Madras High Court
C. Laxmi Chand And L. Hemraj vs State Of Tamil Nadu And Others on 26 October, 1990
Equivalent citations: 1991CRILJ1647
JUDGMENT Padmini Jesudurai, J.
1. The petitioners in W.P. No. 9713 of 1988 are the appellants herein and the respondents there, are respondents I to 4 herein, the 5th respondent having been impleaded as a party in this appeal.
2. The appellants filed the above writ petition for the following prayer :-
i. Issue an appropriate writ, order or direction calling upon the 2nd respondent to submit his enquiry report in respect of C. No. 1059/4254/F1/86 dated 10-7-1986 before this Hon'ble Court with a copy thereof to the petitioners;
ii. issue an appropriate writ, order or direction calling upon respondent No. 3 herein to produce the entire original record pertaining to C. No. 1059/4254/F1/86 dated 10-7-86 before this Hon'ble Court;
iii. issue an appropriate writ, order or direction calling upon the third respondent to produce the entire original record pertaining to X-Crime No. 282 of 1986 before this Hon'ble Court and to grant copies of documents therein to the petitioners;
iv. issue an appropriate writ, order or direction compelling the 4th respondent to file final report in C. No. 282 of 1986 either under section 173 or to report the result of investigation under section 168 or 169 Cr.P.C. with copies thereof to the petitioners;
v. issue an appropriate writ, order or direction declaring the acts of omission and commission of respondent No. 4 to be not in accordance with law particularly the Police Standing orders, and pass such further or other orders as this Hon'ble Court may deem fit and necessary in this case and render justice.
3. The above reliefs were sought for on the following averments made in the affidavit filed in support of the Writ Petition. The second appellant is the son of the first appellant. He had married one Meenabai on 2-5-1974 and after a few years, differences arose between the couple and finally from 3-1-1983, Meenabai severed herself away from the second appellant. The second appellant filed M.C.P. No. 29/85 on the file of the VI Assistant Judge, City Civil Court, Madras for dissolution of marriage. While the above petition was pending, Meenabai gave a criminal complaint to the 3rd respondent, against the appellants, for alleged offences under section 406 I.P.C. read with S. 3 of the Dowry Prohibition Act, 1961. On 22-3-1986 at about 6-00 p.m., the appellants were sent for by the 4th respondent and they went to the office of the Central Crime Branch, Police Commissioner's Office at Egmore, Madras, along with one of their friends Kanthilal Jain. Meenabai, her uncle and her two brothers were outside the gate of the office and the 4th respondent orally informed them about the case registered against them and that they had been summoned for interrogation in connection with the case. At about 9 p.m. the appellants were brought to their house by the police party consisting of the 4th respondent his Sub-Inspector and six more constables. Meenabai also arrived at the house, with her kith and kin. The police ransakced the house from mid night till 2 a.m. on 23-3-1986 and seized gold articles weighing 700 gms., silver articles weighing 6 kg. 125 costly sarees and and house-hold articles and a steel almirah a list of articles was prepared by one of the kinsmen of Meenabai, in which she put her signature. Meenabai handed over gold jewellery weighing about 50 grams to the second appellant, who refused to receive the same but was forced to receive it and signed an endorsement for receipt of the above jewellery. The second appellant was also forced to sign several other papers under duress, the contents of which, were not known to the appellants. The 4th respondent assured them that the properties were seized in connection with a case registered against them and they would be produced in court and it would be open to the first appellant to prove before the court that the property belonged to him and take back delivery of the ornaments. Regarding what happened that night, the appellants sent complaints to several higher officials in the police Department as well as the Government, including the Chief Minister and no action was taken against, either the 4th respondent or against Meenabai and her Kinsmen. On 12-4-1986 the first appellant addressed a complaint to the second respondent regarding the above matter and by communication No. 1059/4254/F1/86 dated 10-7-1986, the second respondent replied that the complaint made by the first appellant was fully enquired into and were not substantiated for the reasons given in the communication and if the first appellant felt aggrieved over the findings, he could seek his remedy in the court.
