Judgment : Accused 1 to 15 in C.C.No. 6 of 1993 on the file of Judicial Magistrate No. 1, Cuddalore, have filed this petition under Sec. 482, Crl.P.C., praying to call for the records in the above case and quash the same. 2. Short facts are; The respondent had filed a private complaint against the petitioners for offences punishable under Secs. 147, 148, 341, 323, 294 and 506(2) read with 34, I.P.C. The allegations in it are briefly as follows: There is a civil suit between the complainant and accused 1, 7 and 15 in O.S.No. 700 of 1990 and the complainant has obtained an order of injunction against them in I.A.No. 1223 of 1990. On 10. 1990 at 6.30 a.m. all the accused armed with crow bar, sword and knife and other deadly weapons came and had damaged the fence situated near the house of the complainant. They held out a threat to the complainant that they would murder him. The complainant told them that when a civil case is pending, why they should create a scene. A-1 abused him and held out a threat that he would murder him and raised the sword. When the complainant tried to escape, the accused stood around him and prevented him from running away. A-3 slapped him on his cheek. All woman accused abused the complainant and his wife with obscene words and had annoyed them. The complainant gave a report to the police. Since the 14th accused is an officer, the police registered a case for a minor offence against A1 and A-3 alone and left out others. The accused had come with the common intention of doing unlawful acts and have done the above acts. The Judicial Magistrate No. 1, Cuddalore had forwarded this complaint to Sub-Inspector of Police, Thirupapulliyar under Sec. 156(3), Crl.P.C. After investigation, the Sub-Inspector of Police has filed final report, referring it. Thereafter, the respondent had filed another private complaint against the petitioners for the very same offences, on the very same allegations and adding one more para stating that the first complaint was forwarded to the Sub-Inspector of Police for investigation and that he did not investigate the case properly and had referred the case and that refer notice was served on the complainant. The second complaint was dismissed by the Magistrate under Sec. 203, Crl.P.C. and aggrieved by that order, the respondent has filed Crl.R.C.No. 46 of 1992 before the Additional Sessions Judge, Cuddalore. The learned Sessions Judge had allowed the revision and had directed the learned Magistrate to take the case on file and dispose it of according to law. Thereafter, the learned magistrate has taken it on file in C.C.No. 6 of 1993 and to quash the same, this petition is filed. 3. Mr.K.V. Sridharan, the learned counsel appearing for the petitioners, would submit that the petitioners had filed copy application in the trial court for granting copies of the orders passed by the Magistrate in referred charge sheet in the first complaint, which was registered as Crime No. 837 of 1991 by Thirupapuliyar police station and was referred by them and that it was returned with an endorsement that after investigation and enquiry, the Inspector of Police, Thirupapuliyar had referred this case as "mistake of fact" after due notice to the complainant and the same has been received by the Magistrate on 10. 1991 and it was not yet recorded by the court as "‘mistake of fact" and that while the first complaint had not attained a finality, the second complaint cannot be taken cognizance of by the learned Magistrate. I have heard Mr.T. Kandaswamy, the learned counsel appearing for the respondent, on the above aspects. 4. I have carefully considered the submissions made by rival counsels. From the materials available in this case, which I have referred to supra, it is seen that the respondent had earlier filed a private complaint against the petitioners for offences under Secs. 147, 148, 341, 323, 204 and 506(2) read with 34, I.P.C. with regard to an occurrence on 10. 1990. It was forwarded by the Magistrate to the police under Sec. 156(3), Crl.P.C. After investigation, the police had referred it and had filed a final report accordingly and had also sent a copy of the same to the respondent, which was filed along with the second complaint (impugned complaint). Only thereafter, this second complaint was filed by the respondent with regard to the same occurrence, on the same allegation with an added para that the first complaint was forwarded to the police for investigation and the police had referred it, without properly investigating the same. Only thereafter, this second complaint was filed by the respondent with regard to the same occurrence, on the same allegation with an added para that the first complaint was forwarded to the police for investigation and the police had referred it, without properly investigating the same. The question that falls for consideration is whether on the above facts, the second complaint will survive or will have to be quashed. 