This is a petition filed invoking the inherent powers of the High Court under Section 482, Cr.P.C. to quash the proceedings in Crl.M.P. 46 of 1982, on the file of the Judicial Second Class Magistrate, Usilampatti, Madurai district.


2. The petition arises under the following circumstances. The respondent preferred a complaint on 25-5-1981, at the Uthappanaickanur police station against 53 persons for offences under Sees. 147, 148, 452, 336, 324, 307 and 511, I.P.C. A case was registered by the police at 1-30 p.m. as Crime No. 40 of 1981; and investigation was taken up. After completion of the investigation, the police submitted the report as a mistake of fact through the Inspector of Police, Usilampatti, before the Judicial Second Class Magistrate, Usilampatti, after serving Referred Charge-Sheet notice to the respondent on 7-11-1981.


3. The learned Magistrate accepted the Referred Charge-Sheet and passed a final order treating it as a mistake of fact, after a perusal of the documents and the reports submitted by the Police. No protest petition or any protest complaint was filed against the order of the learned Magistrate dated 17-12-1981.


4. The respondent preferred a complaint on 11-1-1982, alleging the same facts and offences as in his police complaint before the Judicial Second Class Magistrate. The learned Magistrate took cognisance of some offences and numbered the same as Crl.M.P. 46 of 1982, to start an enquiry under Section 202, Cr.P.C. The petitioner became aware of this enquiry when a notice under Section 91, Cr.P.C. was served on his father for production of some documents.


5. Mr. Sam V. Chelliah, learned counsel appearing for the petitioner, contended that the learned Magistrate ought to have given enough opportunity to the respondent to file a complaint or protest petition before the acceptance of the final report of the police. The complaint preferred after nearly two months of the acceptance of the final report shows the mala fide intention of the respondents to harass the petitioner his relations and the womenfolk. He further submitted that the Magistrate, having accepted the final report of the police by his order dated 17-12-1981 and having passed a judicial order, declining to take cognisance of the offences alleged has no right to revise his own order and take the complaint on file for the same offences and on the same set of facts. Such cognisance of offences by the Magistrate and conducting an equiry is ab initio void and without jurisdiction as it amounts to reviewing his own order. The only remedy, according to the learned counsel, open under such circumstances is to file a revision petition against the order accepting the final report.


6. In support of his contention, the learned counsel first drew my attention to the decision in Lakshman Jena v. Sudhakar Palta Singh, 1968 ILR(Cut) 793 : 1969 CrLJ 926), wherein it is held that, where a final report is received from the police, the Magistrate may either accept it and close the proceeding or he may take the view, on a consideration of the final report, that the opinion formed by the police is not based on full and complete investigation and may give directions to the police under Section 156(3) Cr.P.C. to make a further investigation. In the present case, the learned Magistrate after exercising his judicial mind thought fit to accept the final report of the police and close the proceeding. As it was thought no further investigation was necessary, the order of the Magistrate was justified. Subsequently, the entertainment of the second complaint is not proper as it would amount to reviewing his previous judicial discretion.


7. Reliance is placed on the following observations made in Banshi Modi v. State of Bihar, 1982 CrLJ 1201 (Pat) -


".... once a final report has been submitted by the police, the court may accept the same or may differ with it and on the basis of the materials already on the record i.e., police report, case diary and charge-sheet, it may take cognisance or may ask to make further investigation. Since none of these courses were followed by the courts below but entertained the complaint petition, the court below was not competent to take cognisance on the basis of the statements recorded by the police. There is no dispute about the legal position that if once a court accepts final report and discharges the accused, it cannot, on the basis of complaint take cognisance these persons" *


In the above case, it should be noted that no order was passed on the final report submitted by the police but cognisance was taken on the complaint.


8. To substantiate his argument that the order passed by the learned Magistrate accepting the final report of the police is a judicial order, the learned counsel relied on the decision in Nanasivayam v. State, 1981 Mad LW Cri 151 : 1982 CrLJ 707), wherein M. A. Sather Sayeed J. observed as follows -


"...... the police had once put up a detailed report after complete investigation and on the basis of the report filed by the respondent before the Magistrate against in the petitioner, the Magistrate passes in order, which is judicial in nature, to the the effect that there is no case and the complaint is recorded as 'mistake at law'. The Magistrate, while passing the order exercised his judicial power and discretion." *


He further held that when once the Magistrate passed an order as mistake of law, on the report submitted by the police, it is a judicial order, for the Magistrate has passed the said enter after applying his mind to the report.


