Madras High Court
A. Krishna Rao vs L. S. Kumar on 19 December, 1997
Equivalent citations: 1998(1)CTC329
ORDER
1. The third accused in CC.No.274 of 1994 on the file of the Judicial Magistrate No.II, Wallajapet has filed this Crl. Original petition under Sections 482 Cr.P.C. to quash further proceedings in the said case.
2. The main averments in the petition are that the complainant one Kumar preferred a complaint against the petitioner and others before the SIPCOT Police Station at Ranipet and a receipt in F.D.R. No.110 of 1993 has been issued to him by the Police. As the police have not taken any further action on the said complaint, the complainant filed a private complaint before the Judicial Magistrate No.2, Wallajapet and the learned Magistrate has forwarded the said complaint to the police under Section 156(3), Cr.P.C. for investigation and report. The police registered a case in Grime No. 389/94 under Sections 323, 341 and 506(2) , I.P.C. and after investigation filed the final report on 9.12.94 referring the case as 'Mistake of fact' Learned Magistrated sent a memo along with the RCS Notice and the complainant did not file any objection and on the contrary he has filed another private complaint on 15.12.94 and the same was taken on file by the said Court in CC No.274 of 1994. As the police had already investigated the case and the matter had been referred to as 'Mistake of fact', the Magistrate ought not to have taken cognizance of the second complaint. In such circumstances, the proceedings in the second complaint, which is pending in CC.No.274 of 1994 on the file of the Judicial Magistrate No.2, Wallajapet, has to be quashed.
3. It was argued on the side of the third accused/petitioner that since the referred charge sheet has been filed by the police in the earlier complaint given by the complainant and after passing the orders on the referred charge sheet, the second complaint filed in respect of the same occurrence is not maintainable to substantiate this argument, the 3rd accused/petitioner has submitted some decisions of this Court.
In Murugesan v. Kothandam, 1969 L.W. Crl. 268 this Court in similar circumstances quashed the proceedings in the second complaint stating that when the Sub-Inspector has investigated the case under Section 156(3), Cr.P.C. and submitted his report under Section 173(2), Cr.P.C. referring the case and subsequent complaint for the very same occurrence would not be maintainable.
In Ramasubbu v. State, The Through The Inspector of Police? Palani Taluk, 1987 L.W. Crl. 79 this Court held that when the police was filed a report under Section 173, Cr.P.C, the Magistrate got the option under Section 173(3), Cr.P.C. either to agree or to disagree and to give further direction to the police. When once the Magistrate has recorded his findings as mistake of fact in the R.C.S. which is a judicial order, thereafter he cannot entertain the second complaint and if entertained the same is not maintainable.
In the instant case the police have already referred the case as mistake of fact and notice has been served on the complainant through Court and he did not raise any objection. When this matter was argued, it was not pointed out on the side of the respondent/complainant that he raised any objection or the learned Magistrate has not accepted the report of the police. If the learned Magistrate has not accepted the report, he would have given further directing in the matter and the very reasons that the magistrate has received the second complaint, would go to show that he has not given any further direction in in the R.C.S. which means that he has accepted the same and passed an order accordingly. When once such an order was passed by the learned Magistrate, it was not open to him to entertain one mere complaint regarding the same occurrence.
In Ansari v. Mohammed Ali, 1990 L.W. Crl. 201 in similar circumstances when the Magistrate has referred the complaint under Section 156(3) Cr.P.C. for investigation, and without obtaining the report of the police, has taken cognizance in the second complaint on the same materials, by referring the decision stated in Murugesan v. Kothandam, 1969 L.W. (Crl.) 268 this Court held that the said complaint could be taken as a second complaint for the same occurrence and therefore not maintainable.
In the instant case, the police have already filed a R.C.S. on the complaint referred to them under Section 156(3), Cr.P.C. and the learned Magistrate has taken cognizance of the 2nd complaint for the very same occurrence and therefore the 2nd complaint is not maintainable.
In Mariaglory v. John Britto, 1995 (1) L.W. Crl. 305 this Court held that when once the Magistrate has accepted the report of the police, taking cognizance in the second complaint for every same occurrence is illegal.
In the present case from the averments found in the petition it is clear that the learned Judicial Magistrate No.2, Wallajapet has passed the order on the R.C.S. served by the police in the previous complaint which was referred by him to the police under Section 156(3), Cr.P.C. for investigation. There is no contrary evidence on the side of the complaint respondent herein. When once the Magistrate has passed the order on the R.C.S. the second complaint for the very same occurrence is not maintainable.
4. Learned counsel for the respondent relied upon a decision of this Court is Manoharbal v. Vashdev 1983 L.W. (Crl.) 319 wherein it was held that when a Magistrate sends a complaint for enquiry under Section 156(3), Cr.P.C., he does not take cognizance of the case, that consequently when he, receives the report stating that the complaint should be referred either as false or as mistake of fact or mistake of law, he does not pass any judicial order, but merely lodges the complaint and does not take any further action and in such circumstances, there is no bar in law for the Magistrate to entertain a second complaint and take cognizance of it and issue process to the accused. The view expressed by this Court herein is somewhat contrary to the views expressed in the decisions stated supra.
In the present case, the police have filed the referred charge sheet as 'mistake of fact' it, seems the Magistrate has accepted the R.C.S. It is not the case of the respondent herein that the Magistrate has not accepted the R.C.s. filed by the police. In such circumstances, when the Magistrate has accepted the R.C.S. the second complaint should be filed only after setting aside the order passed by the learned Magistrate in the referred chargesheet. However, the respondent herein has not taken any such action and instead had filed a second complaint which the learned Magistrate has taken cognizance. It has been held in the above decisions that taking cognizance in the second complaint, makes the same not maintainable. I have no hesitation to follow the said view, and as such it has to be held that the second complaint which is pending before the learned Judicial Magistrate No.2, Wallajapet, in CC No.274 of 1994 is not maintainable and the proceedings have to be quashed.
5. In the result this Criminal Original Petition is allowed and the proceedings in CC No.274 of 1994 on the file of the Judicial Magistrate No.2 Wallajapet, are quashed.