Madras High Court
Mookiah vs Vellaichamy on 3 October, 2019
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.10.2019
CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
CRL.O.P.(MD)No.8228 of 2015 and
M.P.(MD)Nos.1 & 2 of 2015
1. Mookiah
2. Ravi
3. Alagasamy
4. Balu @ Baskaran ... Petitioners/
Accused Nos.1,2,4,&5
Vs.
Vellaichamy ... Respondents/
Respondents
Prayer: Criminal Original petition is filed under Section
482 of Cr.P.C., to call for the records in C.C.No.11 of 2013 on the
file of the learned Judicial Magistrate, Nilakottai and quash the
same.
For Petitioners : Mr.V.Sasikumar
For Respondent : Mr.Sheik Abdullah
***
http://www.judis.nic.in
2
ORDER
The petitioners have invoked the inherent powers of this Court under Section 482 of Cr.P.C. for quashing the proceedings in C.C.No.11 of 2013 on the file of the learned Judicial Magistrate, Nilakottai.
2. It is a private complaint instituted by the respondent herein.
3. The learned counsel appearing for the petitioners would point out that the respondent herein earlier complained before Ammayanaickanur police station. Crime No.171 of 2012 for the offences under Sections 147, 341, 427 and 506(ii) of I.P.C. was registered at his instance. The case was investigated and final report closing the case as mistake of fact was filed by the Inspector of Police, Nilakottai police station in-charge of Ammayanaickanur police station on 20.08.2012. The said final report was also accepted by the jurisdictional Magistrate. The respondent herein does not appear to have filed any protest petition. Subsequently he instituted the impugned complaint and the same was taken on file and summons were issued to the petitioners herein.
http://www.judis.nic.in 3
4. The petitioners' counsel would point out that once the closure report filed by the police was accepted by the jurisdictional Magistrate, it was not open to the defacto complainant to subsequently file a private complaint on the same cause of action. The petitioners' counsel would further contend that the issue is no longer res integra and that it is squarely covered by the order dated 03.01.2019 made in Crl.O.P.No.2830 of 2017(Thiyagarajan V. Karuppannan and one other). In the said order, it has been held as under:-
“10. Once the police closed the investigation by filing a referred charge sheet, it is open to the concerned Court to entertain a protest petition or to treat a protest petition as a complaint and proceed under Section 202 of Cr.P.C. If the Magistrate chooses to treat the protest petition as a complaint, the Magistrate has to necessarily take into consideration the closure report filed by the police and also the materials collected by the police in the course of investigation. These materials will have a bearing on the concerned Court while it takes cognizance of the complaint. An independent private complaint dehors the closure report and the materials collected by the police can never be http://www.judis.nic.in 4 entertained. If such a procedure is permitted, there will be no end to criminal prosecution.”
5. The learned Judge in paragraph No.13 of the order has referred to an earlier decision reported in (2009) 4 MLJ 622(Nathu Banu Asha V. The Lakshmi Vilas Bank Ltd., Pallipalayam). The petitioners' counsel wants me to follow the aforesaid decision and quash the impugned proceedings as not maintainable.
6. With utmost respect, I must express my inability to follow the aforesaid order dated 03.01.2019 made in Crl.O.P.No.2830 of 2017(Thiyagarajan V. Karuppannan and one other).This is for the simple reason that the direct decision of the Hon'ble Supreme Court made in Kishore Kumar Gyanchandani V. G.D.Mehrotra((2011) 15 SCC 513) was not brought to the notice of the learned Judge. The three-Judge Bench of the Hon'ble Supreme Court in the said decision held as follows:-
“ 3. There is some controversy between the parties that before accepting the final form by the Magistrate on 27-1-1996 notice had been sewed on the complainant and the complainant did not file objections, whereas the case of the complainant is that he had not received any notice from the Court. http://www.judis.nic.in 5 Be that as it may, we are not entering into that controversy for deciding the present case as in our view it is not material either way nor does it oust the jurisdiction of the Magistrate on the basis of a complaint to take cognizance of the offence alleged to have been committed by the accused even if he had already accepted the final form, the same having been filed by the police.
4. ... It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay Verma v.
Bhuneshwar Prasad Sinha and Ors.
MANU/SC/0069/1982 : (1982)3SCC510 whereunder the view of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding.” http://www.judis.nic.in This Judgment was followed in Rakesh and Another V. State of 6 U.P.((2014) 13 SCC 133) and Vishnu Kumar Tiwari V. State of U.P.((2019) 8 SCC 27).
7. Therefore, the right of the respondent to institute the impugned private complaint even after the acceptance of the closure report by the learned Judicial Magistrate cannot be taken away. Though the learned Judge in the aforesaid Crl.O.P.No.2830 of 2017 has referred to an earlier decision reported in (2009) 4 MLJ 622(Nathu Banu Asha V. The Lakshmi Vilas Bank Ltd., Pallipalayam), I could not find any such preposition as cited by the learned Judge.
8. The only contention advanced by the learned counsel appearing for the petitioners was as regards the maintainability of the impugned complaint. Since the contention has been rejected, the petitioners have to necessarily establish their innocence only in a regular trial. I make it clear that I have not gone into the merits of the matter. All the other defences are left open. The personal appearance of the petitioners before the Court below is also dispensed with. The learned trial Magistrate shall insist on the personal appearance of the petitioners only when it is absolutely necessary and imperative. On all other http://www.judis.nic.in 7 occasions, they can be represented through their counsel.
9. With these observations, this criminal original petition stands dismissed. Consequently, connected miscellaneous petitions are closed.
03.10.2019
Index : Yes / No
Internet : Yes / No
pmu
To
1. The Judicial Magistrate,
Nilakottai.
2. The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai. http://www.judis.nic.in 8 G.R.SWAMINATHAN,J.
pmu CRL.O.P.(MD)No.8228 of 2015 and M.P.(MD)Nos.1 & 2 of 2015 http://www.judis.nic.in 9 03.10.2019 http://www.judis.nic.in