In Crl.OP.Nos.33030 to 33032 filed under Section 482 of Code of Criminal Procedure, the Petitioners have challenged the legality of the order passed by the learned Judicial Magistrate, Bhavani, by which the learned Magistrate has taken cognizance in Cr.MP.No.2355/05 the offences under Sections 147, 148, 294B, 307 and 506(ii) of IPC and since the offence under Section 307 of IPC is triable by the Sessions Court, PRC number Is assigned as PRC.No.25/2005.
2. The basic facts are stated below:-
The Petitioners are the teaching staff of Adharsh Vidyalaya Higher Secondary School and difference of opinion arose between the 1st Respondent on the one hand and K.C.Lingam, the President and Correspondent, Secretary and the Treasurer in charge of the Ideal Educational Trust on the other hand with regard to the management of the Ideal Educational Trust, which runs six schools in the same premises having a total capacity of 4000 students.
3. According to the Petitioners, on 28.5.2004 at about 06:30 hours, the 1st Respondent along with six unknown persons came in front of the main gate of the Ideal School Complex, when the Headmaster was regulating the students, abused the Principal and other Office Bearers and tried to assault them and attempted to cause injury on the Principal, who warded off the attack. With regard to the said incident, it is said that the Headmaster had given a complaint with the 2nd Respondent Police and a case was registered in Cr.No.263/2004 under Section 147,
148,307, 294B and
506(ii) of IPC. In the mean while, on the same day the 1st Respondent had gone to the Andhiyur Police Station and preferred a complaint, alleging that some teachers in a drunken mood assembled in front of his house at 9.00 p.m. and threatened him and started throwing stones and also abused the ladies. On the said complaint, a case in PR.NO.144/2004 at 11.00 p.m. had been registered by the Sub Inspector of Police, Andhiyur Police Station. On the very same day, he had preferred another complaint against some named persons, alleging that the school teachers had tried to assault with iron rods and stones at 9.00 p.m. and threatened the 1st Respondent. The said complaint had been registered as PR.No.145/2004 by the Sub Inspector of Police, Andhiyur Police Station. Again on 29.5.2004, at about 01:00 hours, the 1st Respondent had preferred a complaint against the Petitioners and 10 others, alleging that all of them had formed an unlawful assembly at about 06:30 hours on 28.5.2004 and attempted to attack the 1st Respondent and his men and on seeing them, the 1st Respondent had run away inside the house and escaped from the said attack. The Sub Inspector of Police, Andhiyur Police Station had registered a case in Cr.No.264/2004 for offences under
Sections 147,148, 294B,
307 and
506(ii) of IPC. Both the cases in Cr.No.263/04 and Cr.264/04 had been taken for investigation by the Inspector of Police, Andhiyur Police Station and after investigation, referred the case in Cr.No.264/2004 as "mistake of fact" and the referred charge sheet has been served on the 1st Respondent on 31.1.2005. On the complaint given by the Petitioners, the Respondent and 10 others wee charge sheeted for offences as alleged in the complaint and a final report was laid before the learned Judicial Magistrate, Bhavani and the same has been committed to the learned Assistant Sessions Judge, Bhavani in SC.No.24/2005.
4. On the final report filed by the 2nd Respondent with regard to Cr.No.264/2004, referring the case as a mistake of fact, the learned Judicial Magistrate, Bhavani issued a notice to the 1st Respondent on 2.2.2005 and the same was served on him on 8.2.2005. He did not appear and file his objection and therefore, the learned Magistrate, Bhavani had accepted the final report and closed the case as a mistake of fact. In the mean while, the 1st Respondent had filed the private complaint before the learned Judicial Magistrate, Bhavani in Cr.No.2355/2005 and the learned Judicial Magistrate had recorded the sworn statement of the witnesses. In the mean while, the 1st Respondent had preferred Cr.OP.No.25488/2005 before this court, praying for a direction to the learned Sessions Judge, Bhavani to try the sessions case in SC.No.24/2005 along with the case filed by the complainant before the learned Judicial Magistrate, Bhavani in Cr.NO.2355/2005. This court by order dated 20.9.2005, directed the learned Judicial Magistrate, Bhavani to complete the enquiry and commit the case to the Sessions Court on or before 14.10.2005. Aggrieved against the said order, the Petitioners have preferred SLP before the Honourable Supreme Court, in SLP.NO.290/2006, wherein the Honourable Supreme Court clarified the order that the Magistrate would commit the case to the Sessions Court, only if an offence triable by the sessions court is made out on enquiry. The learned Judicial Magistrate had recorded the statements and conducted enquiry on the complaint given by the 1st Respondent and the case is now ready for committal in PRC.No.25/2005.
