Madras High Court
D.Kumar vs Raichand Daga on 3 August, 2020
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
W.A.SR.44351 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.08.2020
C ORAM
The Hon'ble Mr. A.P.SAHI, THE CHIEF JUSTICE
and
The Hon'ble Mr. Justice SENTHILKUMAR RAMAMOORTHY
W.A.SR.44351 of 2020
D.Kumar ... Appellant
..vs..
1. Raichand Daga
2. The Superintendent of Police,
Chengalpattu District.
3. The Inspector of Police,
E-18, Kelambakkam Police Station,
OMR, Kittu Nagar, Kelambakkam,
Chennai-603 103.
4. D.Radhakrishnan
5. D.Radha
6. V.Dhanapal ... Respondents
PRAYER: The unnumbered Writ Appeal is filed under Clause 15 of the
Letters Patent to set aside the order passed by the learned Single Judge in
W.P.(Criminal) No.8431 of 2020 dated 26.06.2020.
For Appellant : M/s.P.Thiagarajan
http://www.judis.nic.in
1 of 37
W.A.SR.44351 of 2020
JUDGMENT
SENTHILKUMAR RAMAMOORTHY J., W.A.SR.No.44351 of 2020 was listed under the caption 'for maintainability' before this Court on 27.07.2020 in the following facts and circumstances.
2. The first Respondent herein filed a W.P. (Criminal) No.8431 of 2020 (the Writ Petition) against the Superintendent of Police, Inspector of Police and four private parties including the Appellant herein.
3.The Writ Petition was filed for a writ of mandamus to direct the police officials, who had been arrayed as the first and second Respondents, to register the complaint dated 22.01.2020 and take action against Respondents 3 to 6 and to provide police protection to the petitioner therein within the time fixed by this Court. The Writ Petition was disposed of by order dated 26.06.2020, whereby the second Respondent was directed to register the case as directed by the learned Judicial Magistrate-I, Chenglepet by order dated 06.03.2020 in C.M.P. No.2322 of 2020 forthwith and file a http://www.judis.nic.in 2 of 37 W.A.SR.44351 of 2020 final report within a period of twelve weeks before the jurisdictional magistrate concerned.
4. Being aggrieved by this order, the present W.A. SR.No.44351 of 2020 was filed. The Registry raised an objection with regard to the maintainability of the appeal under Clause 15 of the Letters Patent because W.P.(Criminal) No.8431 of 2020 was filed by invoking the criminal jurisdiction of this Court. In response to the objection, the learned counsel for the Appellant made the following endorsement:
“The impugned order passed under Article 226 of the Constitution of India by the Hon'ble Single Judge of this Court and an appeal has been provided against the order passed by the Hon'ble Single Judge before the Division Bench of this Court. Hence, the appeal is maintainable."
5. We heard the learned counsel for the Appellant. The learned counsel contended that the Appellant was allotted 6.75 cents of the property situated in S.No.106/2A, Ekattur Village, Thiruporur Taluk, Chenglepet, under a family arrangement. Thereafter, he is in possession of the said http://www.judis.nic.in 3 of 37 W.A.SR.44351 of 2020 property for more than 15 years. The first Respondent attempted to enter into the Appellant's property on 25.01.2020 and, therefore, the Appellant filed a complaint that was registered under Community Service Register (CSR) No.60 of 2020 before the third Respondent. However, the third Respondent refused to register a FIR on the ground that it is a civil dispute. Therefore, the Appellant filed O.S.No.36 of 2020 on the file of the Additional Subordinate Court, Chenglepet seeking a permanent injunction against the first Respondent and his son. The first Respondent also filed a complaint before the third Respondent herein which was assigned CSR No.56 of 2020. Both the Appellant and the first Respondent were called for an enquiry and advised to approach a civil court to resolve their dispute. In that situation, the first Respondent filed a petition under Section 156(3) Criminal Procedure Code, 1973 (the Cr.P.C.) before the Judicial Magistrate I, Chenglepet, without arraying the Appellant as a party and an order was passed in the said petition on 06.03.2020. The Writ Petition was filed by the first Respondent thereafter. In the Writ Petition, the first Respondent did not disclose material facts relating to the two earlier complaints filed by the Appellant and the first Respondent, respectively, or that both the parties were directed to approach a civil court to resolve their dispute and that a http://www.judis.nic.in 4 of 37 W.A.SR.44351 of 2020 civil suit was filed. On account of non-disclosure of such material facts, the Writ Court disposed of the Writ Petition by issuing the impugned order even without ordering notice to the Appellant. It was also urged that the dispute essentially being civil in nature there was no reason for treating it to have any scope for criminal investigation or prosecution.
