Madras High Court
C. Bhaktavatsalam vs V. Govindarajulu on 5 March, 1968
Equivalent citations: (1968)2MLJ321, AIR 1969 MADRAS 177, 1968 MADLJ(CRI) 573, 1968 MADLW (CRI) 137, (1968) 2 MADLJ321
ORDER N. Krishnaswamy Reddy, J.
1. This petition has been filed by the first accused in C.C. No. 2270 of 1967 against the order of the Sixth Presidency Magistrate overruling certain preliminary objections raised by him. The facts of the case relevant for the purpose of deciding the points raised in this petition are briefly these:
2. The respondent V. Govindarajulu, a retired Deputy Administrator-General and Official Trustee, Madras, filed a private complaint against the revision petitioner and two others alleging that they had committed the offence of criminal breach of trust and falsification of accounts in respect of certain trust properties of Saidapet Annadhana Samajam which is a public charitable society, of which the petitioner was the Secretary and the other two accused were the President and Treasurer, respectively. The Sixth Presidency Magistrate took the case on file. The revision petitioner filed a petition before the learned Magistrate alleging firstly,, that the respondent was not a member of the Annadhana Samajam and as it is not shown that he was interested in the Samajam or the school run by it, he is incompetent to file the complaint; secondly, that the respondent filed a petition before the Deputy Commissioner of Crimes in respect of the same matter and the said complaint was, referred as a mistake of fact and that subsequently he appealed to the Commissioner and the same was also dismissed and in those circumstances, the present complaint was not maintainable and its entertainment was barred; thirdly, that the complaint did not disclose any offence and so it was liable to be dismissed; and lastly, that at the instance of the respondent, a civil suit was filed in respect of the same facts alleged against the petitioner and the other accused and that the complaint filed while the suit was pending, without the sanction of the civil Court was not maintainable.
3. It has to be noted that after the Commissioner of Police disposed of the matter, the revision petitioner filed a complaint under Section 211, Indian Penal Code, against the respondent and that was dismissed. Subsequently the respondent filed the present complaint and it appears, a revision against that order is pending.
4. Learned Sixth Presidency Magistrate negatived all the contentions raised by the petitioner before him and in my opinion, rightly.
5. The learned Counsel appearing for the petitioner pressed before me the second point raised before the Magistrate, namely that the present complaint is barred as the complaint given by the respondent in respect of the same facts before the police was referred as mistake of fact and the Commissioner of Police on appeal by the respondent, refused to interfere with the order of the Police. He further contended that the present complaint is an abuse of process of Court as he had already exhausted his remedy before the police. There is absolutely no force in this contention. The learned Magistrate took cognizance of the case under Section 190 (1) (a) of the Criminal Procedure Code. Under Section 190 (1) (a), Criminal Procedure Code, a Magistrate having jurisdiction, may take cognizance of any office upon receiving a complaint of facts which constitute such offence.
6. "Complaint" is defined under Section 4 (1) (h) of the Criminal Procedure Code as the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a Police Officer.
7. Under Section 200, Criminal Procedure Code, a Magistrate taking cognizance of an offence on complaint shall examine the complainant and the witnesses present, if any, upon oath. Under Section 202, Criminal Procedure Code, a Magistrate, on receipt of a complaint of an offence may either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the Third Class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a Police Officer, for the purpose of ascertaining the truth or falsehood of the complaint. Under Section 203, Criminal Procedure Code, the Magistrate before whom a complaint is made, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquiry (if any) under Section 202, there is in his judgment no sufficient ground for proceeding. These provisions make it clear that when a complaint is filed before a Magistrate, he may take cognizance of the case on examining the complainant on oath or he may enquire himself or direct any other Police Officer for the purpose of ascertaining the truth of the case and if he is satisfied from the examination of the complainant on oath and the report of the Police Officer that there are no sufficient grounds for proceeding with the case he may dismiss it. What was preferred by the respondent before the Sixth Presidency Magistrate was a complaint within the meaning of Section 4 (I) (h) of the Criminal Procedure Code. The Magistrate took cognizance of the case under Section 190 (I) (a), Criminal Procedure Code. The learned Magistrate is fully competent to take cognizance on a complaint of a cognizable or a non-cognizable offence,. There is no prohibition under the Criminal Procedure Code for a Magistrate, taking straightway cognizance of even a cognizable offence on a complaint preferred by the party. If once the Magistrate had exercised his power under Section 203, Criminal Procedure Code, and dismissed such a complaint, whether a second complaint would be barred is a matter which will very much depend upon the facts of each case. In the present case, it is not the case of the petitioner that the Magistrate had taken cognizance of the matter already and dismissed it under Section 203, Criminal Procedure Code, and that the present complaint was barred. But he contends that inasmuch as the information was laid in respect of the same facts covered by the present complaint to the Police Officer and it was referred as 3 mistake of fact and on appeal, the Commissioner confirmed it, it must be deemed as dismissal of complaint by the, Commissioner as he exercised the powers of a. Presidency Magistrate in, the pity of Madras. If as contended by the learned Counsel, the Commissioner of Police exercised the powers of a Presidency Magistrate in respect of cognizance of cases under Section 190, Criminal Procedure Code, there may be some force that once in that capacity the Commissioner of Police has dealt with the complaint, that the second complaint may amount at least to abuse of process. But it appears to be clear that the Commissioner of Police has no power to take cognizance of a complaint under Section 190, Criminal Procedure Code. Under Section 7 of the Madras City Police Act, it is provided that the Commissioner shall by virtue of his office be a Presidency Magistrate, but shall exercise his powers as Magistrate subject to such orders as may from time to time be issued by the State Government; The State Government passed G.O. No. 1271 (Judicial) dated 13th August; 1898, which still seems to be in force is as follows:
In exercise of the power conferred upon him by Section 7 of the Madras Police Act, 1888 and in supersession of all previous orders on the subject, the Governor-in-Council is pleased to declare that the Commissioner of Police,, Madras, shall not, in his capacity as a Presidency Magistrate, exercise the power; of taking cognizance of offences under Section 190 of the Code of Criminal Procedure, except so far as may be necessary, to receive '' occurrence reports" under Section 157 and to deal with such reports under Section 159, and also to receive and dispose of reports submitted under Section 173 and to make orders under Sub-section (3) of that section.