5. Mr.T. Kandasamy, would rely upon T.K. Subramanian v. T.K. Gnanasekaran, 1982 L.W. (Crl.) 245. In that case, the first complaint was forwarded by the Magistrate to the police for investigation and report under Sec. 156(3), Crl.P.C. It was registered as Crime No. 2146/X/617/81 by the Inspector of Police, Salem Town and he sent a report that the matter is one of civil nature. The court dropped further action in the matter. Thereafter, the complainant had filed the second complaint on the same cause of action. To quash the same, the accused in that case came before this Court. The submission put forth by rival sides has been set out by Justice Maheswaran in para. 3 of the order and it reads as follows: "..the main contention of the learned counsel for the petitioner is that a second complaint on the same facts cannot be entertained when a previous complaint has been dismissed under Sec. 203 of the Crl.P.C. Per contra, it is argued for the first respondent that the complaint was not dismissed under Sec. 203 of the Crl.P.C. and that the learned Magistrate did not take cognizance of the offence at all“. The learned Judge on facts found that on the report of the police, in the first complaint, the matter is one of civil nature, the Magistrate had passed an order”lodge the F.I.R.“that it cannot be construed as dismissal under Sec. 203, Crl.P.C. and there is no prohibition for the entertainment of the second complaint. The learned Judge had held there is no taking cognizance of the offence and there is no dismissal of the complaint under Sec. 203, Crl.P.C. Further as observed by the Supreme Court in Lakshminarayanan v. V. Narayana, A.I.R. 1976 S.C. 1672: 1976 S.C.R. (Supp.) 524. “a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein”. In this case, it cannot be said that a case was instituted. “a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein”. In this case, it cannot be said that a case was instituted. Under these circumstances, a second complaint is clearly maintainable. The facts of the case before me is slightly different from the facts of the case in T.K. Subramonian v. T.K. Gnanasekaran, 1982 L.W. (Crl.) 245. Both in the reported decision and in the instant case, the first complaint was forwarded to the police under Sec. 156(3), Crl.P.C. and after notice the police submitted a report. In the reported case, the report was that the dispute was a civil nature and in the instant case, report was that it was”mistake of fact “. In the reported case, the magistrate had simply passed an order”lodge the F.I.R.“. In the instant case, the Magistrate had not passed any order whatsoever. But in both the cases, the first complaint was not taken cognizance of by the court. It is for the reason that the first complaint was not taken cognizance of and so it cannot be said that a case was instituted earlier, the learned Judge had held that the second complaint is clearly entertainable. The learned Judge had relied upon the ruling of the Supreme Court in Lakshminarayanan v. V. Narayana, A.I.R. 1976S.C. 1672: 1976 S.C.R. (Supp.)524, I am clear that the ratio of this ruling applies to the facts of this case. In the instant case also the first complaint was forwarded to the police under Sec. 156(3), Crl.P.C. and after registering the case and the police have referred the case as”mistake of fact“and it is at that stage and so it cannot be said that a case was earlier instituted and so a second complaint is not maintainable. Under these circumstances, this second complaint is clearly maintainable. 6. Mr.K.V. Sridharan would rely upon Joseph v. Papusami Reddiar, 1984 L.W. (Crl.) 243. The facts of this case are the first complaint was forwarded by the Magistrate to the police under Sec. 156(3), Crl.P.C. No report was received from the police. While so, the second complaint was filed. It was held that the Magistrate ought not to have taken cognizance of the second complaint, but must have called for a report from the police. In Murugesan v. Kothandam, 1969 L.W. (Crl.) 268. While so, the second complaint was filed. It was held that the Magistrate ought not to have taken cognizance of the second complaint, but must have called for a report from the police. In Murugesan v. Kothandam, 1969 L.W. (Crl.) 268. Justice Krishnaswamy Reddy had taken a similar view. The facts of this case are different. In this case, the police had already submitted a report stating that it was”mistake of fact“. The above rulings are not applicable to the facts of this case. 7. Mr.K.V. Sridharan, further relied upon the order passed in Crl.M.P.No. 9950 of 1989 by Justice T.S. Arunachalam. In that case also the learned Magistrate had forwarded the first complaint under Sec.156(3), Crl.P.C., to the police. Before the report was submitted by the police, the Magistrate had entertained the second complaint and to quash the same, Crl.M.P.No. 9950 of 1989 was filed, on the ground that while on the first complaint report was called for under Sec. 156(3), Crl.P.C. the second complaint was not maintainable. The learned Judge had accepted that submission and had allowed the petition. Such are not the facts in the instant case. In the instant case, after the Magistrate had ordered investigation under Sec. 156(3) Crl.P.C. the police had registered the case, investigated the same and had sent the final report, referring the case, on the ground of”mistake of’ fact’. The copy of final report was served on the complainant also and he was informed that he can file a private complaint, within a period of 7 days. In these circumstances, it is immaterial as to whether the Magistrate had passed any order thereon or not. The second complaint, in such context, is certainly maintainable and can be proceeded with and that cannot be quashed at the threshold. 8. In the result, this petition fails and shall stand dismissed.