6. The learned counsel further contended that the Appellant is greatly prejudiced by the impugned order in as much as the police have been directed to register the case and file a final report within a stipulated time although the dispute is a civil dispute relating to property. In these circumstances, the learned counsel contended that the Appellant is entitled to maintain this appeal against the order passed in the Writ Petition under Article 226 of the Constitution. In support of the contention that an appeal is maintainable under Clause 15 of the Letters Patent, the learned counsel referred to and relied upon the following judgments of Division Benches of this Court:
1. M.S. Sivakumar, MD, Agni Communications Pvt. Ltd. v. The Director General of Police, 1999 (II) CTC 432. In this case, it was http://www.judis.nic.in 5 of 37 W.A.SR.44351 of 2020 held that a writ petition and an appeal arising therefrom is a discretionary remedy.
2. A. Vimala v. K. Ramanujam, 2013 (2) CTC 765. In this case, the Division Bench considered the scope of Section 341 of the Criminal Procedure Code and held that it would apply provided the order appealed against is not made by a high court.
7. We considered the submissions of the learned counsel for the Appellant, examined the records and the relevant law on the subject.
8. On perusal of the Writ Petition, it is evident that the first Respondent herein requested for a writ of mandamus in order to direct the police authorities to conduct an enquiry in terms of the order dated 6.03.2020 of the Judicial Magistrate-I, Chengalpet in C.M.P. No. 2322 of 2020. In other words, it is in respect of a pending complaint to the police. As against the order therein, this appeal is presented under Clause 15 of the Letters Patent, which reads as under:
“ 15. Appeal from the Courts of Original Jurisdiction to the High Court in its appellate jurisdiction.-- And We do http://www.judis.nic.in 6 of 37 W.A.SR.44351 of 2020 further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Sec.107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec.108 of the Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec.108 of the Government of India Act made (on or after the 1st day of February, 1929), in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the http://www.judis.nic.in 7 of 37 W.A.SR.44351 of 2020 judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs of Successors in Our or Their Privy Council as hereinafter provided.” (emphasis added).
9. The text of Clause 15 indicates that an appeal is not maintainable under Clause 15 in respect of the categories of cases specified in parenthesis, which includes judgments pronounced in the exercise of criminal jurisdiction. Therefore, the test to decide whether the present appeal is maintainable would be to ask the question: was it an order passed in the exercise of civil or criminal jurisdiction? A related question would be whether the form of proceeding, namely, the filing of the proceeding as a writ petition has a material bearing on the answer. The difference between civil and criminal jurisdiction and the maintainability of an appeal under Clause 10 of the Letters Patent of Lahore, which is in pari materia with Clause 15 of the Letters Patent of this Court, was considered and decided in Ram Kishan Fauji v. State of Haryana, (2017) 5 SCC 533 (Ram Kishan Fauji), wherein the Supreme Court held as under in paragraphs 29-31:
http://www.judis.nic.in 8 of 37 W.A.SR.44351 of 2020 "29. After so stating, the Court elucidated the nature of criminal proceeding and, in that regard, ruled thus: (Ishwarlal Bhagwandas case [CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC 1818] , AIR p. 1821, para 8) “8. … A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed.”
30. Explicating the concept further, the Court opined that:
(Ishwarlal Bhagwandas case [CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC 1818] , AIR p. 1821, para 8) “8. … The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed.” It further held that a civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which, if the claim is proved, would result in the declaration, express or implied, of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status, etc.
31. The aforesaid authority makes a clear distinction between a civil proceeding and a criminal proceeding. As far as criminal http://www.judis.nic.in 9 of 37 W.A.SR.44351 of 2020 proceeding is concerned, it clearly stipulates that a criminal proceeding is ordinarily one which, if carried to its conclusion, may result in imposition of (i) sentence, and (ii) it can take within its ambit the larger interest of the State, orders to prevent apprehended breach of peace and orders to bind down persons who are a danger to the maintenance of peace and order. The Court has ruled that the character of the proceeding does not depend upon the nature of the tribunal which is invested with the authority to grant relief but upon the nature of the right violated and the appropriate relief which may be claimed."