9. My attention was also drawn to the decision in Bhuneshwar Prasad v. State of Bihar, 1981 CrLJ 795 (Pat) Wherein the learned Judge held -


"Where the final report by police holding the case against accused persons to be untrue, was accepted by the Magistrate earlier than the complaint petition filed against the accused, the Magistrate would not be justified in taking cognisance on the basis of the complaint petition in respect of the same facts constituting the offence which were mentioned in the final form when a judicial order was passed by accepting the final form." *


10. Lastly, the learned counsel relied on a decision of their Lordships, of the Supreme Court reported in Kamalapathi v. State of West Bengal, and drew any attention to the following passage :-


"...... in the case of an order passed by a Magistrate under sub-section (3) of Section 173 of the Code in agreement with the police report does not call for any hearing or the production of any evidence on the part of the accused, as it goes in his favour. If the Magistrate, on the other hand, disagrees with the report submitted by the police and takes cognisance of the offence, the accused comes into the picture and thereafter shall have the right to be heard and to adduce evidence in support of his innocence. Viewed in this context, all orders passed by a Magistrate acting judicially (such as orders of bail and those passed under sub-section (3) of Section 173 of the Code discharging an accused or orders taking cognisance of the offence complained of) are parts of an integral whole which may end with a definite judgment after an inquiry or a trial, or earlier according to the exigencies of the situation obtaining at a particular stage, and which involved, if need be, the adducing of evidence and the decision of the Magistrate on an appreciation thereof. They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part." *


11. The Magistrate while passing an order discharging the accused, in pursuance of the report submitted by the police to the effect that the evidence was insufficient to sustain a charge, acts judicially. There cannot be any doubt that the order passed by the Magistrate on the final report submitted by the police is a judicial order, even though previously such orders were held to be administrative; vide Venkata Subba Rao v. Anjaneyalu, 1932 Mad WN Cri 100.


12. Mr. A. A. Selvam, learned counsel appearing for the respondent contended that, when once a Referred Charge-Sheet has been accepted by the Magistrate, there is no prohibition under the Statute for the complainant to come up with another complaint, as there is no question of limitation in such matters. The right of the complainant to get redress from a court of law should not be barred if for some reason or the other, the complaint preferred by the police is investigated in a perfunctory manner or with an ulterior motive. It may not be possible for the complainant to come with a protest petition before the final order of acceptance of the final report to the police is made as he would not be aware when the Magistrate is likely to dispose of the case after the receipt of the final report. Acceptance of a Referred Charge-Sheet by a one line order "treated as a mistake of fact," by the Magistrate, cannot be said to be indicative that the Magistrate has applied his judicial mind. Such an order cannot also amount to an order refusing to take cognisance prohibiting a second complaint.


13. In support of his contention, the learned counsel relied on the decision in Chandra Deo Singh v. Prokash Chandra, for the proposition that the accused has no locus standi to appear and contest a criminal case before the issue of process. He does not come into the picture at all till process is issued. Even though he may be allowed to be represented by counsel, he has no right to take part in the proceedings nor has the Magistrate jurisdiction to permit him to do so. The Magistrate cannot put questions at the instance of a person named as accused but against whom no process has been issued nor can he examine any witnesses at the instance of that person.


14. On the basis of the provisions under the Code of Criminal Procedure, the learned counsel contended that no notice need be given to the accused at the time when the Referred Charge-Sheet is accepted by the Court nor at the time when the second complaint is entertained. The accused comes into the picture only after the process is issued to him.


15. In this case, the learned Magistrate has agreed with the final report of the police and closed the proceeding. If upon information received from any person other than the police officer he is entitled to take cognisance under Section 190(1)(c), Cr.P.C.; this is only as it should be as offences may not go unpunished and justice may be invoked even where the police either wantonly or through a bona fide error do not file a charge-sheet. The Magistrate cannot direct the police to submit a charge-sheet because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the Magistrate. The Magistrate if he disagrees with the report of the police can himself take cognisance of the offence under Section 190(1)(a) or 190(1)(c) but he cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion. Vide Abhinandan v. Dinesh.


16. Learned counsel heavily relied on the decision in Subramaniam v. Ghanasekharan T. K., 1982 Mad LW Cri 245 : 1983 CrLJ 149) (Mad), therein Maheswaran J. observed that if the Magistrate orders investigation under Section 156(3) Cr.P.C., he cannot be said to have taken cognisance of the offence and acceptance of a Referred Charge-Sheet by an order stating "Lodge the F.I.R.," is no bar from entertainment of a second complaint.


17. On notice being given to the learned Public Prosecutor, he placed before me a few authorities pertaining to the contentions raised by the learned counsel on both sides. He submitted the Magistrate could take cognisance of an offence under Section 190(1)(c), Cr.P.C. on the basis of the complainant's protest petition, even if the final report submitted by the police is not accepted by him vide Mukhtar v. State of U.P., 1982 CrLJ 45 (All).