4. Subsequent to these events, the first appellant filed a private complaint against Meenabai, her uncle and her two brothers, which was taken on file as C.C. No. 7010 of 1986 by the Chief Metropolitan Magistrate, Egmore, Madras. The accused therein, by two separate petitions invoked the inherent powers of this Court under section 482, Cr.P.C. to have the above complaint quashed and this court by two different orders, had quashed the proceedings against all the four accused therein.
5. The first appellant filed writ petition No. 295/88 in this court under Art. 226 of the Constitution of India for a Writ of Certiorarified mandamus to quash the proceedings in X. Crime No. 282/86 registered against the appellants on the complaint given by Meenabai and also for restoration of the jewellary and other articles taken away from them on 23-3-1986. The above writ petition was dismissed at the admission stage, since the appellants did not got adequate relief, the writ petition was filed for the reliefs mentioned above.
6. The learned single Judge observing that, though the petition did not disclose any prima facie case, still in order to find out what has really happened in the matter, had directed the learned Government Pleader to get instructions from the concerned Police. The learned Additional Government Pleader, therefore, took notice on behalf of the respondents and produced the relevant file in court, on the basis of which the Writ Petition was heard. Though learned Judge finding that the petition was totally misconceived and beyond the scope of proceedings under Art. 226 to probe into disputed questions of fact, dismissed the Writ Petition, which has resulted in the aggrieved appellants filing this writ appeal.
7. While the investigation into the X Crime No. 282/86 was pending, the second appellant had filed an application Crl.M.P. No. 924/86 on 2-4-1986 under section 438, Cr.P.C. for anticipatory bail in the court of the Principal Sessions Judge, Madras. The above application was dismissed on 3-4-1986 on the representation made by the 5th respondent herein, who had appeared on behalf of the second appellant, that the parties had settled the matter and the articles had been returned. Contending that this statement by the 5th respondent was made without instruction from the second appellant, C.M.P. No. 9091/89 was filed by the appellants for impleading the learned counsel as respondent in this appeal and the petition being ordered, the 5th respondent has been impleaded as a party. Though Meenabai, her uncle and her two brothers, against whom the allegations are made, have not been impleaded either in the writ petition or in the present proceedings, still from the typed set of papers filed by the learned counsel for the appellants on their pleadings in other proceedings pending before other forums and from the counters filed by the 4th respondent on behalf of himself and on behalf of respondents 1 to 3 it would appear that after registeration of the X Crime No. 282/86, the second appellant and Meenabai had individually written to him that the matters had been amicably settled among them and that the second appellant had returned the gold jewels, silver vessels, stainless steel vessels almirah, cot, etc., with acknowledgment and that no further action need be taken on the complaint by Meenabai on the basis of which X Crime No. 282/86 had been registered. According to the respondents 1 to 4, in view of this written communication made by the second appellant and Meenabai individually, they had dropped action in the matter.
8. Thiru M. Ranka, learned counsel for the appellant made extensive submissions touching several factual averments and raised several contentions, which we shall deal with in the order in which they were made. The learned Government Pleader for respondents 1 to 4 and Thiru C. Rajan for the 5th respondent met the above contentions in the manner which will hereinafter be stated.
9. The first contention of the learned counsel for the appellants was that in order to constitute an offence under section 406, IPC entrustment of the gold articles, silver articles and other items seized on the night of 23-3-1986 had to be established. The learned counsel took us through the complaint filed by Meenabai on 13-12-1985 which is the FIR in the case and also through the counter filed by meenabai 13-3-1986 in Matrimonial O.P. No. 29/85 and contended that the version of Meenabai had never been consistent, that before the Matrimonial Court, no reference was made to any Stridhana of gold jewels having been given to her at the time of her marriage and that therefore, the entrustment of the gold jewellery, silver vessels and the other articles taken from the appellants on the night of 23-3-1986, had not been factually established. The learned counsel also contended that in the complaint by Meenabai, made on 13-12-85, there was reference to an earlier complaint made by her about which nothing was known and which was not made available to the court and that if really Meenabai had been given gold jewellery and. silver articles and the other items as Stridhana, she would have made attempts to get them back soon after she left the marital home in 1983 and even in the complaint made on 13-12-1985, Meenabai had not given a list of the Stridhana articles supposed to have been given to her at the time of the marriage, and whatever be the merits of this contention, there could be no question of any offence under the Dowry Prohibition Act, 12 years after a marriage. On the basis of all these contentions, the learned counsel urged that entrustment of these articles to the appellants had not been proved by Meenabai. We are unable to see how under Art. 226 of the Constitution, this court would ever be competent to go into these disputed questions of fact, which ought to be decided in other forums. As the learned Government Pleader rightly contends, the appellants are by-passing those forums, which are the courts of facts and which have to render findings of facts on the basis of the evidence adduced before them by both parties.