10. In Ram Kishan Fauji, the specific question as to the maintainability of a Letters Patent appeal against an order in a writ petition was also considered by drawing reference to Full Bench judgments of various High Courts and it was held as follows in paragraphs 53-54:
“53. The Full Bench of the High Court of Delhi in C.S. Agarwal v. State [C.S. Agarwal v. State, 2011 SCC OnLine Del 3136 : (2011) 125 DRJ 241] was dealing with a situation wherein a writ petition was filed before the High Court under Article 226 of the http://www.judis.nic.in 10 of 37 W.A.SR.44351 of 2020 Constitution of India read with Section 482 CrPC seeking for appropriate writ for quashing of the FIR. As the writ petition was dismissed [C.S. Agarwal v. State, 2010 SCC OnLine Del 3914 : (2010) 175 DLT 323] by the learned Single Judge, an intra-court appeal was preferred. A preliminary objection was taken by the respondents as regards the maintainability of the LPA contending that the judgment of the learned Single Judge was passed in exercise of criminal jurisdiction and the letters patent appeal against such an order is barred by Clause 10 and Clause 18 of the Letters Patent constituting the High Court of Judicature at Lahore, which is applicable to the Judicature of High Court of Delhi. The Full Bench analysed Clause 10 of the Letters Patent and took note of what has been prohibited for entertaining any intra-
court appeal. The Full Bench, analysing various decisions, opined thus:
(SCC OnLine Del para 19) “19. … proceedings under Article 226 of the Constitution would be treated as original civil proceedings only when it concerns civil rights. A fortiori, if it concerns a criminal matter, then such proceedings would be original criminal proceedings. Letters Patent would lie when the Single Judge decides the writ petition in proceedings concerning civil rights. On the other hand, if these proceedings are concerned with rights in criminal law domain, then it can be said that the Single Judge was exercising his “criminal jurisdiction” while dealing with such a petition filed under Article 226 of the Constitution.”
54. After so stating, the Full Bench referred to the Constitution Bench decision in Ishwarlal Bhagwandas [CIT v. Ishwarlal Bhagwandas, http://www.judis.nic.in 11 of 37 W.A.SR.44351 of 2020 (1966) 1 SCR 190 : AIR 1965 SC 1818] and distinguished the Full Bench decision of the Andhra High Court in Gangaram Kandaram [Gangaram Kandaram v. Sunder Chikha Amin, 2000 SCC OnLine AP 119 : (2000) 2 An LT 448] and noted the decision of the Division Bench of the Gujarat High Court in Sanjeev Rajendrabhai Bhatt [Sanjeev Rajendrabhai Bhatt v. State of Gujarat, (2000) 1 Guj LR 206] and came to hold as follows: (C.S. Agarwal case [C.S. Agarwal v. State, 2011 SCC OnLine Del 3136 : (2011) 125 DRJ 241] , SCC OnLine Del paras 32-33) “32. The test, thus, is whether criminal proceedings are pending or not and the petition under Article 226 of the Constitution is preferred concerning those criminal proceedings which could result in conviction and order of sentence.
33. When viewed from this angle, it is clear that if the FIR is not quashed, it may lead to filing of challan by the investigating agency, framing of charge and can result in conviction of order of sentence. Writ of this nature filed under Article 226 of the Constitution seeking quashing of such an FIR would therefore be “criminal proceedings” and while dealing with such proceedings, the High Court exercises its “criminal jurisdiction."
11. Thus, in Ram Kishan Fauji, the Supreme Court held that the material consideration is the nature of the right, which is said to be infringed, and the relief requested in the proceeding and not whether it is http://www.judis.nic.in 12 of 37 W.A.SR.44351 of 2020 instituted by way of a writ petition or a criminal original petition. A Division Bench of the Patna High Court, in Dipak Bajaj v. Union of India, 2018 SCC Online Patna 2141, considered whether a Letters Patent Appeal would be maintainable in respect of a compounding proceeding and whether such proceeding partook the character of a civil proceeding. Upon such consideration, the Patna High Court concluded, in paragraphs 16 and 20, that it was a criminal proceeding and that the Letters Patent Appeal was not maintainable. The Division Bench of this Court considered the question of maintainability of a Letters Patent Appeal under Clause 15 in C.M.P. No.2614 of 2020 in W.A.SR. NO.140650 of 2019, Judgment dated 18.03.2020. After surveying a plethora of judgments, this Court held that the appeal, in that case, was maintainable only with regard to the grant of compensation to the writ petitioner on the ground that the order, in that respect, had civil consequences and the proceeding could not be characterized as an exclusive criminal proceeding. By contrast, in this case, the Writ Petition was exclusively a criminal proceeding because it undoubtedly relates to a police complaint filed by the first Respondent herein and the enquiry relating thereto. The judgments that were cited by the learned counsel do not advance the cause of the Appellant as is evident from http://www.judis.nic.in 13 of 37 W.A.SR.44351 of 2020 the brief discussion thereof supra. Thus, we conclude that the appeal is not maintainable against the order passed in W.P.8431 of 2020.