8. The above Government Order makes it clear that the Commissioner of Police in Madras is prohibited from exercising the power of taking cognizance of offences under Section 190, Criminal Procedure Code. But, of course, under the same Government Order, the Commissioner of Police can receive occurrence reports under Section 157, Criminal Procedure Code, and finally, reports under Section 173, Criminal Procedure Code, and he can also pass orders under Section 173 (3) of the Code. An order passed by the Commissioner of Police under Section 173, Criminal Procedure Code, cannot under any circumstances be a bar for a complaint to be filed by a party before a Magistrate who has jurisdiction to take cognizance of the complaint under Section 190, Criminal Procedure Code. Even in a case where-the police investigate a cognizable offence in respect of the information received by them and submit a final report under Section 173, Criminal Procedure Code, of which the Magistrate having jurisdiction takes cognizance by virtue of Section 190 (I) (b), Criminal Procedure Code, I do not think there will be a bar for the Magistrate taking cognizance of a complaint filed by a party in respect of the same facts under Section 190 (I) (a), Criminal Procedure Code, and proceed with the enquiry or the trial, as the case may be, or of both. The investigation by the police of a cognizable offence has nothing to do with the Magistrate taking cognizance of the same matter on a complaint by a party. So, I am of the view that the Commissioner of Police who passed the final orders referring the complaint given to the police as mistake of fact will not be a bar for a complaint before a Magistrate having jurisdiction. As a matter of fact, it is the practice that when the police give a notice to the party referring the case, such party is requested to file * complaint before a Magistrate, if so advised.
9. The learned Counsel for the petitioner relied upon two decisions of the Supreme Court, namely (I) Gopal Das v. State of Assam A.I.R. 1961 S.C. 987 and Pramatha Nath v. Saroj Ranjan . In the earlier decision, the Supreme Court has stated that a complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint under Section 156 (3) to the police for investigation and if he does so then he would have to proceed in the manner provided by Chapter XVI of the Criminal Procedure Code. The Supreme Court pointed out only the discretion given to a Magistrate to direct the Police Officer to investigate the case under Section 156 (3). But this does not mean that the Magistrate has no power to take cognizance of the case under Section 190 (1) (a) following the procedure laid down in Sections 200, 202 and 203 of the Code. In has been made clear by the Supreme Court that the Magistrate should follow the procedure in taking cognizance of complaints even in cases where the Magistrate had directed the police to investigate under Section 156 (3). In the second case, the Supreme Court has stated as follows:
An order of dismissal under Section 203, Criminal Procedure Code, is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into.
This decision will not at all apply to the facts of this case because there was no prior complaint before a Magistrate which ended in a dismissal under Section 203, Criminal Procedure Code. Similarly, another decision in Kumaraiah v. Chinna Naicker 1945 M.W.N. (Crl.) l44, is of no help to the petitioner. That was also a case where a complaint filed by the party was dismissed under Section 203, Criminal Procedure Code, after the investigation by the police under Section 202 of the Code and after such dismissal, a second complaint was filed. It was held that though a second complaint may not be barred for its entertainment on the facts of the case, it might be an abuse of process. The learned Counsel for the petitioner relied upon another decision in A. K. Roy v. State of W.B. A.I.R. 1962 Cal. 135. Even this decision is of no use in relation to the facts of this case. What is stated in that decision is that when the police upon investigation has submitted a final report under Section 173, Criminal Procedure Code, a Magistrate cannot direct the police to submit a charge-sheet; but he can take cognizance on the statement of facts contained in the final report, if those facts constitute an offence. I am not able to see as to how this observation is relevant for this case.
10. I am, therefore, of the view that the complaint filed by the respondent is neither an abuse of process nor barred because of the prior investigation by the police.