Madras High Court
Kaliyaperumal vs State Represented By on 25 August, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.08.2021
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Crl.O.P.No.26476 of 2017
and Crl.M.P.No.15236 of 2017
1. Kaliyaperumal
2. Ramachandran
3. Arul Jothi .. Petitioners / Accused 1 to 3
Vs.
1. State represented by
Sub Inspector of Police,
Thirunallar Police Station,
Thirunallar,
Karaikal District. .. 1st Respondent / Complainant
2. Mahalakshmi .. 2nd Respondent / Defacto Complainant
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., to
call for the entire records pertaining to Crime No.121 of 2017 registered for
alleged offences under Sections 120(B), 420, 468, 471 of I.P.C r/w 34 of
I.P.C on the file of the Sub Inspector of Police, Thirunallar Police Station,
Thirunallar, Karaikal District/first respondent and quash the same.
https://www.mhc.tn.gov.in/judis/
2
For Petitioners .. Mr.R.Natarajan
For R1 .. Mr.Bharatha Chakaravarthy
(Public Prosecutor, Pondy)
For R2 .. No appearance
ORDER
Heard Mr.R.Natarajan, learned Counsel for the petitioners at length
and also Mr.Bharatha Chakaravarthy, learned Public Prosecutor for the
Union Territory of Puducherry for the first respondent. There is no
representation on behalf of the second respondent/defacto complainant.
2.At any rate, taking into account the nature of the order, that is now
to be passed, absence of representation on behalf of the second
respondent/defacto complainant would not be material. The petitioners
herein had been arrayed as A1, A2 and A3 in F.I.R.No.121/2017, registered
by the first respondent Police under Sections 120(B), 420, 468, 471 of I.P.C
r/w 34 of I.P.C.
3.The first respondent did not register the said complaint based on
the complaint given by the second respondent. Rather, they did so on a
direction by the jurisdictional Magistrate, before whom a petition was filed
under Section 156(3) of the Code of Criminal Procedure and on
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appreciation of the facts stated therein, the jurisdictional Magistrate had
directed registration of said First Information Report.
4.This is a cause for grievance by Mr.R.Natarajan, learned Counsel
for the petitioners. He pointed out various facts and stated that the
investigation would be a futile exercise and therefore this Court must curtail
investigation on the First Information Report and as a matter of fact, quash
the First Information Report.
5.The learned Counsel stated that O.S.No.132 of 1992 had been filed
by the father of the second respondent / defacto complainant before the
Principal District Munsif Court, Karaikal, seeking partition and separate
possession of 1/3rd share in two items of property, namely A and B items of
the property. The suit went to trial and during the course of trial, learned
Principal District Munsif, Karaikal, found that the plaintiff therein namely,
the father of the second respondent / defacto complainant herein was not
entitled to any share in the A schedule property and gave a decree as sought
for only with respect to B schedule property.
6.Subsequently, an application for final decree was also filed and an
Advocate Commissioner had been appointed and I am informed that
necessary procedure in accordance with law had also been complied with.
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7.The matter should have rested there. However, it again came up
for consideration owing to a complaint given by the defacto complainant
before the Sub-Inspector of Police, Thirunallar Police Station, Thirunallar /
first respondent herein. This was on 31.12.2016.
8.Among other statements made in the said complaint, the defacto
complainant/second respondent herein had also alleged that her father was
non-suited in O.S.No.132/1992 with respect to A schedule property
primarily because, there had been some irregularities which had occurred
with respect to the patta of the said land. She alleged forgery among other
offences. This complaint was enquired into by the Station House Officer of
the Thirunallar Police Station who had invited both the defacto complainant
/ second respondent herein and also the accused and examined the
documents and had finally stated that “matter is purely civil in nature,
hence, both the parties are advised to seek remedy through Court, revenue
or survey department. And both parties are advised not to create any law
and order problem.”
9.The matter should have rested there.
