Madras High Court
M.A.M.R.Muthiah vs K.Muthuvelliyan on 25 March, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.R.C.No.44 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 11.03.2025
Orders Pronounced on : 25.03.2025
Corm:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.44 of 2025
and
Crl.M.P.No258 of 2025
--
M.A.M.R.Muthiah, S/o Dr.M.A.M.Ramasamy (late) .. Petitioner
Vs.
K.Muthuvelliyan, S/o Mr.Kasinathan .. Respondent
Criminal Revision Case filed under Section 397 read with Section 401 of
Cr.P.C. and Sections 438 and 442 of BNSS, against the order dated 16.12.2024 in
Crl.M.P.No.717 of 2019 in C.C.No.6066 of 2016 on the file of the XXIII
Metropolitan Magistrate, Saidapet, Chennai-15.
For petitioner : Mr.A.K.Shriram, Senior Counsel
for Mr.Valibha R.Venkatesh
For respondent: Mr.A.Nagarajan
ORDER
This revision petition is filed challenging the order dated 16.12.2024 in
Crl.M.P.No.717 of 2019 in C.C.No.6066 of 2016 on the file of the XXIII
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Metropolitan Magistrate, Saidapet, Chennai-15.
2. The revision petitioner is A1 in C.C.No.6066 of 2016. The respondent
herein filed a complaint under Section 200 and 190 of Cr.P.C. before the XXIII
Metropolitan Magistrate against the revision petitioner/A1 and another, for the
offences under Sections 109, 448, 427 and 506 (Part-2) IPC. The learned
Magistrate took cognizance of the complaint in C.C.No6066 of 2016. Pending the
said C.C., the revision petitioner/A1 filed an application to drop further
proceedings as against the revision petitioner. The Metropolitan Magistrate, after
hearing both sides, dismissed the petition on the ground of maintainability,
against which, the present revision petition is filed by A1.
3. The case of the respondent/complainant is as follows:
(i) The complainat is in-charge of the day-to-day maintenance and
activities of Chettinad House, M.R.C.Nagar, Raja Annamalaipuram, Chennai-600
028. The land in R.S.No.4288/13 at MRC.Nagar, Chennai-600 028, is owned by
Dr.M.A.M.Ramaswamy, Kumararni Dr.Meena Muthiah and Mr.M.A.M.M.Annamalai
measuring at about 50 grounds, who are residing at Chettinad House, Raja
Annamalaipuram, Chennai-600 028.
(ii) The said property was given on an oral lease to South India
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Corporation Private Limited till 31.03.2014 and after expiry of the lease period,
the South India Corporation Private Limited voluntarily vacated and surrendered
the possession. Thereafter, the entire property is in possession, ownership and
enjoyment of Dr.M.A.M.Ramaswamy and the other co-owners by paying the
necessary tax dues to the Government authorities.
(iii) The Chettinad Security Group, led by one Azhagu, the second accused
and his associates/security guards, at the instigation of A1/Mr.M.A.M.R.Muthiah,
with an intention to grab the above said property, trespassed unlawfully and
caused damage to the property and threatened the security staff with dire
consequences and indulged in criminal activities, picked up wordy quarrel on
several occasions and caused simple injury.
(iv) To overcome their illegal activities, the said Azhagu (A2) made false
Police complaint against the respondent herein/complainant to the Inspector of
Police, E.5 Pattinapakkam Police Station, Chennai-600 028. After enquiry, the
complaint was closed by the E.5 Pattinapakkam Police Station.
(v) The complainant frequently visits and inspects the property, depending
upon the day-to-day affairs, activities and directions of Dr.M.A.M.Ramaswamy,
who is a aged person/senior citizen and employer of the complainant.
