Madras High Court
Sakthi vs Karuppaiah on 29 August, 2011
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 29/08/2011 Coram The Honourable Mr. Justice S.PALANIVELU Crl.RC.(MD)No.460 of 2011 Sakthi .. Petitioner vs. 1.Karuppaiah 2.Veeran 3.Muniyandi .. Respondent Criminal Revision Petition filed under Section 397 r/w. 401 of Criminal Procedure Code to call for the records relating to the case in M.P.No.2784 of 2011 on the file of the Court of Additional District Munsif-cum-Judicial Magistrate, Manamadurai and set aside the order dated 09.05.2011 made in M.P.No.2784 of 2011. !For Petitioner ... M/s.M.Suri ^For Respondents ... No appearance * * * :ORDER
This Criminal Revision is preferred to call for the records relating to the order dated 09.05.2011, made in M.P.No.2784 of 2011 on the file of the Court of Additional District Munsif-cum-Judicial Magistrate, Manamadurai and set aside the same.
2. The petitioner filed a complaint before the learned Additional District Munsif-cum-Judicial Magistrate, Manamadurai, in M.P.No.2784 of 2011 under Section 156(3) of Cr.P.C. praying the Court to forward the complaint to the police and to register the same and also investigate the case.
3. In the complaint, the petitioner has alleged that from the second sluice in Maranadu, Tank water is drawn to three villages through three channels for the lands for cultivation. The said sluice is irrigating the lands in Kachanatham, Sullangudi and Vilathur. The second sluice is popularly known as Vilathur madai. The presence of the said madai along with the course of channels have been entered in the revenue records. There were some disputes with regard to the mode of irrigation in respect of the above said channels and the same were settled by the District Collectors of Ramanathapuram and Sivagangai and also by the Public Works Department officials and a scheme was worked out in which, it was resolved that the channel structure created as a fourth one by the Kachanatham villagers had to be closed and irrigation of water was regulated with reference to the catchment area of the three villages. In a civil case also it was decided as mentioned above.
4. In order to regulate the manner of irrigation, the plaintiff and three others filed a suit in O.S.No.35 of 2004 against these respondents and some other persons on the file of the Sub Court, Sivagangai for the reliefs of permanent injunction and mandatory injunction and the same is pending. An Advocate Commissioner was appointed who proposed to inspect the properties namely, the sluices and the channels branching therefrom. With a mala fide intention, these respondents conspired together and encroached upon the area where the channels are going without any authority and without informing concerned Government officials, violating the Court order and the Revenue Department's orders, by means of JCB, on 19.01.2011 at about 11.00 a.m. dug and created a channel from Vilathur madai to a length of 100 meters with a width of 2 meters. The said created channel arises from Vilathur madai Thirupachethi upto tar road proceeding to Kattanur. On 19.01.2011 itself, the petitioner laid a complaint before the Village Administrative Officer as well as the Inspector of Police, Thirupachethi but in vain. Thereafter, the petitioner took the matter before the Superintendent of Police on 24.01.2011 and the same was forwarded to the Tahsildar, Manamadurai who in turn forwarded the same to the Village Administrative Officer. But, he did not submit any report. Again, the petitioner approached the Inspector of Police, Thirupachathi who gave an acknowledgement for receipt of the complaint, replying that no criminal action could be taken. Hence, these respondents are liable to be punishable under Sections 120(b), 188, 451 and 506(ii) of IPC and Sections 3 and 4 of PPDL Act and Sections 7, 8 and 12 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007. It is prayed that the complaint be sent to the police under Section 156(3) of Cr.P.C.
5. After scrutiny of the allegations in the complaint, the Court below has obtained a proof affidavit from the complainant. On hearing the learned counsel for the petitioner, the Court below has dismissed the complaint observing that the dispute as mentioned in the complaint appears to be a dispute of civil nature between two villagers and that no material is available to initiate any action.
6. Mr.M.Suri, the learned counsel appearing for the petitioner assails the order passed by the Court below from various angles. On the factual aspects, he submits that when the matter is before the Civil Court and the Advocate Commissioner was about to inspect the properties, it is not fair on the part of other party to encroach, to create and to damage the structures so as to prejudice the rights of the petitioner. He further adds that the petitioner is legally competent to lay criminal complaint before the appropriate forum and the locus standi of the complainant is immaterial and that the doctrine of locus standi is totally strange to the criminal jurisprudence. It is his further contention that even though no offence would be made out under Section 12 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, still under Sections 7 and 8 of the Act, the respondents are liable to be punished and they are also guilty under the provisions of Indian Penal Code and the PPDL Act as mentioned in the complaint.
7. Before entering into the discussion with regard to the locus standi of the petitioner to file the complaint, it is profitable to extract the relevant provisions of the two Acts referred to above.
Section 3 and 4 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 reads as under:
"3.Punishment for committing mischief in respect of public property:-[i] Whoever commits mischief by doing any act in respect of any property and thereby causes damage or loss to such property to the amount of one hundred rupees or upwards; or [ii] commits mischief by doing any act which causes or which he knows to be likely to cause a diminution of the supply of water to the public or to any person for any purpose or an inundation of; or obstruction to, any public drainage, or [iii] commits mischief by doing any act which renders any public road, bridge, navigable channel, natural or artificial impassable or less safe for travelling or conveying property; shall be punished with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine;
Provided that the Court may, for any adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than one year.
4. Mischief causing damage to property by fire or explosive substance:-
Whoever commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property to the amount of one hundred rupees or upwards, shall be punished with rigorous imprisonment for a term which shall not be less than two years but which may extend to ten years and with fine.
Provided that the Court may for any adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for term of less than two years.