12. Having held that the appeal would not lie it would not be inappropriate to mention that the impugned judgment has been delivered without even issuing notice to the appellant or the other contesting respondents. The appellant has made a specific averment about the status of the litigation between the parties and has also clearly asserted that the writ petition was disposed of without putting the appellant to notice. Ground Nos. 4 and 5 of the Appeal are extracted herein below:
“The appellant submits that while so, the first respondent filed the above named writ petition, W.P. No.8431/2020 before this Hon'ble Court without stating the entire facts with prayer to register the first respondent's complaint dated 22-1-2020, taking advantage of the third respondent's omission to file closure report. As stated above the second respondent has enquired the complaint twice and asked both the appellant herein and the first respondent herein to approach the civil court and the police has no jurisdiction to http://www.judis.nic.in 14 of 37 W.A.SR.44351 of 2020 enquire the case in civil nature.
5. The appellant submits though the appellant has been shown as a respondent in the writ petition, this Hon'ble Court has not ordered any notice to the appellant in the W.P. No.8431/2020. Since the first respondent has stated about the order passed by the learned Judicial Magistrate-I, Chengalpattu in C.M.P. No.2322/2020 and suppressing the enquiry conducted by the third respondent, this Hon'ble Court has issued a direction to register the case as directed by the learned Judicial Magistrate-I, Chengalpattu, by order dated 6-3-2020 in C.M.P. No.2322/2020 and file a final report within 12 weeks before the Judicial Magistrate. If the second respondent discloses the fact before this Hon'ble Court about the enquiry, this Hon'ble Court would not have passed the impugned order dated 26-
6-2020.”
13. In criminal matters the Apex Court in the case of R. RAJESHWARI v. H.N. JAGADISH, (2008) 4 SCC 82 held that while exercising powers under Sec.482 Cr.P.C. a bar would operate under Sec.362 Cr.P.C. but carved out an exception that in some rare cases the High Court may do so where the judgment has been obtained from it by practising fraud. This has been followed by a learned single Judge of this Court in the http://www.judis.nic.in 15 of 37 W.A.SR.44351 of 2020 case of GANESH PANDI v. HDFC BANK LTD. AND OTHERS, 2015 (1) L.W. (Crl.) 414 and by a learned single Judge of the Kerala High Court in the case of SHIYAS K.B. v. MANOJ PAUL AND OTHERS, 2018 Vol II KLJ 942.
14. We have also come across the judgment of the Apex Court in the case of STATE OF PUNJAB v. DAVINDER PAL SINGH BHULLAR AND OTHERS, (2011) 14 SCC 770 where it was highlighted that Sec.362 Cr.P.C. bars the alteration of any order but at the same time in paragraph 46 observed as under:
“46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Code of Criminal Procedure http://www.judis.nic.in 16 of 37 W.A.SR.44351 of 2020 would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide:
Chitawan and Ors. v. Mahboob Ilahi 1970 Cri.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra and Anr. 1985 Cri.L.J. 23; Habu v. State of Rajasthan AIR 1987 Raj. 83 (F.B.); Swarth Mahto and Anr. v. Dharmdeo Narain Singh AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan, Asit Kumar Kar v. State of W.B. (2009) 2 SCC 703 and Vishnu Agarwal v. State of U.P. (2011) 14 SCC 813.” But in paragraph 47, the Apex Court has indicated that by virtue of Article 137 of the Constitution it has been invested with an express power to review any judgment in criminal law which is not available to the High Court.
