Madras High Court
Senthilkumar vs The Inspector Of Police on 20 September, 2023
Crl.O.P.(MD)No.11348 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.09.2023
CORAM
THE HON'BLE DR.JUSTICE D.NAGARJUN
Crl.O.P.(MD)No.11348 of 2023
and
Crl.M.P.(MD) No.8945 of 2023
Senthilkumar ... Petitioner
Vs.
1.The Inspector of Police,
B6 Jaihindpuram Police Station,
Madurai City.
(Crime No.284 of 2023) ... 1st Respondent/
Complainant
2.K.Pandiammal ... 2nd Respondent/
Defacto Complainant
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, to call for the entire records pertaining to the
case in Crime No.284 of 2023 on the file of the Inspector of Police,
Jaihindpuram Police Station, Madurai City and quash the same as against
the petitioner.
1/16
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Crl.O.P.(MD)No.11348 of 2023
For Petitioner : Mr.R.L.Dhilipan Pandian
For R1 Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
For R2 : No appearance
------
ORDER
This Criminal Original Petition is filed seeking quashment of FIR
in Crime No.284 of 2023 on the file of the first respondent police.
2.The facts in brief are that the husband of the respondent No.2, by
name Kannan was running a steel shop in the land adjacent to their house
situated at 279, Jeeva Nagar 1st Street, Jaihindpuram and in the business,
he sustained loss to the tune of Rs.3 lakhs. The said Kannan borrowed an
amount of Rs.3 lakhs from one Sivapriya and committed default in
payment of interest. Accused No.1, Sivapriya and 6 others tried to grab
the land of the respondent No.2 by creating forged documents, on which
the petitioner has filed a complaint before the Jurisdictional Magistrate
under 156(3) Cr.P.C., in Cr.M.P.No.8518 of 2021 and as per the
directions of the learned Magistrate, a case has been registered against 7
persons for the offences punishable under Sections 447, 294(b), 341,
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Crl.O.P.(MD)No.11348 of 2023
506(i) IPC and Section 4 of Tamil nadu Prohibition of Harassment of
Women Act, 2002.
3.It is submitted by the learned counsel for the petitioner/accused
that the allegations levelled against the petitioner are false and the
respondent No.2 and her family members by offering to sell their land
have cheated him to the tune of Rs.1 Crore. It is submitted further that
the criminal case registered against the petitioner will not sustain as the
police failed to follow the directions of the Hon'ble Supreme Court in
Priyanka Srivastava & Another v. State of U.P., reported in 2015 (6)
SCC 287, thereby, the FIR can be quashed as per the judgment of the
Hon'ble Apex Court in State of Haryana v. Bhajanlal reported in 1992
SCC (Cri) 426.
4. Heard both sides and perused the materials available on record.
5. The petitioner has sought for quashing of the FIR in Crime No.
284 of 2023 mainly on two grounds. Firstly, on the ground that the
allegations levelled against the petitioner are false. This Court while
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Crl.O.P.(MD)No.11348 of 2023
considering the application under 482 Cr.P.C., cannot decide as to which
version of the petitioner or the defacto complainant is correct. Unless
regular trial is conducted by giving opportunity to both the parties
concerned and only after conclusion of trial, the trial Court will come to
the conclusion in respect of the allegations levelled against the
petitioner.
6.Learned Additional Public Prosecutor appearing for the defacto
complainant submits that the FIR cannot be quashed unless there is a
strong material as during the course of investigation, there is likelihood
of the evidence may be collected by the Police against the accused and
submitted further that as per FIR there are clean overt acts against the
petitioner/accused. On going through the records including the
complaint, there is a prima facie material against the petitioner. Hence,
on this count, the FIR filed against the petitioner cannot be quashed.
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Crl.O.P.(MD)No.11348 of 2023
7. Normally, if a complaint is filed before the police, the police
would register FIR in case cognizable offence is made out and proceed
with investigation. However, in case the police fails to register FIR, the
aggrieved party is expected to send a complaint to the concerned
Superintendent of Police under Section 154(3) of Cr.P.C. and in case, if
still there is no positive response, then the aggrieved person can file a
complaint under Section 156(3) if Cr.P.C. seeking direction from the
learned Magistrate Court to the police to investigate the case. However,
it has become practice for most of the complainants to file complaint
before the Court directly either under Section 156(3) of Cr.P.C. or under
Section 200 of Cr.P.C. without even approaching the police thereby, the
Hon'ble Apex Court has passed elaborate orders in Priyanka Srivastava
& Another v. State of U.P., reported in 2015 (6) SCC 287 and in the case
of Babu Venkatesh v. State of Karnataka, reported in 2022 (5) SCC
8. The Hon'ble Apex Court in Priyanka Srivastava observed as
follows:-
"29. At this stage it is seemly to state that power
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Crl.O.P.(MD)No.11348 of 2023
under Section 156(3) warrants application of judicial mind.
