HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.3455 OF 2010 Dated : 29.03.2011 Between : K.Nivedan & others … Petitioners a n d The State of A.P. & another … Respondents HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.3455 OF 2010 ORDER: Petitioners preferred this Criminal Petition seeking to quash the order passed by the learned Additional Judicial First Class Magistrate, Special Mobile Court, Sangareddy, in Crl.M.P.No.127 of 2010 in CFR No.15 of 2010 in Crime No.347 of 2009 whereby the learned Magistrate by invoking the provision under Section 244 (2) of the Code of Criminal Procedure directed some of the petitioners to produce certain documents before the Court. Petitioners also seek to pass consequential order in crime No.347 of 2009. Brief facts of the case are as follows: The second respondent-de facto complainant joined as E.1 Cadre Duty Medical Officer in BHEL and promoted to E2 Cadre w.e.f. 25.06.2001. Petitioners 1 to 9 are also working in the Management of BHEL under various capacities. The de facto complainant preferred a complaint against the petitioners on the ground that she was ill-treated and humiliated since she belongs to Scheduled Tribe community by not promoting her and also not treated her equally along with other doctors those who were working in the same hospital. On the basis of the said complaint, a case in crime No.347 of 2009 is registered against the petitioners for the offence under Sections VII, IX, XI of 3 (1), VI of 3 (2) and 4 of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (for short ‘the Act’). The same was investigated into by Police and a final report was also filed before the concerned Court whereby the investigation agency referred the matter as ‘mistake of fact’. Aggrieved over the final report in crime No.347 of 2009, the de facto complainant filed a protest petition under Section 200 read with 210 of Cr.P.C. In the said petition, the de facto complainant filed an application under Section 244 (2) Cr.P.C. praying the Court to call for certain documents in order to adduce evidence before the said Court and also other documents pertaining to her promotion and also connected records regarding her service. The learned Magistrate after perusal of the said petition, passed the following docket order on 10.02.2010: “ Complainant present. Heard the counsel for the complainant. Call for records as prayed for. Petition is accordingly allowed.” In pursuance to the said docket order, the learned Magistrate also addressed two letters in Dis.Nos.577 and 578 of 2010 to the Medical Superintendent, BHEL (General Hospital), and the General Manager (BHEL), Ramchandrapuram, respectively with a direction to produce certain documents. The said order is under challenge in this Criminal Petition. The learned counsel appearing on behalf of the petitioners submitted the following points for consideration: When the crime is registered and investigated by the Police and also referred as ‘mistake of fact’, the learned Magistrate should have either accepted the out come of the investigation or ordered for further investigation. Without passing any such orders, the learned Magistrate accepted the complaint under Section 200 and 210 of Cr.P.C., which is erroneous in law. There is no specific procedure for issuance of notice to the complainant on filing of final report by the investigation agency. The learned Magistrate erred in invoking the provision under Section 244 (2) Cr.P.C. in the absence of any cognizance taken by him. Sections 200 and 202 Cr.P.C. will be applicable only to private complaint but not to protest petitions. Per contra, the learned senior counsel for the complainant submitted that there is no need for the Magistrate to pass any final order on the basis of the final report and he can proceed on the basis of the complaint made under Section 200 Cr.P.C. Even though the petition is filed under Section 244 (2) Cr.P.C., the order passed by the learned Magistrate cannot be called as an order under Section 244 (2) Cr.P.C. and the Magistrate is at liberty to hold an enquiry on the basis of the complaint filed by the complainant. Heard the rival contentions. The word ‘cognizance’ is nowhere explained in the Code of Criminal Procedure or any other Act. On perusal of various provisions under the Code and other Acts, the said word ‘cognizance’ means ‘decided to proceed further’. In the present case as pointed out by the learned counsel for the petitioner when a protest petition is filed the Magistrate is at liberty to order for further investigation or he can proceed further on the basis of the report filed by the investigation agency. But, in the present case, the learned Magistrate has not passed any order on the basis of the final report filed by the investigation agency. The learned Magistrate proceeded in the matter treating the protest petition, which is filed under Section 200 Cr.P.C., as a complaint and ordered for production of certain documents by invoking the provisions under Section 244 (2) Cr.P.C. The said provision under Section 244 (2) Cr.P.C. is under Chapter XIX under the head of ‘Trial of Warrant-Cases by Magistrates’, in which one set of cases are to be dealt as instituted on a police report and the other set of cases instituted otherwise than on police report. Section 244 Cr.P.C. runs as follows: 244. Evidence for prosecution.- (1) When on any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summon to any of its witnesses directing him to attend or to produce any document or other thing. The above said provision of law clearly indicates the words “the accused appears or is brought before a Magistrate”. In the present case, after filing of a complaint under Section 200 Cr.P.C. even prior to the appearance of the petitioners, who arrayed as an accused, the learned Magistrate passed an order by invoking the provision under Section 244 (2) Cr.P.C. Further, the said section speaks about the powers of the Magistrate to order for issuance of summons to any of the witnesses relied by the Prosecution. In the present case, petitioners, who are arrayed as accused, also were directed to produce the documents. By virtue of the order passed by the learned Magistrate by invoking the provision under Section 244 (2) Cr.P.C. it is clear that the learned Magistrate passed an order as stated above under the erroneous impression that he has taken cognizance. But the perusal of the records clearly indicates that the learned Magistrate has not taken cognizance of the offence, but invoking the said provision the learned Magistrate intend to take cognizance on the basis of the further evidence to be adduced by the Prosecution. This Court is of the view that the act of invoking the provision under Section 244 (2) Cr.P.C. without taking cognizance is bad in law. Hence, the order passed by the learned Magistrate dated 10.02.2010 in Crl.M.P.No.127 of 2010 is liable to be quashed. Accordingly, the order passed by the learned Magistrate in Crl.M.P.No.127 of 2010 is hereby set aside. Further, in the present case, the provision under Section 210 Cr.P.C. is not applicable since that section of law can be invoked only in cases where once a complaint is already on the file and simultaneously investigation is also conducted by the investigation agency. In the present case, the investigation agency has already filed a final report referring the matter as ‘mistake of fact’. Hence, the question of invoking section 210 Cr.P.C. does not arise in the present case. Petitioner herein further approached this Court to quash the crime No.347 of 2009 on the file of the Additional Judicial First Class Magistrate, Special Mobile Court, Sangareddy. Already the investigation agency has filed a final report referring the matter arising out of crime No.347 of 2009 as ‘mistake of fact’. Hence, the question of quashing the F.I.R. in said crime does not arise. Merely because the complainant filed an application before the concerned Court by invoking the provision of Section 200 Cr.P.C. mentioning crime No.347 of 2009, it does not mean that the present proceedings before the concerned Magistrate in CFR No.15 of 2010 are continuation or out come of crime No.347 of 2009 since petition in CFR No.15 of 2010 is filed under Section 200 Cr.P.C. and it amounts to complaint. In view of the above discussion, the present criminal petition is disposed of with the following further directions: 1) the learned Magistrate is directed to pass an order on the final report filed by the investigation agency in crime No.347 of 2009, thereupon, 2) the learned Magistrate is at liberty to proceed on the basis of the CFR No.15 of 2010 filed under Section 200 Cr.P.C. in accordance with law if it discloses any cognizable offence. Petitioners are at liberty to approach the concerned Court with appropriate application if they are aggrieved over by any order passed by the learned Magistrate. ___________________ RAJA ELANGO, J 29th March, 2011 Note : L.R. copy to be marked. B/o. sur