15. The position in relation to the High Court vis a vis Sec.482 Cr.P.C. was again accepted by a 3-Judges Bench decision in the case of NEW INDIA ASSURANCE COMPANY LIMITED v. KRISHNA KUMAR http://www.judis.nic.in 17 of 37 W.A.SR.44351 of 2020 PANDEY, decided on 06-12-2019, in Criminal Appeal No.1852 of 2019 holding that where an order is secured in violation of principles of natural justice, the ratio in paragraph 46 in the case of DAVINDER PAL SINGH BHULLAR (supra) would apply. This decision was, however, in relation to a criminal revision having been decided, where, while disposing of the revision the Court observed that no civil consequences would ensue affecting the service career of the accused. An application under Sec.482 Cr.P.C. had been filed for recall/review of that order which was rejected by the High Court but applying the aforesaid ratio enunciated in paragraph 46 in the case of DAVINDER PAL SINGH BHULLAR (supra), the 3-Judges Bench reversed the order of the High Court holding that the recall application was maintainable.
16. A learned single Judge of the Allahabad High Court while analysing the entire gamut of law on this issue also came to the conclusion that if an order has been passed without issuing notice to the affected party a recall application in an order passed under Sec.482 Cr.P.C. would be maintainable. Reference be had to the order dated 19-09-2019 in Application under Sec.482 Cr.P.C. No.38644 of 2016 (Jaspreet Singh http://www.judis.nic.in 18 of 37 W.A.SR.44351 of 2020 Grewal v. State of U.P. and another).
17. The second aspect of the law which deserves consideration is as to when can a person be said to be an aggrieved person particularly, in proceedings before the High Court.
18. The Apex Court in MAKKAPATI NAGASWARA SASTRI v. S.S. SATYANARAYAN, (1981) 1 SCC 62, was dealing with a matter in a reference accepted by the High Court arising under Sec.435 read with Sec.438 of Cr.P.C. The reference had been accepted without hearing the other side or his counsel. The High Court had appended a note indicating that since it was a case arising out of revision the opposite party was not entitled to be heard as of right. Reversing the same, the Apex Court in the said judgment held as follows:
“This view taken by the High Court is manifestly contrary to the audi alteram partem rule of natural justice which was applicable to the proceedings before the High Court. On this short ground we think that the order of the High Court does not deserve to be maintained. Accordingly, we set aside that order and send the case back to the High http://www.judis.nic.in
19 of 37 W.A.SR.44351 of 2020 Court with the direction that it should dispose of Crl. R. No.411 of 1972 within two months from the receipt of a copy of this order, after hearing both the parties.”
19. In another matter arising out of exercise of jurisdiction under Sec.397 read with Sec.401 of Cr.P.C. in the case of RAGHU RAJ SINGH ROUSHA v. SHIVAM SUNDARAM PROMOTERS PRIVATE LIMITED AND ANOTHER, (2009) 2 SCC 363, the Apex Court took the view that if a Magistrate had refused to exercise his jurisdiction under Sec.156(3) of the Code after applying his mind and upon taking cognizance, this created a right in favour of the accused person of being heard before the High Court could proceed in the matter. The appeal was accordingly allowed with a direction to the High Court to implead the appellant therein as a party in the Criminal Revision and hear the matter afresh.
20. A 3-Judges Bench of the Apex Court affirmed the said position of law in the case of MANHARIBHAI MULJIBHAI KAKADIA AND ANOTHER v. SHAILESHBHAI MOHANBHAI PATEL AND OTHERS, (2012) 10 SCC 517, explained the expressions “prejudice” and http://www.judis.nic.in 20 of 37 W.A.SR.44351 of 2020 “other person” occurring in Sec.401 Cr.P.C. It was observed that the Magistrate had taken cognizance when the Police was directed to investigate and therefore, the complaint had not been dismissed at the pre- cognizance stage but at the post-cognizance stage. Accordingly a right accrued in favour of the accused person. The said judgments have also been discussed by the Apex Court in the case of REEMA LAMBA @ MALLIKA SHERAWAT in S.L.P. (Crl.) No.7024 of 2013, decided on 30- 06-2014. The judgments discussed above, however, are not much of relevance to the present controversy as they were arising out of the proceedings in a revision before the High Court.
