The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from investigation and take cognizance of case,if he thinks fit exercise his powers under s.190(1)(b) and issue of process to the accused
This Revision Case has been filed by the petitioner/accused against the order passed by the learned Chief Judicial Magistrate directing issuance of process in the final report filed by the Investigating Officer as to "mistake of fact" in the Protest Petition filed by the complainant.
2. Heard Mr.V.Sairam, learned counsel for the petitioner/accused and Mr.T.Murugesan, learned senior Public prosecutor (Government of Pondicherry) appearing for the first respondent. No appearance for the second respondent, even though a counter affidavit was filed on behalf of the second respondent/defacto complainant.
3. Learned counsel for the petitioner/accused would submit in his argument that the learned Chief Judicial Magistrate was not correct in ordering issuance of process/summons to the petitioner holding that a prima facie case has been made out as per the investigation report. He would further submit that except the one witness, the other witnesses examined by the investigating officer did not support the case of the complainant and therefore the lower court should not have laid reliance on the sole witness and to take cognizance of the offence. He would further submit in his argument that the judgment of the Hon'ble Apex Court would repeatedly lay down that whether it is a Magistrate or a Court need not interfere in the findings arrived by the investigating officer done, during an investigation. He would also submit in his argument that the important witnesses who are belonging to the Scheduled Caste did not support the case of the complainant that the petitioner scolded the complainant by using his caste name and thereby committed an offence under the PCR Act. He would further submit that the complainant had given a false complaint on an incident taken place on Siramadhanam day held on 06.01.2007 and thereafter, on 25.01.2007, since the petitioner was very strict in her administrative works, the complainant, aggrieved by the promptness expected from him, in order to wreck vengeance against the petitioner, his superior officer, had given the complaint and the said circumstances were considered by the Investigating Officer and found that the truth and genuineness of the complaint was not established and therefore, it was dropped as "mistake of fact", against which the learned Chief Judicial Magistrate (Pondicherry) had taken cognizance, is contrary to law. He would further submit in his arguments that the learned Chief Judicial Magistrate did not accept the points raised in the Protest Petition, but had taken cognizance of the offence mentioned in the complaint and therefore, the order passed by the learned Chief Judicial Magistrate has to be set aside and the Revision Case has to be allowed. The learned counsel for the petitioner would cite a Judgment of the Hon'ble Apex Court reported in 2006 (3) SCC (Crl.) 245 (Popular Muthiah ..vs.. State represented by Inspector of Police) in support of his argument to the point that the Court could interfere with the discretion of the Investigating Officers.
4. The learned Public Prosecutor would submit in his argument that the learned Chief Judicial Magistrate relied upon the witnesses who supported the complaint in the final report whereas the Investigating Officer did not accept the trustworthy of the said witnesses, who supported the complainant's version, examined during the investigation. He would further submit in his arguments that the Investigating Officer had stated the reason for not relying upon the said witnesses, who supported the complainant, that they were on inimical attitude against the petitioner and hence, the Investigating Officer did not rely upon the versions of the said witnesses. He would therefore request the Court that the report of the Investigating Officer may be considered and suitable orders may be passed.
5. No appearance, on behalf of the second respondent and no arguments had been advanced by the second respondent despite he had filed a counter. In the counter affidavit filed by the second respondent it had been contended that the learned Chief Judicial Magistrate had come to a correct conclusion that there was a prima facie case made out for taking cognizable of the offence under Section 190 (1) (b) of Cr.P.C. and it is possible for the court to take cognizance of offences even when a referred charge sheet (RCS) has been filed by the Investigating Officer. It is further stated in the counter that the discretion and the powers of the Court are unfettered and the Magistrate or Chief Judicial Magistrate before whom an RCS has been filed are entitled to go into the investigation aspect and rely upon the statements given by the witnesses and to act upon it. It is prayed by the second respondent in his counter to dismiss the Revision Petition.
6. I have given anxious consideration to the arguments advanced by the learned counsel for the petitioner and the learned counsel for the first respondent. I have also perused the contentions of the second respondent.
