The magistrate can take cognizance of an offense on the basis of a protest petition even if he has refused to take cognizance of the police report: Madras High Court

Justice P Dhanabal observed that the magistrate could take cognizance of it even if the accused were acquitted. The court noted that while exercising this discretion, the magistrate was expected to consider the contents of the protest petition.

“Even in case the final police report under Section 173 is accepted and the accused are released, the Magistrate has the power to take cognizance of the offense on a complaint or protest petition on identical allegations or similar, even after the acceptance of the final report and the magistrate is not prevented from taking cognizance of a complaint solely on the ground that he had previously refused to take cognizance of the police report. The magistrate, in the exercise of his judicial discretion, must direct his attention to the contents of the protest petition or complaint, as the case may be.“, said the court.

The court was hearing a petition by Manoharan and his wife challenging the taking of cognizance 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 Sections 420, 465, 471, 477(A) read with Section 34 of the IPC for creation false land documents. When the FIR was challenged by the petitioners, the court quashed the offense under Section 420 alone and rejected the plea for other offenses.

The court was informed that after investigation, the police filed a final report and closed the case stating that the matter was civil in nature. Thereafter, Sivakumar filed a protest petition which was taken cognizance of by the Magistrate and the quashing of which is sought in the present case.

The applicants argued that the magistrate failed to exercise discernment when he learned of the case and failed to notice that land disputes were already underway between the parties. He further contended 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 produced false documents. He therefore urged the court to cancel the current proceedings.

Sivakumar, on the other hand, argued that the property originally belonged to his maternal ancestor and was later transferred into his name. He added that the petitioner had, while working as Special Tahsildar, misused his official position and attempted to encroach on the property and claimed ownership of the property in favor of his wife. He claimed that although he filed a complaint with the Land Grabbing Cell, it closed the case without conducting a proper investigation, prompting him to file a protest petition. Sivakumar claimed that since a large number of documents were involved in the case, a thorough trial was necessary and at this stage they could not seek to quash the proceedings.

The court ruled in favor of the respondents and noted that the allegations of falsification of land documents should be resolved through a trial. The court added that the veracity of the allegations made could not be verified at this stage. The court therefore held that it could not, at this stage, invoke the power conferred upon it under Section 482 of the CrPC to quash the proceedings.

The court also held that the magistrate had exercised discretion in taking cognizance of the matter on the basis of the protest petition and that just because the investigating agency had filed a negative report earlier, the petitioners could not not seek to cancel the procedure. the court therefore rejected the request.

Petitioner’s advice: Mr Rupert J Barnabas for Mr J Selvarajan