A court of law is involved. It is not the police taking steps at
the stage of Section 154 of the Code. A litigant at his own
whim cannot invoke the authority of the Magistrate. A
principled and really grieved citizen with clean hands must
have free access to invoke the said power. It protects the
citizens but when pervert litigations takes this route to
harass their fellow citizens, efforts are to be made to scuttle
and curb the same.
30. In our considered opinion, a stage has come in
this country where Section 156(3) CrPC applications are to
be supported by an affidavit duly sworn by the applicant
who seeks the invocation of the jurisdiction of the
Magistrate. That apart, in an appropriate case, the learned
Magistrate would be with Cr.M.P. No. 1596 of 2017 well
advised to verify the truth and also can verify the veracity of
the allegations. This affidavit can make the applicant more
responsible. We are compelled to say so as such kind of
applications are being filed in a routine manner without
taking any responsibility whatsoever only to harass certain
persons. That apart, it becomes more disturbing and
alarming when one tries to pick up people who are passing
orders under a statutory provision which can be challenged
under the framework of the said Act or under Article 226 of
the Constitution of India. But it cannot be done to take
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Crl.O.P.(MD)No.11348 of 2023
undue advantage in a criminal court as if somebody is
determined to settle the scores.
31. We have already indicated that there has to be
prior applications under Sections 154(1) and 154(3) while
filing a petition under Section 156(3). Both the aspects
should be clearly spelt out in the application and necessary
documents to that effect shall be filed. The warrant for
giving a direction that an application under Section
156(3) be supported by an affidavit is so that the person
making the application should be conscious and also
endeavour to see that no false affidavit is made. It is because
once an affidavit is found to be false, he will be liable for
prosecution in accordance with law. This will deter him to
casually invoke the authority of the Magistrate
under Section 156(3). That apart, we have already stated that
the veracity of the same can also be verified by the learned
Magistrate, regard being had to the nature of allegations of
the case. We are compelled to say so as a number of cases
pertaining to fiscal sphere, matrimonial dispute/family
disputes, commercial offences, medical negligence cases,
corruption cases and the cases where there is abnormal
delay/laches in initiating criminal prosecution, as are
illustrated in Lalita Kumari are being filed. That apart, the
learned Magistrate would also be aware of the delay in
lodging of the FIR."
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Crl.O.P.(MD)No.11348 of 2023
9. Further, in BABU VENKATESH AND OTHERS Vs. STATE
OF KARNATAKA AND ANOTHER {(2022) 5 SUPREME COURT
CASES 639}, the Hon'ble Supreme Court has held as follows:-
“24. This Court has clearly held that
a stage has come where applications under
Section 156 (3) CrPC are to be supported by
an affidavit duly sworn by the complainant
who seeks the invocation of the jurisdiction
of the Magistrate.
25. This Court further held that in an
appropriate case, the learned Magistrate
would be well advised to verify the truth
and also verify the veracity of the
allegations. The Court has noted that
applications under Section 156 (3) CrPC are
filed in a routine manner without taking any
responsibility only to harass certain persons.
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Crl.O.P.(MD)No.11348 of 2023
26. This Court has further held that
prior to the filing of a petition under Section
156 (3) CrPC, there have to applications
under Sections 154 (1) and 154 (3) CrPC.
This Court emphasises the necessity to file
an affidavit so that the persons making the
application should be conscious and not
make false affidavit. With such a
requirement, the persons would be deterred
from causally invoking authority of the
Magistrate, under Section 156 (3) CrPC.
Inasmuch as if the affidavit is found to be
false, the person would be liable for
prosecution in accordance with law.
27. In the present case, we find that
the learned Magistrate while passing the
order under Section 156 (3) CrPC, has
totally failed to consider the law laid down
by this Court.
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28. From the perusal of the
complaint it can be seen that the
complainant respondent No.2 himself has
made averments with regard to the filing of
the original suit. In any case, when the
complaint was not supported by an
affidavit, the Magistrate ought not to have
entertained the application under Section
156 (3) CrPC. The High Court has also
failed to take into consideration the legal
position as has been enunciated by this
Court in Priyanka Srivastava Vs. State of
UP and has dismissed the petitions by
merely observing that serious allegations
are made in the complaint.
29. We are therefore, of the
considered view that continuation of the
present proceedings would amount to
nothing but an abuse of process of law.”
