Madras High Court

P.Periyasamy vs The State Rep.By Through on 15 November, 2024

Author: D.Bharatha Chakravarthy

Bench: D.Bharatha Chakravarthy

Crl.O.P. (MD) No.9903 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

( Criminal Jurisdiction )

ORDERS RESERVED ON : 28.10.2024

ORDERS PRONOUNCED ON : 15.11.2024

CORAM

THE HON'BLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY

Crl.O.P. (MD) No.9903 of 2017
and Crl.M.P. (MD) No.6759 of 2017

1.P.Periyasamy
2.P.Babu @ Krishnamoorthy
3.P.Arun Raja ... Petitioners
Vs.

1. The State rep.by through
The Inspector of Police
Keelavalavu Police Station
Melur, Madurai District.

2.R.Kannan
S/o Not known
Village Administrative Officer
Melur Taluk
Madurai District. ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the Criminal
Procedure Code, to call for the records of the case in P.R.C.No.32 of 2016 on
the file of the Judicial Magistrate Court, Melur and quash the same as against
these petitioners.

Page 1 of 16

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Crl.O.P. (MD) No.9903 of 2017

For the Petitioners : Mr.N.R.Elango, Senior Counsel
for Mr.J.Udhaya Kumar
For the Respondents: Mr.A.Thiruvadi Kumar, APP

ORDER

This Criminal Original Petition is filed to call for the records of the

case in P.R.C.No.32 of 2016 on the file of the Judicial Magistrate Court,

Melur, and to quash the same.

2. By an order dated 28.01.2022, this Court had considered the

petition in detail and dismissed the Criminal Original Petition on merits. As

against the same, the petitioners filed Special Leave Petition (Criminal) Diary

Nos.37672 of 2024 on the file of the Hon'ble Supreme Court of India and by a

Judgment dated 29.07.2024, the Hon'ble Supreme Court of India found that

since the petitioners did not have an opportunity to argue the matter and the

matter was disposed of on merits without dismissing the matter for default, set

aside the order and remanded the matter back to this Court, with a direction to

decide the petition on merits, within a period of six weeks from 14.10.2024.

Accordingly, after receipt of the copy of that order, the matter was listed and

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thereafter, the parties were heard.

3. Heard, Mr.N.R.Elango, learned Senior Counsel appearing on behalf of

the petitioners and Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor

appearing on behalf of the respondents.

4. Mr.N.R.Elango, learned Senior Counsel appearing on behalf of the

petitioners would submit that firstly the learned Magistrate who took

cognisance of the offences, ordered for issuance of summons in the

P.R.C.No.32 of 2016 had not given any reason whatsoever. The act of taking

the final report on file and issuing summons to the accused is not a ministerial

act, but requires the application of judicial mind. The application of the

judicial mind should be reflected in the order. In the instant case, no reason

whatsoever has been stated by the learned Judicial Magistrate. It only states

'ToF'( Taken on File). Thus, when the order does not even contain any reason,

the same is liable to be interfered with.

5. The learned Senior Counsel would thereafter take the attention of

this Court to the various 161 statements that are recorded and filed along with

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the final report. He would submit that the statements of various persons

including one Nagarajan, Poovan, Lingam, Moorthy, Adaikkan, etc., who deposed as if the

accused persons were all in charge of the quarry site and they were conspiring

and committing the offences are all nothing but identical and stereotypical

statements and mechanically recorded. All these witnesses could not have

spoken verbatim the same. Secondly, a perusal of the contents of the

statements would reveal that the individuals are not actual witnesses to the

events mentioned therein. Neither they can have any knowledge over the

affairs of the quarry which was run duly as per the licence. Therefore, he

would submit that the instant final report, which has been filed without an

actual investigation, is being approved and taken on file by the Judicial

Magistrate, without any application of mind. On the face of it, the premises on

which the case is built is false.

6. Mr. N.R. Elango, the Learned Senior Counsel would submit that

with reference to some of the allegations that are made in the final report runs

contrary to the documents filed by the prosecution themselves. As a matter of

fact, the show cause notice was issued to the petitioners as if they did not

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carry on the quarrying activity, whereas, the charge which is sought to be

made out in the final report speaks to the contrary. Therefore, the case of the

prosecution is inherently contradictory. The petitioners were actually granted

a quarry licence under G.O.3D.No.90 dated 30.11.2016 and the offences

under Sections 420, 465, 467, 468 and 471 of IPC can never be alleged

against them.

7. The learned Senior Counsel would further submit that the

prosecution can charge the offence of forgery only as against the maker of the

false document. In this case, the lease agreement dated 19.12.2006 cannot be

termed as a false document. It was actually executed by the authorities of the

Government. Therefore, on the face of it, the offences under Sections 420,

465, 467, 468 and 471 of IPC are not made out. Similarly, when a quarry

licence is granted to quarry granite, the offences under the Explosive

Substances Act would not also be made out. The statement given by the

Village Administrative Officer with reference to trespass into the other

property is also self-contradictory and not at all clear.

