Magistrate Can Take Cognisance Of Offence Based On Protest Petition Even If He Declined To Take Cognisance Of Police Report: Madras High Court

Justice P Dhanabal observed that the Magistrate could take cognizance even if the accused persons were discharged. The court noted that while exercising this judicial discretion, the Magistrate was expected to apply his mind to the contents of the protest petition

“Even in a case where the final report of the police under Section 173 is accepted and the accused persons are discharged, the Magistrate has the power to take cognizance of the offence on a complaint or a Protest Petition on the same or similar allegations even after the acceptance of the final report and the Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of the police report. The Magistrate while exercising his judicial discretion has to apply his mind to the contents of the protest petition or the complaint as the case may be,” the court said.

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

Background

The 1^st respondent in the case, G Sivakumar, had lodged a complaint against the petitioners and an FIR was registered for offences under Section 420, 465, 471, 477(A) read with Section 34 of the IPC for creating fake land-related documents. When the FIR was challenged by the petitioners, the court quashed the offense under Section 420 alone and dismissed the plea with respect to 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 cognisance of by the Magistrate and which is sought to be quashed in the present case.

The petitioners argued that the Magistrate had failed to apply his mind while taking cognizance of the case and failed to note that land disputes were already pending between the parties. He further submitted that Sivakumar had made a false complaint as at the alleged date of occurrence, he was not working in the concerned village and could not have made false documents. He thus urged the court to quash the pending proceedings.

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

The court agreed with the respondents and noted that the allegations of forgery of land documents had to be decided through trial. The court added that the veracity of the allegations leveled could not be tested at this stage. The court thus held that it could not, at this stage, invoke its power under Section 482 of CrPC to quash the proceedings.

The court also held that the Magistrate had applied its mind while taking cognisance of the case based on the protest petition and merely because the investigating agency had filed a negative report previously, the petitioners could not seek to quash the proceedings. the court thus dismissed the petition.

Counsel for Petitioner: Mr. Rupert J Barnabas for Mr. J. Selvarajan

Counsel for Respondent: Mr. S. Raveekumar, Ms. G.V. Kasthuri, Additional Public Prosecutor

Citation: 2024 LiveLaw (Mad) 396

Case Title: N. Manoharan v G Sivakumar and Others

Case No: CRL OP.No.24774 of 2022