5. The Petitioners are aggrieved over the cognizance taken by the learned Judicial Magistrate, Bhavani and issuance of process to the Petitioners on the private complaint given by the 1st Respondent for offences under
Sections 147,148, 294B,
307 and
506(ii) of IPC in PRC.No.25/2005, despite the fact that the complaint lodged by the 1st Respondent with regard to the same set of allegations, which were referred to as a mistake of fact after thorough investigation. The Petitioners would submit that the 1st Respondent was served with the notice on referred charge sheet, but he did not chose to file any objection and after the same was accepted and closed by the learned Judicial Magistrate as a mistake of fact, he deliberately and intentionally had filed the second complaint verbatim repeating the same allegations.
6. In Cr.OP.No.34284/2005, the 1st Respondent/ complainant has sought for a direction to direct the learned Sessions Judge to defer the trial in SC.No.24/2005, pending on its file, till the disposal of Cr.OP.No.33030 to 33032/2005 on the ground that both the cases are case in counter and are to be tried simultaneously.
7. Mr.S.Ashok Kumar, learned senior counsel for the Petitioners submitted that the second complaint preferred by the 1st Respondent was nothing but a repetition of the averments of the 1st complaint and was in essence, a fresh attempt to reopen the matter, which had attained finality after thorough investigation. It was pointed out with reference to various averments in the first complaint filed on 29.5.2004 at 01:00 hours in Cr.No.264/2005 and the 2nd complaint filed on 4.2.2005, both are founded on the same allegations and therefore no case for entertaining the second complaint was made out. That being so, according to the learned senior counsel for the Petitioners, issuance of process was illegal.
8. Mr.Abdu Kumar Rajaratnam, learned counsel for the 1st Respondent/ complainant has submitted that it is not correct to contend that the second complaint cannot be entertained, when there is nothing in law, which prohibits the entertainment of the second complaint on the same allegations. He would submit that there is no bar in the learned Magistrate taking cognizance of the second complaint, even when the final report is accepted by the learned Magistrate. He would submit that the learned Magistrate can disagree with conclusion arrived at by the Police and take cognizance in exercise of power under
Section 190 of Code of Criminal Procedure. He would submit that the final report submitted in Cr.NO.264/2005 i.e. on the first complaint, is based on the partisan investigation and it does not reflect the unbiased investigation made by the Police Officer, which is evident from the charge sheet. He would point out that the witnesses, who according the Investigating Officer, did not support the complainant in the previous proceedings, have given a statement supporting the complainant indicating that those statements recorded earlier by the Police is not true and in that manner, there has been a manifest miscarriage of justice. Therefore, he would submit that the cognizance taken by the learned Judicial Magistrate is justified and there is no illegality or irregularity in such action of the learned Judicial Magistrate.
9. The learned counsel for the Respondents referred to the decision of the Honourable Supreme Court rendered in the case of Kishore Kumar Gyanchandani Vs. G.D.Mehrotra and another (AIR-2002-SC-483), wherein it is held that the power of the Magistrate to take cognizance is not lost merely because the Magistrate has accepted the final report submitted by the Police investigating the incident in question on the basis of FIR. The relevant portion is extracted below:-
"It is too well settled that when police after investigation files a final form under
Section 173 of Code, the Magistrate may disagree with conclusion arrived at by the police and take cognizance in exercise of power under
Section 190 of Code. The Magistrate may not take cognizance and direct further investigation in the matter under
Section 156 of the Code. Where the Magistrate accepts the final submit by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such complaint being filed the Magistrate follows the procedure under
Section 201 of Code and takes cognizance if the materials produced by the complaint make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay Verma Vs. Bhuneshwar Prasad Sinha and others (1982-3-SCC-510) where under the view of the Patna High Court to the contrary has been reversed. The court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceedings."