10.However, the second respondent / defacto complainant then
approached the jurisdictional Magistrate namely, the Judicial Magistrate
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No.II, Karaikal and as stated filed a complaint under Section 156(3) of Code
of Criminal Procedure.
11.The learned Magistrate had thereafter directed registration of First
Information Report and accordingly, the first respondent had registered First
Information Report in Crime No.121 of 2017 on 24.08.2017 under Sections
120(B), 420, 468, 471 of I.P.C r/w 34 of I.P.C. All the three named accused
are before this Court, seeking to quash the said First Information Report.
12.One reason advanced by Mr.R.Natarajan, learned counsel for the
petitioners is that the defacto complainant had not informed the Judicial
Magistrate that as a matter of fact an earlier complaint given by her had
been dropped, holding that the allegations indicate a civil dispute. It is
strongly argued by Mr.R.Natarajan, learned counsel that had this
information been disclosed in the petition filed under Section 156(3)
Cr.P.C., then, there is every possibility that the Magistrate would not have
directed registration of the First Information Report.
13.It is also pointed out by Mr.R.Natarajan, learned counsel that the
defacto complainant had not filed an affidavit as is required and there is a
deliberate suppression of material facts.
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14.In the complaint preferred before the Judicial Magistrate No.II,
Karaikal, the second respondent/defacto complainant had stated actually
that she had given a complaint on 27.12.2016, before Thirunallur Police
Station and thereafter, the officials of the said Police Station had not taken
any action and inspite of further complaint given to higher officials, no
effective action was taken. Whether this is a material fact to be examined or
not, I would leave it to the wisdom of the learned Magistrate.
15.It is also pointed out by Mr.R.Natarajan, learned counsel that there
are documents to establish that the patta had been lawfully obtained. As a
matter of fact, the third petitioner herein / third accused and the second
petitioner / second accused are actually spouses and the third accused is the
subsequent purchaser of the property. It is alleged that there is no foul play
in the entire transaction. This is an aspect, which again have to be
examined by the concerned Investigating Officer.
16.Let the Investigating Officer come to a satisfaction on the basis
of the documents presented on the basis of the statements of the witnesses
examined by him and on the basis of his independent application of mind to
the materials on record. This Court cannot interfere with the said
investigation or give any directions as to the nature in which the
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investigation has to proceed.
17.I would, repose full confidence on the first respondent to conduct
investigation in manner known to law and in also inviting the accused
herein, by serving them proper notice as contemplated under the Code of
Criminal Procedure and thereafter, take a decision with respect to the nature
of the final report to be filed before the concerned Judicial Magistrate
Court. Let the investigation proceed in manner known to law. It would be
highly inappropriate on the part of this Court to examine the facts in detail
to examine whether any offence has made out or to examine whether
investigation should be proceeded with or not.
18.The learned Counsel for the petitioners referred to AIR 1998 SCC
1132, Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah, wherein the
Hon'ble Supreme Court was examining a matter with respect to a judgment
not inter parties and its admissibility in evidence. It had been stated that a
judgment rendered earlier is admissible in evidence even though the
plaintiff was not a party. This point had been urged owing to the fact that in
the earlier suit in O.S.No.132 of 1992, though the de-facto complainant was
not a party, her father was actually the plaintiff therein and therefore the
finding in the said judgment which had attained finally would be a factor to
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be considered during the course of investigation by the Investigation
Officer. I am confident that the Investigating Officer would consider the
facts of the earlier suit in their true prospective.
19.The learned Counsel then referred to (2020) 3 SCC 794,
Rajeshbhai Muljibhai Patel and others Vs. State of Gujarat and another.
That was a case where the Hon'ble Supreme Court examined a complaint
alleging commissioner of offences under Sections 406, 420, 465, 467, 468,
471 and 114 of IPC particularly with respect to the ingredients of cheating
and forgery and had examined when criminal proceedings on those charges
would not be sustainable. It was stated that one of the key issues is whether
such issue was pending before the Civil Court.