(vi) On 21.02.2015 at about 7.30 p.m., A2 and his associates entered into
the above said property by breaking open the locks of main entrance gate and
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threatened the security of the property who guarded the same as per the
direction of Dr.M.A.M.Ramaswamy. A2 and his associates snatched the key and
cell phone and tried to assault the said security guards. On hearing the news on
the next day, Dr.M.A.M.Ramaswamy directed his servants to rush to the spot and
enquired about the offences committed by A2 and his associates.
(vii) On verification, the complainant and Dr.M.A.M.Ramaswamy found
that the main gate was damaged and caused loss worth about Rs.25,000/- by
trespassing into the above said property by A2 and his associates at the
instigation of A1 Mr.M.A.M.R.Muthiah, who is making all sorts of illegal activities
to grab the property from Dr.M.A.M.Ramaswamy.
(viii) Aggrieved by the above illegal acts, the said Dr.M.A.M.Ramaswamy
lodged a Police complainant to the Inspector of Police, E.5 Pattinapakkam Police
Station on 22.02.2015. A1 and his associates threatened the security guards
(employed) of Dr.M.A.M.Ramaswamy on 21.02.2015 at about 7.30 p.m. and at
that time, they mentioned that no one should inform to the Police, otherwise,
they will go to any extent including killing of them as per the instructions of A1
and further informed that they could do whatever they like and they were above
the law of land.
(ix) After hearing the above incident, the security guards reluctantly
informed to the complainant as well as Dr.M.A.M.Ramaswamy by fearing their
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life at the hands of A1 and A2. Thereafter, on due verification, the complainant
and Dr.M.A.M.Ramaswamy came to know about the above incident and
immediately lodge a complaint before the Inspector of Police, E.5 Pattinapakkam
Police Station.
(x) However, the security guards employed by Dr.M.A.M.Ramaswamy are
in constant and continuing fear of their life and safety of the property guarded by
them due to the illegal activities of A1 and A2.
(xi) After receipt of the complaint dated 22.02.2015 from
Dr.M.A.M.Ramaswamy by the Inspector of Police, E.5 Pattinapakkam Police
Station, gave a petition receipt in C.S.R.No.125 of 2015, dated 23.02.2015.
However, no action was taken against the accused persons by the Police.
(xii) All the above offences under Sections 109, 448, 427 and 506 (Part-2)
of IPC, committed by the accused persons, are cognizable in nature and it is the
duty of the Police to register a case against the accused persons. But, no action
was taken on the said complaint dated 22.02.2015 by the Police. Hence, the
respondent/complainant filed the complaint before the Court for taking the
private complaint on file and take appropriate steps to punish the accused
persons for the offences under Sections 109, 448, 427 and 506 (Part-2) IPC.
4. The revision petitioner herein is arrayed as A1. Pending the said
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C.C.No.6066 of 2016, the revision petitioner has filed a petition before the
Metropolitan Magistrate to drop the proceedings against him, on the ground that
no prima-facie case is made out as against the revision petitioner/A1 in respect
of the said offences.
5. It is seen from the records that originally, the complaint was filed for
the offences under Sections 109, 448, 427 and 506 (Part-2) IPC. The learned
Metropolitan Magistrate has taken cognizance of the complaint only under
Sections 427 and 448 IPC and after receiving the report from the Police under
Section 202 Cr.P.C. Thereafter, after receipt of summons, the revision
petitioner/A1 has filed a petition to drop the proceedings against him, and the
said petition was dismissed, against which, A1 has filed the present revision
petition.
6. The learned Senior Counsel appearing for the revision petitioner
submitted that the learned Metropolitan Magistrate failed to consider the fact as
to whether prima-facie case is made out or not, to prosecute against the accused
persons for the offences under Sections 427 and 448 IPC. The Metropolitan
Magistrate simply dismissed the petition on the ground that since the cognizance
of the complaint for the offences are summary in nature and there is no specific
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provision for discharge of the revision petitioner/A1. Therefore, the petition was
dismissed by the Metropolitan Magistrate by the impugned order on the ground
of maintainability. Hence, the revision petitioner/A1 has approached this Court.
