Parameswaran Nair Vs. Surendran S/O Karuthkunju Panicker and anr. - Court Judgment

Excerpt:
- labour & services appointment: [v.k. bali, ch, p.r. raman & s. siri jagan, jj] post of pharmacist in homeopathy subordinate service - special rules for kerala homeopathy subordinate service rules, 1999 introducing new qualifications vacancy arising subsequent to coming into force of the said special rules held, vacancies have to be filled up only in accordance with special rules, 1999. unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by special rules. state government has the power to frame or amend the special rules with or without retrospective effect. mohanan k.r. & anr vs director of homeopathy, kerala homeopathy services, trivandrum & ors. - learned counsel also argued that the order passed.....orderm. sasidharan nambiar, j.1. whether a magistrate is competent to take cognizance of a protest complaint filed by a complainant on receipt of the notice on a refer report submitted by the police officer after investigation under section 173(2) of code of criminal procedure, ignoring the refer report and without considering the question whether the refer report is to be accepted or not? this is the question to be settled in the revision. incidentally, what is the proper procedure to be adopted by a magistrate on receipt of a refer report is also to be settled.2. facts on a narrow compass is as follows: first respondent filed a complaint before judicial first class magistrate-ii, haripad against three accused alleging that they committed offences under sections 409, 420, 468, 471, 474.....

Judgment:
ORDER

M. Sasidharan Nambiar, J.

1. Whether a Magistrate is competent to take cognizance of a protest complaint filed by a complainant on receipt of the notice on a refer report submitted by the police officer after investigation under Section 173(2) of Code of Criminal Procedure, ignoring the refer report and without considering the question whether the refer report is to be accepted or not? This is the question to be settled in the revision. Incidentally, what is the proper procedure to be adopted by a Magistrate on receipt of a refer report is also to be settled.

2. Facts on a narrow compass is as follows: First respondent filed a complaint before Judicial First Class Magistrate-II, Haripad against three accused alleging that they committed offences under Sections 409, 420, 468, 471, 474 and 477A read with Section 34 of Indian Penal Code. The Magistrate on receipt of the complaint sent it for investigation under Section 156(3) of Code of Criminal Procedure (hereinafter referred to as the Code). Crime 326/2006 was registered. Additional Sub-Inspector of Police, Haripad investigated the case. He submitted a refer report on 20-9-2006 to the effect that the case is false. Magistrate issued notice to first respondent, the complainant. As notice was not served, it was adjourned for service of notice and finally it stood posted to 21-4-2007. On 21-4-2007 first respondent filed C.M.P. 899/2007 a protest complaint. Learned Magistrate thereafter passed orders only in C.M.P. 899/2007 and did not pass any further order on the refer report, though notice was originally ordered thereon. It is evidently in view of filing of the protest complaint. Learned Magistrate recorded the sworn statement of first respondent and two witnesses in C.M.P. 899/2007 and posted it for hearing to 20-8-2007. On 20-8-2007 the following order was passed.

Complainant absent. Heard, Case taken to file as C.C. No. 66/2007 under Sections 409, 420, 468, 471, 474 and 477A, IPC. Issue sum-mons to all accused.

The order is challenged in this revision petition.

3. Learned Counsel appearing for revision petitioner and learned Counsel appearing for first respondent and learned Public Prosecutor were heard.

4. Learned Counsel appearing for revision petitioner argued that the order passed on 20-8-2007 taking cognizance of the offences is illegal as there was no application of mind by the Magistrate, Learned Counsel argued that when a refer report is submitted by the police after investigation though the Magistrate has several options including taking cognizance of some of the offences or against some of the accused or directing further investigation under Section 156(3) or conducting inquiry under Section 202 on the original complaint, the Magistrate cannot altogether ignore the final report and without deciding whether the final report is to be accepted or not, a protest complaint cannot be entertained. It was argued that when the final report was neither accepted nor rejected a protest complaint will not lie. Argument is that as settled by the Apex Court, a second complaint would lie only if there was manifest error or manifest miscarriage of justice or new facts are alleged which complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings and even if the original complaint was forwarded under Section 156(3) earlier, the original complaint is not effaced from record and so a second complaint will not lie and Magistrate could not have passed the impugned order and therefore the order is illegal. Learned Counsel argued that when a complainant is entitled to a notice before acceptance of the refer report submitted by the police after investigation, he has a right to be heard and the Magistrate is bound to consider the objections, if any, raised by the complainant and if that be so, it is obligatory on the part of the complainant to point out before the Magistrate why the refer report cannot be accepted and if on the materials the Magistrate finds that the refer report is to be accepted, then only a second complaint, which is termed a protest complaint would lie. It was argued that even such a complaint will lie only on the three categories settled by the Apex Court and the procedure adopted by the Magistrate is Illegal. Learned Counsel also argued that the order passed by the Magistrate does not show that the refer report was even considered by him or that based on the sworn statements of the complainant and witnesses the final report submitted by the police was found not acceptable and therefore, cognizance was taken and in the absence of reasons in the order taking cognizance, it is bad in law and is to be set aside.

