Quashed

L.Seshadri Reddy v. v.Prasanna Ku.Patra

Orissa HC9 Apr 2018CRLMC/1345/2006

Case brief

AI extract

What is this about?

The Court quashed the Magistrate's order taking fresh cognizance under Section 406 IPC after a final police report was submitted without a protest petition. The matter was remitted to the Magistrate to act on the final report within two months.

What did the court decide?

Quashed the order of taking cognizance and subsequent orders; remitted the matter to the Magistrate to act on the final police report within two months.

L.Seshadri Reddy Vs v.Prasanna Ku.Patra — Civil Procedure and Limitation | Orissa HC (2018)

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CRLMC No.1345 of 2006

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28. 09.04.2018

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Heard Mr. B.K. Biswal, learned counsel for the petitioners, Mr. S.S. Rao, learned counsel for opposite party no.1 and learned Additional Standing Counsel for the State.

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Challenge has been made to the impugned order dated 16.05.2006 passed by the learned S.D.M., Bhanjanagar.

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Mr. Biswal, learned counsel for the petitioners submits that the first complaint that was filed by the complainant was sent for investigation under Section 156(3) Cr.P.C. After investigation, the police has submitted the final report against which no protest petition was filed but the learned Magistrate called the complainant and examined him and also did inquiry under Section 202 Cr.P.C. After that the learned Magistrate took cognizance of the offence. The same was also challenged before this Court vide CRLMC No.2533 of 2005, which was disposed of with a direction to the lower Court to consider the application of Section 468 Cr.P.C. and in case it is found that the order of taking cognizance passed in time, then the case would proceed. 4. Mr. Biswal, learned counsel for the petitioners further submits that after order is received, the petitioners moved the learned Magistrate and vide impugned order dated 16.05.2006, learned Magistrate came to hold that the original complaint was filed within time for which it is not barred by time. He relied on the initial statement of the complainant and other materials on record and found that it is not barred by time. Therefore, he confirmed the order of taking cognizance passed earlier. 5. Mr. Biswal, learned counsel for the petitioners further submits that the order of taking cognizance is bad in law inasmuch as the learned Magistrate once exercised the jurisdiction under Section 156(3) Cr.P.C. has to accept the final report or reject the same. If there is protest petition, the same

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would be considered as the complaint but by diverting from the provisions of law, he again considered the complaint and followed the provisions in Chapter-XV of Cr.P.C., which is not permissible. If the cognizance of offence is taken, it cannot be taken afresh as an order of taking cognizance of offence under Section 406 of IPC long after three years is barred by limitation under Section 468 Cr.P.C. So, he prayed to quash the impugned order dated 16.05.2006 and order of taking cognizance passed earlier.

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Mr. Rao, learned counsel for opposite party no.1 submits that the complaint was filed within time and the learned Magistrate sent it for investigation under Section 156(3) Cr.P.C. He admitted that after the final report was submitted, the complainant has not filed any protest petition which could have been treated as complaint. But at the same time, he submitted that the learned Magistrate considered the earlier complaint and proceeded accordingly. The question hinges only whether the order of taking cognizance is barred by the limitation. The said question is answered in the manner that the original complaint was filed within time. So according to him, the impugned order cannot be said to be incorrect.

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Considered the submissions of the learned counsels for the respective parties. It is settled in law that the learned Magistrate has got three options after receiving the complaint. The first one is to send the complaint under Section 156(3) Cr.P.C. for registration and investigation of the case or secondly he may examine the complainant under Section 200 Cr.P.C. and proceed under Section 202 Cr.P.C. if necessary or thirdly he may after examination of the complaint, and taking statement of the complainant into consideration would pass necessary order under

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Section 203 Cr.P.C. Of course, it depends upon the nature of complaint filed. It is also settled in law that any protest petition to the submission of final report by the police is filed, same can be treated as a complaint.

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In the instant case, admittedly the complaint petition was sent under Section 156(3) Cr.P.C. for registration and investigation of the case and admittedly final report has been filed to which no protest petition has been filed. If no protest petition is filed and again complainant pressed for the complaint already filed earlier, that is not permissible under law.

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In the instant case, the learned Magistrate again pressed the earlier complaint and proceeded under Chapter-XV of Cr.P.C. by ignoring the final report, same is against the provisions of law. Be that as it may, in either way, the action of the learned Magistrate is not in consonance with law. Hence, the order of taking cognizance of Section 406 Cr.P.C. is bad in law. So, the order of taking cognizance and subsequent orders are hereby quashed but the matter is remitted to the learned Magistrate again to take action on the final report submitted by the police in G.R. case registered after receipt of the complaint under Section 156(3) Cr.P.C.

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It is needless to say that the learned Magistrate will pursue with the final report as per law in view of the discussion made above and pass the necessary order within a period of two months from today.

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Both the parties are directed to appear before the learned Magistrate on 23.04.2018 and take further instruction.

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The CRLMC is disposed of accordingly.

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Registry is directed to communication this order along with LCR by special messenger to the Court below forthwith.

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Urgent certified copy of this order be granted on proper application.

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Dr.D.P.Choudhury, J.

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L.Seshadri Reddy v. v.Prasanna Ku.Patra

Case brief

What is this about?

What did the court decide?

L.Seshadri Reddy v. v.Prasanna Ku.Patra

Case brief

What is this about?

What did the court decide?

What the court decided

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