Madras High Court
Dr.Senthil Selvan vs The Commissioner Of Police on 25 October, 2021
Crl.O.P.(MD)No.5255 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.5255 of 2021
and Crl.M.P.(MD).No.3041 of 2021
Dr.Senthil Selvan ... Petitioner
Vs.
1.The Commissioner of Police,
Madurai City Police,
Madurai.
2.The Inspector of Police,
Anti Land Grabbing Cell,
Madurai City.
3.Mr.V.Shanmugavel ... Respondents
PRAYER : Criminal Original Petition is filed under Section 482 of
Cr.P.C, to direct the 1st respondent to register his complaint as per the
Order of the Judicial Magistrate No.I, Madurai, dated 16.09.2020 in
Crl.M.P.No.1545 of 2020 and investigate the same in accordance with
law and to initiate appropriate action against the 3rd respondent for non
registration of FIR based on the orders of the learned Judicial Magistrate
No.I, Madurai, dated 16.09.2020 in Crl.M.P.No.1545 of 2020 within a
time frame to be fixed by this Court.
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Crl.O.P.(MD)No.5255 of 2021
For Petitioner : Mrs.D.Geetha
For Respondents : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
ORDER
This petition has been filed seeking order to set aside the closure
report and directing the second respondent to register the complaint as
per the order of the learned Judicial Magistrate No.I, Madurai, in
Crl.M.P.No.1545 of 2020, dated 16.09.2020 and for directing action
against the third respondent for not having register the FIR.
2.The case of the petitioner in brief:
The petitioner is a Teacher by profession. His wife namely
Salai Selvi was looking for buying a plot for putting up construction. On
knowing about the needs of the petitioner and his wife, one Mariappan,
who claims to be a Real Estate Broker, approached him and promised to
bring a land owner and in pursuance of the above said promise, he also
brought one Chitraselvi, stating that she is the owner of the plot in S.No.
381/2A1B1. She has also produced a sale deed, wherein, it was
mentioned that the property was sold to her by one Rama Rao. So they
approached one Muthu Ramalingam, who is the Document Writer for
preparing the document and for advise. The property was also purchased
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Crl.O.P.(MD)No.5255 of 2021
by the petitioner's wife, on 14.11.2005. Patta was also later transferred in
her name and also made arrangements for putting up the construction.
During the course of the above said steps, it came to her knowledge that
the above said plot was gifted by one H.Rama Rao to the Kesava Seva
Kendiram Trust, Madurai as long back as on 23.03.1990 itself. So only
thereafter, she came to know that she has been cheated by the above said
Chitraselvi and the Document Writer. So the petitioner lodged a
complaint to the Anti Land Grabbing Cell, Madurai, on 16.03.2020. No
FIR was registered even though C.No.5305 of 2020 was given. So the
petitioner approached the learned Judicial Magistrate No.I, Madurai, by
filing Crl.M.P.No.1545 of 2020 under Section 153 (3) Cr.P.C., seeking
registration of FIR that was also pleased to allow and order was also
passed. But even after that no case has been registered. Hence, this
petition.
3.Heard both sides.
4.It is the case of land dispute. It appears that the petitioner
purchased the disputed land from one Chitraselvi, which was found to be
not valid under law, because the said Chitraselvi was not the legal owner,
but one Kesava Seva Kendiram Trust, Madurai, is the real owner as per
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Crl.O.P.(MD)No.5255 of 2021
the gift deed, dated 23.02.1990. It is also seen that Chitraselvi appears
to have purchased the property from one Rama Rao. But it is also found
to be bogus in nature, because the above said vendor of Chitraselvi was
not the real owner, but, whereas, one Dr.H.Rama Rao was the real owner.
An order has also been passed by the learned Judicial Magistrate No.I,
Madurai, in Crl.M.P.No.1545 of 2020, for registering the case and
investigate the matter. Now the grievance of the petitioner is that sine
there is a specific direction issued by the learned Judicial Magistrate
No.I, Madurai, to register the case and investigate the matter, the third
respondent without following the same has undertaken a preliminary
enquiry and has also submitted a closure report before the concerned
Court and the closure report copy has also been submitted by the
petitioner in the typed set of papers.
