Madras High Court

P.S.Sharfudeen vs B.Mohammed Kalifullah on 10 August, 2023

                                                                           Crl.O.P(MD).No.4848 of 2019

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    Dated : 10.08.2023

                                                             CORAM:

                                  THE HONOURABLE MR. JUSTICE P. DHANABAL
                                              Crl.O.P(MD).No.4848 of 2019
                                                          and
                                         Crl.M.P.(MD)Nos.3016 and 3017 of 2019


                 1.P.S.Sharfudeen
                 2.R.Nagarajan
                 3.N.S.Elangovan
                 4.S.Ariven Nisha
                 5.S.Sayida Begam
                 6.Subi @ Suveriya Begam
                 7.Saibunisha                                                  ...Petitioners

                                                        Vs

                 B.Mohammed Kalifullah                                         ...Respondent

                 PRAYER: Criminal Original Petition filed under Section 482 of the Code of
                 Criminal Procedure, praying this Court to call for the records relating to the
                 case in C.C.No.241 of 2018 pending on the file of the Judicial Magistrate
                 Court No.II, Dindigul, and quash the same.
                                  For Petitioners              : Mr.G.Karuppasamy Pandiyan
                                  For Respondent               : Mr.M.Sheik Abdullah

                                                             ORDER

This petition is filed to quash the charge sheet in C.C.No.241 of 2018,

pending on the file of the Judicial Magistrate Court No.II, Dindigul,

https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.4848 of 2019

2.The contention of the petitioners is that the defacto complainant has

given a complaint before the learned Judicial Magistrate No.III, Dindigul and

the same was taken on file as C.C.No.241 of 2018 for the offence under

Sections 120(B), 387, 398, 400, 402 and 506(ii) IPC and the same is pending.

According to the complaint, on 30.06.3017 at about 07.12 a.m., near Railway

station, when the petitioners were walking on seeing the respondent, all the

petitioners chased him and threatened him by showing dangerous weapons

and asked him withdraw the case against the first petitioner. The respondent

gave a complaint before the learned Judicial Magistrate No.III, Dindigul, after

a lapse of one month from the date of occurrence and the same was forwarded

to concerned police Station under Section 156(3) of Cr.P.C. However, the FIR

has been registered as against these persons for the offences under Sections

120(B), 387, 398, 400, 402 and 506(ii) IPC. After thorough investigation, the

case was referred as 'mistake of fact' on 16.08.2017 with the reason that the

respondent has civil dispute with his sister, who is wife of the first petitioner

herein. In order to settle civil dispute, this present complaint has been filed.

While the facts are being so, the respondent filed a private complaint against

these petitioners on 07.07.2017 even prior to the culmination of investigation

in the FIR lodged by him. It is clearly an abuse of process of law. The trial

Court also taken cognizance of the private complaint without following the

mandatory provisions as enumerated under Section 200 and 204(2) of Cr.P.C., https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.4848 of 2019

The trial Court has not passed any order in the negative final report filed by

the Police. In the mean time, the private complaint was taken on file. There is

a civil dispute between the respondent and his sister, who is no other than the

wife of the first petitioner. Therefore, in order to settle the civil dispute, the

respondent has filed private complaint by mentioning false allegations. Hence,

the charge sheet in C.C.No.241 of 2018 pending on the file of the learned

Judicial Magistrate No.III, Dindigul is liable to be quashed.

3.No counter was filed by the respondent.

4.The learned counsel appearing for the petitioners has argued that the

defacto complainant who is practicing as an advocate, has given a complaint

alleging that on 30.06.2017 at about 07.12 a.m., when the defacto complainant

went to Dindigul Railway station for see of his client, all the accused were

walking near the Railway station at that time, after seeing the defacto

complainant, all the accused wrongfully restrained him and threatened to

withdraw the civil case and also assaulted him with sticks and robbed his

wrist watch. The defacto complainant filed a complaint before the learned

Judicial Magistrate No.III and the same was forwarded to Town Police Station

and registered FIR and the same was closed as 'mistake of fact'. While

pending FIR, the defacto complainant has filed a private complaint. The trial https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.4848 of 2019

Court also taken cognizance of the private complaint without following the

mandatory provisions as enumerated under Section 200 and 204(2) of Cr.P.C.

The complaint filed by the defacto complainant clearly shows his malafide

intention and it is a clear abuse of process of law.

