MURUGESAN Vs. KOTHANDAM

JUDGEMENT

(1.) THIS petition has been filed by Accused 1 to 3 in C. C. No. 3792 of 1933 on the file of the Sub-Magistrate of Tindivanam, to quash the proceedings-before the said Magistrate against them on the ground that the second complaint on which the learned Magistrate had taken cognisance of the case, is not maintainable.

(2.) THE brief facts of the case are these : The respondent filed a private complaint against the three petitioners under Sections 355 and 341, I. P. C. , in respect of an occurrence which took place in Tindivanam at about 8-30 p. m. on 3-10-1968. The complaint was filed on 4-10-1968. The learned Sub-Magistrate on the same day noted in the petition of the complainant itself that it disclosed the commission of the offence under Sections 341 and 355, I. P. C. , which were cognisable. He, therefore, forwarded the complaint to the Sub-Inspector of Police, Tindivanam for investigation under Section 156 (3), Criminal P. C. , and report under Section 173 (2), Criminal P. C. , on or before 18-10-1968. The Sub-Inspector, Tindivanam, investigated the case but had not submitted Ms report under Section 173, Criminal P. C. , to the Sub-Magistrate. It appears that the police had sent a notice to the respondent on 8-11-1968 informing him that there was no-material to proceed further in the matter. On receipt of this notice, the respondent filed a second complaint making the same allegations found in the earlier complaint on 8-11-1968. The learned Sub-Magistrate : asked the Head clerk to put up the R. C. S. (referred charge sheet) on the same day. A note was put up that no report was received from the police on the first complaint, on the same day. The learned Sub-Magistrate returned the complaint to the respondent on the ground that no final report from the Sub-Inspector was received in respect of his earlier complaint and directed him to re-present the complaint after 18-11-1968. It appears that no steps were taken to remind the Sub Inspector of Police to send the report. On 20-11-1963, the respondent represented the complaint and again it was returned to the respondent with an endorsement that the final report was not received from the police and the complaint might again be represented after 23-11 1968. Even after this, there was no reminder to the police, nor the police had submitted the report. The respondent re-presented again the complaint on 30-11-1963. On 30-11-1968, the Sub Magistrate took a sworn statement from the respondent and took the case on file under Section 355, I. P. C. , against the first petitioner and under Section 341, I. P. C. , against petitioners 2 and 3 and posted the case on 1012-1963 for the appearance of the petitioners, On the summons issued to the petitioners, they appeared through their advocate and filed an objection on 4-1-1969 stating that the process issued to the petitioners was not in order as the report from the police officer was not received in respect of the same complaint and requested the Court not to proceed with the hearing of the case without taking action on the police report to be submitted by them. The sub-Magistrate, on the objection petition, made the following note: The S. H. O. (Station House Officer) concerned has not sent in his report so far. The complainant has been served with refer notice and he has filed it with "his present complaint. Hence issue of summons to the accused is in order. Against this order, this petition has been filed,

(3.) THE learned Counsel for the petitioners submitted that the order of the lower Court taking cognisance of the second complaint on the same facts before finally passing an order on the first complaint was contrary to law and without jurisdiction and further submitted that the lower Court should have obtained the report from the police and applied its mind to the materials disclosed in the investigation and taken appropriate action on such a report in respect of the first complaint itself. It was further contended that after having directed the police to investigate the case under Section 156 (3), Criminal P. C. , the Magistrate must have followed the procedure of taking action under Chap. 14 and as provided under Section 173, Criminal P. C.