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Victim/ Interested Persons Have A Right To File Protest Petition: Madras HC [Read Judgment]

LIVELAW NEWS NETWORK
20 Nov 2019 5:06 AM GMT
Victim/ Interested Persons Have A Right To File Protest Petition: Madras HC [Read Judgment]
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The Madras High Court has ruled that a Petitioner, being a victim, is mandatorily entitled to notice before acceptance of final report of the Police and in case such a notice is not served, he has a right to file a protest petition.

"When the Petitioner/victim being a person interested in the complaint is not put on notice of the final report filed in this case, this Court would view the matter placing itself at the stage when the final report was filed before the Magistrate. What follows would be that at such stage, the Petitioner has a right to file a protest petition," Justice AD Jagadish Chandira held.

Reliance was placed on Vishnu Kumar Tiwari v. State of UP, 2019 8 SCC 27, whereby the Apex Court had held,

"in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.

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The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective."

Background

The Complainant, R.Ganesamoorthy, had lodged an FIR against the private Respondents herein, for scam made in respect of the high value lands of the Complainant, by creating false bogus and forged documents. Accordingly, offences under Sections 420, 468, 471 and 472 of IPC were made out.

However, the Respondent Police, acting at the behest of the persons named in the FIR, had purposefully not named them in the final report. Nevertheless, instead of putting the Complainant to notice before accepting the final report or directing further investigation, the Trial Court took cognizance of the matter.

Aggrieved by the same, the Petitioner herein, R. Dharmalingam (brother of the original Complainant) filed a protest petition, which came to be dismissed as not maintainable. Hence, the present Revision petition was filed.

Petitioner's Contentions

Dharmalingam's case was that the Trial Court failed to appreciate the contents of the statements of the Prosecution witnesses recorded under Section 161(3) of Cr.PC, contents of the FIR where the names of Respondents were recorded and did not even put the Petitioner to notice, so as to enable him to file a protest petition.

As per the facts of the case, even while the Petitioner was not a Complainant, he was a party interested, at whose efforts, the case was registered.

It was submitted that law mandates notice on the victim and the Judicial Magistrate having found that the Petitioner was a victim, ought not to have taken cognizance of the final report without any notice being served on the Petitioner, when especially the persons against whom specific allegations having been made were dropped.

Respondent's Contentions

The Respondents submitted that the notice of closure was served on R. Ganesamoorthy, the de facto Complainant.

It was also submitted that the Trial Court had rightly dismissed the protest petition as allowing the same would be an absurdity, meaning that the Judicial Magistrate, set aside its own order of taking cognizance. In other words, it was submitted that once cognizance of a case has been taken, a victim is not entitled to file a protest petition.

Reliance was placed on Chinnathambi @ Subramani v. State, 2017 2 CTC 241, wherein it was held that,

"The power to grant permission for further investigation under Section 173(8) of Cr.P.C. after cognizance has been taken on the police report can be exercised by the Magistrate only on a request made by the investigating agency and not, at the instance of anyone other than the investigating agency or even suo motu."

Findings

The high court firstly observed that the Petitioner being a victim, had locus standi to maintain the protest petition and was entitled to be heard before final report was taken on file.

The court then held that power of the Magistrate to direct further investigation was an independent power and could not imply that the Magistrate was setting aside its own order of cognizance.

"…the power of the Magistrate to permit the police to further investigate the case as provided under Section 173(8) of the Code is an independent power and the exercise of the said power shall not amount to varying, modifying, or cancelling the earlier order of the Magistrate on the report of the police, notwithstanding the fact whether the said earlier order is a judicial order or a non judicial order of the Magistrate," the court said.

Reliance was placed upon Augustin & Ors. v. State, 2018 1 LW Crl. 190, wherein it was held,

"…the mere act of taking of cognizance would not automatically bring into play…the effect that after taking of cognizance none but the investigation agency can seek further investigation…When it is brought to notice that de facto complainant has not been put on notice of the final report filed in the case, this Court would view the matter placing itself at the stage when the final report was filed before the Magistrate. What follows would be that at such stage, petitioner/de facto complainant had a right to file a protest petition and seek further investigation."

Thus, it was held that the Respondents' reliance on the ruling in Chinnathambi @ Subramani v. State was misplaced as the same had been overruled.

The court went on to explain that a Magistrate has the power to order further investigation of the offence till the stage when the trial commences, i.e., after charges are framed.

"Article 21 of the Constitution of India demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out," it concluded.

With these observations, the high court set aside the Trial Court's order taking cognizance and the order dismissing the protest petition filed by the Petitioner and directed it to take up the matter afresh and pass orders on merits, within a period of two months.

The Petitioner was represented by Advocate S. Jeyakumar and the Respondents by APP M. Mohamed Riyaz.

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