7. According to the petitioner, the complaint was given by the second respondent against her by stating that she scolded the second respondent, abusing in his caste name and thereby committed an offence under provisions of PCR Act and therefore he gave a complaint to the first respondent and the contents of the complaint given by him was supported by one Sub Inspector by giving statement under Section 161 Cr.P.C, namely, Mr.Rajaram and his evidence was not considered by the Investigating Officer, but the Investigating Officer himself decided that the evidence of the said Sub-Inspector was not trustworthy and had submitted a final report as '"mistake of fact"'. Therefore, the second respondent / complainant had filed a Protest Petition before the learned Chief Judicial Magistrate, Pondicherry in which the learned Chief Judicial Magistrate had come to a conclusion that the evidence given by the Sub-Inspector Rajaram was sufficient to corroborate the statement of the complainant for the contents made in the complaint and therefore ordered issuance of process and the same cannot be questioned by the Revision Petitioner.
8. However, the petitioner had contended that the filing of the charge sheet as 'mistake of fact' or with the offences made out is the jurisdiction of the Investigating Officer and it cannot normally be interfered by the Courts. He would also submit that the interference made by the learned Chief Judicial Magistrate may be interfered and this Court has got inherent jurisdiction while exercising the revisional power and the inherent power under Section 482 Cr.P.C. and the conclusion of the Investigating Officer may be restored. For that he would request the Court to apply the principles made in "2006 (3) SCC (Crl.) 245 (Popular Muthiah ..vs.. State represented by Inspector of Police)". The relevant passage would run as follows:- " ... The High Court while, thus, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised both in relation to substantive as also procedural matters.
....
In respect of the incidental or supplemental power, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings."
9. On the basis of the inherent power under Section 482 Cr.P.C. whether the order of issuing process to the petitioner passed by the learned Chief Judicial Magistrate is liable to be interfered is a question to be answered. The learned Chief Judicial Magistrate has gone through the report of the Investigating Officer and had found that the complainant's statement and the statement of Sub-Inspector Rajaram are found to be trustworthy and the veracity of their statement have to be tested only before the Court and it cannot be dispensed by the Investigating Officer that his evidence was tainted by inimical attitude and therefore he has taken cognizance of the Protest Petition coupled with the investigation report. It is an undisputed fact that the complainant had spoken in his statement about the incident which was corroborated by the evidence/statement of the Sub-Inspector, Mr.Rajaram. The rejection of the evidence of Sub-Inspector, Mr.Rajaram was done by the Investigating Officer on the basis that he was inimical to the petitioner while working as a subordinate in various centres. However, the learned Chief Judicial Magistrate has also given the reasons for not rejecting their evidence by saying that their demeanour to be tested only, before the Court.
10. In yet another judgment of Hon'ble Apex Court reported in 2009 (1) SCC Crl.262 (Sanjay Bansal and another ..vs.. Jawaharlal Vats and others), the power of a Magistrate has been approved by the Hon'ble Apex Court as follows:-
"9. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate, he has again option of adopting one of the three courses open i.e.(1) he may accept the report and drop the proceedings; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process, or (3) he may direct further investigation to be made by the police under Section 156(3). 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, exercise 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)(a) though it is open to him to act under Section 200 or Section 202 also." The aforesaid judgment of the Hon'ble Apex Court would empower the Magistrate to apply his mind independently to the facts emerging from investigation and take cognizance of the case, if he thinks fit after ignoring the conclusion arrived by the Investigating Officer.
11. In the said circumstances, I feel that the conclusion reached by the learned Chief Judicial Magistrate that the evidence of the supporting witness Mr.Rajaram, Sub-Inspector of Police and the statement of the complainant have to be decided before the Court and is not liable to be interfered. The order passed by the learned Chief Judicial Magistrate to take cognizance of the offences referred in the complaint, even though a final report as to "mistake of fact" has been filed on a Protest Petition and to order issuance of summons to the petitioner / accused, is quite in consonance with the principle laid by the Hon'ble Apex Court in the judgment reported in 2009 (1) SCC (Crl). 262 as cited supra. Therefore, I am of the considered view that the order passed by the learned Chief Judicial Magistrate is in order and nothing is available to interfere with the order passed by the learned Chief Judicial Magistrate.
12. In view of the discussion held above, the Revision fails and accordingly, it is dismissed. Consequently, connected Miscellaneous Petition is closed. The Registry is directed to despatch the records to the lower Court as expeditiously as possible.