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8. The learned Senior Counsel would further submit that as a matter

of fact, during the relevant period, cases were registered against every quarry

operator without any exception and only to review the same, the Government

itself has subsequently constituted a high-level committee. Under these

circumstances, when cases were originally registered mechanically, without

any clear-cut evidence or allegations against the owners of the quarry, the

investigation conducted is again without any application of mind and

therefore, the proceedings in P.R.C.No.32 of 2016 is liable to be quashed.

9. Per contra, Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor

would submit that firstly it can be seen that the 1 petitioner was granted the st

lease to quarry in Survey Numbers, viz., 286/2B2, 286/2C1, 286/2C2,

286/2C5, 284/4B, 285/4, 285/5, 285/6A, 285/6B, 285/7A, 285/7B, 285/7C1,

285/7C2 and 285/7C3 vide GO (3D) No.90 dated 30.11.2006. However, the 1 st

petitioner along with other petitioners have trespassed into the Government

Poramboke Survey No.286/1 etc., and quarried from the said land and also

damaged the bunds of the Government property and water bodies. They had

further quarried in Survey No.286/2B1, 286/2C3, 286/2C4 for which they did

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not have any licence. Therefore, the offence under Sections 379, 447, 420,

430, 434, 465, 467, 468 and 471 read with 114 and 109 of IPC are all

categorically made out.

10. In support of the prosecution case, not only the statements of the

witnesses, records, and the inspection report have been filed. All these

categorically point out that the petitioners quarried from lands for which no

licence was granted. Furthermore, the official witnesses have also spoken

with reference to the same. Once the final report filed contains clear and

categorical materials against the accused person making out the criminal

offences, it is for the Court at the time of framing of charges, to consider in

detail as to which of the accused can be charged with reference to the offences

and frame charges accordingly. The power to quash the case can be exercised

if only by taking all the materials which are contained along with the final

report, at face value and still no offence is made out. In the instant case, the

offences are made out and therefore, the petition to quash is bound to fail.

11. He would further contend that with reference to the

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communication which is issued to the accused as if they have never quarried

at all, firstly, the contents of the show cause notice are not accepted on behalf

of the prosecution. Secondly, it relates to the place officially earmarked for

quarrying. While not carrying out the quarrying operation in the place which

are licensed to the accused, they sought to quarry on the lands in which they

are not licensed. Therefore, the contention in this regard is factual in nature

and has to be duly established only during the course of trial and there are

adequate materials to point out towards the commission of offences by the

accused persons and therefore, the case is rightly taken on file by the learned

Judicial Magistrate, Melur. The P.R.C., is of the year 2016 and the same is now

being dragged on for the past 8 years without the case being committed.

12. The learned Additional Public Prosecutor would also submit that

the offence is triable by the Sessions and the order of the learned Magistrate

in any event though not elaborate, need not be given much importance as the

case is ultimately triable by Sessions and the cognisance has to be taken by

that Court only. Therefore, even the arguments relating to non-application of

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mind, on the part of the learned Judicial Magistrate is untenable in law.

13. I have considered the submissions made on either side and perused

the material records of the case.

14. The prayer in this Criminal Original Petition is to quash the case in

P.R.C.No.32 of 2016 on the file of the Judicial Magistrate, Melur. It is trite that

while considering the prayer for quashing the final report, the Court has to

consider the materials collected and the statements made along with the final

report, on its face value and if there are materials to proceed further, the case

cannot be quashed against the accused.

15. In this case, it can be seen that the accused were granted a licence

to quarry with reference to the particular Survey Numbers. However, the

accused persons have indulged in the quarrying of granite blocks in the non-

leased area in S.F.Nos.286/3 which is an 'Odai Poramboke' and 286/1, which is a

'Tharisu Poramboke' and also in a patta land in S.F.No.286/2B, 286/2C3 and

286/2C4 to the tune of 16621.20 m³. The inspection committee's report is

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very much part of the final report and the Assistant Geologist Vijayaraghavan is

examined as a witness. One Siva Balan, the Deputy Tahsildar to the Collector's

Office was part of the inspection is also examined and he has spoken about

the violations. Similarly, one N.C.Mohan Das, the Assistant Director is also on the

list of witnesses. One Muruganandam, the Assistant Geologist has also spoken

about the same. Likewise, other officials, Jayapal, Sasikumar, Vijayakumaran, Perumal

Raja, etc., who are all part of the team were also examined and listed as

witnesses.