9A. From the typed set of papers presented by the learned counsel for the appellants of the pleadings in various proceedings, it appears that it is admitted by both parties and that on the night of 23-3-1986 Meenabai was given possession of about 19 items of gold jewellery mentioned in the mahazar signed by Meenabai in the presence of two witnesses, about 10 items of silver articles and some items of furniture and kitchen utencils. Similarly, the second appellant had received from Meenabai three items of gold jewellery. All these are under acknowledgment signed by the second appellant or by Meenabai, as the case might be, and also by the same attesting witnesses and the scribe. According to the appellants, these articles belonged to the first appellant and they were forcibly taken from them from the residence by the 4th respondent and party, in the presence of Meenabai, her uncle and her two brothers and were handed over to Meenabai. According to the 4th respondent, however, after the case was registered, he received two separate communications, one from the second appellant and another from Meenabai, that they had amicably settled the matter and whatever had belonged to the other party had been handed over under acknowledgement and that no further action need be taken on the complaint of Meenabai. It is also the case of respondents 1 to 4 that the second appellant sought anticipatory bail and the 5th respondent, who appeared for the second respondent represented before the learned Sessions Judge that the matter had been amicably settled between the parties and the articles had been returned and thereupon, the learned Sessions Judge dismissed the bail application. On these allegations and counter allegations regarding facts, we fail to see how under Art. 226 of the Constitution, this Court could embark upon a scrutiny of the factual averments and decide whether entrustment of the articles to the appellants had been established or not. This will be totally beyond the scope of the powers of this court under Art. 226 of the Constitution.
10. The learned counsel not contended that in the Crl.M.P. No. 3893 of 1987 for quashing the proceedings against the uncle of Meenabai in the private complaint C.C. No. 701 of 1986 filed by the first appellant, this court had held that there was no basis for the complaint, since even the facts set out in the complaint would show that a peaceful division of the properties between the second appellant and Meenabai had taken place on 23-3-1986. The learned counsel would now strenuously urge that this finding of this court in the above petition is incorrect, for the reason that the division is said to have taken place at dead of night and parties had already been estranged for years and there was no reason for the appellants to complain about the happenings on the night of 22-3-1986, if they had been voluntary parties to the settlement. This aspect is not a matter which this court could go into under Art. 226 of the Constitution. This court quashed the proceeding in the complaint, since a reading of the complaint itself showed a peaceful division of the properties that night. The reasons have been set forth in the above order. The first appellant had filed S.L.P. Crl. No. 2973 of 1987 against the above order and the same had been dismissed by the Supreme Court on 11-12-1987. It is not therefore, open to the appellants to canvass the correctness of the order made in Crl.M.P. No. 3893 of 1987. The learned counsel further urged that the culpability of the police in this matter must be gone into in these proceedings and that Meenabai in other proceedings had stated that, on the night of 22-3-1986 the police had seized her articles and had handed them over to her under acknowledgement and she inturn, was made to hand over to the second appellant, the articles belonging to him, which she did and obtained acknowledgement and that these two versions are conflicting and this court in these proceedings, had to hold that the version of the appellants is true. Here again, we have only to say that these are not matters which could be gone into in a proceedings under Art. 226 of the Constitution. It is not for this court in these proceedings to decide whether the 4th respondent during the investigation seized the articles and handed them over to Meenabai or whether there was a peaceful division of the properties in the presence of mediators belonging to both parties who have signed in the various acknowledgements. We therefore, refrain from going into these disputed questions of fact.