7. The learned Senior Counsel further contended that when the revision
petitioner/A1 approached this Court in Crl.O.P.No.1328 of 2017 to quash the
prosecution in C.C.No.6066 of 2016 and this Court dismissed the said Crl.O.P. on
29.01.2019, with liberty to the revision petitioner to agitate the points during
trial, without expressing any view regarding the merits of the case. As against
the said order of this Court, the present revision petitioner/A1 approached the
Supreme Court in S.L.P.(Crl).Diary No.25695 of 2019, and the Supreme Court,
while issuing notice, granted interim order on 06.09.2019 holding that, "In the
meantime, there shall be stay of further proceedings in M.P.No.4433 of 2015 in
C.C.No.6066/2016 pending before the Court of XXIII, Metropolitan Magistrate,
Saidapet, Chennai for a period of eight weeks from today".
8. According to the learned Senior Counsel, thereafter, the revision
petitioner herein/A1 again approached the Supreme Court in Petition for Special
Leave to Appeal (Crl) No.8227 - 8230 of 2019, challenging the order of this
Court, dated 29.01.2019 passed in Crl.O.P.No.1328 of 2017 on the file of this
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Court, and the said petition was disposed of by the Supreme Court on
05.01.2024 holding as follows:
"We are not inclined to interfere with the
impugned judgment and hence, the special leave
petitions are dismissed.
We, however, clarify that the impugned
judgment and the dismissal of the present special leave
petition will not bar or prohibit the petitioner-
M.A.M.R.Muthiah from raising all pleas and contentions
before the trial court including the contention with
regard to the effect of the death of
Dr.M.A.M.Ramaswamy, and whether the prosecution in
a private complaint case, can continue.
It will be open to the petitioner--M.A.M.R.Muthiah
to file an application for exemption from personal
appearance. If any such application is filed, the same
will be considered and examined in accordance with
law.
Pending application(s), if any, shall stand
disposed of."
9. The revision petitioner/A1 thereafter approached the Metropolitan
Magistrate by filing petition for dropping the proceedings in Crl.M.P.No.717 of
2019 in C.C.No.6066 of 2016, and the said petition was dismissed by the
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Magistrate on the ground of maintainability.
10. The learned Senior Counsel appearing for the revision petitioner
further contended that the respondent herein/complainant has filed the
complaint as Power Agent based on the Power of Attorney. Subsequently, the
principal died and therefore, the Power of Attorney becomes invalid upon the
death of the principal. Therefore, the respondent/complainant does not have any
authority to continue the impugned prosecution in this case.
11. The learned Senior Counsel appearing for the revision petitioner/A1
further stated that the complaint to the Police was preferred by the father of the
revision petitioner, i.e. Dr.M.A.M.Ramaswamy and subsequently, the complaint
has been preferred before the Magistrate by the respondent/complainant. There
is no averment in the complaint and in the sworn statement, in his capacity, it is
stated that the complaint was preferred by the respondent, but on the other
hand, in the investigation report filed by the Police before the Metropolitan
Magistrate, in the list of documents, it is mentioned as Power of Attorney.
Taking into account that if the prosecution is initiated on the basis of the Power
of Attorney, then the prosecution is liable to be quashed for the reason that,
upon the death of the principal, namely Dr.M.A.M.Ramaswamy, the Power of
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Attorney ceases to exist. Even as per the statement of the
respondent/complainant, the Power of Attorney was given to him by
Dr.M.A.M.Ramaswamy only to manage the affairs of the house and clearly, there
is no authorisation for the complainant to file the present complaint.
12. The learned Senior Counsel appearing for the revision petitioner/A1
further stated across the Bar that even according to the case of the prosecution,
the petitioner was not present at the place of occurrence on 21.02.2015 and
therefore, the revision petitioner/A1 cannot be charged for the offences stated in
the complaint, when the fact remains that the revision petitioner/A1 has not
committed any offence.
