Full Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14.03.2014 Coram THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI Crl.R.C.No.445 of 2012 and M.P.No.1 of 2012 1.Palani 2.P.Babu 3.R.Guna 4.Nadanamayiolan .Petitioners versus K.Ganesan .Respondent Prayer:- Criminal Revision filed under Section 397 r/w 401 Cr.P.C.to set aside the order dated 9.3.2012 made in C.M.P.No.1325 of 2011 in CC.No.177/2010 on the file of the Judicial Magistrate No.2, Chidambaram, Cuddalore District.
For Petitioners : Mr.A.Selvendhiran For Respondent : Mr.Ajmal Associates ORDER
The petitioners herein are A1 to A4 in CC.No.177/2010 pending on the file of the Judicial Magistrate No.II, Chidambaram, Cuddalore District, arising out of the FIR in Crime No.760/2009 for the offences under sections 147, 448, 363 and 384 IPC registered on the basis of the private complaint given by the respondent herein.
2.Few facts, which are relevant for consideration herein are as follows: The respondent herein filed a private complaint against the petitioners herein and another before Chidambaram Town Police Station and the same was registered as FIR in crime No.760/2009 for the offences under sections 147, 448, 363 and 384 IPC and the Inspector of Police of the concerned police station held investigation and filed final report on 24.10.2009, thereby closing the same as mistake of fact.
After perusing the same, the concerned Judicial Magistrate Court issued notice to the complainant to appear before the court.
The complainant filed his objection by way of protest petition and prayed to take the protest petition on file and examine the witnesses and thereafter take cognizance of the offence and issue summons to the accused.
3.In the protest petition, the learned Magistrate issued summons to the accused, examined the defacto complainant and his witnesses.
In the mean while, A1 died.
The learned Magistrate on the basis of the statement so recorded, arrived at the conclusion that prima facie case is made out against the accused and taken cognizance of the offence under sections 448, 363 and 384 IPC in CC.No.177/2010 and issued summons to the accused.
Aggrieved against the same, the petitioners/accused 1 to 4 preferred Crl.M.P.No.1325/2011 to discharge them and the same was after due contest dismissed on the ground that the final report filed by the Inspector of police was totally contra to the statement of the witnesses recorded by the court and that, the entire statement and documents placed by the prosecution were verified at the time of taking cognizance and at the time of taking evidence by the prosecution under Section 244 IPC and the accused have a right to cross examine the prosecution witnesses and after perusing the evidence and material records, the trial court can frame the charge or if it there is no ground for charge, the court can pass proper order discharging the accused.
Aggrieved against the same, the petitioner/A1 to A4 have filed the present criminal revision before this Court.
4.Heard the rival submissions made on both sides.
5.The learned counsel for the petitioners contended that the trial court has no jurisdiction to order reinvestigation, that too by examination of witnesses and to take cognizance on the basis of such statement recorded by the court.
The leaned counsel for the petitioner has in support such contention, cited the authority of the Hon'ble Supreme Court reported in (1985) 2 SCC537(Bhagwant Singh v.
Commissioner of Police and another).wherein, the question arose for consideration is whether in a case where FiRs.Information Report is lodged and after completion of investigation initiated on the basis of the FiRs.Information Report, the police submits a report that no offence appears to have been committed, the Magistrate can accept the report and drop the proceeding without issuing notice to the fiRs.informant or to the injured or in case the incident has resulted in death, to the relatives of the deceased.
It is answered by the Hon'ble Apex Court that the informant cannot be deprived of the opportunity of being heard at the time, when the report is considered by the Magistrate.
It is further observed therein that there is no obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the FiRs.Information Report.
The injured person or any relative of the deceased though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him.
6.While doing so, the Hon'ble Apex court is please to lay down the procedure for taking cognizance by the concerned Magistrate court.
The Hon'ble Apex Court in para 4 of the same decision dealt with the question as to how the Magistrate shall act on receipt of the final report from the concerned Investigating Officer and the same reads as follows: Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise.
The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things:(1)he may accept the report and take cognizance of the offence and issue process or (2)he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub section (3) of Section 156 and require the police to make a further report.
The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1)he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub section (3) of Section 156.
Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the magistrate that the case shall proceed.".
