Madras High Court
T.P.David Dhass vs The Superintendent Of Police on 18 February, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 25.08.2021
Date of Order 28.10.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.2605 of 2021
and
Crl.MP(MD)No.447 of 2021
T.P.David Dhass : Petitioner
Vs.
1.The Superintendent of Police,
Kanyakumari District,
Kanyakumari.
2.The Inspector of Police,
Arumanai Police Station,
Kanyakumari District.
3.The District Forest Officer,
Nagercoil.
(R3 sumotu impleaded as per order,
dated 18.02.2021 in Crl.OP(MD)No.
2605 of 2021) : Respondents
Prayer: Criminal Original Petition is filed under Section 482
of the Criminal Procedure Code, to direct the 2nd respondent to
register a case against the proposed accused person, pursuant to
the order, dated 14.12.2020 passed in Crl.MP No.2901 of 2020 by
the Judicial Magistrate No.1, Kuzhithurai.
https://www.mhc.tn.gov.in/judis/
2
For Petitioner : Mr.G.Cenil
For Respondents : Mr.K.Sanjai Gandhi
Government Advocate
(Criminal side)
ORDER
This petition has been filed by the petitioner seeking
direction to the 2nd respondent to register a case against the
Proposed Accused person, pursuant to the order, dated 14.12.2020
passed in Crl.MP No.2901 of 2020 by the Judicial Magistrate No.1,
Kuzhithurai.
2.The case of the petitioner in brief:- The petitioner
purchased the land situated in RS No.216 of Kadayal village to an
extent of 2 Acres through a registered sale deed, dated 01.07.1996
and ever-since, he is in possession of the same. A dispute arose
between the vendor of the petitioner and the Forest officials and in
this regard, several civil suits have been filed and those suits were
decreed in favour of the petitioner and his vendor. In the above
situation, due to Okkey Cyclone, 50 Rubber Trees have been fallen
down and the petitioner loaded the trees, on 13.12.2017. At that
time, the Forest Officials forcibly entered into the property of the
petitioner and seized 23 tonnes of Rubber Trees. But however,
https://www.mhc.tn.gov.in/judis/
those were not produced before the court and the same have been
misappropriated by the Forest officials, worth about Rs.3 Lakhs. A
complaint has been lodged by the petitioner, on 14.02.2017. But
there was no action. So, he filed a petition in Crl.MP No.2901 of
2020 under section 156(3) Cr.P.C before the Judicial Magistrate No.
1 Kuzhithurai. By order, dated 14.02.2020, the learned Judicial
Magistrate No.1, Kuzhithurai directed the 2nd respondent to
investigate the matter and file a final report. So, on the basis of the
said order, the 2nd respondent ought to have registered FIR. But
without doing so, preliminary enquiry has been conducted. Hence,
seeking an order of direction to the 2nd respondent to register a
case against proposed person, this petition came to be filed.
3.When the matter was taken up for hearing, finding that the
the District Forest Officer is also necessary party, he was sumotu
impleaded as 3rd respondent. He also entered appeared.
4.Heard both sides.
5.In this case, status report has been filed along with the
closure report. In the closure report, it has been stated that the
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records from the Sub Registrar Office was produced and in the
encumbrance certificate, the name of the petitioner has not been
mentioned. No patta or other revenue records are also available at
the hands of the petitioner. He further stated that the jurisdictional
Tashidlar has given a certificate that the disputed property belongs
to the Forest Department. Before purchase, that has been made by
the petitioner, dispute arose between the vendor and the Forest
Department. Since no records were available in favour of the
petitioner, either in the Registration Department or in the Revenue
Department, finding that the petitioner is a history sheeted and it
was closed.
