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C. Bhaktavatsalam Vs. V. Govindarajulu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case No. 893 of 1967 and Cri. Revn. Petn. No. 880 of 1967
Judge
Reported inAIR1969Mad177; 1969CriLJ618
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 157, 173, 173(3), 190 and 190(1); Madras City Police Act, 1888 - Sections 7
AppellantC. Bhaktavatsalam
RespondentV. Govindarajulu
Appellant AdvocateV. Ganapathisubramania Iyer, Adv.
Respondent AdvocateV. Gopinath, Adv.;Canvin Jacob, Adv. for ;Public Prosecutor
DispositionRevision dismissed
Cases ReferredA.K. Hoy v. State of West Bengal
Excerpt:
.....of criminal procedure code, 1898 and section 7 of madras city police act, 1888 - whether present complaint filed before magistrate barred as commissioner of police passed order referring complaint as mistake of facts - petitioner contended that present complaint abuse of process of court as respondent had already exhausted his remedy before police - investigation by police of cognizable offence has nothing to do with magistrate taking cognizance of same matter on complaint by party - no bar for magistrate taking cognizance of complaint filed by party in respect of same facts under section 190 (1) (a) - held, no bar for complaint to be filed before magistrate having jurisdiction. - - these provisions make it clear that when a complaint is filed before a magistrate, he may take..........to be noted that after the commissioner of police disposed of the matter, the revision petitioner filed a complaint under section 211, i. p. c, against the respondent and that was dismissed. subsequently the respondent filed the present complaint and it appears, a revision against that order is pending.3. learned sixth presidency magistrate negatived all the contentions raised by the petitioner before him and in my opinion, rightly.4. the learned counsel appearing lor the petitioner pressed before me the second point raised before the magistrate, namely, that the present complaint is barred as the complaint given by the respondent in respect of the same fact before the police was referred as mistake of fact and the commissioner of police on appeal by the respondent, refused to interfere.....
Judgment:
ORDER

Krishnaswamy Reddy, J.

1. This petition has been filed by the first accused in C. C. 2270 of 1967 against the order of the Sixth Presidency Magistrate overruling certain preliminary objections raised by him. The facts of the case relevant for the purpose of deciding the points raised in this petition are briefly these:--

The respondent, V. Govindarajulu, a retired Deputy Administrator-General and Official Trustee, Madras, filed a private complaint against the revision petitioner and two others alleging that they had committed the offence of criminal breach of trust and falsification of accounts in respect of certain trust properties of Saidapet Annadhana Samajam which is a public charitable society, of which the petitioner was the secretary and the other two accused were the President and Treasurer, respectively. The Sixth Presidency Magistrate took the case on file. The revision petitioner filed a petition before the learned Magistrate alleging firstly, that the respondent was not a member of the Annadhanam Samajam and as it is not shown that he was interested in the Samajam or the school run by it, he is incompetent to file the complaint; secondly, that the respondent filed a petition before the Deputy Commissioner of Crimes in respect of the same matter and the said complaint was referred as a mistake of fact and that subsequently he appealed to the Commissioner and the same was also dismissed and in those circumstances, the present complaint was not maintainable and its entertainment was barred; thirdly, that the complaint did not disclose any offence and so it was liable to be dismissed; and lastly that at the instance of the respondent, a civil suit was filed in respect of the same facts alleged against the petitioner and the other accused and that the complaint filed while the suit was pending, without the sanction of the Civil Court was not maintainable.

2. It has to be noted that after the Commissioner of Police disposed of the matter, the revision petitioner filed a complaint under Section 211, I. P. C, against the respondent and that was dismissed. Subsequently the respondent filed the present complaint and it appears, a revision against that order is pending.

3. Learned Sixth Presidency Magistrate negatived all the contentions raised by the petitioner before him and in my opinion, rightly.

4. The learned Counsel appearing lor the petitioner pressed before me the second point raised before the Magistrate, namely, that the present complaint is barred as the complaint given by the respondent in respect of the same fact before the police was referred as mistake of fact and the Commissioner of Police on appeal by the respondent, refused to interfere with the order of the police, He further contended that the present complaint is an abuse of process of Court as he had already exhausted his remedy before the police. There is absolutely no force in this contention. The learned Magistrate took cognisance of the case under Section 190 (1) (a) Crl. P. C. Under Section 180 (1) (a) Cri. P. C. a Magistrate having jurisdiction may take Cognisance of any offence upon receiving a complaint of facts which constitute such Offence.

5. 'Complaint' is defined under Section 4 (1) (h) of the Cri. P. C. as 'the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer.'

6. Under Section 200, Cri. P, C., a Magistrate taking cognisance of an offence on complaint shall examine the complainant and the witnesses present, if any. upon oath Under Section 202, Cri. P. C. a Magistrate on receipt of a complaint of an offence, may either inquire into the case himself or. if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, for the purpose of ascertaining the truth or falsehood of the complaint Under Section 203, Cri. P. C. the Magistrate before whom a complaint is made, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or enquiry (if any) under Section 202, there is in his judgment no sufficient ground for proceeding.

These provisions make it clear that when a complaint is filed before a Magistrate, he may take cognisance of the case on examining the complainant on oath or he may enquire himself or direct any other police officer for the purpose of ascertaining the truth of the case and if he is satisfied from the examination of the complainant on oath and the report of the police officer that there are no sufficient grounds for proceeding with the case he may dismiss it. What was preferred by the respondent before the Sixth Presidency Magistrate was a complaint within the meaning of Section 4 (1) (h) Cri. P. C. The Magistrate took cognizance of the case under Section 190 (1) (a), Cri. P. C. The learned Magistrate is fully competent to take cognizance of a complaint on a cognizable or a non-cognizable offence. There is no prohibition under the Criminal Procedure Code, for a Magistrate taking straightway cognizance of even a cognizable offence on a complaint preferred by the party. If once the Magistrate had exercised his power under Section 203, Cri. P. C., and dismissed such a complaint, whether a second complaint would be a bar is a matter which will very much depend upon the facts of each case.

