Madras High Court
K.V. Kandasamy And Ors. vs Deputy Superintendent Of Police, Crime ... on 18 June, 1999
Equivalent citations: 1999CRILJ4282
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. This is an application to quash the entire proceedings pending in P.R.C. No. 6 of 1994 on the file of the learned Judicial Magistrate No. II, Pollachi filed by the petitioners A1 to A5.
2. The petitioners were charge-sheeted on 31-12-1993 for the offences under Sections 120B, 395, 201,467,471 and 109, IPC. The following is the gist of the charge-sheet:-
The first petitioner Al was the sitting MLA for Kinathukadavu constituency in 1983. The second petitioner A2 is the younger son and fourth petitioner is the younger brother of Al. The third petitioner A3 was an accountant under the first petitioner. The fifth petitioner A5 was working as Tahsildar at Pollachi. During the last week of January, 1983, the petitioners 1 to 3 and approvers Sugamaran and Rathinaswamy hatched a criminal conspiracy at the house of the first petitioner at Negaman by agreeing to do certain acts of dacoity by cutting the two live rose-wood trees standing in Government poromboke lands at Sankarayapuram village in Pollachi Taluk. In pursuance of the said conspiracy, second petitioner and third petitioner along with approvers Sugumaran and Rathinasamy and other paid workers went to the said village on the night of the next day and cut the said two live rose-wood trees which were worth about Rs. 34,398/- standing in Government poromboke land. Thereupon, on 28-3-1983 at about 11 a.m., at the instigation of the first petitioner and with the assistance of the fourth petitioner, the witnesses Duraivelu and Gurunadhan came with false names of Antony and Mani respectively and gave a false joint statement stating that they cut the trees. Knowing fully well that they were fictitious persons, the fifth petitioner Tahsildar recorded false statements and sent the same to the Taluk Office, Pollachi purporting to be the compounding statement. Again a week prior to 3-11-1983, at the instigation of the first petitioner, the petitioners 2 and 3 with approver Rathinasamy and others cut the roots and stumps of the two rose-wood trees and removed and burnt them along with the remanents of the cut branches of those trees and caused the said evidence to disappear with the intention of screening the above said offenders of dacoity from legal punishment.
3. Regarding the occurrence took place in January, 1983, a case was registered in Crime No. 36 of 1983 on 19-2-1983 by the Kinathukadavu Police on the complaint given by the Tahsildar, Pollachi. For the second occurrence which took place a week prior to on 3-11-1983, another case was registered in Crime No. 191 of 1983 under Section 379, IPC by the Kinathukadavu Police Station on 17-11-1983. On 30-4-1986, the learned Judicial Magistrate No. II, Pollachi dropped the matter under Crime No. 36 of 1983 under Section 468 of Criminal Procedure Code since the limitation period of three years had expired. But, however, on coming to know of the fresh materials, in pursuance of the order of the Government, on the application filed by the Police, the case which was closed on 30-4-1986 was reopened on 29-7-1986 to enable the Police to take up further investigation. However, the same was closed as undetected on 28-9-1988. As regards the case in Crime No. 191 of 1983 which was registered on 17-11-1983, was closed as undetected on 19-4-1984. However, the same was reopened on 8-6-1990 by the order of the Inspector General of Police (Crimes). Since the said case was found to have connection with the Crime No. 36/83, as per the directions of the Higher Officials of Police, the petitioners filed a petition before the learned Judicial Magistrate No. II, Pollachi for reopening the case in Crime No. 36/83 also. The petition was ordered on 30-10-1990 by the learned Judicial Magistrate No. II, Pollachi. Thereafter, the further investigation was commenced on 26-4-1991 on the fresh materials which came to light. It was revealed during the course of further investigation that both the occurrences were taken place in pursuance of single conspiracy. So a single charge-sheet was filed in respect of both the crime numbers, against the petitioners for the offences referred to above. The same was taken on file by the learned Judicial Magistrate No. II, Pollachi in PRC No. 6 of 1994. At this stage, the present quashing application has been filed.