Mra
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Madras High Court
Tamilarasi vs State Represented By on 21 June, 2011
This Revision Case has been filed by the petitioner/accused against the order passed by the learned Chief Judicial Magistrate directing issuance of process in the final report filed by the Investigating Officer as to "mistake of fact" in the Protest Petition filed by the complainant.
2. Heard Mr.V.Sairam, learned counsel for the petitioner/accused and Mr.T.Murugesan, learned senior Public prosecutor (Government of Pondicherry) appearing for the first respondent. No appearance for the second respondent, even though a counter affidavit was filed on behalf of the second respondent/defacto complainant.
3. Learned counsel for the petitioner/accused would submit in his argument that the learned Chief Judicial Magistrate was not correct in ordering issuance of process/summons to the petitioner holding that a prima facie case has been made out as per the investigation report. He would further submit that except the one witness, the other witnesses examined by the investigating officer did not support the case of the complainant and therefore the lower court should not have laid reliance on the sole witness and to take cognizance of the offence. He would further submit in his argument that the judgment of the Hon'ble Apex Court would repeatedly lay down that whether it is a Magistrate or a Court need not interfere in the findings arrived by the investigating officer done, during an investigation. He would also submit in his argument that the important witnesses who are belonging to the Scheduled Caste did not support the case of the complainant that the petitioner scolded the complainant by using his caste name and thereby committed an offence under the PCR Act. He would further submit that the complainant had given a false complaint on an incident taken place on Siramadhanam day held on 06.01.2007 and thereafter, on 25.01.2007, since the petitioner was very strict in her administrative works, the complainant, aggrieved by the promptness expected from him, in order to wreck vengeance against the petitioner, his superior officer, had given the complaint and the said circumstances were considered by the Investigating Officer and found that the truth and genuineness of the complaint was not established and therefore, it was dropped as "mistake of fact", against which the learned Chief Judicial Magistrate (Pondicherry) had taken cognizance, is contrary to law. He would further submit in his arguments that the learned Chief Judicial Magistrate did not accept the points raised in the Protest Petition, but had taken cognizance of the offence mentioned in the complaint and therefore, the order passed by the learned Chief Judicial Magistrate has to be set aside and the Revision Case has to be allowed. The learned counsel for the petitioner would cite a Judgment of the Hon'ble Apex Court reported in 2006 (3) SCC (Crl.) 245 (Popular Muthiah ..vs.. State represented by Inspector of Police) in support of his argument to the point that the Court could interfere with the discretion of the Investigating Officers.
4. The learned Public Prosecutor would submit in his argument that the learned Chief Judicial Magistrate relied upon the witnesses who supported the complaint in the final report whereas the Investigating Officer did not accept the trustworthy of the said witnesses, who supported the complainant's version, examined during the investigation. He would further submit in his arguments that the Investigating Officer had stated the reason for not relying upon the said witnesses, who supported the complainant, that they were on inimical attitude against the petitioner and hence, the Investigating Officer did not rely upon the versions of the said witnesses. He would therefore request the Court that the report of the Investigating Officer may be considered and suitable orders may be passed.
5. No appearance, on behalf of the second respondent and no arguments had been advanced by the second respondent despite he had filed a counter. In the counter affidavit filed by the second respondent it had been contended that the learned Chief Judicial Magistrate had come to a correct conclusion that there was a prima facie case made out for taking cognizable of the offence under Section 190 (1) (b) of Cr.P.C. and it is possible for the court to take cognizance of offences even when a referred charge sheet (RCS) has been filed by the Investigating Officer. It is further stated in the counter that the discretion and the powers of the Court are unfettered and the Magistrate or Chief Judicial Magistrate before whom an RCS has been filed are entitled to go into the investigation aspect and rely upon the statements given by the witnesses and to act upon it. It is prayed by the second respondent in his counter to dismiss the Revision Petition.
6. I have given anxious consideration to the arguments advanced by the learned counsel for the petitioner and the learned counsel for the first respondent. I have also perused the contentions of the second respondent.
