Madras High Court
R.Kalaiselvi vs State on 30 March, 2022
Crl.R.C(MD)No.9 of 2022
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 30.03.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.9 of 2022
and
Crl.M.P(MD)Nos.135 & 136 of 2022
R.Kalaiselvi ... Petitioner/5th Respondent
Vs.
1.State,
Represented by,
The Inspector of Police,
Karur Town Police Station.
Crime No.968 of 2020. ... 1st Respondent/Complainant
2.Balusamy ... 2nd Respondent/
Defacto Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to call for the records relating to
the order passed in C.M.P.No.1469 of 2020 on the file of the learned
Judicial Magistrate No.1, Karur.
For Petitioner : Mr.K.Suresh
For R – 1 : Ms.M.Aasha
Government Advocate (Crl. Side)
For R – 2 : Mr.A.Thiyagarajan
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Crl.R.C(MD)No.9 of 2022
ORDER
This Criminal Revision is directed as against the order passed
in C.M.P.No.1469 of 2020 on the file of the learned Judicial
Magistrate No.1, Karur, dated 06.09.2021, thereby issued summons
to the petitioner.
2.The second respondent lodged a complaint alleging that he
owned lands in Survey No.215/A/13 and in respect of the said
property, there is a civil suit pending between the first accused and
the second respondent in O.S.No.500 of 2019 before the civil Court.
While pending the suit, the second respondent permitted one
Kuppusamy for grazing his cattle and on 16.08.2020, for which the
first accused scolded him and the same was objected by the second
respondent. Thereafter, A.1 to A.5 trespassed into his house and
threatened him and also damaged the PVC pipe in his house. In
pursuant to the same, the second respondent lodged a complaint on
17.08.2020 and the same has been registered in Crime No.968 of
2020 for the offences under Sections 147, 448, 427 and 506(ii) of
I.P.C as against all the accused persons.
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Crl.R.C(MD)No.9 of 2022
3.The first respondent, after completion of investigation, filed
a final report as against A.1 to A.4 and deleted the name of the
petitioner in the final report. On receipt of the final report, the
learned Judicial Magistrate No.I, Karur, issued notice to the second
respondent with regard to deletion of the petitioner from the final
report. On receipt of the same, the second respondent filed
objections and the learned Magistrate mechanically, without giving
any opportunity to the petitioner accepted the objection and issued
summons to the petitioner for the reason that the petitioner's name
already found in the F.I.R and without any reason, the first
respondent deleted the name of the petitioner from the final report.
4.The learned counsel appearing for the petitioner would
submit that the petitioner is working as a PG Teacher at
Sigugadambur Village and she was not at all present on the alleged
date of occurrence. The statement of the defacto complainant and
other supporting witnesses recorded under Section 161(3) of Cr.P.C
revealed that the petitioner was not present at the time of
occurrence and she never indulged in any illegalities as alleged by
the second respondent. Therefore, the first respondent rightly
deleted the petitioner's name from the final report and filed the final
report only as against A.1 to A.4. He further submitted that except
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Crl.R.C(MD)No.9 of 2022
the objection from the second respondent, no other documents
have been produced before the learned Magistrate in support of his
contention to substantiate the charges as against the petitioner. The
learned Magistrate only because of the petitioner's name found in
the F.I.R, issued summons as against the petitioner herein.
5.The learned counsel appearing for the second respondent
would submit that the statement recorded from the second
respondent and the other witnesses initially stated about the
participation of the petitioner in the crime. Even then, the first
respondent colluded with the accused persons wantonly deleted the
name of the petitioner from the final report. But the learned
Magistrate rightly issued notice to the second respondent and on
receipt of the same, the second respondent raised objections. It was
duly considered and had taken cognizance as against the petitioner
for the offences under Sections 147, 448, 427 and 506(ii) of I.P.C
and issued summons to the petitioner. In support of his contention,
he relied upon the Judgment of the Honourable Supreme Court of
India in the case of Vishnu Kumar Tiwari Vs. State of Uttar
Pradesh and another reported in (2019) 8 SCC 27, wherein the
Honourable Apex Court held as follows:-
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Crl.R.C(MD)No.9 of 2022
“27.It is undoubtedly true that before a
Magistrate proceeds to accept a final report
under Section 173 and exonerate the accused, it is
incumbent upon the Magistrate to apply his mind to
the contents of the protest petition and arrive at a
conclusion thereafter. While the Investigating Officer
may rest content by producing the final report,
which, according to him, is the culmination of his
efforts, the duty of the Magistrate is not one limited
to readily accepting the final report. It is incumbent
upon him to go through the materials, and after
hearing the complainant and considering the contents
of the protest petition, finally decide the future
course of action to be, whether to continue with the
matter or to bring the curtains down.”
6.Heard the learned counsel appearing for the petitioner, the
learned Government Advocate (Criminal Side) appearing for the first
respondent and the learned counsel appearing for the second
respondent and perused the materials available on record.