5.A short question, which arises for consideration is whether the
course of procedure that has been adopted by the third respondent is
legally valid one. Straight away the counsel for the petitioner would rely
upon the judgment of this Court passed in Crl.R.C.(MD).No.249 of 2017
in Pandiarajan Vs. Perumal and others, dated 27.06.2017, wherein, it
has been stated that when a direction is issued by the learned Judicial
Magistrate, under Section 153 (3) Cr.P.C., it is the duty of the Officer to
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Crl.O.P.(MD)No.5255 of 2021
register the FIR and investigate the matter. This Court has also relied
upon various judgments that has been cited on this aspect. In that case
also closure report was submitted without registering the First
Information Report. So the learned counsel for the petitioner submitted
that since it is a settled position of law, a direction must be issued to the
third respondent.
6.But, however, the power of the Investigating Officer to hold a
preliminary enquiry even without registering the FIR is well recognized.
The Constitution Bench of the Honourable Supreme Court in
Lalithakumari's case, has observed that in some of the circumstances,
preliminary enquiry can be undertaken by the Investigating Officer, such
as matrimonial matters, civil disputes, commercial disputes, etc., The
Honourable Supreme Court has also pointed out that the list that has been
mentioned in the Judgment is not exhaustive in nature. It depends upon
the facts and circumstances of the case. So the contention on the part of
the petitioner that the third respondent ought to have registered the FIR
even without taking the preliminary enquiry is not valid under law and
cannot be accepted.
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Crl.O.P.(MD)No.5255 of 2021
7.Now the question which remains to be answered is whether in
the facts and circumstances of the case, the preliminary enquiry that has
been undertaken by the third respondent is proper. In the background of
the above said facts and circumstances, it is the case of the petitioner that
his wife has been cheated by the above said Chitraselvi and Document
Writer. So according to him, a clear case of cognizable offence has been
made out.
8.Reading of the report of third respondent shows that one
Mariappan was the mediator in respect of the sale which is of the year
2005, but the complaint has been filed in the year 2020, that means after
a lapse of 15 years. But, according to the petitioner, the real fact came to
his notice only recently, when he making steps to put up the construction.
It is seen that at that time only, he obtained the Encumbrance Certificate.
So it is also seen that without properly perusing the earlier title
documents, purchase has been made. Chitraselvi, who is the vendor of
the petitioner has also stated that the above said Mariappan was also the
Mediator in the above said transaction and she purchased the property
through the above said Mediator and for selling the same, she again
approached the above said Mariappan, who also helped her. It also
appears that Chitraselvi did not obtain any Encumbrance Certificate from
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Crl.O.P.(MD)No.5255 of 2021
the Sub Registrar Office, to know the real title holder. Mariappan has
also expired in the year 2007.
9.A compromise talk was undertaken between the parties. But this
petitioner did not accept for any terms. He has also stated that neither
Chitraselvi nor the petitioner were having the previous title documents.
But, in the Encumbrance Certificate, the gift that has been made by the
above said H.Rama Rao has been mentioned and continued to be found.
The seller of Chitraselvi namely S.Rama Rao is missing and he cannot be
traced. So according to the third respondent, the petitioner ought to have
purchased the property by going through the title documents and without
making any proper enquiry, believing the words of the above said
Mediator namely Mariappan the property has been purchased not only by
Chitradevi, but also by this petitioner. So finding that there was no
intention on the part of the above Chitraselvi to cheat this petitioner, it
was closed with an advise to the petitioner to workout his remedy
through proper proceedings to recover the money paid.
10.So going through the closure report, totally evidences the fact
and this Court is of the view that this is a fit case, which requires proper
preliminary enquiry, since it is a land dispute, which has been raised after
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Crl.O.P.(MD)No.5255 of 2021
a lapse of 15 years and it is also due to the mistake on the part of the
vendor as well as the petitioner in perusing the earlier title documents
and the alleged Mediator also expired, vendor of Chitraselvi has also
missing.
11.I find that absolutely the closure report filed by the petitioner
does not suffer from any illegality. If the petitioner is still aggrieved by
the contents of the same, he can very well approach the concerned Court
and workout his remedy. So this petition deserves to be dismissed and of
course with a liberty to the petitioner to workout his remedy before
appropriate Court through proper proceedings.
12.Accordingly, this criminal original petition is dismissed with
the above liberty. Consequently, connected miscellaneous petition is
closed.
25.10.2021
Index : Yes/No
Internet : Yes/No
TM
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/
Crl.O.P.(MD)No.5255 of 2021
To
1.The Commissioner of Police,
Madurai City Police,
Madurai.
2.The Inspector of Police,
Anti Land Grabbing Cell,
Madurai City.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.5255 of 2021
G.ILANGOVAN. J.
TM
Crl.O.P.(MD)No.5255 of 2021
25.10.2021
https://www.mhc.tn.gov.in/judis/