13. The learned Senior Counsel appearing for the petitioner further
contended that no allegations have been made out as against the revision
petitioner/A1 in respect of the offences under Sections 427 and 448 IPC. The
respondent/complainant is not the eye-witness to the alleged occurrence on
21.02.2015. The complainant did not report with regard to any of the events ,
and even the said M.A.M.Ramaswamy was not an eye-witness to the alleged
occurrence. His version to the Police is also based on what he had heard.
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14. The learned Senior Counsel appearing for the petitioner also stated
that a prima-facie case has not been made out in the instant case, even as per
the version of the complainant and the report, dated 21.07.2016 filed by the
Police under Section 202 Cr.P.C. The revision petitioner/A1 was not even
present in the scene of occurrence and the same is evident on a bare reading of
the complaint and the statement of the respondent/complainant and the
evidence of the witnesses recorded before the Court.
15. The learned Senior Counsel appearing for the revision petitioner also
stated that the complainant has not produced any material evidence at the time
of lodging the complaint to the Police or at the time of filing the complaint before
the learned Magistrate.
16. To substantiate the above contentions, the learned Senior Counsel
appearing for the revision petitioner/A1 contended that although the revision
petitioner is alleged to have damaged the lock of the main entrance, which is
worth about Rs.25,000/-, there is no shadow of evidence to prove the
involvement of the revision petitioner/A1 and there is no proof to support such
act.
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17. The learned Senior Counsel appearing for the petitioner further
brought to the notice of this Court that even the Police report under Section 202
Cr.P.C. enquiry, does not make out any offence under Section 442 IPC or,
Section 427 IPC or Section 448 IPC. Therefore, the cognizance of the case
ordered by the Magistrate has not been adequately been considered in the Police
report in its entirety. The police report, under Section 202 Cr.P.C. clearly shows
that the offences of criminal intimidation and abetment, are not made out.
Therefore, the cognizance order rules out the abetment or criminal intimidation
allegations against the revision petitioner/A1. The very same Police report states
that only the offence under Section 441 IPC is made out for criminal trespass
against A2 alone. Therefore, in the absence of any criminality, no offence has
been made out against the revision petitioner/A1.
18. The learned Senior Counsel appearing for the revision petitioner
further stated that the Metropolitan Magistrate failed to consider the fact that the
petition filed by the revision petitioner/A1 for dropping of the proceedings as
against A1, is not maintainable. The learned Magistrate has glossed over the fact
that Section 251 Cr.P.C. gives statutory right for an accused to file discharge
petition before the Court and such a right emanates from the statute. Such a
right can neither be granted nor taken away nor watered down as per the order
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of the Honourable Supreme Court or any Court. Moreover, the Honourable
Supreme Court, in the instant case, has left open all the rights and contentions
available under law for the revision petitioner. Therefore, the revision
petitioner/A1 has filed the petition before the Court below for discharging him
from the case, but the learned Magistrate failed to consider the same in proper
perspective and simply dismissed the discharge petition on the ground that there
is no specific provision of law to discharge the revision petitioner in any
summons case, which warrants interference by this Court on that score.
19. In support of all his contentions, the learned Senior Counsel appearing
for the petitioner/A1 relied on a decision of the Supreme Court reported in
2012 (5) SCC 424 (Bhushan Kumar Vs. State (NCT of Delhi) ).
20. Per contra, learned counsel appearing for the respondent/complainant
contended that the present revision petition is the second round of litigation and
the revision petitioner/A1's father, i.e. Dr.M.A.M.Ramaswamy has already
approached this Court in Crl.O.P.No.7693 of 2015 to direct the respondent/Police
therein, to register a case on the complaint made by the said
Dr.M.A.M.Ramaswamy. This Crl.O.P. was dismissed with liberty to Muthuvellayan
to file a fresh petition. Even though the said Dr.M.A.M.Ramaswamy approached
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the Honourable Supreme Court by way of Special Leave Petition(s), the
Honourable Supreme Court dismissed the petition for Special Leave to Appeal
(Crl.) No.8227 and 8230 of 2019 on 05.01.2014, thereby, confirming the order
dated 29.01.2019 passed by this Court in Crl.O.P.No.1328 of 2017.