21. The next decision which throws light on the exercise of powers by the Magistrate under Sec.156(3) Cr.P.C. is in the case of HEMANT YASHWANT DHAGE v. STATE OF MAHARASHTRA AND OTHERS, (2016) 6 SCC 273, following the judgment in the case of Sakiri Vasu v. State of U.P., (2008) 2 SCC 409. In this case, the High Court had declined to issue a direction for registering an FIR in the light of an earlier observation made by the Apex Court. The Court observed in paragraph 8 as follows:
http://www.judis.nic.in 21 of 37 W.A.SR.44351 of 2020 “8. In view of the aforesaid broad consensus amongst the counsel for the various parties, it is not necessary for us to go deeper into the relevant issue of law as to whether the earlier order of this Court dated 12-4-2010 warranted registering of FIR by the police before commencing investigation. But we would like to only indicate in brief the law on this subject expressly stated by this Court in Mohd.
Yousuf v. Afaq Jahan (2006) 1 SCC 627. This Court explained that registration of an FIR involves only the process of recording the substance of information relating to commission of any cognizance offence in a book kept by the officer in charge of the police station concerned. In para 11 of the aforementioned case, the law was further elucidated by pointing out that to enable the police to start investigation, it is open to the Magistrate to direct the police to register an FIR and even where a Magistrate does not do so in explicit words but directs for investigation under Section 156(3) of the Code, the police should register an FIR. Because Section 156 falls within Chapter XII of the Code which deals with powers of the police officers to investigate cognizable offences, the police officer concerned would always be in a better position to take further steps contemplated in Chapter XII once FIR is registered in respect of the cognizable offence concerned.”
22. The narrative would not be complete without mentioning the http://www.judis.nic.in 22 of 37 W.A.SR.44351 of 2020 latest unreportable judgment of a 3-Judges Bench of the Apex Court in the case of M. SUBRAMANIAM AND ANOTHER v. S. JANAKI AND ANOTHER, in Criminal Appeal No.102 of 2011, decided on 20-03-2020, that arose from a impugned order passed by the Madurai Bench of this Court. Since the said judgment extensively throws light on the law relating to a direction being given by the High Court to register an FIR where the contention raised was that the issue was a purely civil dispute, it is apt that the entire judgment which has not been reported as yet be extracted herein under:
“The impugned order dated 06.01.2010 passed by the Madurai Bench of Madras High Court in Criminal O.P. (MD) No. 11620 of 2009 filed by S. Janaki, the first respondent before us, directs the Inspector of Police, City Crime Branch, K.K. Nagar, Trichy to register a case, that is, First Information Report, on the basis of the complaint dated 18.09.2008 and after investigation file the final report in accordance with law.
2. Aggrieved, Mr. M. Subramaniam and Mr. R.V. Prasanna Venkatesan who were not even made parties to the aforesaid Criminal O.P. (MD) No. 11620 of 2009 have filed the present petition under Article 136 of the Constitution of India. By order dated 12.03.2010, the permission to file Special Leave Petition was granted and notice was issued. On considering the facts and Criminal Appeal No. 102 of http://www.judis.nic.in
23 of 37 W.A.SR.44351 of 2020 2011 Page 1 of 8 assertions made, it was directed that in the meanwhile operation of the impugned judgment would be stayed.
3. In spite of the aforesaid stay, it appears that the Inspector of Police, City Crime Branch, K.K. Nagar, Trichy on 05.04.2010 had registered an FIR in Crime No. 7 of 2010 under Sections 403, 406, 408, 418(i), 420, 424 and 465 of the Indian Penal Code, 1860 against the two appellants and three others. During the course of the hearing before us, the appellants have produced a copy of the order dated 18.02.2019 passed by the Madurai Bench of Madras High Court in Criminal O.P. (MD) No. 5195 of 2010 and M.P.(MD) No. 1 of 2010 filed by the appellants and three others against the two respondents. By this order, the petition was partly allowed with the direction that the aforesaid case registered as Crime No. 7 of 2010 will be treated as closed. In the event of this Court dismissing the present S.L.P., the police would proceed with the investigation in Crime No. 7 of 2010 and take it to its logical conclusion by either filing charge-sheet or a final closure report as the case may be. It stands specifically directed that the police would not proceed further with the investigation till the decision of the present S.L.P.
