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2012 DIGILAW 1860 (MAD)

Kolanchinaathan v. Raja

2012-04-11

S.NAGAMUTHU

body2012
Judgment :- 1. Seeking to quash the private complaint in C.C.No.115 of 2011 on the file of the learned Judicial Magistrate, Perambalur, the petitioners who are accused in the said case, have come up with this petition. 2. The respondent is the complainant in the said case. The offence said to have been committed by the petitioners is punishable under Sections 147. 294(b), 341, 323, 324, 355, 382 and 506(ii) I.P.C. In this petition, it is contended by the petitioner that the learned Magistrate, ought not to have taken the cognizance of the offence of the present private complaint for the reason that earlier a similar complaint had been made by the respondent, which was referred to under Section 156 (3), and on thoroughly investigating the same, it was referred to as 'mistake of fact'. Thereafter, the investigating officer filed a negative report before the learned Magistrate. The learned Magistrate having accepted the said final report, according to the petitioner, it is not open for him to take cognizance of a second complaint in respect of the very same occurrence on a subsequent occasion. 3. The learned counsel for the petitioner in order to substantiate his contention, would rely on a judgment of this Court in the case of Bhanwarlal Sharma VS K.V.Sathyanarayanan and Others reported in (2012) I M.L.J (Crl) 57. 4. I have considered the above submissions and perused the records carefully. 5. It is true that in respect of the very same occurrence, on an earlier occasion a private complaint was preferred by the respondent before the learned Magistrate. But the learned Magistrate did not take cognizance on the said complaint. Instead, he simply referred the same under Section 156 Cr.P.C to the jurisdictional police for investigation. Based on the same, a case was registered in Crime No.310 of 2010. The matter was investigated by the police and thereafter a negative final report was filed before the learned Magistrate on 02.12.2010. It is true that the learned Magistrate accepted the said final report. Admittedly, thereafter, the respondent, in respect of the very same occurrence, making very same allegations, preferred this private complaint on 11.1.2011. 6. In my considered opinion, there is no legal bar for the Magistrate to take cognizance on the said complaint. The judgment relied on by the learned counsel for the petitioner has no application to the facts of the present case at all. 6. In my considered opinion, there is no legal bar for the Magistrate to take cognizance on the said complaint. The judgment relied on by the learned counsel for the petitioner has no application to the facts of the present case at all. That was a case where on a private complaint filed by the complainant, the learned Magistrate took cognizance, recorded the statement of the complainant under Section 200 Cr.P.C. , examined the witnesses on the side of the complainant under Section 201 Cr.P.C and finally dismissed the complaint by a judicial order under Section 203 Cr.P.C. Thereafter, the very same complainant preferred yet another private complaint on the very same allegations based on the very same set of materials. In those circumstances, this Court relying on two judgments of the Hon'ble Supreme Court held that the complainant was barred from filing yet another private complaint and the Court, in turn, was barred from taking cognizance on the said complaint. The said conclusion was so arrived at by this Court because of the fact that there was a judicial order made under Section 203 Cr.P.C. This Court held that taking cognizance on a subsequent private complaint on the very same set of allegations and on the very same set of materials, passed a judicial order under Section 203 Cr.P.C. But in the instant case, as I have already stated, there was no cognizance taken at all by the Magistrate on the first complaint. Thus, the complaint was not dismissed under Section 203 Cr.P.C. Therefore, the judgment relied on by the leaned counsel for the petitioner has got no application to the facts of the present case. 7. In my considered opinion, absolutely, there is no bar for the complainant to file a second private complaint and there is also no bar for the learned Magistrate to take cognizance. It may be the case of the complainant that the police did not investigate the case properly and collect materials to substantiate the allegations. It may be the case of the complainant that he is prepared to produce all the materials by way of evidence both oral and documentary during the course proceedings. 8. In such a view of the matter, in my considered opinion, there can be no bar for the complainant to establish the allegations made in the complaint by producing the materials available with him. 8. In such a view of the matter, in my considered opinion, there can be no bar for the complainant to establish the allegations made in the complaint by producing the materials available with him. After having considered the said materials, both oral and documentary, including the statement recorded under Section 200 and 201 Cr.P.C, the Magistrate will have to decide as to whether to dismiss the complaint under Section 203 Cr.P.C or to issue summons to the accused. 9. In view of the above, the only contention of the learned counsel for the petitioner that the complaint preferred by the complainant is barred and that the judicial Magistrate is also barred from taking cognizance on the said complaint is liable to be rejected. 10. In the result, the Criminal Original petition is dismissed. Connected miscellaneous petitions are closed.