Madras High Court
Thiyagarajan vs Karuppannan ... 1St on 3 January, 2019
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 03.01.2019
CORAM:
THE HON'BLE MR.JUSTICE N. ANAND VENKATESH
Crl.O.P.No.2830 of 2017
and
Crl.M.P.Nos.2004 and 2005 of 2017
Thiyagarajan ... Petitioner
Vs.
1.Karuppannan ... 1st Respondent/ Complainant
2.The Inspector of Police,
Nallipalayam Police Station,
Namakkal District. ... 2nd Respondent/ Investigating
Officer
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C.,
to call for the records relating to the C.M.P.No.2311 of 2016 dated
18.10.2016 on the file of Judicial Magistrate No.I, Namakkal in
clubbed in C.C.No.1 of 2017 on the file of the Additional Sessions
Judge, Namakkal and set aside the same as illegal.
For Petitioner : Mr.R.Sankarasubbu
For R-1 : Mr.D.Shivakumaran
For R-2 : Mr.M.Mohamed Riyaz
Additional Public Prosecutor
ORDER
This petition has been filed seeking to quash the order passed by the Court below in taking cognizance of the private complaint filed by the first respondent for an offence under Section 324 of I.P.C. http://www.judis.nic.in 2
2.It is seen from the records that there was a pathway dispute between the parties and there was also a civil suit pending before the District Munsif Court at Namakkal.
3.On 19.08.2013 at about 3.30 p.m., the father of the petitioner viz., Chellappan was attacked and done to death. This resulted in registration of an FIR in Crime No.290 of 2013 for an offence under Section 302 of I.P.C. Parallely, the first respondent had also given a complaint against the petitioner and the same was also taken on file and an FIR was registered in Crime No.291 of 2013, for an offence under Section 324 of I.P.C.
4.Both the cases were investigated by the second respondent. Ultimately, a final report came to be filed by the second respondent against the first respondent for an offence under Section 302 of I.P.C. Insofar as the complaint given by the first respondent is concerned, the same was closed as mistake of fact and an RCS notice was also served on the first respondent on 01.11.2013.
5.The first respondent did not choose to file any protest petition inspite of service of RCS notice. In the mean time, a final report filed against the first respondent in Crime No.290 of 2013, was taken http://www.judis.nic.in 3 cognizance and which has also been committed to the Additional District Court, Namakkal and is pending in S.C No.24 of 2016.
6.The first respondent has proceeded to file an independent private complaint against the petitioner and the Court below has taken cognizance of the private complaint against the petitioner for an offence under Section 324 of I.P.C.
7.The learned counsel for the petitioner would submit that the respondent police had investigated both the cases and found that the first respondent is the aggressor and has filed a final report against the first respondent for an offence under Section 302 of I.P.C. and filed a closure report insofar as the petitioner is concerned. If really, the petitioner was aggrieved by the closure report, the petitioner ought to have filed protest petition after the receipt of RCS notice. However, no protest petition was filed and the petitioner has proceeded to file an independent private complaint before the Judicial Magistrate, Namakkal, without bringing to the notice of the Court, the closure report filed by the second respondent police. The learned counsel would further submit this procedure adopted by the first respondent is illegal and the Court below ought not to have taken cognizance of the complaint against the petitioner.
http://www.judis.nic.in 4
8.The learned counsel for the first respondent would submit that the respondent police ought to have filed the final report and closure report before the same Court and at the same time, however the closure report was not filed simultaneously along with the final report filed in Crime No.290 of 2013. The learned counsel would further submit that the Court below apart from taking sworn statement of the first respondent has also examined five other witnesses and it has found that an offence under Section 324 of I.P.C. has been made out against the petitioner. The learned counsel would further submit that both the cases will have to be tried before Additional Sessions Judge, Namakkal and this Court should not interfere with the proceedings at this stage.
