PRAYER
Criminal Revision Petitions have been filed under Section 397 (1) r/w 401 of Cr.P.C, to call for the records pertaining to the order dated, 19.03.2021 taking cognizance of the petition on its file in C.C.No.696 of 2021 on the file of the District Munsif cum Judicial Magistrate Court, Ottapidaram and set aside the same.
FACTS
2. The petitioner is the sole accused in C.C.No.696 of 2022, on the file of the Court of District Munsif cum Judicial Magistrate, Ottapidaram. On the basis of the complaint lodged by the second respondent, FIR came to be registered in Crime No.31 of 2018 on 13.05.2018 against the petitioner herein for the offences under Sections 294(b), 354 and 506(i) IPC. The first respondent, after completing the investigation, has laid a final report, dated 27.05.2018, referring the matter as mistake of fact. After receipt of RCS notice, the second respondent has filed an objection petition under Section 173(8) of code of Civil Procedure, seeking further investigation to be conducted by some other police station or to take the said objection petition as a private complaint and to proceed further.
3. The learned Judicial Magistrate has passed the impugned order, dated 19.03.2021, rejecting the police report and ordered for taking cognizance of the case for the alleged offence under Section 354(A)(f)(ii) IPC and for issuance of summons to the petitioner/accused.
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7. No doubt, as rightly pointed out by the learned counsel for the petitioner, the second respondent, after the receipt of RCS notice has filed an objection petition under Section 173(8) Cr.P.C, but as rightly pointed by the learned Government Advocate (Criminal Side), the second respondent though invoked Section 173(8) Cr.P.C has sought for the alternative relief of taking the objection petition as a private complaint and to proceed further and that therefore, the order taking cognizance is very much proper and legal and is liable to be sustained.
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9. As already pointed out, though the second respondent has allegedly invoked Section 173(8) of Cr.P.C, he has specifically mentioned the same as a protest petition and sought prayer for further investigation by some other police station or to take the protest petition as a private complaint and to proceed further. A cursory perusal of the protest petition filed under Section 173(8) Cr.P.C, would reveal that he has raised objections for filing a negative report and is only a protest petition. Hence, the above objections of the petitioner, which is devoid of substance, is liable for rejection.
10. The learned counsel for the petitioner has relied on a decision of the Hon’ble Supreme Court in Ramswaroop Soni vs. State of Madhya Pradesh and another reported in (2020) 18 SCC 327 and the relevant passage is extracted hereunder :
“The law is well-settled that in case a final report is filed under Section 173(2) Cr.P.C. stating that no offence is made out against the accused, any of the following courses can be adopted by the Magistrate: (a) He may accept the report which was filed by the police in which case the proceedings would stand closed. (b) He may not accept the report and may take cognizance in the matter on the basis of such final report which was presented by the police. (c) If he is not satisfied by the investigation so undertaken by the police, he may direct further investigation in the matter. The law is further well-settled that the judicial discretion to be used by the Magistrate at such stage has to fall in either of the three aforesaid categories.”
11. It is necessary to refer the decision of this Court in Ranjith Soundarrajan Vs. State represented by the Inspector of Police, District Crime Branch, Dindigul and another reported in 2021(2) MWN Criminal 155 wherein this Court has dealt with the courses open to the Magistrate on the receipt of the protest petition and the relevant passages are extracted herein :
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12. The learned counsel for the petitioner has also relied on the decision of the Hon’ble Supreme Court in Vishnu Kumar Tiwari vs State of Uttar Pradesh through, Secretary Home, Civil Secretariat Lucknow and another reported in 2019 3 MWN (Criminal) 197 wherein it has been held as follows :
“45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second respondent against the final report”.
13. In the case on hand, no doubt, the second respondent has not listed out the documents and the witnesses to be examined. As per observation of the Hon’ble Supreme Court that they are not suggesting any form, the way in which the protest petition filed without the list of witnesses, the same cannot be treated as fatal and there is absolutely no bar or prohibition for treating the protest petition as a complaint and to proceed under Section 200 and 202 Cr.P.C. But as already pointed out, the defacto complainant has produced some witnesses and their statements came to be recorded as P.W.2 to P.W.4 in addition to the statement of the defacto complainant as P.W.1. This Court in R.V.S.Veeramani and others Vs. Varadharajan reported in Manu/TN/6472/2022 in Crl.O.P (MD) No. 3605 of 2019 has observed that it is not necessary for a Judicial Magistrate to pass an elaborate order while taking cognizance and the only requirement is that he has to record his satisfaction that there existed prima facie case to proceed against the accused and the relevant passages are extracted hereunder:
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18. Considering the negative report and the statements of the witnesses recorded under Section 161 Cr.P.C and also the objections raised in the protest petition and also the sworn statement of the complainant and the statements of other witnesses, the learned Magistrate, by observing that there existed a motive and disputes between the complainant and the petitioner/accused and that there existed prima facie case against the petitioner/accused for the alleged offence under Section 354(A)(f)(ii) IPC, has rightly taken cognizance for the said offence and ordered issuance of summons and as such, the order taking cognizance cannot be found fault with. Consequently, this Court concludes that the revision is devoid of merits and the same is liable to be dismissed.
PARTY: Santhanakumar vs. The State rep. The Inspector of Police, Pasuvanthanai Police Station, Thoothukudi District. Crime No.31 of 2018 – Crl.R.C (MD) No: 165 of 2023 – 02.06.2023.
see also: protest petition
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/885562
