to
justice, she will be justified in adopting the course suggested in Section 200 of
the Code and the relevant paragraphs are extracted hereunder:
“18. When the complaint was presented before the appellant, the
appellant had mainly two options available to her. One was to pass
an order as contemplated by Section 156(3) of the Code and second
one was to direct examination of the complainant upon oath and the
witnesses present, if any, as mentioned in Section 200 and proceed
further with the matter as provided by Section 202 of the Code. An
order made under sub-section (3) of Section 156 of the Code is in the
nature of a peremptory reminder or intimation to the police to
exercise its plenary power of investigation under Section 156(1).
Such an investigation embraces the entire continuous process which
begins with the collection of evidence under Section 156 and ends
with the final report either under Section 169 or submission of charge
sheet under Section 173 of the Code. A Magistrate can under Section
190 of the Code before taking cognizance ask for investigation by the
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police under Section 156(3) of the Code. The Magistrate can also
issue warrant for production, before taking cognizance. If after
cognizance has been taken and the Magistrate wants any
investigation, it will be under Section 202 of the Code.
19. The phrase "taking cognizance of" means cognizance of
offence and not of the offender. Taking cognizance does not involve
any formal action or indeed action of any kind but occurs as soon as
a Magistrate applies his mind to the suspected commission of an
offence. Cognizance, therefore, takes place at a point when a
Magistrate first takes judicial notice of an offence. This is the
position whether the Magistrate takes cognizance of an offence on a
complaint or on a police report or upon information of a person other
than a police officer. Before the Magistrate can be said to have taken
cognizance of an offence under Section 190(1)(b) of the Code, he
must have not only applied his mind to the contents of the complaint
presented before him, but must have done so for the purpose of
proceeding under Section 200 and the provisions following that
Section. However, when the Magistrate had applied his mind only for
ordering an investigation under Section 156(3) of the Code or issued
a warrant for the purposes of investigation, he cannot be said to have
taken cognizance of an offence.
20. Taking cognizance is a different thing from initiation of the
proceedings. One of the objects of examination of complainant and
his witnesses as mentioned in Section 200 of the Code is to ascertain
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whether there is prima facie case against the person accused of the
offence in the complaint and to prevent the issue of process on a
complaint which is either false or vexatious or intended only to
harass such person. Such examination is provided, therefore, to find
out whether there is or not sufficient ground for proceeding further.
21. From the order dated August 1, 2009, passed by the
appellant, it is evident that the appellant had called for report from
the concerned police station and considered the said report wherein it
was inter alia mentioned that no case was registered on the basis of
the application made by the respondent No. 3. The respondent No. 3
at the time of filing complaint before the appellant had filed her own
affidavit, carbon copy of the application sent by her to the Senior
Superintendent of Police, Saharanpur with its postal registration and
photocopy of the medical certificate. Under the circumstances the
appellant had exercised judicial discretion available to a Magistrate
and directed that the application, which was submitted by the
respondent No. 3 under Section 156(3) of the Code, be registered as
complaint and directed the Registry to present the said complaint
before her on August 28, 2009 for recording the statement of the
respondent No.3 under Section 200 of the Code.
22. The judicial discretion exercised by the appellant was in
consonance with the scheme postulated by the Code. There is no
material on the record to indicate that the judicial discretion
exercised by the appellant was either arbitrary or perverse. There
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was no occasion for the learned Single Judge of High Court to
substitute the judicial discretion exercised by the appellant merely
because another view is possible. The appellant was the responsible
judicial officer on the spot and after assessing the material placed
before him he had exercised the judicial discretion. In such
circumstances this Court is of the opinion that the High Court had no
occasion to interfere with the discretion exercised judiciously in terms
of the provisions of Code.
23. Normally, an order under Section 200 of the Code for
examination of the complainant and his witnesses would not be
passed because it consumes the valuable time of the Magistrate being
vested in inquiring into the matter which primarily is the duty of the
police to investigate. However, the practice which has developed over
the years is that examination of the complainant and his witnesses
under Section 200 of the Code would be directed by the Magistrate
only when a case is found to be serious one and not as a matter of
routine course. If on a reading of a complaint the Magistrate finds
that the allegations therein disclose a cognizable offence and
forwarding of the complaint to the police for investigation under
Section 156(3) of the Code will not be conducive to justice, he will be
justified in adopting the course suggested in Section 200 of the Code.