20.In the instant case, Mr.R.Natarajan, learned counsel pointed out
that O.S.No.137 of 2020 had been filed before the Subordinate Court,
Karaikal, by the third accused herein, wherein, the defacto complainant is
the first defendant. The relief sought was for declaration of title and for
permanent injunction with particular reference to the item A schedule
property in O.S.No.132 of 1992.
21.It is therefore urged by Mr.R.Natarajan, learned counsel that since
the Civil Court is now seized of the entire issue, continuation of
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investigation on the criminal side in an allied manner may not be proper and
necessarily will have to be interfered by this Court. But, I would like to
pointed out one fact that the First Information Report in Cr.No.121 of 2017
had been registered on 24.08.2017. The present Criminal Original Petition
had been filed in the year 2017. The suit in O.S.No.137 of 2020 had been
filed after about three years, post the registration of the First Information
Report. Therefore, let the investigation continue de-hors pendency of
O.S.No.137 of 2020. Whether there was a cause to institute the said suit is a
matter to be considered by the competent Court where the said suit is
pending.
22.The learned Counsel for the petitioner then relied on 2015(3) CTC
Page 103, Priyanka Srivastava and another Vs. State of U.P and others,
wherein, the procedure to be followed by a Magistrate while examining an
application under Section 156(3) had been given.
23.The present petition now before me is not a complaint against the
procedure adopted by the learned Judicial Magistrate No.II, Karaikal, in
referring the matter to the jurisdictional police for registration of First
Information Report. Rather, it is for stay of all further investigation
pursuant to the First Information Report.
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24.As already indicated, I am confident that the Investigating Officer
would follow necessary procedure, during the course of investigation. With
respect to the procedure already adopted, not withstanding anything stated
in the course of the order, the petitioners herein are at liberty to point out
any lacuna in the procedure adopted before the Judicial Magistrate.
25.The learned Counsel for the petitioners then referred to (2019) 16
SCC 739, Prof. R.K. Vijayasarathy and another Vs. Sudha Seetharam and
another. It was stated that in an application under Section 482, particularly
to quash the criminal proceedings it has to be examined whether there is an
attempt to cloak a civil dispute with criminal nature despite absence of
ingredients necessary to constitute a criminal offence. That was a case were
the First Information Report had been registered under Sections 405, 415
and 420 of IPC.
26.In the instant case, the First Information Report had been
registered under Sections 120(b), 420, 468 and 471 of I.P.C., r/w 34 of IPC.
The question of forgery is a matter of investigation. That cannot be an
element of civil nature in a complaint alleging forgery. That is an aspect
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which has to be examined only by the Investigating Officer. I would,
therefore, state that the facts of the present case are distinguishable.
27.Let me now cite 2021 SCC online 315, Neeharika Infrastructure
Pvt. Ltd Vs. State of Maharashtra and others, where the Hon'ble Supreme
Court had come down very heavily on the practice of courts in thwarting
investigation of cognizable offences. Directions have been given and it had
been stated that quash can be done only in rarest of rare cases. It had been
stated the criminal proceedings should not be curtailed at an initial stage and
that quashing of a complaint or a First Information Report should be an
exception rather than an ordinary rule.
28.This being the position of law, I would dismiss the present
Criminal Original Petition, but, at the same time, direct the first respondent
to conduct the investigation in manner known to law, adopting the
procedures as established by law and examine all necessary documents and
also issue notice, if deemed necessary to the petitioners, and then proceed
further with filing of final report on the basis of materials collected and
statements recorded.
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C.V.KARTHIKEYAN,J
smv/grs
29.With the above observations, the Criminal Original Petition is
dismissed. Consequently, the connected miscellaneous petition is closed.
25.08.2021
Index:Yes/No
Internet:Yes/No
smv/grs
To
The Sub Inspector of Police,
Thirunallar Police Station,
Thirunallar,
Karaikal District.
Crl.O.P.No.26476 of 2017
and Crl.M.P.No.15236 of 2017
https://www.mhc.tn.gov.in/judis/
