A. KRISHNA RAO Vs. L. S. KUMAR

JUDGEMENT

(1.) THE third accused in CC.No.274 of 1994 on the file of the Judicial Magistrate No.II, Wallajapet has filed this Crl. Original petition under Sections 482 Cr.P.C. to quash further proceedings in the said case.

(2.) THE main averments in the petition are that the complainant one Kumar preferred a complaint against the petitioner and others before the SIPCOT Police Station at Ranipet and a receipt in F.D.R. No.110 of 1993 has been issued to him by the Police. As the police have not taken any further action on the said complaint, the complainant filed a private complaint before the Judicial Magistrate No.2, Wallajapet and the learned Magistrate has forwarded the said complaint to the police under Section 156(3), Cr.P.C. for investigation and report. The police registered a case in Grime No. 389/94 under Sections 323, 341 and 506(2) , I.P.C. and after investigation filed the final report on 9.12.94 referring the case as 'Mistake of fact' Learned Magistrated sent a memo along with the RCS Notice and the complainant didnot file any objection and on the contrary he has filed another private complaint on 15.12.94 and the same was taken on file by the said Court in CC No.274 of 1994. As the police had already investigated the case and the matter had been referred to as 'Mistake of fact', the Magistrate ought not to have taken cognizance of the second complaint. In such circumstances, the proceedings in the second complaint, which is pending in CC.No.274 of 1994 on the file of the Judicial Magistrate No.2, Wallajapet, has to be quashed.

(3.) LEARNED counsel for the respondent relied upon a decision of this Court is Manoharbal v. Vashdev 1983 L.W. (Crl.) 319 wherein it was held that when a Magistrate sends a complaint for enquiry under Section 156(3), Cr.P.C., he does not take cognizance of the case, that consequently when he, receives the report stating that the complaint should be referred either as false or as mistake of fact or mistake of law, he does not pass any judicial order, but merely lodges the complaint and does not take any further action and in such circumstances, there is no bar in law for the Magistrate to entertain a second complaint and take cognizance of it and issue process to the accused. The view expressed by this Court herein is somewhat contrary to the views expressed in the decisions stated supra. In the present case, the police have filed the referred charge sheet as 'mistake of fact' it, seems the Magistrate has accepted the R.C.S. It is not the case of the respondent herein that the Magistrate has not accepted the R.C.s. filed by the police. In such circumstances, when the Magistrate has accepted the R.C.S. the second complaint should be filed only after setting aside the order passed by the learned Magistrate in the referred chargesheet. However, the respondent herein has not taken any such action and instead had filed a second complaint which the learned Magistrate has taken cognizance. It has been held in the above decisions that taking cognizance in the second complaint, makes the same not maintainable. I have no hesitation to follow the said view, and as such it has to be held that the second complaint which is pending before the learned Judicial Magistrate No.2, Wallajapet, in CC No.274 of 1994 is not maintainable and the proceedings have to be quashed.