16. There are materials available that the petitioners violated the

conditions of the lease and also stealthily quarried from the Government

Poramboke lands as well as other patta lands. Apart from the above, there are

other violations also. Therefore, there is enough material to proceed against

the petitioners which are collected by the Investigating Authority and filed

along with the final report. The only contention is with reference to the

records which is said to have been created by the accused and whether the

same would amount to attract the offences under Section 467, 468 and 471 of

IPC. When the respondents have completed the investigation, filed final

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report, which is taken on file in respect of all the accused who have indulged

in this conspiracy and various offences invoking 447, 479, 420, 434 of IPC

read with Section 3 (1) and (2) (4) of the Tamil Nadu Property (Prevention of

Damage and Loss) Act, 1992 and Section 6 read with Section 3 (a) and 4 (a)

of the Explosive Substances Act, at this stage while considering the

application for quash, the question does not arise as to which of the offences

are made out against which accused and the same would be the subject matter

at the time of framing of charges after committal and it would be very well

open for the petitioners to argue the same, at the time of framing of charges

and take up such pleas during the trial. The said contentions of the learned

Senior Counsel, cannot be a ground for quashing the case itself.

17. As far as the contention regarding the order passed by the learned

Judicial Magistrate is concerned, it is true that the learned Magistrate has only

passed the following order:-

“TOF u/s 447, 379, 420, 430, 434, 465, 467, 468, 471 r/w 109, 114 of IPC & 3 (i) (ii) & 4 jkpH;ehL (brhj;J nrjk; kw;Wk; ,Hg;g[ jLg;g)[ rl;lk; 1992 & Section 6 r/w 3 (a), 4 (a) of the Explosive Substances Act. Issue summons to the accused.”

18. There can be no quarrel over the proposition that the Magistrate is

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expected to apply his mind, firstly, to whether any offence is made out;

secondly, to whether any offence triable by sessions is made out, for the

purpose of taking the PRC case on file, at the time of issuing summons.

19. The application of mind has to be reflected in the order, and the

order cannot simply say 'TOF' (taken on file). The learned magistrate had

quoted the offences for which the final report is taken on file while ordering

the issue of summons to the accused. However, the learned magistrate had

not expressed or given any reason that he had gone through the material and

satisfied himself that there were materials to proceed. The same is an error.

Normally, the course open to this Court is to set aside the order of the learned

Judicial Magistrate and remit the matter back to the learned Magistrate to

once again reconsider the matter and pass a reasoned order after due

application of mind. However, the said course is not resorted to in this case

for the following reasons,

(i) Firstly, the learned Senior Counsel has argued in detail that this

Court has examined the materials filed along with the final report, which

certainly make out a prima facie case that the offences are triable by Sessions;

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(ii) Secondly, the order of the learned Judicial Magistrate is not under

challenge though it was open to the petitioner to file a revision against the

order the prayer in the petition is to quash the case itself;

(iii) Thirdly, the PRC itself is of the year 2016 and no further time

could be wasted by once again resorting to formally setting aside of the order

and directing the Magistrate again to pass a speaking order;

(iv) As a matter of fact, when the offences are triable by the Sessions, the

nature of the exercise of the power by the learned Magistrate is delineated by

the Hon'ble Supreme Court of India in Kishun Singh and Others Vs. State of

Bihar (1993) 2 SCC 16 and it is relevant to extract the following portions:-

“7. .......It may immediately be noticed that under the old provision a Court of Session could not take cognizance of an offence as a Court of original jurisdiction unless the accused was committed to it whereas under the recast section as it presently stands the expression the accused has been replaced by the words the case. As has been pointed out earlier. Under section 190 cognizance has to be taken for the offence and not the offender: so also under section 193 the emphasis now is to the committal of the case and no more on the offender. So also section 209 speaks of committing the case to the Court of Session. On a conjoint reading of these provisions it becomes clear that while under the Old Code in view of the language of section 193 unless an accused was committed to the Court of Session the said court not take cognizance of an offence as a court of original jurisdiction; now under section 193 as it presently stands once the case is committed the restriction disappears...........”

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(v) Thus, it can be seen that once the case is committed, it is the Court

of Sessions that will take cognisance of the offence and at that time it would

be open for the petitioners to raise all the grounds and therefore, no grave or

substantial prejudice is caused on account of the lack of expression of the

reason by the learned magistrate.

20. For all the foregoing reasons, there is no merit in the prayer of the

petitioners to quash the case in P.R.C.No.32 of 2016 on the file of the Judicial

Magistrate Court, Melur, accordingly, the Criminal Original Petition is

dismissed. Consequently, the connected miscellaneous petition is closed.

15.11.2024

Jer Neutral citation : Yes

1.The Judicial Magistrate, Melur.

2.The Inspector of Police Keelavalavu Police Station Melur, Madurai District.

3.The Additional Public Prosecutor,

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Madurai Bench of Madras High Court, Madurai.

D.BHARATHA CHAKRAVARTHY, J.,