7.On a perusal of the records revealed that the petitioner is
arraigned as fifth accused in Crime No.968 of 2020 for the offences
under Sections 147, 448, 427 and 506(ii) of I.P.C. The crux of the
allegation is that all the accused persons have trespassed into the
house of the second respondent and threatened him and they have
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Crl.R.C(MD)No.9 of 2022
also damaged the PVC pipes in his house. On a perusal of the
statement recorded under Section 161(3) of Cr.P.C, the second
respondent stated that he wrongly mentioned the name of the
petitioner as if she was also present at the time of occurrence. The
other witnesses also stated the same as if the petitioner was not
present at the time of occurrence. In fact, no other materials are
available to implead the petitioner as an accused. Therefore, the
first respondent filed the final report only as against A.1 to A.4 and
deleted the name of the petitioner. On receipt of the final report, the
learned Magistrate issued notice to the second respondent with
regard to deletion of the name of the petitioner herein in the F.I.R.
On receipt of the same, the second respondent raised objections in
C.M.P.No.1469 of 2020. On a perusal of the objections revealed that
the accused persons filed anticipatory bail application, in which the
first respondent submitted that the petitioner's name has been
deleted in the final report. The first respondent colluded with
accused persons and wantonly deleted the name of the petitioner
and as such, directed the learned Magistrate to issue summons to
the petitioner. Therefore, except this bald objection, there is
absolutely no material to bring the charges as against the petitioner
produced by the second respondent as well as the first respondent.
The learned Magistrate mechanically had taken cognizance as
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Crl.R.C(MD)No.9 of 2022
against the petitioner only for the reason that her name was found
in the F.I.R.
8.That apart, when the petitioner's name was deleted by the
first respondent from the final report and when the learned
Magistrate considering the objections raised by the second
respondent on deletion of the petitioner's name, the petitioner
ought to have been given an opportunity of hearing before taking
cognizance against the petitioner. Admittedly, the petitioner was not
given an opportunity while considering the objections raised by the
second respondent. The learned Magistrate without giving
opportunity of hearing to the petitioner, mechanically had taken
cognizance for the offences under Sections 147, 448, 427 and
506(ii) of I.P.C.
9.In this regard, the learned counsel appearing for the
petitioner relied on the Judgment of this Court in S.Karunanithi
Vs. Sivananda Rao and other reported in 2014 (1) LW (Crl)
509 and this Court held as follows:-
“28. In the case before us, based on the
materials, considering the complaint and statement of
witnesses, the Investigation Officer formed the
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Crl.R.C(MD)No.9 of 2022
opinion that it is a false case. Thus he filed his report
accordingly before the learned Magistrate. It is a
negative final report. Thereafter, the learned
Magistrate disagreed with the conclusion of the
Investigation Officer and took cognizance thereon. If
the materials presented discloses commission of an
offence, the learned Magistrate can disagree with the
conclusion of the Investigation Officer and take action
accordingly or if it so demands he can direct further
investigation. But, if he elects to accept the report of
the Investigation Officer closing the case, he must
issue notice to the complainant, receive his objection,
if any. Such ‘objection petition’ is also known as
‘protest petition’. It is a protest by the defacto
complainant to the conclusion arrived at by the
Investigation Officer. Thereafter, the learned
Magistrate has to treat the protest petition as a
complaint and follow the complaint procedure and if
he finds any prima facie case, he can take cognizance
under Section 190(1)(a) Cr.P.C.
..............
31. It is well settled that the Magistrate can
disagree with the negative final report filed by the
Investigation Officer and take cognizance thereon, if
there are materials to do so. But, before doing so, he
must see whether there is any ground to proceed
further. He must apply his judicial mind and then take
decision. We have already stated that taking
cognizance as against a person, has serious
consequence. If it is not properly exercised, it will
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Crl.R.C(MD)No.9 of 2022
militate against Article 21, Constitution of India. Any
order as against law is an illegal order. An order by
the learned Magistrate directing a person to face a
criminal case without applying his judicial mind is an
illegal order. This is what the nature of the order
passed by the learned Magistrate No. II, Krishnagiri in
C.C. No. 27 of 2011. It will not stand the scrutiny of
law. It is unsustainable in law.”
The above Judgment is squarely applicable to the case on hand and
the cognizance taken by the learned Magistrate cannot be sustained
as against the petitioner.
10.In view of the same, the order passed in C.M.P.No.1469 of
2020 on the file of the learned Judicial Magistrate No.1, Karur is set
aside and this Criminal Revision Case is allowed. Consequently,
connected Miscellaneous Petitions are closed.
30.03.2022
Index : Yes/No
Internet : Yes
ps
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.9 of 2022
G.K.ILANTHIRAIYAN, J.
ps
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.
To
1.The Judicial Magistrate No.1,
Karur.
2.The Inspector of Police,
Karur Town Police Station.
Order made in
Crl.R.C(MD)No.9 of 2022
30.03.2022
https://www.mhc.tn.gov.in/judis
