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TMI Blog2009 (1) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 477A 34 IPC. Issue summo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate 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 passed 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. Kishore Singh (AIR 1977 SC 2401) 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 S.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 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Sec.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong in taking the view that the Second Additional Chief Metropolitan Magistrate was not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Queen Empress v. Dolegobind Dass (ILR 1901) 28 Cal 211 affirmed by a Full Bench in Dwarka Nath Mondul v. Beni Madhab Banerjee (ILR (1901) 28 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) 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) analysing the previous decisions it was held 9. As was observed in Mahesh Chand v. B. Janardhan Reddy 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 CrPC 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Secs. 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(1), 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) (a) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Information Report lodged by him is clearly recognised by the provisions contained in sub-sec.(2) of S.154, sub-sec.(2) of S.157 and sub-sec. (2)(ii) of Section 173, 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 S.173, 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 sec.(2)(i) of S.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 info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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(3) 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)(a) 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 objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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