5.The learned counsel for the respondent has argued that the petitioners

on the date of occurrence, abused the defacto complainant with filthy

language and caused criminal intimidation and thereby, the respondent has

filed this complaint and the learned Judicial Magistrate forwarded the said

complaint under Section 156(3) of Cr.P.C., to the concerned police station and

FIR also registered and thereafter closed the case as 'mistake of fact' and then

the petitioner filed this complaint and the learned Judicial Magistrate has

rightly taken cognizance for the offence under Sections 294(b), 341 and

506(ii) of IPC.

6.Heard both sides and perused the materials available on records.

7.On perusal of the records, it is observed that the respondent herein

gave a complaint before the learned Judicial Magistrate No.III, Dindigul,

alleging that on 30.06.3017 at about 07.12 a.m., near Railway station, when

the petitioners were walking on seeing the second respondent, all the https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.4848 of 2019

petitioners chased him and threatened him by showing dangerous weapons

and asked him to withdraw the case against the first petitioner. The respondent

being a practicing advocate has filed a private complaint before the learned

Judicial Magistrate No.III, Dindigul and the same was forwarded to the

jurisdictional police station and the police also investigated the matter and

filed negative final report. Thereafter, the respondent filed another complaint

and learned Judicial Magistrate also taken cognizance under Sections 294(b),

341 and 506(ii) of IPC. In the private complaint, he alleged that the petitioners

abused the defacto complainant with filthy language wrongfully restrained

and caused criminal intimidation. Further the learned Judicial Magistrate

No.III, Dindigul recorded the sworn statement of the complainant and one

witness and based on the said statements of witnesses had taken cognizance

for the offence under Sections 294(b), 341 and 506(ii) of IPC.

8.On careful perusal of the sworn statement of the complainant, there is

no mention about the obscene words uttered by the accused and did not state

anything to attract the provisions under Section 294(b) of IPC. Further

according to the statement of the complainant, all the accused chased him and

threatened with deadly weapons and not stated anything about the wrongful

restrained caused by the accused and no evidence to constitute the ingredients

of the offence under Section 341 of IPC. The complainant stated in the sworn https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.4848 of 2019

statement that all the accused attempted to assault him and threaten with

deadly weapon and thereby caused criminal intimation. The above said

allegations made in the statement are vague and not mentioned about kind of

threats by the petitioners and thereby no prima facie material to constitute the

offence under Section 506(ii) of IPC.

9.As far as other offences mentioned in the complaint are concerned,

the learned Judicial Magistrate has not taken cognizance for all the offences

and only had taken cognizance under Sections 294(b), 341 and 506(ii) of

IPC. According to the statement of witness Nagaraj, he witnessed the

occurrence and one Nagaraj and Karupaiah along with others chased the

complainant and used obscene words and threatened to withdraw the case.

The complainant himself has not stated about the obscene words and wrongful

restrain. Thereby the statement of the witness Nagaraj alone is not sufficient

to make out the prima facie case to take cognizance. As per statement of

witness Nagaraj, one Karupaiah and Nagaraj had involved in the occurrence

but in the police complaint, name of that Karupaiah was not mentioned. It is

admitted fact that the civil dispute is pending between the parties.

10.On careful reading of complaint, it shows that it is an exaggerated

one not a natural one. The complainant being an advocate has not given the https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.4848 of 2019

complaint before the jurisdictional police station immediately after the

occurrence but sent the complaint to Superintendent of Police and then filed

the petition under Section 156(3) of Cr.P.C., before the learned Judicial

Magistrate No.III, Dindigul. Further the defacto complainant not even sent a

copy of the complaint to the police station and no reason stated for non

sending the complaint to the jurisdictional police station. The general

procedure is if any incident happened, the affected person shall go to

concerned jurisdictional police station to give complaint, if they failed to take

any action and then go to the Superintendent of Police office but in this case

the complainant being a practicing advocate after the alleged occurrence did

not go to police station for giving complaint straight away sent complaint to

the Superintendent of Police, through registered post.

11.According to Section 154(1) of Cr.P.C., every information relating

to the commission of a cognizable offence, if given orally to an officer in

charge of a police station, shall be reduced to writing by him or under his

direction, and be read over to the informant. As per Section 154(3) of Cr.P.C.,

any person aggrieved by a refusal on the part of an officer in charge of a

police station to record the information referred to in subsection (1) may send

the substance of such information, in writing and by post, to the

Superintendent of Police concerned.

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Crl.O.P(MD).No.4848 of 2019

12.Without following these procedures, the defacto complainant

directly sent the complaint to the Superintendent of Police. This conduct of

the complainant would show his intention. Moreover already the investigation

agency has investigated the case and filed negative report and closed the case

as 'mistake of fact'. Thereafter the respondent herein filed a complaint but the

statement recorded by the learned Judicial Magistrate also does not reveal the

prima facie offence for taking cognizance.