21. Learned counsel for the respondent/complainant also stated that the
complaint was taken cognizance of the same being summons case and Section
251 Cr.P.C. is clear that in a summons case, no charge need to be framed and
only based on materials, the Court can decide the case and in the absence of any
specific provisions, the revision petitioner/A1 is not entitled to file a petition
before the Magistrate to discharge him from the case. Thus, it is crystal clear
that the learned Magistrate had rightly dismissed the discharge petition and
hence, the present Crl.R.C. lacks merit for consideration.
22. The learned counsel for the respondent/complainant also contended
that the petitioner/A1 has to undergo the ordeal of trial to prove his innocence
and not by way of the present revision petition challenging the dismissal of the
discharge petition. The grounds raised in this revision petition are all the
defences that could be raised only at the time of tendering evidence before the
Court below.
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23. Heard both sides and perused the materials available on record.
24. Admittedly, originally, Dr.M.A.M.Ramaswamy made a complaint before
the Police and subsequently, the respondent herein made a complaint before the
Metropolitan Magistrate for the above said offences under the IPC. Even though
the learned Magistrate took cognizance of the offences under Sections 109, 448,
427 and 506 (Part-2) IPC, pending the case before the trial Court, the revision
petitioner/A1 has approached this Court under Section 482 Cr.P.C. by filing
Crl.O.P.No.1328 of 2017 to quash the entire proceedings against the revision
petitioner herein, and this Crl.O.P. was dismissed by this Court on 29.01.2019,
against which, the revision petitioner approached the Supreme Court by filing
Petition for Special Leave to Appeal (Crl.).Nos.8227 - 8230 of 2019 and the
Supreme Court, by order dated 05.01.2024 dismissed the petition.
25. The main contention of the learned Senior Counsel appearing for the
revision petitioner is that the respondent/complainant filed the complaint only as
a Power of Attorney and when once the principal (in this case, the said
Dr.M.A.M.Ramaswamy) dies, the Power of Attorney is not valid and not
enforceable, and therefore, the continuance of the complaint itself is not
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maintainable.
26. It is also contended by the learned Senior Counsel appearing for the
revision petitioner that even in the complaint preferred by the respondent herein,
in the list of witnesses, the original complainant was shown as one of the
witnesses and in the list of documents, the original complaint made by
Dr.M.A.M.Ramaswamy on 22.02.2015 is shown and also in the report submitted
by the Inspector of Police, the above original complaint is also shown. Only
based on the complaint given by Dr.M.A.M.Ramaswamy, the proceedings
continued and since he died, the respondent/complainant is not entitled to
prosecute the complaint.
27. The learned Senior Counsel appearing for the revision petitioner/A1
further stated that even though either the respondent herein or
Dr.M.A.M.Ramaswamy was not the eye-witness to the alleged occurrence and
even in the original complaint, it is not stated that the revision petitioner/A1 was
present in the scene of occurrence on that day.
28. Further, it is also stated by the learned Senior Counsel that after the
death of Dr.M.A.M.Ramaswamy, the revision petitioner is the owner of the
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property in question. In any angle, the complaint cannot be continued, and
therefore, as per the liberty given by the Supreme Court, the revision petitioner
has preferred the present petition for discharge, and however, the learned
Magistrate has failed to consider the same and it was dismissed mainly on the
ground of maintainability itself.
29. On a reading of the materials available on record, it is seen that the
learned Magistrate has not stated anything about the merits of the petition for
discharge or the complaint and the learned Magistrate has not stated in the
impugned order, as to whether the prima-facie case is made out as against the
revision petitioner/A1. The learned Magistrate has merely stated that there is no
specific provision to discharge the revision petitioner in the summons case, and
the learned Magistrate held that the petition for discharge is not maintainable.
