LexB. CHANDRIKA versus SANTHOSH & ANR
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A B (2013] 12 S.C.R. 588 B. CHANDRIKA v. SANTHOSH & ANR (Criminal Appeal No.1969 of 2013) NOVEMBER 21, 2013 [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.] Penal Code, 1860 - s.420 r/w s.34 - Case initiated by Magistrate on a protest complaint filed by first respondent - C Two accused; A-1 and A-2 - A-2 is divorced wife of A-1 - Summons issued against A-2 - Challenge to - Held: The statement of the complainant clearly indicates that money was entrusted to A-1 and not to A-2-Police investigation revealed that during the period when money was entrusted to A-1, he D was separated from A-2 - No reason to prosecute A-2 considering the fact that she had no role, even according to the complainant - Magistrate did not consider this Vital aspect when the protest petition was considered by him - The refer report as well as the statement of the complainant indicate that E no offence was made out so far as A-2 is concerned since, admittedly, no money was entrusted to her and A-2 is the divorced wife of A-1 - Summons issued against A-2 accordingly quashed - However, Magistrate may proceed against A-1. F The appellant is the second accused (the divorced wife of the first accused) in a criminal case initiated by the Magistrate on a protest complaint filed by the first respondent for the offences punishable under Section 420 read with Section 34 IPC. Summons were issued to G accused persons by the Magistrate. That order was challenged in Revision before the High Court on the ground that the Magistrate was not justified in initiating proceedings after a refer report was submitted by the H 588 B. CHANDRIKA v. SANTHOSH & ANR 589 Police, after due enquiry. The High Court, however, A dismissed the Revision Petition, and therefore the instant appeal. Allowing the appeal, the Court HELD: 1. The power of the Magistrate to take B cognizance of an offence on a complaint or a protest petition on the same or similar allegations even after accepting the final report cannot be disputed. It is settled law that when a complaint is filed and sent to police under Section 156(3) for investigation and then a protest petition C is filed, the Magistrate after accepting the final report of the police under Section 173 and discharging the accused persons has the power to deal with the protest petition. However, the protest petition has to satisfy the ingredients of complaint before Magistrate takes D cognizance under Section 190(1 )(a) Cr.P.C. The Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of police report. In the instant case, the High Court rightly applied the legal E principle, but omitted to consider the crucial question as to the involvement of the second accused, the wife of the first accused. [Paras 6, 7, 8] [593-D-H; 594-A] Gopal Vijay Verma v. Bhuneshwar Prasad Sinha & Ors. (1982) 3 SCC 510; Kishore Kumar Gyanchandani v. G.D. Mehrotra (2001) 10 SCC 59 - relied on. F 2. The statement of the complainant clearly indicates that money was entrusted to the first accused (the husband of A-2) and not to A-2. Complainant has also G ~tated that at the time of paying the amount, the wife was not seen. Police on investigalion, noticed that during the period when money was entrusted to the first accused, the second accused was not in the residential house of first respondent. Investigation revealed that they were H 590 SUPREME COURT REPORTS (2013] 12 S.C.R. A separated and second accused started living at Thiruvananthapuram. The appellant has also produced a copy of decree of divorce before the Court, which will indicate that the second accused had obtained a decree of divorce against the first accused on the ground of B cruelty under Section 13(1)(a) of the Hindu Marriage Act, 1955. Considering the fact that the second accused had no role, even according to the complainant, there is no reason to prosecute the second accused. The Magistrate has not considered this vital aspect when the protest c petition was considered by him. [Paras 9, 10) [594-D-G] 3. The Magistrate has to exercise judicial discretion and apply his mind to the contents of the petition. The refer report as well as the statement of the complainant would indicate that no offence has been made out so far D as the second accused is concerned since, admittedly, no money was entrusted to her and that second accused is th
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