13.The learned counsel appearing for the petitioner would rely upon the

judgment of this Court in the case of A.Krishna Rao v. L.S.Kumar reported in

(1998) 1 CTC 329, wherein this Court in para no.4 held as follows:

“Learned counsel for the respondent relied upon a decision of this Court is Manoharbal v. Vashdev 1983 L.W. (Crl.) 319 wherein it was held that when a Magistrate sends a complaint for enquiry under Section 156(3), Cr.P.C., he does not take cognizance of the case, that consequently when he, receives the report stating that the complaint should be referred either as false or as mistake of fact or mistake of law, he does not pass any judicial order, but merely lodges the complaint and does not take any further action and in such circumstances, there is no bar in law for the Magistrate to entertain a second complaint and take cognizance of it and issue process to the accused. The view expressed by this Court herein is somewhat contrary to the views expressed in the decisions stated supra.

In the present case, the police have filed the referred charge sheet as 'mistake of fact' it, seems the Magistrate has accepted the R.C.S. It is not the https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.4848 of 2019

case of the respondent herein that the Magistrate has not accepted the R.C.s. filed by the police. In such circumstances, when the Magistrate has accepted the R.C.S. the second complaint should be filed only after setting aside the order passed by the learned Magistrate in the referred chargesheet. However, the respondent herein has not taken any such action and instead had filed a second complaint which the learned Magistrate has taken cognizance. It has been held in the above decisions that taking cognizance in the second complaint, makes the same not maintainable. I have no hesitation to follow the said view, and as such it has to be held that the second complaint which is pending before the learned Judicial Magistrate No.2, Wallajapet, in CC No.274 of 1994 is not maintainable and the proceedings have to be quashed.”

14.A careful reading of the aforesaid judgment, it is clear that if the

learned Magistrate has accepted the RCS and the second complaint should be

filed only after setting aside the order passed by the learned Magistrate in the

referred charge sheet. In the case on hand, already referred charge sheet was

filed and thereafter no order was passed by the learned Magistrate and while

pending aforesaid referred charge sheet, private complaint has been filed

under Section 200 of Cr.P.C. Thereby, the petition is not maintainable when

the matter is pending before the learned Judicial Magistrate.

15.The learned counsel appearing for the respondent relied upon the

judgment of the Hon'ble Supreme Court in the case of Sathish Kumar Jatav

v. State of U.P. and others in Criminal Appeal No.770 of 2022, wherein the https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.4848 of 2019

Hon'ble Supreme Court in para no.6.3 held as follows:-

“Even from the impugned order passed by the High Court it appears that while quashing the criminal proceedings, the High Court has observed that no useful purpose will be served by prolonging the proceedings of the case. The aforesaid cannot be a good ground and or a ground at all to quash the criminal proceedings when a clear case was made out for the offence alleged.”

16.A careful reading of the judgment, it is clear that the High Court

cannot quash the proceedings by observing that no useful purpose will be

served by prolonging the case and the same is not a good ground. In this case,

the complainant being an advocate without going before the jurisdictional

police station has straight away sent to the Superintendent of Police and

thereafter, filed the petition before the learned Magistrate under Section

156(3) of Cr.P.C., and the same was forwarded to jurisdictional police station

and police after enquiry closed the case as 'mistake of fact'. Thereafter,

without awaiting order of Magistrate, the complainant presented the impugned

complaint before the same Magistrate. On careful perusal of records, it is

observed that the closure report of the case in FIR in Crime No.305 of 2017

was sent to the jurisdictional Magistrate on 16.08.2017 and the same was

received by the Magistrate Court on 24.10.2017. After receipt of closure

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Crl.O.P(MD).No.4848 of 2019

report notice, the petitioner has not approached the Magistrate Court by filing

protest petition. The learned Magistrate issued notice to the defacto

complainant in Cr.M.P.No.2606 of 2018 and thereafter, posted for objection of

defacto complainant. Thereafter, lastly posted on 17.08.2018, for filing

objection by the defacto complainant but no records found to show order

passed in the said Cr.M.P.No.2606 of 2018. But in the meantime, on

06.08.2018, the same complainant filed another complaint in Cr.M.P.No.3819

of 2018 before the same Magistrate for the same occurrence. The learned

Magistrate also examined the witnesses and recorded some statements and

then taken cognizance for the offences under Sections 294(b), 341 and 506(ii)

of IPC. But not passed any order in Cr.M.P.No.2606 of 2018, which was

posted for filing objections. Without passing orders in the application which

was taken for deciding the closure report, this present complaint was taken on

file. A careful reading of the complaint, it shows the exaggeration and

intention of the complainant.