12. The main contention of the petitioners is that since the Magistrate has already passed an order accepting the negative report, he has no jurisdiction to take cognizance on the basis of the private complaint under Section 200 Cr.P.C., and that therefore, the order taking cognizance is bad in law and the same is liable to be set aside.
13. At this juncture, it is necessary to refer the three Judge Bench judgment of the Hon’ble Supreme Court in Kishore Kumar Gyanchandani vs. G.D. Mehrotra and Another reported in AIR 2002 SC 483 and the Hon’ble Apex Court has specifically held that even if the Magistrate accepts the final report submitted by the Police, the right of the complainant to file a regular complaint is not taken away and the relevant portion is extracted hereunder:
“4. When the matter was listed before a two-Judge Bench of this Court, thinking that there is some divergence of views, it referred the matter to a three-Judge Bench. On examining the different provisions of the Code of Criminal Procedure as well as the decisions of this Court relevant on the question, we see no divergence in the matter. It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay VermaV. Bhuneswar Prasad Sinha and Ors., whereunder the view of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding.”
14. It is also necessary to refer the decision of the Hon’ble Supreme Court in State of Rajastan Vs. Aruna Devi and others reported in 1995 SCC (1) 1.
“3. A perusal of the impugned judgment of the High Court shows that it took the view that the Magistrate had no jurisdiction to take cognizance after the final report submitted by police had been once accepted. Shri Gupta, appearing for the appellant, contends that this view is erroneous in law inasmuch as Section 173(8) of the Code permits further investigation in respect of an offence after a report under sub-section (2) has been submitted. Sub- section (8) also visualises forwarding of another report to the Magistrate. Further investigation had thus legal sanction and if after such further investigation a report is submitted that an offence was committed, it would be open to the Magistrate to take cognizance of the same on his being satisfied in this regard. 4. Shri Francis for the respondents, however, contends that the order of the Magistrate taking cognizance pursuant to filing of further report amounted to entertaining second complaint which is not permissible in law. To substantiate the legal submission, we have been first referred to Pramatha Nath Taluqdar v. Saro Ranjan Sarkar1, in which a three-Judge Bench of this Court dealt with this aspect. A perusal of the judgment of the majority shows that it took the view that dismissal of a complaint under Section 203 of the Code is no bar to the entertainment of a second complaint on the same facts; but the same could be done only in exceptional circumstances some of which have been illustrated in the judgment. Further observation in this regard is that a fresh complaint can be entertained, inter alia, when fresh evidence comes forward. In the present case, this is precisely what had happened, as on further investigation being made, fresh materials came to light which led to the filing of further report stating that a case had been made out.”
15. Considering the above, the position of law is well settled that as per the Code of Criminal Procedure, the defacto complainant is entitled to file a private complaint even if the case is lodged with the police is referred or closed. The right of the defacto complainant to proceed with his complaint, even after the acceptance of the negative report of the police by the Judicial Magistrate is very much available.
16. Considering the above, the contention of the learned Counsel for the petitioners that since the learned Magistrate has already accepted the negative report, the filing of the private complaint is not maintainable, cannot be accepted.
17. Though the respondent in his private complaint filed under Section 200 Cr.P.C., has mentioned about the registration of F.I.R., in Cr.No.73 of 2015 and filing of final report, he has not raised any averments as to how and why the negative report filed by the police is not correct and the same cannot be accepted. More importantly, the learned Magistrate, who conducted enquiry under Section 202 Cr.P.C., and passed the impugned order under Section 204 Cr.P.C., has not at all considered the final report filed by the concerned police, the statements recorded under Section 161 Cr.P.C., and the other documents filed along with the final report.
18. The learned Counsel for the petitioners has relied on the judgment of this Court in Narayanamma and Others Vs. Chikka Venkateshaiah reported in (2019)4 MLJ (Crl.) 616 and the learned Judge of this Court after referring various decisions, has held as follows:
“20. It is clear from the above judgments that if the learned Magistrate wants to convert the protest petition into a private complaint, he has the jurisdiction to do so. However, at the time of taking cognizance, the learned Magistrate has to necessarily apply his mind on the closure report filed by the police and the statements recorded by the police during the course of investigation. This exercise has not been done by the Court below, while converting the protest petition in to a private complaint and taking cognizance of the same.”
19. In the case on hand, the learned Magistrate has not even whispered anything about the negative report filed by the police and the statements recorded by them during the course of investigation. Generally, while taking cognizance of a private complaint, after conducting enquiry under Section 202 Cr.P.C., the learned Judicial Magistrate is expected not to pass any elaborate order, but he is duty bound to record his satisfaction that there are prima facie materials to proceed against the accused.
PARTY: Alaguthangamani vs. Saravanan – Crl.O.P (MD) No. 7740 of 2019 and Crl.M.P.(MD) Nos. 4737 and 4738 of 2019 – 29.04.2022 – Madurai Bench of Madras High Court.
ALSO SEE: https://demonew.section1.in/p/whether-protest-petition-is-complaint-
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