10. On the other hand, the learned senior counsel for the Petitioners drew the attention of this court to the decision rendered by the Honourable Supreme Court in the case of Mahesh Chand Vs. B.Janardhan Reddy and another (2003-1-SCC-734), which is in agreement of the view expressed in the decision cited supra, but held that the second complaint on the same facts would be entertained only in exceptional circumstances viz. where the previous order was passed on incomplete record or on a misunderstanding the nature of the complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings. The learned counsel drew the attention of this court to the observations made in the said decision that the second complaint can be dismissed if a decision has been given against the complainant in the previous matter upon a full consideration of his case and the relevant portion is extracted below:-
"In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under
Section 204 Code of Criminal Procedure may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar Case second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case."
11. It is laid down in the aforesaid decisions that whenever a magistrate has satisfied that the previous order of dismissal or closure of the complaint was due to manifest error or has resulted in miscarriage of justice, he can entertain the 2nd complaint on the same allegations even though the earlier complaint was dismissed or closed as a mistake of fact.
12. At this juncture, it is necessary to point out that in the normal course, the Magistrate before whom the complaint has been made under
Section 200 Code of Criminal Procedure, unless he has reason to distrust the truth of the complaint or for some other reasons expressly recognised by law, such as if he finds that no offence has been committed, he is bound to take cognizance of the offence in order to do justice to the complainant to summon his witnesses and to hear them in the presence of the accused. In the case of Malayil Kauayil Koyassan Kutty (AIR-1918-Madras-484), it has been observed that there was nothing in law against the entertainment of a second complaint on the same facts on which a person had already been discharged, inasmuch as the discharge was not equivalent to a acquittal. This view has been reiterated in the case of Kumariah Naicker Vs. Chinna Naicker (AIR-1946-Madras-167), wherein it is held that the fact that the previous complaint had been dismissed under
Section 203 of Code of Criminal Procedure was no bar to entertain the second complaint.
13. In the present case, the learned Magistrate, while taking cognizance of the complaint has referred to the statements of the complainant and two other witnesses and, has found valid reasons to take cognizance of the case under
Sections 147,148, 294B,
307 and
506(ii) of IPC. It indicates that those witnesses have given statement in support of the complainant and therefore, the learned Magistrate has satisfied himself with the materials produced thereon that there is a prima facie case to take cognizance of the case.
14. The learned senior counsel for the Petitioners would submit that the 1st Respondent has not filed any objection when notice was sent to him in the referred charge sheet and having allowed the proceedings on the first complaint to be dropped as a mistake of fact, there is no justification for him to prefer the second complaint on the same set of facts, which is clearly an abuse of process of court.
15. The factual aspect of the case in this regard is that in the referred charge sheet notice has been issued to the 1st Respondent by the Police and the same has been received by him on 31.1.2005. After the final report was filed before the learned Magistrate, the latter has issued a notice to the 1st Respondent on 2.2.2005 and the same has been served on him on 8.2.2005, but he has not appeared and filed his objections. But even before an order was passed by the learned Magistrate accepting the final report filed by the 2nd Respondent, the 1st Respondent has filed the second complaint and may be for the said reason that he has not responded to the notice issued from the Magistrate Court. In the said circumstances, the private complaint filed by him on 4.2.2005 can be considered as a protest petition as on the said date the learned Magistrate has not passed orders on the referred charge sheet. Therefore, it cannot be said that the learned Magistrate without applying his mind has taken cognizance of the complaint filed by the 1st Respondent. A perusal of the order passed by the learned Magistrate would show that he has applied his mind and after duly considering the matter before him he has taken cognizance and therefore, there is no illegality in issuance of process to the Petitioners.
16. In view of the reasons stated above, no interference is warranted to quash the second complaint in PRC.No.25/2005. Therefore, Cr.OP.Nos.33030 to 33032/2005 stand dismissed.
16. It appears from the records that PRC.No.25/2005 as against the complaint filed by the 1st Respondent is in the stage of committal to the Sessions Court. Though PRC.Nos.24/05 and 25/2005 cannot be considered as a case in counter in a strict sense, but in the interest of justice, both shall be tried simultaneously. Therefore, the learned Magistrate is directed to commit the case in PRC.No.25/2005 to the learned Sessions Judge, Bhavani on whose file PRC.NO.24/2005 is pending for trial and both the cases may be tried simultaneously. With these directions, CR.OP.NO.34284/2005 is ordered accordingly. Consequently, the connected MPs are closed.
Srcm To:
The Public Prosecutor, High Court, Madras