ALAGU MURUGESAN Vs. A THANGA PANDIAN

JUDGEMENT

(1.) The petitioners who stand charged as accused in P.R.C. No. 17 of 1994 have comeforward to quash the proceedings in S. C. No.120 of 1996 pending on the file of the Asst. Sessions Judge, Madurai.

(2.) The facts leading to the institution of the Criminal Original Petition briefly stated are as under :- There had been dispute between the petitioners and one Thangapandian the respondent and his party. An occurrence took place on 5-2-1994. The petitioners and other preferred a complaint to the police against Thangapandian and others alleging that they have committed offence under Sections 147, 148, 447, 341, 324, 354, 307 and 506 (ii), I.P.C. on the basis of the complaint, the Elumalai Police registered a crime in Crime No. 31 of 1994 under the above said provisions of the Indian Penal Code. On the same day, the respondent Thangapandian preferred a complaint against the petitioners herein which was also received by the same police. They registered a crime in Crime No. 32 of 1994 under Section 324, I.P.C. After enquiry, the concerned police submitted final report to the Judicial Magistrate concerned to the effect that so far as Crime No. 31 of 1994 is concerned, a prima facie case has been made out, which the learned Judicial Magistrate took on file and it was committed to sessions. The learned Assistant Sessions Judge, Madurai, took the matter on file in S. C. No. 119 of 1994. So far as the complaint preferred by Thangapandian the respondent herein is concerned, the police referred the same as mistake of fact. But, on 24-8-1994, Thangapandian and others preferred a private complaint before the same Judicial Magistrate, who took the matter on file in P.R.C. No. 17 of 1994. After examination of the witnesses mentioned in the complaint, the learned Judicial Magistrate opined that a case under Sections 341, 323, 324, 307 r/w 34, I.P.C. has been made out and committed the same to the same Sessions Judge, who took the case on file in S. C. No. 120 of 1996. Now, the petitioners have come forward with the instant Criminal Original petition to quash the proceedings on the ground that once when the complaint preferred by the respondent to the police had been referred as mistake of fact, a second complaint would not lie regarding the same occurrence.

(3.) Heard both sides. In respect of his contentions that a second complaint would not lie, the learned counsel for the petitioners drew my attention to various judicial pronouncements in this regard. In Krishna Rao, A v. L. S. Kumar, 1998 (1) CTC 329, wherein Thangaraj, J. has held that once when the first complaint was referred as mistake of fact where no steps were taken for setting aside the earlier order passed by the learned Judicial Magistrate in the referred charge sheet, subsequent complaint regarding the very same occurrence is not maintainable. The learned Judge has referred to an earlier decision reported in Murugesan v. Kothandam, 1969 Mad LW (Cri) 268 : (1970 Cri LJ 1183) wherein the same view had been expressed. In Mariaglory v. John Britto alias John, 1995 (2) MWN (Cr.) 89, V. Rengasamy, J. has held that once when the police have referred the first complaint, second investigation by the police and filing of a charge sheet after the second investigation and the Magistrate taking Cognizance of the offence in pursuance of the second chargesheet is an illegality. My attention was also drawn to the decision rendered by C. Shivappa, J. in Crl. O. P. No. 10411 of 1994 on 8-11-1995, wherein, the learned Judge has stated that after acceptance of final report, by the Court on a complaint, a second complaint for the same offence cannot be re-entertained and taken cognizance of, my attention was also drawn to the decision reported in Namasivayam v. State, 1981 Mad LW Cri 151 : (1982 Cri LJ 707) wherein Sather Sayeed, J. has pointed out that once when the Magistrate recorded on the charge sheet as mistake of law, such recording being a judicial order, further investigation or filing second charge sheet is not legal. In Ramasubbu, K. v. State through the Inspector of Police, (1987 Mad LW (Crl) 79 : (1988 Cri LJ 214), the same view has been reiterated by K. M. Natarajan, J. also. In short the judicial pronouncements are to the effect that once when police referred the matter as mistake of fact or mistake of law and if the Court takes note of such reference and drops further proceedings after recording on the chargesheet as 'mistake of fact' or 'mistake of Law', whatever it might be, then it would amount to applying the judicial mind and amounts to pronouncement of judicial verdict. But, the trend of the decisions is to the effect that it is sine quo non that reference of the case as mistake of fact by the police is not sufficient, but the learned Judicial Magistrate should have applied his mind and passed some order.