18. Whatever may be the nature of the report by the Police, the informant has to be informed of the same. If there is a final report, it is open to the informant to appear before the Magistrate md submit a protest petition. The Magistrate has to number and treat it as complaint and examine the petitioner under Section 200, Cr.P.C. and take cognisance under Section 190(1)(c), Cr.P.C.


19. The learned Public Prosecutor then cited the decision in Abdul Rahim v. Abdul Muktadin, 1953 AIR(Assam) 112 : 1983 CrLJ 797), wherein the learned Judges held -


"Where a complainant who is dissatisfied with the report of police investigation under Section 173, Cr.P.C. files a complaint to the Magistrate, the latter should dispose of the complaint in accordance with the provisions of Ch. 16 of the Code." *


In Siddappa Gurappa v. State of Mysore, 1960 AIR(Mys) 237 : 1960 CrLJ 226 (1)), wherein it is held -


"On receipt of any report from the police under Section 173 recommending the dropping of the proceedings, it is for the Magistrate either to accept the same or not. A Magistrate can take cognisance of an offence on the facts contained in the report of the police officer, although in the opinion of such officer there is no evidence to justify taking further action. In the decision in H. S. Baina v. State (Union Territory of Chandigarh), 1980 CrLJ 1308 (SC) their Lordships of the Supreme Court observed -" *


A Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may thereafter, do one of three things - (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognisance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognisance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be".


20. Thus, the learned Judges have made it clear that the mere fact that a Magistrate had earlier ordered an investigation under Section 156(3), Cr.P.C. and received a report under Section 173, Cr.P.C. will not have the effect of total effacement of the complaint. The Magistrate is not barred from proceeding under Sections 200, 203 and 204 Cr.P.C.


21. When an Investigating Officer submits a report after he is directed to investigate under Section 156(3), Cr.P.C., the Magistrate does not proceed to act mechanically in agreeing with the opinion formed by the police. He has to apply his mind and peruse the papers placed before him. An order as the one passed in the instant case 'Treated on mistake of fact' is no doubt, a judicial order presumed to be passed after exercising judicial discretion. It would be better, as the learned counsel on both sides and the learned Public Prosecutor agree, if there is some material to show in the order accepting the Referred Charge-Sheet that the learned Magistrate had applied his mind. Accordingly I am of the view that the Magistrate would do well, if he, while accepting Referred Charge-Sheet, briefly records his reason for so doing. The Magistrate would do well to follow this procedure in future. If it is a speaking order, the Magistrate applying his mind cannot be in question. It would be open for scrutiny whether the judicial discretion was properly exercised or not.


22. As regards the contention raised that the Magistrate, before accepting the Referred Charge-Sheet has to give notice to the complainant, I am in agreement with M. A. Sathar Sayeed, J., who made the following observations in his judgment in Crl.R.C. No. 790 of 1980 dated 23-11-1982." *


When the Magistrate is to pass an order on the police report, he has to first issue a notice to the complainant before passing such an order. No doubt, on this aspect the statute is silent, Nowhere, it is stated that notice should be given by the Magistrate. Yet the party, who has lodged the complaint and who is affected by the process, should be heard in the interests of justice. The Statute does not expressly require a notice to be issued or a hearing to be given to the parties adversely affected. But in the eye of law, it is just and necessary that when a petition, on the

report of the police, is to be dismissed by the Magistrate and when the parties, as in this case, are to be adversely affected by such dismissal, they should be heard by court before making such an order of dismissal of the complaint filed by the petitioners." Needless for me to add that the Magistrates in future shall comply with the directions given in the above observations. 23. Coming to the case on hand, on the direction given by the learned Magistrate under Section 156(3), Cr.P.C, the police investigated the case and submitted the Referred Charge-Sheet as a mistake of fact. This has been accepted by an order dated 17-12-1981, by the learned Magistrate. There is nothing on record to show that the investigation was perfunctory or not conducted with due diligence. I am also aware that the respondent had not come to court in his belated complaint dated 11-1-1982, with clean hands inasmuch as he has added four women as accused, whose names do not find a place in his original complaint. In spite of these circumstances, I am not inclined to interfere at this stage and quash the proceedings pending against all the petitioners as the learned Magistrate had thought fit to take the complaint on file and issue notice to the accused. Still, so far as the later implication of four women as accused is concerned, it is clearly an afterthought of the respondent. Hence, the proceedings relating to accused 6 to 9 in the complaint (Vijayarani, Pushparani Subbuthayee and Pownthayee) are quashed. The case against the rest of the accused shall proceed. The petition is partly allowed. 24. The learned Magistrate is at liberty to come to his own independent judicial discretion regarding the merit of the prosecution case, unfettered by any observation I have made in disposing of this petition. Petition partly allowed.