5. Learned Counsel appearing for first respondent argued that even though no specific order was parsed rejecting the final report filed by the police after investigation, it is clear from the records that after issuing notice on the refer report, first respondent appeared and filed the protest complaint and learned Magistrate conducted inquiry as provided under Section 202 of the Code and recorded sworn statements of first respondent and his witnesses and was convinced that there are materials to proceed further as provided under Section 204 and took cognizance of the offences and issued summons to the revision petitioner under Section 204 and the Section does not contemplate a reasoned order and therefore for the absence of reasons, the impugned order is not bad. Relying on the decision of this Court in Ravi v. Jovatte Francis 2005 (2) KLT 385 it was argued that failure to pass a specific order in the final report is not fatal and when cognizance was taken on the protest complaint after the order report was considered along with the protest complaint, it is implied that learned Magistrate did not accept the final report and proceeded on the protest complaint and the order issuing summons is perfectly legal.

6. When a final report is filed after investigation under Section 173(2) of the Code, Magistrate is not bound by the opinion of the investigating officer. It is for the Magistrate to decide, on the materials available on the final report, including the documents submitted along with it and the result of the investigation, whether cognizance of the offences is to be taken or not and if it is to be taken whether it is to be taken on all the offences or some of the offences and summons is to be issued to all or some of the accused or whether further investigation is to be ordered. Even when the report of the police officer is to the effect that an offence appears to have been committed by a particular person or persons, the Magistrate has the three options, (1) He may accept the report and take cognizance of the offence and issue process. (2) He may disagree with the report and direct further investigation under Sub-section (3) of Section 156(3) He may disagree with the report and drop the proceedings. Similarly, if the report discloses that no offence appears to have been committed, Magistrate has again the three options (1) He may accept the report and drop the proceedings (2) He may disagree with the findings in the report and take the view that there is sufficient ground for proceeding further and take cognizance and issue process (3) He may direct further investigation under Sub-section (3) of Section 156. While deciding to take cognizance on the complaint available before him. Magistrate has to record the statement of the complainant and his witnesses, if any present, as provided under Section 200 of the Code. If on recording the statement Magistrate finds that a further investigation is necessary, then as provided under Section 202, the Magistrate is competent to direct an investigation to be made by a police officer or by such other person as he thinks fit and on getting the report Magistrate can dismiss the complaint under Section 203 of the Code if he is of the opinion that there is no sufficient ground for proceeding. He is entitled to issue summons to the accused if he is of the opinion that there is sufficient ground for proceeding further. The legal position is settled in Tula Ram v. Rishore Singh : AIR 1997 SC 2401 : 1978 Cri LJ 8 as follows:

Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge:

1. That a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.

2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceedings he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.

4. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above.

A three Judge Bench of the Apex Court analysing the earlier decisions in India Carat Pvt. Ltd. v. State of Karnataka : AIR 1989 SC 885 : 1989 Cri LJ 963 held:

16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking [the view that the Second Additional Chief Metropolitan Magistrate was hot entitled to direct the registration of a case against the second respondent and order the issue of summons to him.

7. Scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether summons should be issued or not. If the order is under Section 203 of the Code on forming the opinion that there is no sufficient ground for proceeding, it must be based on the statement of the complainant and his witnesses if any recorded and the result of investigation if any and also the report on the enquiry if any ordered under Section 202. Magistrate has to apply his mind to the materials and form an opinion whether or not there is sufficient ground for proceeding. If he finds that there are materials to be proceeded further, summons is to be issued as provided under Section 204 of the Code. If not complaint is to be dismissed under Section 203 of the Code. Even if the final report is submitted under Sub-section (2) of Section 173, on investigation as directed by the Magistrate under Section 156(3) of the Code, for the reasons that Magistrate has not taken cognizance of the offence and instead directed investigation under Sub-section (3) of Section 156 of the Code, at the pre-cognizance stage, the original complaint is not effaced from the record. As a result Magistrate is competent to take cognizance of the offence as provided under Section 190(1)(b) on the police complaint originally filed, though investigation under Sub-section (3) of Section 156 of the Code was earlier ordered.