4. Mr. K. Duraisamy, the learned Senior Counsel appearing for the petitioners would mainly contend as follows :-
The case registered in Crime No. 36/83 on 19-2-1983 was dropped by the learned Judicial Magistrate No. II, Pollachi on 30-4-1986 under Section 468 of Criminal Procedure Code, since it was barred by limitation. This cannot be reopened as the said order, closing the FIR on 30-4-1986, is the final order and it can only be set aside by the Revisional Authority. The case in Crime No. 191 of 1983 was closed on 19-4-1984. The further investigation conducted from 13-7-1990 in the said case was without any specific judicial orders permitting the further investigation. The occurrence had taken place in 1983. But, the charge-sheet had been filed in 1994 with undue and unexplained delay. The first petitioner was the former MLA belonging to the former ruling party. Due to the change of the Government, he has been implicated falsely with an ulterior political motive. Therefore, the proceedings arise out of the charge-sheet filed by the Police against the petitioners in pursuance of the illegal investigation have to be quashed.
5. On the other hand, the learned Government Advocate would submit that the application had been filed in both the crime numbers and the permission to reopen the case was also obtained from the Magistrate to conduct further investigation and that since the materials show the offence under Section 395, IPC, the point of period of limitation would not arise in this case and the police agency under Section 173(8) of Criminal Procedure Code is entitled to investigate further in this matter and to file a charge-sheet. It is also stated that the statements of the witnesses and the approvers would clearly show that the petitioners were party to the conspiracy and in pursuance of the said conspiracy, the offence of dacoity had taken place.
6. In the light of the above submissions made on either side, let us now consider the question raised before this Court.
7. The main contention urged by the learned Senior Counsel for petitioners is that once the cases are dropped by the learned Judicial Magistrate by closing the same, it cannot be reopened at the request of the police through application, as the Magistrate has no such power. Therefore, the investigation subsequently conducted, has no sanction of law and therefore, the charge-sheet has to be quashed.
8. As per the submission of the learned Government Advocate and the counter and the Additional Counter filed by the respondent-police, it is seen that both the matters in Crime No. 36/83 which was registered on 19-2-1983 and the Crime No. 191 of 1983 which was registered on 17-11-1983 were dropped on 30-4-1986 and 19-4-1984 respectively. The Crime No. 36/83 was reopened on 29-7-1986 and again it was closed as undetected on 28-9-1988. Similarly, the Crime No. 191 of 1983 which was closed as undetected on 19-4-1984 was reopened on 8-6-1990. Since it was revealed that both the Crime Nos. 191/83 and 36/83 relate to the same conspiracy, a petition has been filed before the Judicial Magistrate No. II, Pollachi and orders were obtained on 19-10-1990 for again reopening the case and for re-investigation. On this application, it is seen that the learned Magistrate has given permission to conduct re-investigation on these cases. Thereafter, the Police examined the approvers and witnesses, who gave the statement implicating the petitioners with reference to the offences mentioned above.
9. The question which has been raised in this case has already been covered by the Supreme Court's decision reported in State of Rajasthan v. ArunaDevi, 1995 SCC (Cri) 1. That is a case where the police after investigation filed the report on 18-7-81 stating that the complaint was false and the said report was accepted by the learned Magistrate on 28-9-81. However, later on the direction of the Superintendent of Police, further investigation was conducted and the charge-sheet was filed against the accused. The learned Magistrate took cognizance on this charge-sheet. The said cognizance was quashed by the High Court. While setting aside the Judgment of the High Court holding that it was wrong, the Apex Court would observe as follows :-
A perusal of the impugned judgment of the High Court shows that it took the view that the Magistrate had no jurisdiction to take cognizance after the final report submitted by Police had been once accepted. Shri Gupta, appearing for the appellant, contends that this view is erroneous in law, inasmuch as Section 173(8) of the Code permits further investigation in respect of an offence after a report under Sub-section (2) has been submitted. Sub-section (8) who visualises forwarding of another report to the Magistrate. Further investigation had thus legal sanction and if after such further investigation a report is submitted that an offence was committed, it would be open to the Magistrate to take cognizance of the same on his being satisfied in this regard.
10. In view of the above observation, it cannot be contended that the Police has no power to make a further investigation and to send another report to the Magistrate, even though the earlier report was filed requesting the Magistrate to drop the matter and the same was dropped.
11. It is also held in (Ram Lal Narang v. State) (Delhi Admn.) that the Police is empowered to make a further investigation even after sending the report to the Court, after informing the Court and seeking formal permission to make further investigation when fresh fact comes to light. The relevant observation is as follows :-
We think that in the interest of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light.... Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.