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Crl.O.P.(MD)No.11348 of 2023
10. Considering the above directions, it is clear that without
following the procedure contemplated under Section 154(3) of Cr.P.C.
one cannot file complaint directly before the learned Magistrate under
Section 156(3) of Cr.P.C. The defacto complainant, in the case on hand,
has not filed any affidavit before the learned Magistrate along with the
complaint filed under Section 156 (3) of Cr.P.C. stating that the defacto
complainant has sent a representation to the Superintendent of Police as
required under Section 154(3) of Cr.P.C. The defacto complainant is
expected to enclose the copies of receipts if any to show that
representation was sent to Superintendent of Police, along with a
complaint filed under Section 156 (3) of Cr.P.C. Further, learned
Magistrate has to record his satisfaction that the directions given in
Priyanka Srivastava and Babu Venkatesh have been followed prior to
taking a decision for referring the complaint to the police under Section
156(3) of Cr.P.C. Therefore, in the absence of such basic requirements as
mandate by the Hon'ble Apex Court the FIR shall not sustain.
11. However, considering the contents on the complaint filed
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Crl.O.P.(MD)No.11348 of 2023
before the learned Magistrate under Section 156 (3) of Cr.P.C. It is clear
that there are serious and strong allegations against the accused.
Quashing the FIR on technical grounds may cause lot of hardships to the
defacto complainant.
12. In a case decided between Kaluva Kumar v. State of AP in
Criminal Petition No.4229 of 2019, dated 28.08.2019, the Andhra
Pradesh High Court at Amaravathi held as under:-
"15. Thus, at the outset, the impugned order of the
learned Magistrate in referring the complaint under Section
156(3) Cr.P.C. suffers legal infirmity for not recording
reasons and therefore, consequential registration of F.I.R.
basing on the impugned order is not legally sustainable and
hence, the F.I.R. is liable to be quashed. In similar
circumstances, in S.Purnachandra Rao’s case (supra) and in
Anne Srinivasa Rao’s case (supra), learned Judges of this
Court remanded back the matter to concerned Magistrate
directing him to pass an order showing application of mind
to the facts in issue while referring the case to police for
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Crl.O.P.(MD)No.11348 of 2023
investigation and to follow preconditions laid down by the
Hon’ble Apex Court in Priyanka’s case while referring the
case to the concerned police for investigation. Therefore,
following the afore stated precedents, similar order can be
passed in the instant case.
16. In the result, this Criminal Petition is allowed and
F.I.R. in Cr.No.81/2019 on the file of Nandalur Police
Station, YSR Kadapa District, is quashed and the impugned
order of the learned Judicial First Class Magistrate,
Nandalur dated 04.06.2019 is set aside and the matter is
remanded back to concerned Magistrate directing him to
pass an order showing application of mind to the facts in
issue. If he proposes to refer the case to police for
investigation under Section 156(3) Cr.P.C., he shall direct
the complainant to file sworn affidavit in the light of the
direction given by the Apex Court in Priyanka Srivastava’s
case (supra)."
13. Considering the fact that there are serious allegations against
the accused if FIR is quashed, prejudice will be caused to the
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respondent/complainant. Therefore, as observed by the High Court of
Andhra Pradesh in Kaluva Kumar v. State of AP in Criminal Petition
No.4229 of 2019, while quashing the FIR, defacto complainant shall be
given liberty to file a fresh complaint before the learned Magistrate under
Section 156 (3) of Cr.P.C., after complying all the requirements of
Priyanka Srivastava and Babu Venkatesh (supra), so that learned
Magistrate shall consider the same, record the reason and forward the
same to the police for investigation.
14.In view of the above, this Criminal Original Petition is disposed
of by quashing the entire proceedings in Crime No.284 of 2023
registered against the petitioner. However, the second respondent/defacto
complainant is at liberty to file a fresh complaint before the learned
Magistrate by complying all the requirements as enumerated in Priyanka
Srivastava and Babu Venkatesh (supra), on such complaint made by the
defacto complainant, learned Magistrate is hereby directed to dispose of
the same as expeditiously as possible by following due process of law. It
is made clear that the petitioner and second respondent shall not add any
other ground other than the grounds raised. Consequently, connected
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Crl.O.P.(MD)No.11348 of 2023
Miscellaneous Petition is closed.
20.09.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
mm/mvs.
To
1.The Inspector of Police,
B6 Jaihindpuram Police Station,
Madurai City.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.11348 of 2023
DR.D.NAGARJUN,J
mm/mvs.
Crl.O.P.(MD)No.11348 of 2023
Dated: 20.09.2023
https://www.mhc.tn.gov.in/judis