6.Now, the learned counsel appearing for the petitioner
would submit that when the cognizance offence has been made on
the basis of the complaint, the 2nd respondent police ought to have
registered the FIR and investigate the matter. In this case, no
petition is available to make preliminary enquiry with regard to the
title of the disputed property. But I am unable to agree with the
argument advanced by the petitioner for the simple reason that the
Hon'ble Supreme Court in Lalitha Kumari's case has categorically
held that depending upon the case, preliminary enquiry can be
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undertaken. So I am of the considered view that since the issue
involved in this matter requires a thorough enquiry with regard to
the title of the property, preliminary enquiry has been rightly
conducted by the 1st respondent. Since the dispute is with regard to
the ownership on the one hand by the Department of Forest and on
the other hand, by the vendor of the petitioner and subsequently,
the finding of ownership of the property is in the preliminary stage.
So only on finding a preliminary enquiry and prima facie offence to
show that the disputed property belongs to the petitioner is the
only subject, that can be taken. So this is a fittest case for
preliminary enquiry as rightly undertaken by the first respondent. I
find no illegality that has been committed by the first respondent in
adopting such a course. But however, the learned counsel
appearing for the petitioner circulated the original typed set of
paper and additional typed set of papers to work out the case that
the property exclusively belongs to the petitioner and the
Department had no right over it. But this court cannot embargo
upon the disputed issue with regard to the tile of the property. It is
also seen that repeated attempts have been made by the petitioner
to show that a declaration has been made by the State Government
officials that the disputed property belongs to the petitioner. But
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however, an option is available to the petitioner is to file
appropriate protest petition before the concerned court for
appropriate remedy. Without resorting such an remedy, this
petitioner has approached this court, which is at all maintainable.
But however, the learned counsel appearing for the petitioner
relied upon the judgment reported in 2017(2) MWN (Cr.) 618
(S.Pandiyarajan Vs. Perumal), wherein it has been observed that
when a Magistrate passes an order under section 156(3) Cr.P.C, it is
obligatory on the part of the police to register a FIR, investigate the
matter and without resorting the course, no option is available to
the police to file a closure report on the basis of the preliminary
report. But as mentioned earlier, the Constitution Bench of the
Hon'ble Apex Court in the case of Lalitha Kumari, has categorically
held that depending upon the nature of the case, the preliminary
enquiry can be undertaken and there is no bar for the Enquiry
Officer, who adopted such a course, even if an order has been
passed under section 156(3) Cr.P.C. This petitioner cannot rely
upon the above said decision for sustaining his argument.
7.On perusal of the additional typed set of papers, it is seen
that based upon the judgment passed in O.S No.1 of 1981, he has
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filed EP No.17 of 2017 and that EP has been filed for attachment of
sale of movable property mentioned in the EP proceedings to meet
out the damages incurred by the petitioner due to the detention in
Civil Prison and that was dismissed for default. To restore the
same, he filed EA No.44 of 2018 seeking restoration of the same. In
the affidavit, he has stated the subject occurrence. It has been
stated by him that anticipatory bail was granted by the Sessions
Court, Nagercoil, in Crl.MP No.4497 of 2017. So probably this
petition is also filed invoking the criminal process for violation of
the permanent injunction, that has been passed in O.S No.1 of
1981. When such is being the position, on the very set of facts, it
appears that this complaint has also been given. No doubt,
simultaneous civil and criminal proceedings can be undertaken. But
however, in the facts and circumstances of the case, as mentioned
earlier, the only course available to the petitioner is to file a protect
petition before the concerned court. It is also seen that based on
the closure report, Crl.MP No.3572 of 2020 has also been disposed
of on 29.04.2021 that means during the pendency of this petition.
8.With the above direction, this Criminal Original Petition
stands dismissed. Consequently, connected Miscellaneous Petition
https://www.mhc.tn.gov.in/judis/
is closed.
28.10.2021
Index:Yes/No
Internet:Yes/No
er
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall be
the responsibility of the
advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/
G.ILANGOVAN, J
er
Crl.OP(MD)No.2605 of 2021
28.10.2021
https://www.mhc.tn.gov.in/judis/