7. According to the petitioner, the complaint was given by the second respondent against her by stating that she scolded the second respondent, abusing in his caste name and thereby committed an offence under provisions of PCR Act and therefore he gave a complaint to the first respondent and the contents of the complaint given by him was supported by one Sub Inspector by giving statement under Section 161 Cr.P.C, namely, Mr.Rajaram and his evidence was not considered by the Investigating Officer, but the Investigating Officer himself decided that the evidence of the said Sub-Inspector was not trustworthy and had submitted a final report as '"mistake of fact"'. Therefore, the second respondent / complainant had filed a Protest Petition before the learned Chief Judicial Magistrate, Pondicherry in which the learned Chief Judicial Magistrate had come to a conclusion that the evidence given by the Sub-Inspector Rajaram was sufficient to corroborate the statement of the complainant for the contents made in the complaint and therefore ordered issuance of process and the same cannot be questioned by the Revision Petitioner.
8. However, the petitioner had contended that the filing of the charge sheet as 'mistake of fact' or with the offences made out is the jurisdiction of the Investigating Officer and it cannot normally be interfered by the Courts. He would also submit that the interference made by the learned Chief Judicial Magistrate may be interfered and this Court has got inherent jurisdiction while exercising the revisional power and the inherent power under Section 482 Cr.P.C. and the conclusion of the Investigating Officer may be restored. For that he would request the Court to apply the principles made in "2006 (3) SCC (Crl.) 245 (Popular Muthiah ..vs.. State represented by Inspector of Police)". The relevant passage would run as follows:- " ... The High Court while, thus, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised both in relation to substantive as also procedural matters.
....
In respect of the incidental or supplemental power, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings."
9. On the basis of the inherent power under Section 482 Cr.P.C. whether the order of issuing process to the petitioner passed by the learned Chief Judicial Magistrate is liable to be interfered is a question to be answered. The learned Chief Judicial Magistrate has gone through the report of the Investigating Officer and had found that the complainant's statement and the statement of Sub-Inspector Rajaram are found to be trustworthy and the veracity of their statement have to be tested only before the Court and it cannot be dispensed by the Investigating Officer that his evidence was tainted by inimical attitude and therefore he has taken cognizance of the Protest Petition coupled with the investigation report. It is an undisputed fact that the complainant had spoken in his statement about the incident which was corroborated by the evidence/statement of the Sub-Inspector, Mr.Rajaram. The rejection of the evidence of Sub-Inspector, Mr.Rajaram was done by the Investigating Officer on the basis that he was inimical to the petitioner while working as a subordinate in various centres. However, the learned Chief Judicial Magistrate has also given the reasons for not rejecting their evidence by saying that their demeanour to be tested only, before the Court.
10. In yet another judgment of Hon'ble Apex Court reported in 2009 (1) SCC Crl.262 (Sanjay Bansal and another ..vs.. Jawaharlal Vats and others), the power of a Magistrate has been approved by the Hon'ble Apex Court as follows:-
"9. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate, he has again option of adopting one of the three courses open i.e.(1) he may accept the report and drop the proceedings; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process, or (3) he may direct further investigation to be made by the police under Section 156(3). 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, exercise 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)(a) though it is open to him to act under Section 200 or Section 202 also." The aforesaid judgment of the Hon'ble Apex Court would empower the Magistrate to apply his mind independently to the facts emerging from investigation and take cognizance of the case, if he thinks fit after ignoring the conclusion arrived by the Investigating Officer.
11. In the said circumstances, I feel that the conclusion reached by the learned Chief Judicial Magistrate that the evidence of the supporting witness Mr.Rajaram, Sub-Inspector of Police and the statement of the complainant have to be decided before the Court and is not liable to be interfered. The order passed by the learned Chief Judicial Magistrate to take cognizance of the offences referred in the complaint, even though a final report as to "mistake of fact" has been filed on a Protest Petition and to order issuance of summons to the petitioner / accused, is quite in consonance with the principle laid by the Hon'ble Apex Court in the judgment reported in 2009 (1) SCC (Crl). 262 as cited supra. Therefore, I am of the considered view that the order passed by the learned Chief Judicial Magistrate is in order and nothing is available to interfere with the order passed by the learned Chief Judicial Magistrate.
12. In view of the discussion held above, the Revision fails and accordingly, it is dismissed. Consequently, connected Miscellaneous Petition is closed. The Registry is directed to despatch the records to the lower Court as expeditiously as possible.
Mra
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