30. The learned Senior Counsel appearing for the revision petitioner/A1
placed reliance on the order passed in Crl.O.P.No.1328/2017. The Honourable
Madras High Court in its order dated 29th January 2019, held as follows, and the
relevant paragraph of the order is extracted hereunder:
"22. ... ... Further, as per Section
251 Cr.P.C., after taking cognizance, the
accused persons have only been asked to
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appear before the Magistrate to put forth their
defence. As per Section 251 Cr.P.C., when in
a summons case, the accused appears or is
brought before the Magistrate, the particulars
of the offence of which he is accused will be
stated to him, and he will be asked whether
he pleads guilty or has any defence to make.
When an accused in response to the
summons appears before the
Magistrate, it is open to him to plead
before the Magistrate that the process
against him ought not to have been
issued and can also raise a plea of
maintainability of the complaint. The
Magistrate is competent to decide the
said plea before he takes any other
steps. The Magistrate may drop the
proceedings, if he is satisfied on re-
consideration of the complaint that
there is no evidence, for which, the
accused could be tried. It is his judicial
discretion. The order issuing the process
is an interim order and not a judgment.
It could be varied and re-called. Therefore, it
is premature to seek quashment of the
complaint."
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31. Further, learned counsel for the revision petitioner placed reliance on
the Judgment of the Hon'ble Supreme Court in a case between Bhushan
Kumar and others and State (NCT of Delhi) reported in 2012 (5) SCC
424. The relevant portion of the judgment is extracted hereunder for ready
reference:
"20. It is inherent in Section 251
of the Code that when an accused
appears before the trial Court pursuant
to summons issued under Section 204
of the Code in a summons trial case, it
is the bounden duty of the trial court to
carefully go through the allegations
made in the charge-sheet or complaint
and consider the evidence to come to a
conclusion whether or not, commission
of any offence is disclosed and if the
answer is in the affirmative, the
Magistrate shall explain the substance
of the accusation to the accused and
ask him whether he pleads guilty
otherwise, he is bound to discharge the
accused as per Section 239 of the
Code."
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32. Therefore, even though there is no specific provision of law to
discharge an accused and there are no prima-facie materials, the learned
Magistrate can drop the proceedings, as it is the discretion to be exercised by the
trial Court on the facts of the case.
33. Though there is no provision to frame the charges, it does not mean
that an accused cannot be discharged from the case. Even otherwise,
technically, when there are no prima-facie materials, it is always open for the
trial Court to drop the proceedings against an accused based upon the facts. The
Magistrate has not decided the petition on the merits of the case, and in the case
on hand, the learned Metropolitan Magistrate had simply dismissed the discharge
petition on the technical ground as not maintainable.
34. However, the learned Magistrate has to decide the petition on the
merits of the matter also, apart from maintainability and hence, the impugned
order passed by the Magistrate is set aside and the matter is remitted back to
the XXIII Metropolitan Magistrate, Saidapet, Chennai, for fresh consideration of
the facts on the issue and the grounds raised by the revision petitioner/A1 for
discharge.
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35. When the case is taken cognizance of by filing of the complaint by
the respondent herein, the said Dr.M.A.M.Ramaswamy was alive and
subsequently, he died, and therefore, the trial Court/Magistrate is directed to
take note of the same and decide the petition afresh on merits and in
accordance with law.
36. With the above observations and directions, this revision petition filed
by A1, stands disposed of. The miscellaneous petition is closed.
25.03.2025
cs
To
1. XXIII Metropolitan Magistrate, Saidapet, Chennai-15.
2. The Section Officer, Criminal Section (records), High Court, Madras.
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P.VELMURUGAN, J
cs
Pre-delivery Order in
Orders pronounced on 25.03.2025
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