11. It was then urged by the learned counsel for the appellants that the procedure adopted by the learned Judge during the hearing of the writ petition is incorrect. In particular, the learned counsel for the appellants would contend that, the learned Judge had observed in para 6 of his order that the learned counsel appearing for the petitioners before him, who are the appellants here, did not dispute the original letter signed by the second appellant and Meenabai, which was found in the file that the matter had been settled between them. The learned counsel for the appellants would now urge that he did not see any file or any letter and there was no occasion for him, not to dispute the signature of the second appellant in any such letter. As the learned Government Pleader would rightly contend, these are not matters which could be canvassed before the appellate forum. If any incorrect statement regarding what happened during the hearing has crept into the order, it is for the learned counsel for the appellants to move the matter before the same learned Judge and have the same clarified. It is not open to him to dispute before us any statement made by the learned Judge in his order regarding what transpired before him during the hearing of the writ petition. Further, even the second appellant does not dispute his signature in the letters given by him to the 4th respondent. It is not the case of the appellants that the signatures of the second appellant have been forged in any one of the acknowledgement or in the letters given to the 4th respondent. On the contrary, according to the appellants, they were all obtained from the second appellant under duress and coercion by the 4th respondent and the other police personnel. There was, therefore nothing for the learned counsel for the appellants to dispute before the learned Judge, regarding the genuineness of the signature.
12. It was then contended by the learned counsel for the appellants that behind his back, the learned Judge had looked into the file and relying upon the decision of the Supreme Court in State of Andhra pradesh v. S. N. Nizamuddin Ali Khan , it was contended that the order of the learned Judge was liable to be set aside. Reliance was also placed upon the decision of the Supreme Court in B. Surindersingh v. Govt. of the Federation of Malaya (1962 AC 322) and the decision in Ch. Mukthar Singh v. State of Uttar Pradesh . This is not a case where the learned Judge had looked into any material behind the back of the parties. The order itself in para 6 makes it clear that, even though the writ petition did not disclose any prima facie case, he directed the learned Government Pleader to get instructions from the concerned police as to what had happened in this matter and that the learned Government Pleader produced a file containing the original letter signed by the second appellant and Meenabai, that they had amicably settled the disputes between them. We do not see any substance in the above contention.
13. It was then contended that the learned Judge ought not have ordered notice of motion and the learned Government Pleader, therefore has no locus standi and that R. 3 of the Appellate Side Rules of this court, do not permit the learned Government Pleader to take notice. Here again, as the order of the learned Judge itself makes it abundantly clear, he did not find any prima facie case for issue notice of motion to the respondents, but merely to find out whether there was any, prima facie material, atleast from the police records, he had directed the learned Government Pleader to get instructions from the concerned police, and the original file had been produced. The appellants' counsel had been heard in full and reference has been made in the order to all the documents that had been furnished to the learned Judge in the typed set of papers of the appellants. We see no illegality or unfairness in the procedure adopted.
14. The learned counsel for the appellant would next contend that the second appellant had been ill advised by 5th respondent to file Crl. M.P. No. 924/86, before the learned Principal Sessions Judge and that the 5th respondent had also made a false representation, without instructions from the second respondent that the matter had been settled amicably between the parties. On the basis of this allegation, the appellants have filed a complaint against the 5th respondent for the above offences. It is also seen that the appellant had complained about the 5th respondent to the Bar council of Tamil Nadu which after enquiry has dismissed all the applications. According to the learned counsel for the appellants, the statement made by the 5th respondent before the learned Prl. Sessions Judge in the bail application was without instruction and it could not be true and the 5th respondent had obviously colluded with the other party, since the 5th respondent himself had drafted a petition on 5-4-1986 on behalf of the first appellant to the Assistant Commissioner Of Police, Central Crime Branch, Madras-8 and another petition on 12-4-1986 on behalf of the second appellant to the second respondent, wherein allegations contrary to his representation in the bail application have been made. According to the learned counsel, the 5th respondent has been prevaricating and has committed the above offences. We are unable to see any material to show that the 5th respondent had been colluding with the opposite party. The representation before the learned Principal Sessions Judge that the parties had settled the matter amicably and had returned the articles has been made on 3-4-1986. The petitions dated 5-4-1986 and 12-4-1986, have been drafted on instructions from the appellants. It is obvious that it is the appellants who have approached the 5th