4. As per the appellants, the first respondent was one of the trustees in ADS Educational Trust which was founded in 1985 for the Criminal Appeal No. 102 of 2011 Page 2 of 8 purposes of giving and promoting education. The trust had started Sri Angalamman College http://www.judis.nic.in 24 of 37 W.A.SR.44351 of 2020 of Engineering and Technology at Trichy in 1987. The first and second appellants before us are the Chairman and the Vice-Chairman respectively of this College. The appellants have submitted that the first respondent has no locus standi to file a criminal complaint and the complaint is intended only to wreak vengeance in view of the civil dispute, which is pending between the parties. The first respondent, it is alleged, was removed from service as she was found guilty of fraud and forgery.
5. While it is not possible to accept the contention of the appellants on the question of locus standi, we are inclined to accept the contention that the High Court could not have directed the registration of an FIR with a direction to the police to investigate and file the final report in view of the judgment of this Court in Sakiri Vasu v. State Of Uttar Pradesh And Others in which it has been inter alia held as under:
“11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application 1 (2008) 2 SCC 409 Criminal Appeal No. 102 of 2011 under Section 156(3) CrPC before the learned Magistrate concerned. http://www.judis.nic.in 25 of 37 W.A.SR.44351 of 2020 If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
12. Thus in Mohd. Yousuf v. Afaq Jahan this Court observed: (SCC p. 631, para 11) “11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.”
13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT vide para 17). We would further clarify that even if an http://www.judis.nic.in 26 of 37 W.A.SR.44351 of 2020 FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC. Criminal Appeal No. 102 of 2011.
14. Section 156(3) states: “156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.” The words “as abovementioned” obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station.
15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha (SCC : AIR para 19).
17. In our opinion Section 156(3) CrPC is wide enough to include http://www.judis.nic.in 27 of 37 W.A.SR.44351 of 2020 all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing Criminal Appeal No. 102 of 2011 Page 5 of 8 all such acts or employ such means as are essentially necessary for its execution.”
6. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others , in which it is observed.
“2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an http://www.judis.nic.in 28 of 37 W.A.SR.44351 of 2020 application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.
4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating 2 (2016) 6 SCC 277 Criminal Appeal No. 102 of 2011 Page 6 of 8 officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation http://www.judis.nic.in 29 of 37 W.A.SR.44351 of 2020 is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.”
7. We are also surprised and concerned at the registration of the FIR in Crime No. 7 of 2010, notwithstanding, the stay order passed by this Court while issuing notice by which the operation of the impugned judgment was directed to remain stayed.
8. In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers with the police pursuant to the complaint dated 18.09.2008 and the police on being satisfied that a criminal offence is made out would have liberty to register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary. Equally, it will be open to the appellants and others to take steps to protect their interest.
9. We would clarify that this Court has not expressed any opinion on merits and whether or not the complaint discloses any criminal offence. The only clarification that is required is that a civil dispute should not be given the colour of a criminal offence, http://www.judis.nic.in 30 of 37 W.A.SR.44351 of 2020 and at the same time mere pendency of the civil proceeding is not a good ground and justification to not register and investigate an FIR if a criminal offence has been committed.
10. Recording the aforesaid, the present appeal is partly allowed.”
23. The said judgment may or may not have a bearing in the given circumstances but the direction of the High Court to register an FIR was quashed also keeping in view the civil nature of the dispute.
24. However, in the case of VISHNU AGARWAL v. STATE OF UTTAR PRADESH, (2011) 14 SCC 813, it was held that a recall application would be maintainable while explaining the distinction between a recall and a review. Paragraphs 5 to 7 of the judgment are extracted herein under:
“5. Learned Counsel for the Appellant Mr. Manoj Swarup submitted that in view of the aforesaid decision, the High Court erred in law in recalling the Order dated 2.9.2003. We regret we cannot agree.
6. In our opinion, Section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice. http://www.judis.nic.in 31 of 37 W.A.SR.44351 of 2020 As Brahaspati has observed:
“Kevalam Shastram Ashritya Na Kartavyo Vinirnayah Yuktiheeney Vichare tu Dharmahaani Prajayate” which means:
“The Court should not give its decision based only on the letter of the law. For if the decision is wholly unreasonable, injustice will follow.”
7. Apart from the above, we are of the opinion that the application filed by the Respondent was an application for recall of the Order dated 2.9.2003 and not for review. In Asit Kumar v. State of West Bengal and Ors. (2009) 2 SCC 703 this Court made a distinction between recall and review which is as under:
“6. There is a distinction between...a review petition and a recall petition. While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.
7. We are treating this petition under Article 32 as a http://www.judis.nic.in 32 of 37 W.A.SR.44351 of 2020 recall petition because the order passed in the decision in All Bengal Licensees Association v.