8. On the other hand, if after giving notice and hearing the objection of the complainant, the Magistrate accepts the final report, complainant is entitled to file a second complaint which in common parlance is termed protest complaint. But as declared by the Apex Court, such a protest complaint. would lie only on exceptional circumstances brought under three categories namely, (1) manifest error, (2) manifest miscarriage of justice and (3) new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings.

9. Apex Court in Pramatha Nath Talukdar v. Saroj Rangan Sarkar : AIR 1962 SC 876 : 1962 (1) Cri LJ 770 held.

An order of dismissal under Section 203 of the Criminal Procedure Code, is however, 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 Alia Ditta v. Karam Bakhsh AIR 1930 Lah 879 : 1930 Cri LJ 1183, Ram Narain Chaubey v. Panchand Jain : AIR 1949 Pat 256 : 1949 (50) Cri LJ 524, Hansabai Sayaji Payagude v. Ananda Ganuji Payagude : AIR 1949 Bom 384 : 1950 (51) Cri LJ 39. Doraisami Aiyar v. T. Subramania Aiyar AIR 1918 Mad 484. In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in cases above quoted and adopted the opinion of Macleam, C.J. in Queen Empress v. Dolegobind Dass ILR (1901) Cal 211 affirmed by a Full Bench in Dwarka Nath Mondul v. Beni Madhab Banerjee ILR (1901) Cal 652. It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.

It was followed in Bindeswari Prasad Singh v. Kali Singh : 1977 (1) SCC 57: 1978 Cri LJ 187 holding that it is well settled that a second complaint can lie only on fresh facts or even on previous facts only if a special case is made out.

10. In Poonam Chand Jain v. Fazru : 2004 (13) SCC 269 : 2005 Cri LJ 100 analysing the previous decisions it was held:

9. As was observed in Mahesh Chand v. B. Janardhan Reddy : 2003 Cri LJ 866 there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reason, the Magistrate under Section 204, Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. But the second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of 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 have been adduced. The second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further second complaint on the same facts would be entertained only in exceptional circumstances, namely, where previous order was passed on an incomplete record or on misunderstanding of the complaint or it was manifestly absurd or unjust.

Apex Court in H.S. Bains v. The State (Union Territory of Chandigarh : AIR 1980 SC 1883 : 1980 Cri LJ 1308 has earlier settled the question as follows:

If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(2), may, thereafter do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(b) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.

11. When a final report is made under Sub-section (2) of Section 173(2) of the Code, after investigation pursuant to an order under Sub-section (3) of Section 156 of the Code by the Magistrate, that no offence is committed and that report is accepted by the Magistrate after notice to the complainant and drop the proceedings the legal effect could only be that the original complaint, based on which investigation was ordered under Sub-section (3) of Section 156 which is not effaced from the record is deemed to be dismissed.

12. If the original complaint stood dismissed by the acceptance of the refer report submitted after investigation the protest complaint if any filed can only be treated as a second complaint. If so, the protest complaint will lie only if there was a manifest error or manifest miscarriage of justice in the earlier order or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings is adduced. When this is the legal position, it is not lawful to the Magistrate to ignore the final report submitted by the police under Section 173(2) of the Code. Magistrate is bound to consider the final report and decide which of the options available to him is to be exercised.

13. Question then is what is the procedure to be followed by the Magistrate on receipt of the final report disclosing that no offence is committed. If the Magistrate is inclined not to take cognizance of the offence, the complainant is entitled to a notice and opportunity to persuade the Magistrate to take cognizance. Apex Court in Bhagwant Singh v. Commissioner of Police : AIR 1985 SC 1285 : 1985 Cri LJ 1521 considered this aspect and held.

But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in Sub-section (2) of Section 154, Sub-section (2) of Section 157 and Sub-section (2)(ii) of Section 173(2), it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer-in-charge of a police station under Sub-section (2)(i) of Section 173(2), the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under Sub-section (2)(i) of Section 173(2) and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.

The legal position is reiterated in Gangadhar Janardan Mhatre v. State of Maharashtra : 2004 (7) SCC 768 : 2004 Cri LJ 4623 as follows:

7. Therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report. This Court further held that the position is different so far as an injured person or a relative of the deceased, who is not an informant, is concerned. They are not entitled to any notice. This Court felt that the question relating to issue of notice and grant of opportunity as aforedescribed was of general importance and directed that copies of the judgment be sent to the High Courts in all the States so that the High Courts in their turn may circulate the same among the Magistrate within their respective jurisdictions.

