This criminal original petition has been filed under Section 482 of Cr.P.C., to call for the records in C.C.No.6 of 2010, taken on file on the basis of the private complaint by the Chief Judicial Magistrate, Thanjavur at Kumbakonam and quash the same.
2.It is averred in the petition that the first respondent lodged a complaint before the second respondent police on 11.07.2009 and the same was closed as 'Mistake of Fact'. Before filing of the closure report, Crl.O.P.(MD) No.1267 of 2010 was filed by the first respondent, seeking direction to the second respondent to conduct and complete the investigation and file final report. Since the final report was filed, the above criminal original petition was disposed of with liberty to workout his remedy before the concerned Judicial Magistrate, with regard to the referred charge sheet. The first respondent, without filing any protest petition, filed private complaint and the same was taken on file by the Chief Judicial Magistrate. Taking the case on file by the Chief Judicial Magistrate in the absence of any protest petition is not correct and therefore, C.C.No.6 of 2010 is liable to be quashed.
3.The learned counsel for the petitioners contends that the first respondent defacto complainant, without filing any protest petition on the closure report of the police, filed private complaint and the same was taken on file by the Chief Judicial Magistrate, which is not in accordance with law and therefore, the calender case is liable to be quashed.
4.The learned Additional Public Prosecutor submits that non filing of protest petition is not a bar and the Chief Judicial Magistrate, after recording sworn statements and after getting satisfied with the material, he took the case on file and therefore, this criminal original petition is liable to be dismissed.
5.The fact remains that the first respondent lodged a complaint with respect to the same occurrence before the second respondent police on 11.07.2009 and the same was referred as 'Mistake of Fact' after investigation. This Court disposed of the criminal original petition filed by the first respondent, giving liberty to him, to approach the concerned Judicial Magistrate with regard to the referred charge sheet. Pursuant to the referred charge sheet, the first respondent has not filed any protest petition. He straight away filed the private complaint and the Chief Judicial Magistrate, after recording sworn statement of the defacto complainant, took the case on file.
6.It is well settled as per the judgment of the Hon'ble Supreme Court in Bhagawat Singh Vs. Commissioner of Police, reported in 1983(1) L.W.Crl. 72, SN, that the informant must be given an opportunity of being heard, if the Magistrate is not inclined to take cognizance of the offence on the report filed by the police under
Section 173 of Cr.P.C.
7.It is not the case of the petitioner that the informant was heard by the Judicial Magistrate, when the negative final report was accepted. The only contention is that the present private complaint filed without protest petition is not maintainable. In the above circumstances, acceptance of final report by the Judicial Magistrate does not bar the fresh complaint on the same facts. Therefore, the contention that the present private complaint filed without filing any protest petition is not sustainable.
8.Therefore, the criminal original petition is liable to be dismissed. Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. The Chief Judicial Magistrate is directed to dispose of the matter, within a period of three months from the date of receipt of a copy of this order.
To
1.The Chief Judicial Magistrate, Thanjavur at Kumbakonam.
2.The Inspector of Police, Panthanallur Police Station, Panthanallur, Thanjavur District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..