9.This Court has carefully considered the submissions made on either side. In this case admittedly two FIRs came to be registered for the same incident in Crime Nos.290 and 291 of 2013. Crime No.290 of 2013 was registered against the first respondent for an offence under Section 302 of I.P.C. and Crime No.291 of 2013 was registered against the petitioner for an offence under Section 324 of I.P.C. Both the FIRs were investigated by the second respondent police. Ultimately, the second respondent has found that the aggressor in this case is the first respondent and therefore, has proceeded to file a http://www.judis.nic.in 5 final report in Crime No.290 of 2013 for an offence under Section 302 of I.P.C. Insofar as the FIR registered in Crime No.291 of 2013 is concerned, the second respondent has proceeded to file a closure report. It is also seen from the records that RCS notice has been served on the first respondent on 01.11.2013. However, the first respondent has not chosen to file any protest petition. He has only chosen to file an independent private complaint in the year 2016 before the Judicial Magistrate No.I, Namakkal. This procedure adopted by the first respondent is totally unsustainable.
10.Once the police closed the investigation by filing a referred charge sheet, it is open to the concerned Court to entertain a protest petition or to treat a protest petition as a complaint and proceed under Section 202 of Cr.P.C. If the Magistrate chooses to treat the protest petition as a complaint, the Magistrate has to necessarily take into consideration the closure report filed by the police and also the materials collected by the police in the course of investigation. These materials will have a bearing on the concerned Court while it takes cognizance of the complaint. An independent private complaint dehors the closure report and the materials collected by the police can never be entertained. If such a procedure is permitted, there will be no end to criminal prosecution.
http://www.judis.nic.in 6
11.In this case, at the time of filing of the closure report, RCS notice has been served on the first respondent on 01.11.2013. If the first respondent was aggrieved by the closure report, he should have filed a protest petition before the concerned Court and it would have been open to the concerned Court to proceed further with the protest petition or to treat the protest petition as a complaint and proceed under Section 202 of Cr.P.C. Without adopting this procedure, the first respondent has chosen to file an independent private complaint without bringing to the notice of the Court the closure report and also the materials collected by the police in the course of the investigation.
12.This case can also be approached from a different angle. The whole purpose of the police standing order making an obligation to the Investigating Officer to investigate both the case and counter is only to identify the real aggressor and proceed to file a final report as against him and close the other case. In a case of this nature, the same cannot result in two final reports filed for the same incident. That is the reason why, the second respondent has chosen to file a final report insofar as Crime No.290 of 2013 is concerned and has chosen to file a closure report insofar as Crime No.291 of 2013 is concerned. The first respondent by adopting the procedure of filing an independent private complaint in the year 2016, has virtually http://www.judis.nic.in 7 attempted to undo the entire exercise done by the police at the time of investigation and filing of the closure report.
13.It is also relevant to take note of the Judgment in Nathu Banu Asha Vs. The Lakshmi Vilas Bank Ltd., Pallipalayam, reported in (2009) 4 MLJ 622, wherein it has been held that if the police after investigation file a closure report and before the Magistrate passes any orders on the same, if the complainant files a private complaint on the same facts, the magistrate can entertain the same by treating it as a protest petition and thereafter issue process by adopting the procedure under Section 202 of Cr.P.C.
14.However, in the present case, the closure report has been taken cognizance by the concerned magistrate Court and the private complaint itself came to be filed only in the year 2016. Therefore, in the considered view of this Court, the Court below went wrong in taking cognizance of the private complaint filed by the first respondent. More particularly, due to the fact that the Court below did not apply its mind on the closure report filed by the police in Crime No.291 of 2013 and the materials collected during the course of investigation. Therefore, the entire procedure adopted by the Court below is illegal and not in accordance with the Code of Criminal Procedure.
http://www.judis.nic.in 8 N. ANAND VENKATESH, J., vsg1/ia
15.In the result, the cognizance taken by the court below in C.M.P.No.2311 of 2016 dated 18.10.2016, is hereby quashed and accordingly, this Criminal Original Petition is allowed. Consequently, Crl.M.P.Nos.2004 and 2005 of 2017 are closed.
03.01.2019
vsg1/ia
Index : Yes/No
Internet : Yes/No
Speaking order or non-Speaking order
To
1.The learned Judicial Magistrate No.I,
Namakkal.
2.The learned Additional Sessions Judge,
Namakkal.
3.The Inspector of Police,
Nallipalayam Police Station,
Namakkal District.
4. The Public Prosecutor,
Madras High Court, Madras.
Crl.O.P.No.2830 of 2017
and
Crl.M.P.Nos.2004 and 2005 of 2017
http://www.judis.nic.in