ORAL ORDER

Dt.09.12.2022 This petition, under Section 482 of Cr.P.C., would seek quashment of C.C.No.514 of 2014 on the file of the Additional Junior Civil Judge, Mangalagiri, which is registered upon the private complaint filed by the de-facto complainant/2nd respondent on 24.11.2022.

2. The seminal issue arising for decision making in this petition is whether, once after accepting the negative final report upon hearing the de-facto complainant and dismissing the protest petition, it is well open for the criminal court to take cognizance and issue process on the private complaint, which is based on the same set of allegations. Another issue falling for consideration is whether the procedure adopted by the Magistrate in issuing summons without sworn examination of the de-facto complainant, is legal and proper.

3. Facts of the case, briefly stated, are that on the report submitted by the de-facto complainant to the Police concerned, FIR No.17 of 2012 was registered at Police Station, Tadepalli for the offence under Sections 468, 471 and 420 read with 120-B IPC. It is stated in the FIR that the de-facto complainant approached the Court of Additional Junior Civil Judge, Mangalagiri and the same was endorsed to Tadepalli Police for investigation. CFR was registered on 14.01.2012 alleging that the accused persons have conspired to secure appointment as Pastors on the basis of fake certificates and, thus, they have committed offences of cheating and fabrication of documents. After investigation, the Police concerned submitted negative final report, which is part of the material papers and informed the Magistrate that the allegations are ‘mistake of fact’. The de- facto complainant was served notice upon which he filed protest petition, which was heard and dismissed on 05.12.2012 closing the proceedings after accepting the final report submitted by the Police concerned.

4. The complaint already filed by the de-facto complainant was thereafter taken up for consideration. The Magistrate passed an order on 28.07.2014 mentioning that entire material record is perused and, on perusal, prima facie case is made out against accused; hence, complaint is taken on file for the offences under Sections 468, 471 and 420 read with 120-B IPC and, thereafter, issued summons to all the accused. Copy of one sample summon has been made part of the material papers.

5. Assailing the order passed by the Magistrate taking cognizance of the complaint, issuing summons and registering criminal case, petitioners have sought quashment of the C.C., on the ground that there is no prima facie incriminating material so as to prosecute them for the offences under Sections 468, 471 and 420 read with 120-B IPC and that the Magistrate without any authority, had mechanically taken cognizance of the protest petition without even recording sworn statement of the de-facto complainant. It is also argued that the court below has no jurisdiction to entertain the request of the de-facto complainant and take cognizance of the complaint when the same was dismissed earlier and, further, that continuation of prosecution against the petitioners is nothing but gross abuse and misuse of process of law.

6. In Gopal Vijay Verma v. Bhuneshwar Prasad Sinha – 1982 Cr LR SC 510 = (1982) 3 SCC 510, the Hon’ble Supreme Court has held that the High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report.

7. In Jamuna Shah v. Bhuben Chandra Kalita – 2002 CrLJ 451 and Shiv Dayal Arora v. Renu Arora – 2007 CrLJ 2972, the High Court of Gauhati and the High Court of Punjab and Haryana respectively, have taken a similar view that acceptance of final report by the Magistrate does not bar a fresh complaint on the same facts.

8. On the second issue, as to whether it is proper for the Magistrate to issue summons without recording sworn statement of the de-facto complainant, I