12. When a similar situation has been considered by me in yet another case, I have held that mere accepting or dropping of the proceedings would not be considered to be a judicial order and as such, there is no necessity for approaching the Revisional Authority to set aside the order of the Magistrate for recording or dropping of the proceedings. The relevant observation reported in (1998) 2 Mad LW (Cri) 566 (Chelliah v. Yesuvadial) is as follows :-
27. To sum up: Order accepting the Referred Report and dropping of the proceedings in a private complaint by the Magistrate is certainly a judicial order, as he is entitled to pass such an order, as held by the Apex Court. However, mere recording as "lodged", "filed" or "mistake of fact" would not be regarded as a judicial order, as it would not indicate the mind of the Court to accept the same and drop the proceedings. The said wording recorded on the Referred Report by the Magistrate at the most is an endorsement or the acknowledgment for having received the Referred Report from the police. Unless the learned Magistrate applies his mind in order to find out whether to accept and drop the proceedings and unless in the process of finding out the same, the complainant in the private complaint is heard after intimation and unless the learned Magistrate records his reasons for doing so, the said order cannot be termed to be a judicial order, as provided in the first course out of three courses to be adopted, by the Apex Court. Only when such a judicial order is passed, the second complaint on the same set of facts is impermissible. In such a situation, the complainant has to question the said order before the higher forum to get it set aside in order to pursue his complaint. In the instant case, as there is no judicial order and there is only an endorsement as "lodged", the complainant cannot be prevented from ventilating her grievance through the same Court by filing a second complaint.
13. In view of the decisions cited supra, it cannot be contended that the learned Judicial Magistrate No. II, Pollachi has committed any illegality in taking cognizance of the offences mentioned above against the petitioners, inasmuch as he was satisfied with the report and the materials. Mere delay in filing the charge-sheet would not be a ground to quash the proceedings, particularly, when the instant case relates to the occurrence of dacoity. In this circumstance, I do not find any merit in the contentions urged before this Court. However, on perusal of the records, counter and additional counter, I am of the view that the fifth petitioner, who was the Tahsildar then, stands on a different footing. The allegation against the fifth petitioner that two persons impersonated themselves as Antony and Mani and fifth petitioner, as an Enquiry Officer, recorded their statement admitting the offence of cutting the trees even though they were not actually involved in the act of cutting the trees. It is alleged in the charge-sheet, as stated above, that knowing fully well that they were fictitious persons, the Tahsildar recorded the false statement and sent the same to the Taluk Office, Pollachi purporting to be the compounding statement.
14. In the counter affidavit filed by the respondent Deputy Superintendent of Police dated 22-8-1997, it is stated as follows :-
Since the cutting of trees took place in a poromboke land, the case was transferred on 13-5-83 to the Tahsildar, Pollachi who is empowered under the District Standing Order 88 Section IV to dispose it. But prior to the receipt of the case, the Tahsildar, Pollachi enquired into the matter and during the course of enquiry, on 28-3-83 two persons by name Mani and Subramani appeared before him and stated that they only cut the trees and sold them for Rs. 200/-. The Tahsildar, Pollachi on completing his enquiry, recommended his higher officials to impose a fine on these two persons, but the Tahsildar also stated in a confidential letter addressed to his superiors that he had information that only the first petitioner is the person who arranged for the cutting of the trees.
These statements contained in the counter-affidavit filed by the investigating agency would clearly show that the fifth petitioner was not a party to the alleged illegal activities of the first petitioner. As a matter of fact, as stated in the counter, the fifth petitioner has sent a report to the superior officer that the first petitioner was at the background. Therefore, it cannot be stated that he recorded a false statement and sent the same to the higher officials, purporting to be the compounding statement. Consequently, he cannot be held to be responsible for the act of forgery. Even according to the prosecution, he was not alleged to be one of the conspirators. Therefore, in view of the lack of materials as against the fifth petitioner with reference to the offences referred to above, I am of the considered opinion that the proceedings relating to the fifth petitioner are liable to be quashed. Accordingly, the petition filed by the fifth petitioner is allowed and the proceedings insofar as the fifth petitioner is concerned are quashed. However, the petition filed by others is dismissed and the learned Judicial Magistrate No. II, Pollachi is directed to go on with the committal proceedings as against the other petitioners namely 1 to 4 and then commit the case to the Sessions Court to enable the Sessions Court to dispose of the case as expeditiously as possible. Consequently, Criminal M.P. No. 3723 of 1994 is closed.