respondent on 5-4-1986 and 12-4-1986 to draft those petitions. If as a matter of fact, on 3-4-1986 the 5th respondent had made representation affecting the interest of the appellants and without instruction from the second appellant, the appellants would never have approached the 5th respondent to render them legal assistance in drafting petitions on 5-4-1986 and 12-4-1986. The possibilities of the appellants instructing the 5th respondent on 3-4-1986 that the matter had been settled amicably and articles had been returned so that a quietus could be given to the criminal complaint and the threat of arrest would cease, and thereafter, trying to disown the letters returned by the second appellant to the police and the acknowledgement he had signed, cannot be ruled out. It is quite possible that fearing that the learned Principal Sessions Judge might reject the petition for anticipatory bail on merits, the second appellant had instructed the 5th respondent to represent that the matter had been amicably settled and all the articles alleged to have been misappropriated had in fact been returned to the complainant. This instruction could have been given by the second appellant in order to prevent a dismissal of the bail application on merits. It is not for this court to go into all these questions, particularly when the Bar Council of Tamil Nadu, has already gone into these allegations and found them baseless B. K. Gooyee v. Commr. of Income-tax, relied upon by the learned counsel for the appellants wherein it was held that a counsel could not waive his clients rights without consulting his client has no bearing on the issue. The representation made by the 5th respondent before the learned Principal Sessions Judge has to be read in the background of the letter written by the second appellant, dated 23-3-1986 to the 4th respondent, requesting the 4th respondent not to take any action against him on his wife's complaint, since he had returned all the articles to her with acknowledgements and had settled the above matter amicably. Meenabai also had written a similar letter to the 4th respondent. We seen no merit in the submission of the learned counsel for the appellants.
15. Objection was then taken by the learned counsel for the appellants to the finding of the learned Judge that under the circumstances of this case, a writ petition under Art. 226 of the Constitution for the reliefs sought for is not maintainable. Reliance was placed upon a decision of the Supreme Court in Shivaji Rao v. Mahesh Madhva Gosavi, , wherein the Court had expressed the view that though a private party moved the court to protect his own private interest, yet the court could order an enquiry into the allegations made in the larger interests of the public. That was the case, where certain allegations were made regarding tampering of marks for admission to the post-graduate course in medicine for the daughter of the then Chief Minister. The Supreme Court made the observation in that context. The present case, as we have already shown above, is not one, which should have been brought under Art. 226 of the Constitution. Reliance was also placed on the decision of the Supreme Court in M/s. Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh , wherein the right of the court to recover property was recognised. None could dispute the law on this subject. The real question is whether under Art. 226 of the Constitution, this court could go into the disputed questions of fact, render findings and pass orders. These would be matters, wherein the oral and documentary evidence I would be necessary and which cannot be probed into under Art. 226 of the Constitution. It is only in that context that the learned Judge has observed that the writ petition was misconceived and unwarranted.
16. It was finally contended by the learned counsel, that the appellants are entitled for copies of the enquiry report on the basis of which the second respondent sent his communication to the first appellant on 10-7-1986 and is also entitled to the original records relating to X-Crime No. 282/86. Seeking practically the same relief, the petitioner had filed C.M.P. No. 13539/88 for an interim direction to the 3rd respondent to produce the entire records regarding X Crime No. 282/86 and to grant the appellants certified copies of such documents which they would want, after inspecting the above records. This court by order dated 8-3-1989 dismissed the above application after referring to the case-law on the subject. Review C.M.P. 5325 of 1989, to review the above order was also dismissed.
17. It is therefore, not necessary to refer to the decisions of the Supreme Court in Khatri v. State of Bihar and in relied upon by the learned counsel for the appellants. It was also contended that the matter of the second appellant request dropping of action on the basis that the matter had been amicably settled and the articles had been returned, ought not to have been acted upon by the 4th respondent since it amounts to a confession of an accused and it should be ignored and facts to be independently proved by other evidence. Reliance was placed upon the decisions in AIR 1969 Goa 68 : 1969 Cri LJ 739) and in Bhulan v. Emperor AIR 1926 Oudh 245 : (1926-27 Cri LJ 57). Both the above decisions refer to admissions or confessions of the accused which had been relied upon during the trial. In the instant case, the police have dropped action, in view of the communication sent by Meenabai, the complainant that she had received articles and that the matter had been settled amicably and no further action on her complaint was necessary. The letter of the second appellant would only go to corroborate what Meenabai had written to the police. The above decisions, therefore are not relevant.
