Magistrate can take cognizance of offense based on protest petition even if refused to take cognizance of police report: Madras High Court

Justice P Dhanabal he observed that the magistrate could take cognizance of it even if the accused were discharged. The court noted that while exercising this judicial discretion, the magistrate was expected to apply his opinion to the content of the protest petition.

“Even in the case where the final police report under section 173 is accepted and the accused are discharged, the Magistrate has the power to take cognizance of the offense by way of a complaint or petition of protest on the same or similar allegations even after the acceptance of the final report and the Magistrate is not prevented from hearing a complaint only because he had previously declined to hear the police report. The magistrate, in the exercise of his judicial discretion, must apply his opinion to the content of the protest or complaint request, as the case may be.”, the court said.

The court was hearing a petition by Manoharan and his wife challenging the cognizance taken by the Chengalpattu Judicial Magistrate in a land-related case.

background

The 1^St The respondent in the case, G Sivakumar, had filed a complaint against the petitioners and an FIR was registered for offenses under Section 420, 465, 471, 477 (A) read with Section 34 of the IPC for creating false documents related to the earth. When the FIR was challenged by the petitioners, the court quashed only the offense under Section 420 and dismissed the petition in respect of other offences.

The court was told that after investigation, the police filed a final report and filed the case in which the matter is said to be civil in nature. Sivakumar then filed a protest petition which was taken cognizance of the Magistrate and which is sought to be quashed in the present case.

The petitioners argued that the magistrate had not ruled at the time of hearing the case and failed to consider that there were already land disputes between the parties. He further submitted that Sivakumar had filed a false complaint as on the alleged date of occurrence, he was not working in the concerned village and could not have made false documents. Thus, he urged the court to annul the pending proceedings.

Sivakumar, on the other hand, claimed that the property originally belonged to his maternal ancestor and was later transferred in his name. He added that the petitioner, while working as Special Tahsildar, misused his official position and tried to encroach on the property and claimed ownership of the property in favor of his wife. He claimed that though he had filed a complaint with the Land Grabbing Cell, the cell dismissed the case without conducting a proper investigation which prompted him to file the protest petition. Sivakumar submitted that since there were so many documents in the case, an elaborate trial was necessary and at this stage they could not try to quash the proceedings.

The court agreed with the defendants and noted that the allegations of falsification of land documents should be decided through trial. The court added that the veracity of the allegations made cannot be verified at this stage. Thus, the court held that it could not, at this stage, invoke its power under Section 482 CrPC to quash the proceedings.

The court also held that the magistrate had decided to hear the case on the basis of the protest petition and merely because the investigating agency had previously submitted a negative report, the petitioners could not seek to quash the proceedings. Thus, the court dismissed the petition.

Petitioner’s attorney: Mr. Rupert J Barnabas by Mr. J. Selvarajan