Madras High Court
Karutharajan vs The State Rep. By Its on 1 April, 2022
Crl.O.P.(MD)No.22631 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01/04/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.22631 of 2018
and
Crl.MP(MD)Nos.10632 and 10633 of 2018
1.Karutharajan
2.Manickam : Petitioners/A1 and A2
Vs.
1.The State rep. By its
Inspector of Police,
Anna Nagar Police Station,
Madurai.
(In CC No.11 of 2015) : R1/Complainant
2.Ponnuthai : R2/De-facto Complainant
Prayer: Criminal Original Petition is filed under
Section 482 Cr.P.C., to call for the records in CC No.11 of
2015 on the file of the Judicial Magistrate No.6, Madurai
and quash the same.
For Petitioners : Mr.N.R.Balaji
For 1st Respondent : Mr.B.Nambi Selvan
Additional Public Prosecutor
For 2nd Respondent : Mr.D.Malaisamy
1/8
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.22631 of 2018
O R D E R
This criminal original petition is filed seeking
quashment of the case in CC No.11 of 2015 on the file of
the Judicial Magistrate No.6, Madurai.
2.The case of the prosecution in brief:-
The 2nd respondent herein lodged a private complaint
with the following allegations. The property in which he is
living with the family members belongs to one Bhavani
Ammal, who is the sister of A1 namely Karutharajan. Her
husband by name Palanisamy paid Rs.1,25,000/- for the above
said Bhavani Ammal and obtained othi deed. They are in
possession for more than 10 years. They also made repairs
at the cost of Rs.62,000/-. The father of the first accused
filed a suit in O.S No.3 of 2003 before the II Additional
Sub Court, Madurai against her husband. On 06/12/2004, in
order to remove the complainant from the possession of the
property, A1 along with the other accused persons came to
the property with deadly weapons and made quarrel. Over
which, a complaint was given. That was not properly
forwarded. On 30/06/2005, Palanisamy died. Even after
that, they made a trouble on 12/08/2007. Even though the
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Crl.O.P.(MD)No.22631 of 2018
complaint was given, that was not properly attended. So she
filed a suit in O.S No.770 of 2007 before the Additional
District Munsif, Madurai and status quo order was also
passed in that suit. Again on 09/10/2007, at the instance
of the first accused, A2 and others trespassed into the
properties, caused damage and also occupied the same. At
the intervention of the police, all of the were removed.
Even though the complaint was given, the Inspector of
Police, attached to Anna Nagar Police station asked her to
come on the next day. On 10/10/2007 at about 9.00 am, when
she opened the bureau, at that time, she found 50
sovereigns of jewels and Rs.50,000/- was found missing. The
accused persons alleged to have been suspected to have
stolen the same. Even though the complaint was given, that
was not properly taken. But however, the police has
registered a case against A3 to A5 under section 75 of the
City Police Act and no proper action was taken on the basis
of the complaint given by her. Later, she filed a petition
under section 156(3) Cr.P.C before the Judicial Magistrate
No.6, Madurai. In pursuance of the order, that has been
passed by the court, a case in Crime No.1500 of 2007 was
registered for the offences under section 147, 448, 427 and
379 IPC. That was not properly investigated and final
report has been filed. Over which, she also filed a protect
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Crl.O.P.(MD)No.22631 of 2018
petition and the court directed the complainant to file a
private complaint. So on that basis, the private complaint
has been filed.
3.Seeking quashment of the same, this petition has
been filed.
4.Heard both sides.
5.The only ground on which this petition came to be
filed is that when the complaint given by the 2nd respondent
came to the court by the respondent police, final report
was filed, which was also accepted by the trial court.
Unless, it is set aside through proper petition, the second
complaint on the very same set of fact by way of private
complaint is not at all maintainable.
6.For that purpose, the learned counsel appearing for
the petitioner would rely upon the judgments reported in
the case of A.Krishna Rao Vs. L.S.Kumar [1998(1) CTC 329]
and Senthil Kumar Vs. S.Palani Kumar (Crl.OP No.27351 of
2010, dated 04/10/2017).
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Crl.O.P.(MD)No.22631 of 2018
7.Per contra, the learned counsel appearing for the 2nd
respondent would rely upon the judgment reported in the
case of Vishnu Kumar Tiwari Vs. State of Uttar Pradesh
[2019(5) CTC 603] for the purpose of argument that when the
closure report is filed by the police before the
jurisdictional magistrate court, option is available to the
complainant to file a private complaint, if the concerned
magistrate closed the case, after accepting the report.
8.In the light of the rival submission, let us go to
the order that has been passed in Cr.No.1500 of 2007 in RCS
No.305 of 2009, dated 9th July 2009. The order reads that
the objection of the de-facto complainant was found to be
not acceptable. But however, liberty was granted to the de-
facto complainant to file a private complaint. On that
ground, the final report was closed and recorded as
'Mistake of fact'. When such a liberty is granted to the
petitioner to file a private complaint, the contention on
the part of the petitioner that without setting aside the
order of acceptance and closing by the trial court, the
second complaint by way of private complaint is not at all
acceptable and cannot be accepted.
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Crl.O.P.(MD)No.22631 of 2018
9.The Hon'ble Supreme Court has also clarified the
position in the above said case of Vishnu Kumar Tiwari that
in such an event, right and liberty is always available to
the complainant to file a private complaint.
10.In the light of the latest judgment of the Hon'ble
Supreme Court, the contention that has been raised by the
petitioner is out of place and cannot be accepted. Whether
the allegation that has been made by the petitioner in the
complaint is true or not, cannot be a matter for
consideration in this petition by this court. It can be
tested only during the course of trial. Since the
allegation of damage, threat, criminal intimidation has
been made, it requires thorough trial. Except stating that
the previous police complaint was closed as 'mistake of
facts', no other legal ground worth considering has been
made out. So this petition is liable to be dismissed.
11.In the result, this criminal original petition is
dismissed. Consequently, connected Miscellaneous Petitions
are closed.
01/04/2022
Internet:Yes/No
Index:Yes/No
er
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Crl.O.P.(MD)No.22631 of 2018
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.22631 of 2018
G.ILANGOVAN,J.,
er
To,
1.The Judicial Magistrate No.6,
Madurai.
2.The Inspector of Police,
Anna Nagar Police Station,
Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High court,
Madurai.
Crl.O.P.(MD)No.22631 of 2018
01/04/2022
https://www.mhc.tn.gov.in/judis