14. When the complainant is entitled to a notice before consideration of the refer report submitted by the police under Section 173(2) of the Code and he has a right to be heard before it is considered and is entitled to point out why the report cannot be accepted, it cannot be said that the notice contemplated is an empty formality and the Magistrate need not consider the final report at all and is to take action on the protest complaint, ignoring the final report.

15. In practice when a complainant receives a notice from the Magistrate intimating the submission of a final report by the police to the effect that no offence is made out, informing that the report is being considered by the Magistrate, he files a complaint which in common usage is termed protest complaint. So long as cognizance was not taken on the first complaint and only an order for Investigation under Section 156 at pre-cognizance stage was ordered, the complaint is not effaced from the file. Hence the Magistrate at the stage of considering the final report under Section 173(2) is entitled to take cognizance of the offence on the materials furnished by the police under Section 190(1)(b) rejecting the opinion of the police or is entitled to take cognizance under Section 190(1)(b) on the original complaint after recording the statement of the complainant and his witnesses as provided under Section 200 or even direct investigation under Section 202 and conduct an inquiry and decide whether on all these materials whether process is to be issued under Section 204. The protest complaint if any filed at that stage cannot be treated as the second complaint, attracting the limitations of a second complaint. Such a protest complaint can only be treated as an objection to the final report submitted under Section 173(2). On filing of such a protest complaint or an objection to the final report, Magistrate is bound to consider the final report with the documents and statements produced and decide whether cognizance is to be taken on the police report under Section 190(1)(b) of the Code. If not Magistrate can record the statement of the complainant and his witnesses and even can direct an investigation under Section 202 and based on the inquiry decide whether process is to be issued under Section 204 or complaint is to be dismissed under Section 203.

16. If Magistrate finds that in spite of all the objections raised, the final report is to be accepted he can accept it and drop the proceeding. At that stage Magistrate can entertain a second complaint. But such a complaint will lie only if there was manifest error or manifest miscarriage of justice or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings. The Magistrate cannot therefore ignore the final report altogether and consider only the protest complaint and the sworn statement of the witnesses recorded in that enquiry.

17. The well settled legal propositions, can be summed up as follows:

(1) When a final report is made by an officer of the Police Station under Sub-section (2) of Section 173(2) of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process.

(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report.

(3) Magistrate can direct further investigation under Sub-section (3) of Section 156.

(4) Magistrate can take cognizance on, the final report itself under Section 190(1)(b) disregarding the opinion of the police and issue summons.

(5) Magistrate can take cognizance on the original complaint, where investigation under Sub-section (3) of Section 156 was earlier ordered and record the statement of the complainant and the witnesses as provided under Section 200 and can conduct an inquiry. In that inquiry Magistrate can direct investigation by a police officer or such other officer as provided under Section 202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued.

(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only If there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings.

18. When the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted. If the Magistrate records his statement and that of the witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the police under Sub-section (2) of Section 173(2), it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under Section 204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the previous order or the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings.

19. The order passed by the learned Magistrate is to be considered In the light of the aforesaid principles. The order is blank on whether the decision to take cognizance and issue summons was taken on the materials available in the final report made under Section 173 or on the materials made available by the complainant in the inquiry under Section 200. The order makes it clear that the learned Magistrate has not considered the question on the proper perspective. In such circumstances, the order can only be set aside and the matter remanded for fresh consideration in accordance with law.

Revision is allowed. Order passed by the Judicial First Class Magistrate-II, Haripad dated 20-8-2007 in C.M.P. 899/2007 taking cognizance of the offence is set aside. Magistrate is directed to reconsider the final report made under Sub-section (2) of Section 173, after hearing the complainant and the prosecutor and decide whether the final report is to he accepted or not. C.M.P. 899/2007 is to be treated as the objection of the complainant to the final report. It is made clear that Magistrate, if satisfied that the final report is not acceptable and an enquiry is to be conducted by himself, is entitled to conduct an enquiry in the original complaint complying the procedures under Sections 200 and 202. Magistrate is also competent to order a further investigation under Section 156(3) and decide the matter afresh. If the Magistrate decides to conduct an enquiry on the first complaint on which originally direction was issued for investigation under Section 156(3) Magistrate has to decide whether process is to be issued under Section 204 on all the materials including the statements recorded in the inquiry and the final report. If Magistrate finds that there are materials to proceed further, then summons can be issued. If it is found that there are no ground to proceed, Magistrate can dismiss the complaint under Section 203. The complainant is entitled to bring to the notice of the Magistrate, why the final report cannot be accepted and cognizance is to be taken. At the stage accused has no right to participate.