In the present case, it is not the case of the petitioner that the Magistrate had taken cognizance of the matter already and dismissed it under Section 203, Cri. P. C. and that the present complaint was a bar. But he contends that inasmuch as the information was laid in respect of the same (acts covered by the present complaint to the police officer and it was referred as a mistake of fact and on appeal, the Commissioner confirmed it, it must be deemed as dismissal of complaint by the Commissioner as he exercised the powers of a Presidency Magistrate in the City of Madras. If as contended by the learned Counsel, the Commissioner of Police exercised the powers of a Presidency Magistrate in respect of cognizance of cases under Section 190, Cri. P. C. there may be some force that once in that capacity the Commissioner of Police has dealt with the complaint, that the second complaint may amount at least to abuse of process. But it appears to be clear that the Commissioner of Police has no power to take cognizance of. a complaint under Section 190, Cri. P. C. Under Section 7 of the Madras City Police Act, it is provided that the Commissioner shall by virtue of his office be a Presidency Magistrate, but shall exercise his powers as Magistrate subject to such orders as may from time to time be issued bv the State Government. The State Government passed G. O. Ms. 1271 (Judicial) dated 13-8-1898 which still seems to be in force is as follows:--

'In exercise of the power conferred upon him by Section 7 of the Madras Police Act, 1888 and in supersession of all previous orders on the subject, the Governor-in-Council is pleased to declare that the Commissioner of Police, Madras, shall not, in his capacity as a Presidency Magistrate, exercise the power of taking cognizance of offences under Section 190, Cri. P. C. except so far as may be necessary to receive 'occurrence reports' under Section 157 and to deal with such reports under Section 159, and also to receive and dispose of reports submitted under Section 173 and to make orders under subSection (3) of that section'.

7. The above Government Order makes it clear that the Commissioner of Police in Madras is prohibited from exercising the power of taking cognizance of offence under Section 190, Cri. P. C. But of course, under the same G. O. the Commissioner of Police can receive occurrence reports under Section 157, Cri. P. C. and finally, reports under Section 173, Cri, P. C. and he can also pass orders under Section 173 (3) of the Code. An order passed by the Commissioner of Police under Section 173. Cri. P. C. cannot under any circumstances be a bar for a complaint to be filed by a party before a Magistrate who has jurisdiction to take cognizance of the complaint under Section 190, Cri P. C. Even in a case where the police investigate a cognizable offence in respect of the information received by them and submit a final report under Section 173, Cri. P. C. of which the Magistrate having jurisdiction takes cognizance by virtue of Section 190 (1) (b), Cri. P. C., I do not think there will be a bar for the Magistrate taking cognizance of a complaint filed by a party in respect of the same facts under Section 190 (1) (a), Cri. P, C, and proceed with the enquiry or the trial, as the case may be or the both. The investigation by the police of a cognizable offence has nothing to do with the Magistrate taking cognizance of the same matter on a complaint by a party. So, I am of the view that the Commissioner of Police who passed the final orders (sic) referring the complaint given to the police as mistake of fact, will not be a bar for a complaint to be filed before a Magistrate having jurisdiction. As a matter of fact, it is the practice that when the police give a notice to the party referring the case, such party is requested to file a complaint before a Magistrate, if so advised.

8. The learned Counsel for the petitioner relied upon two decisions of the Supreme Court, namely, Gopaldas v. State of Assam, AIR 1961 SC 986 and Pramathanath v. Saroj Ranjan, : AIR1962SC876 . In the earlier decision, the Supreme Court has stated that a complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint under Section 156 (3) to the police for investigation and if be does so then he would have to proceed in the manner provided by Chapter XVI Cri. P. C. The Supreme Court pointed out only the discretion given to a Magistrate to direct the police officer to investigate the case under Section 158 (3). But this does not mean that the Magistrate has no power to take cognizance of the case under Section 190 (1) (a) following the procedure laid down in Sections 200, 202 and 203 of the Code. It has been made clear by the Supreme Court that the Magistrate should follow the procedure in taking cognizance of complaints even in cases where the Magistrate had directed the police to investigate under Section 156 (3). In the second case, the Supreme Court has stated as follows-

'An order of dismissal under Section 203, Cri. P. C. is no bar to the entertainment of a second complaint on the same facts and 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 complaint upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into'.

This decision will not at all apply to the facts of this case because there was no prior complaint before a Magistrate which ended in a dismissal under Section 203, Cri. P. C. Similarly, another decision in Kumariah v. Chinna Naicker, 1945 MWN144 AIR 1946 Mad 167 is of no help to the petitioner. That was also a case where a complaint filed by the party was dismissed under Section 203, Cri. P. C. after the investigation by the police under Section 202 of the Code and after such dismissal a second complaint was filed. It was held that though a second complaint may not be a bar for its entertainment on the facts of the case, it might be an abuse of process. The learned Counsel for the petitioner relied upon another decision in A.K. Hoy v. State of West Bengal, : AIR1962Cal135 . Even this decision is of no use in relation to the facts of this case. What is stated in that decision is that when the police upon Investigation have submitted a final report under Section 173, Cri. P. C., a Magistrate cannot direct the police to submit a charge-sheet; but he can take cognizance on the statement of facts contained in the final report, if those facts constitute an offence. I am not able to see as to bow this observation is relevant for this case.

9. I am, therefore, of the view that the complaint filed by the respondent is neither an abuse of process nor a bar because of the prior Investigation by the police.

10. The revision case is dismissed.


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