Madras High Court
D.Vijaya vs State Rep. By on 28 April, 2022
CRL.O.P.No.32079 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2022
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P.No.32079 of 2019
and
Crl.M.P.No.17603 of 2019
D.Vijaya ... Petitioner
Versus
1.State Rep. by
The Inspector of Police,
District Crime Branch,
Perambalur.
(Crime No.9 of 2012)
2.V.Janarthanan
3.J.Rajan Babu
4.K.Poottai Govindaraj ... Respondents
Prayer: This Criminal Original Petition has been filed under Sections 482
and 483 of Criminal Procedure Code to direct the first Respondent Police to
give written request to the learned Judicial Magistrate, Perambalur in
C.C.No.230 of 2015 for further investigation to seize the vehicles bearing
Registration Nos.TN 46 B2 999, TN 46 C 2999, TN 32 B 2999, TN 23 B
2799, TN 28 E 6286, TN 05 33 73, TN 01 L 0929, TN 46 A 2999 and one
Page No.1 of 8
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CRL.O.P.No.32079 of 2019
LPG cylinder lorry bearing Registration No.TN 32 Z 2266 for the just
decision of the case, the life purpose of the adjudication of the present case.
For Petitioner : Mr.C.S.Dhanasekaran
For R1 : Mr.S.Vinothkumar
Government Advocate (Crl.Side)
For R2 : Mr.R.Vivekananthan
*****
ORDER
This Criminal Original Petition has been filed seeking to direct the
first Respondent Police to give written request to the learned Judicial
Magistrate, Perambalur in C.C.No.230 of 2015 for further investigation to
seize the vehicles bearing Registration Nos.TN 46 B2 999, TN 46 C 2999,
TN 32 B 2999, TN 23 B 2799, TN 28 E 6286, TN 05 33 73, TN 01 L 0929,
TN 46 A 2999 and one LPG cylinder lorry bearing Registration No.TN 32 Z
2266 for the just decision of the case, the life purpose of the adjudication of
the present case.
2. When the case is taken up for hearing, the learned Counsel for the
second Respondent submitted additional typed set of papers. As per the
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CRL.O.P.No.32079 of 2019
additional typed set of papers, the learned Counsel for the second
Respondent had furnished the copy of the plaint in O.S.663 of 2005 and the
suit had been registered by the learned District Munsif Court, Kallakurichi,
wherein, the date of judgment is mentioned as 08.12.2006 and the result is
“This suit is dismissed as settled out of court and refund 1/2 of the court fee
less 5%”.
3. The learned Counsel for the second Respondent also invited the
attention of this Court to the averments in the plaint, relevant portion of the
same is extracted hereunder :
“7. Tanker lorries were owned by the 2nd plaintiff
which were used in the said business. The first defendant
has simply obtained signatures from the 2nd plaintiff in
transfer forms in order to enable him to the 7 tanker
lorries. Believing the honey quoted words of first defendant
the 2nd plaintiff also signed necessary papers regarding the
lorries.
Therefore, the very averments had been wantonly suppressed in this
FIR. Therefore, it is the submission of the learned Counsel for the second
Respondent that this petition itself is not maintainable.
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CRL.O.P.No.32079 of 2019
4. The learned Counsel for the Petitioner submitted that what had been
argued by the learned Counsel for the second Respondent cannot be
accepted. Considering the fact that the prayer in the suit in O.S.No.663 of
2005 is for the dissolution of the partnership firm. It is a dealership for the
Indian Oil Corporation. Therefore, the submission of the learned Counsel for
the second Respondent cannot be accepted. Further, he would submit that the
subject matter of the suit settled between the plaintiff and the defendant is
only the issue with the dealership. Therefore, that does not have a bearing
regarding the dispute between the Petitioner and the second Respondent with
regard to the criminal case pending on the file of the learned Judicial
Magistrate, Perambalur.
5. The submission of the learned Counsel for the Petitioner is that this
Court had to pass direction to the Investigation Officer to proceed with the
investigation cannot at all be accepted, considering the fact that the
statement of the Petitioner herself is recorded by the Investigation Officer.
Further, as per the settled position of the law as laid down by the Hon'ble
Supreme Court in various rulings that the Investigation Officer cannot be
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CRL.O.P.No.32079 of 2019
directed to conduct the investigation in a particular manner. If the Petitioner/
defacto Complainant is not satisfied with the Investigation Officer, the
Petitioner/defacto Complainant herself can lodge a private complaint before
the Magistrate. Also regarding trial, the trial Judges are guided by the
evidence of the witnesses. Based on the evidence of the witnesses, charges
can also be altered by the trial Judges either by Magistrate or by Sessions
Judges.
6. Here, it is the case of the Petitioner herein/defacto Complainant that
her brother in the guise of selling the lorries had obtained her signature, had
taken control of the vehicles and sold them without handing over any money
to her. That is the gist of the complaint. For the same, lorries need not be
seized. It is borne out of documents. It is the subject matter of the trial. The
Investigation Officer cannot be directed by the Court to seize the lorries.
Only then the trial can proceed. The Petitioner/defacto Complainant cannot
guide the Investigation Officer. If the Petitioner/defacto Complainant is not
satisfied, she can during her deposition speak about her view of the issue
instead of sticking to the statement as recorded by the Investigation Officer.
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CRL.O.P.No.32079 of 2019
Trial Courts are not governed by the statements of witnesses recorded under
Section 161 of Cr.P.C. by the Investigation Officers. The witnesses are free
to speak out the fact of the criminal cases. Based on the facts, new facts also
can be discovered by the learned trial Judges in the course of the trial. If the
trial Judge feels that the vehicles are to be seized, the trial Judge can pass
appropriate orders at the relevant time. That cannot be a ground to file this
petition under Section 482 of Cr.P.C. and stall the trial.
7. In the light of the above, this Criminal Original Petition is
dismissed with a direction to the learned Judicial Magistrate, Perambalur to
issue fresh summon to the same prosecution witnesses and dispose of the
same within a reasonable time of three months from the date of receipt of a
copy of this order. The Petitioner is directed to co-operate with the trial. It is
for her either to speak out or to leave.
28.04.2022
Index: Yes/No
Speaking Order: Yes/No
sp
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CRL.O.P.No.32079 of 2019
To
1.The Judicial Magistrate,
Perambalur.
2.The Public Prosecutor,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
CRL.O.P.No.32079 of 2019
SATHI KUMAR SUKUMARA KURUP, J.
sp
Crl.O.P.No.32079 of 2019
and
Crl.M.P.No.17603 of 2019
28.04.2022
https://www.mhc.tn.gov.in/judis
