The Madras High Court sent back a criminal case against a former Lok Sabha MP and a former to a lower court in Chennai while making it clear that a magistrate is entitled to take cognisance of an offence, even if a police report is to the effect that no case is made out against the accused.
Justice MV Muralidharan gave the direction while disposing of criminal original petitions challenging the dismissal of protest petitions by the XIII Metropolitan Magistrate in Egmore against the closure report filed by police on a complaint against former Kallakurichi MP Adhishankar and former Rishivandiyam MLA S Sivaraj.
"The position is well settled that upon receipt of a police report under Section 173(2) CrPC, a magistrate is entitled to take cognisance of an offence under Section 190(1)(b) of CrPC even if the police report is to the effect that no case is made out against the accused," the judge said on Monday while hearing petitions by R Moorthy and M Jayanthi alias Lakshmi.
The magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognisance of the case, if he thinks fit, and direct the issue of process to the accused, Justice Muralidharan said.
The matter relates to complaints made by Mr Moorthy and his wife Jayanthi against Mr Sivaraj and Mr Adhishankar stating they were threatening the couple in connection with a dispute.
Both approached the magistrate court with a complaint on the basis of which the Triplicane police filed an FIR and submitted a final report stating that the complaint was a mistake of fact.
On a notice issued by the magistrate, Mr Moorthy and Ms Jayanthi filed protest petitions against the closure report of the police.
The magistrate based on the closure report filed by the police dismissed the protest petitions.
Subsequently, the petitioners filed the criminal original petitions before the high court.
The judge directed the XIII Metropolitan Magistrate, Egmore, to treat the protest petition filed by the petitioners as complaints, examine them and thereafter, proceed under Sections 200 and 202 of CrPC.
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