Raghabendra Singth and Ors. 2007 (11) SCC 374 cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences. ”
25. It is no doubt true that the Court can exercise powers appropriately but the facts of this case do indicate that the appellant even though was arrayed as a proper and necessary party, as held by the Apex Court in the case of Narain Singh Malpaharia v. Board of Revenue, reported in AIR 1963 SC 786, yet the learned single Judge appears to have proceeded to issue directions in the absence of the facts as indicated by the appellant and narrated hereinabove. In the above background since the impugned order has been passed in a Writ Petition filed under Art.226 of the Constitution of India and is not a petition under Sec.482 Cr.P.C., it may be open to an aggrieved person to seek review or recall of an order on the principle Actus Curiae Neminem Gravabit – act of the Court shall prejudice no man. The power of review can be exercised if it is established that principles of natural justice have been violated and http://www.judis.nic.in 33 of 37 W.A.SR.44351 of 2020 prejudice has been caused on account of issue of any such direction by pointing out an error apparent on face of the record. The Apex Court in the case of Mst. JAMNA KUER v. LAL BAHADUR, reported in AIR 1950 F.C. 131, has held that a mistake, even if that of the Court, can be corrected through review.
26. To explain it further it would be apt to remember the observations made by the Apex Court in the Constitution Bench judgment of Shivdeo Singh v. State of Punjab AIR 1963 SC 1909 acknowledging the High Court's power of exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice. This was taken notice of again by the Apex Court in the case of A.T. SHARMA v. A.P. SHARMA, (1979) 4 SCC 389 and reiterated by the Apex Court in the case of MEERA BHANJA v. NIRMALA KUMARI CHAUDHRY 1995 1 SCC 170 Paragraph 8. Needless to mention a couple of more authorities viz. that of the celebrated decision of another Constitution Bench of the Apex Court in the case of A. R. ANTULAY v. R.S. NAYAK AND ANOTHER (1988) 2 SCC 602 Paragraph 48 and another decision in the case of M. M. THOMAS v. STATE OF KERALA (2000) 1 SCC 666 http://www.judis.nic.in 34 of 37 W.A.SR.44351 of 2020 Paragraphs 14 to 17 where again the Supreme Court in no uncertain terms held that the High Court being a Court of Record under Art.215 of the Constitution of India being a superior Court has a duty to itself to keep all records correctly. The High Court has inherent and plenary powers with unlimited jurisdiction unless expressly or impliedly barred. A Review Application would therefore on such grounds as explained in the above noted judgments may also be maintainable.
27. The present is a case arising out of a Writ Petition under Art.226 of the Constitution of India and not a proceeding under the Cr.P.C. The exercise of extraordinary powers of prerogative Writs involves a judicious discretion. The contention in the present case is that the discretionary order was obtained by suppression of material facts relating to the dispute and the lodging of the complaint and recording of CSR (Community Service Register) as also filing of the suit by the appellant. These facts do not find mention even in the order of the Magistrate. It is quite possible that the complainant may not have narrated these facts before the Magistrate but even if it was narrated the same does not appear to have been mentioned or considered by the Magistrate while passing the http://www.judis.nic.in 35 of 37 W.A.SR.44351 of 2020 order on 06-03-2020. This may or may not have a bearing but the fact remains that a Mandamus has been issued in the absence of these pleadings and consideration thereof. The impact of such material may have a bearing on the issue and the consequential order to be passed.
27. We would say nothing further as we are dismissing the appeal on the ground of maintainability. In the above background if the appellant is so advised it would be open for him to apply for a recall or review of the order with a request for an expeditious hearing.
28. For the reasons set out above, the appeal is consigned to records.
(A.P.S.,CJ,) (S.K.R.,J,)
03.08.2020
Index :Yes
Internet :Yes
kal
http://www.judis.nic.in
36 of 37
W.A.SR.44351 of 2020
THE CHIEF JUSTICE
and
SENTHILKUMAR RAMAMOORTHY J.,
kal
To
1. The Superintendent of Police, Chengalpattu District.
2. The Inspector of Police, E-18, Kelambakkam Police Station, OMR, Kittu Nagar, Kelambakkam, Chennai-603 103.
W.A.SR.44351 of 2020 03.08.2020 http://www.judis.nic.in 37 of 37