24. Here, in this case the respondent No. 3 had averred in the
application submitted before the appellant that the Officer-in-charge
of the Nakur Police Station had refused to register her complaint
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against her father-in-law regarding alleged rape committed on her
and that no action was taken by the Senior Superintendent of Police
though necessary facts were brought to his notice. Under the
circumstances, the judicial discretion exercised by the appellant, to
proceed under Section 200 of the Code in the light of principles of
law laid down by the Allahabad High Court in various reported
decisions could not have been faulted with nor the appellant could
have been subjected to severe criticism as was done by the learned
Single Judge. There was no occasion for the learned Single Judge to
observe that the appellant, a Judicial Magistrate, had done the
gravest injustice to the victim or that though the appellant is a lady
Magistrate, yet she did not think about the outcome of ravishing the
chastity of daughter-in-law by her father-in-law or the seriousness of
the crime committed by the accused and the reason assigned by the
learned Magistrate in not directing the police to register the FIR
indicated total non-application of mind by the appellant and that the
order dated August 1, 2009, passed by the appellant, was a blemish
on the justice system.”
6. The aforementioned decision supports the course of action taken by the
learned Judicial Magistrate. However, in the present case, the petitioner alleges
that the first respondent, a retired Deputy Superintendent of Police, has
influenced the District Superintendent of Police's inaction. The petitioner
specifically claims to have paid Rs. 23,00,000 to the first respondent, who
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subsequently executed a debt deed and promissory note upon demand for
repayment. Furthermore, the petitioner's case involves allegations that the first
respondent took job aspirants to Chennai, where they stayed in a hotel for a
week, and then took them to Trivandrum, where fake order copies were issued.
7. Given the facts and circumstances, especially the first respondent's
background as a retired police official, the learned Magistrate's decision to
proceed under Section 200 Cr.P.C. is well-founded. The petitioner's claim that
gathering evidence for such offenses is challenging is unfounded.
8. As rightly pointed out by the learned Government Advocate (Crl. Side),
the petitioner can present evidence to substantiate the allegations made in the
petition filed under Section 175(3) BNSS. Notably, in the aforementioned
decision, even in a rape case, the learned Magistrate treated the petition filed
under Section 175(3) BNSS as a complaint under Section 200 Cr.P.C., and this
approach was upheld by the Hon'ble Supreme Court.
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9. The learned Counsel for the petitioner would submit that since the
petition filed under Section 175(3) BNSS discloses the commission of
cognizable offence, the Judicial Magistrate is duty bound to forward the
complaint to the concerned police for registering the F.I.R., and that he has no
power or jurisdiction to treat the petition filed under Section 175(3) BNSS as a
complaint under Section 200 Cr.P.C., more particularly when the complainant is
not in a position to adduce evidence. The above contention is absolutely devoid
of merits, as the complainant does not have an unqualified right to demand
police investigation in all circumstances and moreover, it is not mandatory on the
part of the Judicial Magistrate to refer the complaint to the concerned police for
registration of the case. It is settled law that the Judicial Magistrate while
considering the petition filed under Section 175(3) BNSS cannot act as a post
office and is duty bound to consider the nature of the accusation of the offences
alleged and to decide about the course of action to be taken. As held by the
Hon'ble Supreme Court, in the present case also, the discretion exercised by the
learned Judicial Magistrate in treating the petition filed under Section 175(3)
BNSS as the complaint under Section 200 Cr.P.C., is in consonance with the
scheme postulates by the Code and the petitioner has not shown any material to
indicate that the judicial discretion exercised by the Judicial Magistrate is
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arbitrary. Considering the above, the impugned order cannot be found fault with.
Consequently, this Court concludes that the revision is devoid of merits and the
same is liable to be dismissed.
10. In the result, the Criminal Revision Case is dismissed.
26.03.2025
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
SSL
To
1. The Judicial Magistrate Court, Sivagiri, Tenkasi District.
2. The Deputy Superintendent of Police,
Puliyangudi Sub Division,
Puliyangudi.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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K.MURALI SHANKAR, J.
SSL
Pre-Delivery order made in
26.03.2025
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