18. It is stated by the learned Government Advocate that in view of the letters given by the second appellant and Meenabai that the matter had been settled amicably and the articles had been returned to each other, and that no action need be taken on the complaint, the police had dropped action in the case but that a final report to the above, effect, had not yet been sent to the court in view of the pendency of these proceedings. The Learned Government Advocate also represents that on the conclusion of these proceedings, a final report to the above effect, would be sent to the concerned court. Though the appellants are not entitled to peruse or take copies of the enquiry reports, on the basis of which the communication of the second respondent dated 10-7-1986 was made and though they are not entitled to inspect the records relating to X-Crime No. 282/86, however, it is incumbetent on the part of the Investigating Agency to file a final-report under section 173, Cr.P.C. This is a statutory duty cast upon them under Section 173, Cr.P.C. Though on receipt of the letters from the second appellant and Meenabai, the police had stopped further investigation and dropped action, still a final report under section 173, Cr.P.C. has to be sent to the court wherein the FIR is pending direction to that effect, therefore has to be issued to the 4th respondent.
19. The final prayer in the writ petition is to declare the acts of commission and omission of the 4th respondent as not being in accordance with the Police Standing Orders. A case has been registered for a cognizable offence and investigation had been done. It is not for this court in these proceedings to sit in judgment over the investigation. Adjudication begins when investigation ends, though of course, this court is not precluded from giving suitable reliefs when there is patent violation of statutory provisions and interests of justice demands the intervention of this court. As the learned Judge has pointed out, Meenabai had given a complaint, which disclosed cognizable offences and on the basis of which a, case had been registered. It had been brought to the notice of the Investigating Agency and a request by the complainant as well as the accused had been made, that the matter had been settled and no further action on the complaint was necessary and action had been dropped and the pendency of these proceedings had prevented a final report being sent to the concerned court. Meantime, the first appellant had filed private complaint which had been quashed by this court by two different orders, the S.L.P. filed against one order having been dismissed and notice had been ordered in the S.L.P. against the other order. The appellants have to abide by the orders that would ultimately be passed in the above matter by the Supreme Court. There is nothing which this court would be, acting under Art. 226 of the Constitution, except to give a direction to the 4th respondent to submit a final report as contemplated under section 173, Cr.P.C.
20. C.M.P. No. 1860/90 has been filed praying that the three counter statements filed by the 4th respondent in these proceedings be rejected as false and to re-open the review C.M.P. No. 5325/89. We do not find any falsehood in the counter statements. The learned Government Advocate has made it clear that though action had been dropped in X-Crime No. 282/86, sending the final report to the above effect to the court has not been done, due to the pendency of the writ proceedings. Under the above circumstances, the question of rejecting the counter statements filed by the 4th respondent does not arise. We see no reason to re-open the review petition also.
21. C.M.P. No. 11754 of 1990 has been filed to implead Meenabai in the writ petition nd in the writ appeal. The appeal has been heard for several months and this application was filed after the arguments of the learned counsel for the appellant was concluded and the learned Government Advocate and the learned counsel for the 5th respondent had to address their arguments. The application is belated and in view of our finding that this court under Art. 226 of the Constitution, cannot go into these disputed questions of fact, which have to be determined only on the basis of oral and documentary evidence, we see no reason to permit impleading of Meenabai.
22. C.M.P. No. 13540/89 with the prayer to remand the writ petition for fresh enquiry also has no merit in view of our findings in paras 11, 12 and 13.
23. C.M.P. No. 12703 of 1989 and 12704 of 1989 are premature since, the 4th respondent is yet to file a final report and the learned Magistrate is yet to render his findings on it. They are dismissed, as also C.M.P. 1017/90, to hold an enquiry against the 5th respondent for which there is no basis.
24. In the result, there will be a direction to the 4th respondent to file the final report in X-Crime No. 282 of 1986 as required under section 173, Cr.P.C. In other respects the writ appeal is dismissed with costs to the 5th respondent Rs. 500, C.M.P. 12703/89, 12704/89, 1017/90, 1860/90, 11754/90 and 13540 of 1988 are dismissed.
25. Order accordingly.