7.Thus, the reading of the observation of the Hon'ble Apex Court as stated above would disclose that the Magistrate is empowered to, when the opinion of the police is that no offence appears to have been committed, adopt either of three courses (i) accept the report and drop the proceeding; or (ii) disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process (or) (iii)order further investigation under sub section 156(3).Except three courses as referred to above, the concerned Magistrate has no jurisdiction to do any other act.
The observation of the Hon'ble Apex Court would lead to another inference that in the event of the police officer's report being disagreed, the concerned Magistrate shall record the same and record its view that there is sufficient ground for proceeding further and take cognizance and issue process and it shall not, without recording any reason disagreed with the Investigating Officer's report to proceed further and to examine the witnesses and take cognizance on the basis of such statement and the same, in my considered view, amounts to order reinvestigation without disagreeing with the Investigating Officer's report.
8.This Court during the couRs.of the hearings, called for the records and perused the records.
The records made available herein shows that there was no order made in the protest petition for disagreeing with the report of the Investigating Officer and for ordering fresh investigation and the failure to do so, as rightly argued by the learned counsel for the petitioneRs.renders entire subsequent proceedings as illegal and stands vitiated.
9.The next aspect to be considered herein is the failure of the Magistrate to pass any order regarding his satisfaction as to the existence of prima facie case against all the accused in the light of the allegations raised in the complaint and also in the light of the materials available on record.
The Hon'ble Apex Court in the decision reported in (2013) 2 SCC (Cri) 414 (GHCL Employees Stock Option Trust v.
India Infoline Limited) held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.
It is further observed that recording of his satisfaction as to existence of a prima facie case against the accused on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record is held necessary and on the failure of the Magistrate to comply with such mandatory requirement, the issuance of summons against the accused is illegal and amounts to abuse of process of law.
In the present case also, except stating that prima facie case is made out summons order does not say that the different acts committed by each of the accused, constitute the offence for taking cognizance.
Here again, the failure of the Magistrate to make one such order as required under law, vitiates the subsequent proceedings.
10.Further, as rightly pointed out by the learned counsel for the petitioneRs.there are serious contradictions, inconsistencies, embellishment and improvements in the statement of the witnesses before the Investigating Officer and before the trial court.
It is very obvious that the statements made before the court are the improved version of the statements made before the Investigating Officer.
Except so called injured and eye witnesses, there is no other independent witness examined before the court.
The trial court has taken cognizance mainly on the basis of the statement of interested witnesses, without considering the statement of the official witnesses that the person concerned came and executed the registered document without murmur or protest.
11.In this context, the learned counsel for the respondent has cited the following decisions: (i)AIR 1971 SC834(Mahant Abhey Dass v.
S.Gurdial Singh and otheRs.(ii)(2013) 1 SCC (Cri) 986 (Amit Kapoor v.
Ramesh Chander and another) (iii)Indian Kanoon-http://indiankanoon.org/doc/122502046 and (iv)Indian Kanoon-http://indiankanoon.org/doc/178748191.
In all the cases, it is observed by the Hon'ble Apex Court and the learned brother Judges of our High court that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence.
At that stage, the court is not expected to go deep into the probative value of the material on record.
What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out.
This Court has no quarrel with such principles.
However, the principles laid down therein cannot be applicable to the facts of the present case at this stage, where the procedure adopted by the trial court by ordering re-examination of the witnesses is contrary to law and against the principles of natural justice.
12.Viewing from any angle, summons ordered against the accused is legally and factually unsustainable and the same is hence liable to be set aside.
Consequently, the impugned order, rejecting the discharge petition filed by the petitioneRs.stands set aside.
13.In the result, this criminal revision is allowed by setting aside the impugned order dated 9.3.2012 made in CMP.No.1325/2011 in CC.No.177/2010 on the file of the Judicial Magistrate No.II, Chidambaram, Cuddalore District.
The petitioners are discharged from the charges framed against them.
Consequently, connected miscellaneous petition is closed.
rk 14.03.2014 Index:Yes/No Internet:Yes/No To The Judicial Magistrate No.II, Chidambaram, Cuddalore District.
K.B.K.VASUKI, J.
rk Crl.R.C.No.445 of 2012 14.03.2014