Sections 7 and 8 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 reads thus:
"7.Eviction of encroachment.-(1)If the officer specified in sub-section (2) of Section 6 of opinion that any person has encroached upon any land within the boundaries of the tank and that the encroacher should be evicted, the officer shall issue a notice in the manner as may be prescribed, calling upon the person concerned to remove the encroachment before a date specified in the notice.
(2) Where, within the period specified in the notice under sub-section (1), the encroacher has not removed the encroachment and has not vacated the land within the boundaries of the tank, the officer referred to in sub-section (2) of Section 6 shall remove the encroachment and take possession of the land within the boundaries of the tank encroached upon, by taking such police assistance as may be necessary. Any police officer whose help is required for this purpose shall render necessary help to that officer.
(3) Any crop or other product raised on the land within the boundaries of the tank shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by the encroacher after a notice under sub-section (1), be liable to forfeiture.
8. Offences and Penalties.-Whoever, enters the land in the water spread and foreshore area of the tank without any lawful authority practices crop cultivation without any lawful authority, raises plantation crops without any lawful authority, damages the tank bund, tank sluices, surplus weirs and other build in structures, obstructs the officers in carrying out their work under this Act, interferes with the flow in the supply channels feeding the tanks and encroaches upon adjoining canal poramboke lands, interferes at the flow in the field channels taking off from tank sluices to feed the ayacut area, damages distribution and control structures located in the field channels, Damages and obstructs the flows in the field drainage system, lifts water from the tank through mechanical and electrical devices for cultivation, without lawful authority, shall on conviction, be punished with imprisonment for a term which may extent to three months or with fine of rupees five thousand or with both."
8. The plain language employed in the above said provisions of both the Acts do not require any person to possess prescribed competency to file the complaint or to initiate the proceedings. In other words, the above said provisions are silent as to the prescribed person or authority to lay complaint and to initiate criminal action.
9. Pointing out the above said situation, the learned counsel for the petitioner would submit that when the provisions do not warrant any competency or qualification of any person to lay complaint, it cannot be stated that the petitioner is not competent to file the complaint. It is his further contention that the allegations showing the conduct of the respondents in encroaching, digging and creating the channel would attract the provisions in the above said two Acts and this dispute could not be termed to be a civil dispute. He also says that the complaint is based on valid materials to take cognizance and to investigate the matter in issue.
10. As regards the competency or locus standi of the petitioner to file the complaint, he placed much reliance upon three decisions of the Hon'ble Apex Court. The first one is rendered by a Constitution Bench of the Apex Court which is reported in (1984) SCC (Cri) 277, (A.R.Antulay v. Ramdas Sriniwas Nayak and another) wherein Their Lordships have elaborately dealt with the proposition as to the competency of an individual to initiate criminal action. The following is the operative portion of the judgment "6. It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position such as (i) Section 187-A of Sea Customs Act, 1878 (ii) Section 97 of Gold Control Act, 1968 (iii) Section 6 of Import and Export Control Act, 1947 (iv) Section 271 and Section 279 of the Income Tax Act, 1961 (v) Section 61 of the Foreign Exchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligibility to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Section 195 to 199 of the Cr.P.C. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision."
11. The above said principles formulated by the Constitution Bench were subsequently forwarded by the Supreme Court in 2001 SCC (Cri) 1322 (Manohar Lal v. Vinesh Anand and others).
12. On an another occasion, the Supreme Court in a decision reported in AIR 1984 SC 5 : 1984 Crl.L.J. 1 (Vishwa Mitter v. O.P.Poddar and others) has dealt with the import of Section 190 Cr.P.C. and the right of a person to make a complaint with reference to any offence. The following are the principles laid down by the Supreme Court:
"4. ... Section 190 provides for cognizance of offences by Magistrate which inter alia provides that subject to the provisions of Chapter XIV, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence - (a) upon receiving a complaint of facts which constitute such offence; ... ... ... Section 190 thus confers power on any Magistrate to take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It does not speak of any particular qualification for the complainant. Generally speaking, anyone can put the criminal law in motion unless there is a specific provisions to the contrary.
5. It is thus crystal clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance under Section 190 and unless any statutory provision prescribes any special qualification or eligibility criteria for putting the criminal law in motion, no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. Section 190 of the Code of Criminal Procedure clearly indicates that the qualification of the complaint to file a complaint is not relevant. But where any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. Even with regard to offences under the Indian Penal Code, ordinarily, anyone can set the criminal law in motion but the various provisions in Chapter XIV prescribe the qualification of the complainant which would enable him or her to file a complaint in respect of specified offences and no Court can take cognizance of such offence unless the complainant satisfies the eligibility criterion, but in the absence of any such specification, no Court can throw out the complaint or decline to take the cognizance on the sole ground that the complainant was not competent to file the complaint."
13. From the above, it is the law of the hand that any one can set the criminal law in motion by filing a complaint of facts constituting the offence before a Magistrate, that the doctrine of locus standi of the complaint is a concept alien to criminal jurisprudence save and except the particular Act provides for eligibility, competency or locus standi of the individual concerned to lay complaint no court can refuse to take cognizance on the ground of ineligibility of the complaint.
14. In view of the above said settled legal principles, this Court is of the considered opinion that there is no legal embargo for the Court below to take cognizance and to act and proceed in accordance with the mandate as contained in Section 156(3) of Cr.P.C. Hence, the order challenged before this Court is liable to be set aside and it is accordingly set aside.
15. In the result, the Criminal Revision Case is allowed. The learned Additional District Munsif-cum-Judicial Magistrate, Manamadurai, is directed to take the complaint on file and to proceed with the same in accordance with Section 156(3) of Cr.P.C.
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