Madras High Court
Mr.O.Panneerselvam vs The State Rep.By on 27 July, 2023
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Crl OP (MD)No.1404 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.07.2023
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Crl OP(MD)No.1404 of 2022
and connected Crl.MPs.
Mr.O.Panneerselvam .. Petitioner/Sole Accused
in Crl.OP(MD).No.1404 of 2022
.Vs.
1.The State rep.by
The Inspector of Police
District Crime Branch
Theni District. ..1st Respondent/Complainant
2.Mr.Milany .. 2nd Respondent/De facto Complainant
PRAYER : Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, to call for the records pending on the file of the R1 in Crime
No.1 of 2022, District Crime Branch, Theni, Theni District and quash the same on
the order passed in Crl.MP.No.31/2022, before the Judicial Magistrate, Theni
(Special Court for Trial of Criminal Cases against M.P. And MLA's)
For Petitioner : Mr.R.Srinivas
Senior Counsel
for Mrs.Rajalakshmi.P.
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
for R1
Mr.A.K.M.Venkatesh
for R2
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https://www.mhc.tn.gov.in/judis
Crl OP (MD)No.1404 of 2022
ORDER
This criminal original petition has been filed to quash the FIR registered in Crime No.1 of 2022, pending investigation before the 1st respondent based on the order passed by the Judicial Magistrate, Theni in Crl.MP.No.31 of 2022.
2.Heard Mr.R.Srinivas, learned Senior Counsel for the petitioner, Mr.E.Raj Thilak, learned Additional Public Prosecutor for R1 and Mr.A.K.M.Venkatesh, learned counsel for R2.
3.The 2nd respondent has given a complaint before the Judicial Magistrate, Theni in Crl.MP.No.31 of 2022, by making certain allegations against the petitioner to the effect that he has committed an offence u/s 125(A) of the Representation of the People's Act, 1951 (hereinafter referred as “the Act”) by furnishing false information regarding his immovable properties, movable properties etc. The Court below has proceeded to pass an order dated 7.1.2022, directing the 1st respondent to register the case and to investigate and to file a report. That apart, concerned Court also directed witness protection to be given to the complainant. Aggrieved by the same, the present petition has been filed before this Court.
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4.This Court has carefully considered the submissions made on either side and the materials available on record.
5.The offence u/s 125(A) of the Act, is admittedly a non-cognizable offence. Therefore, it is not known as to how the learned Judicial Magistrate passed an order u/s 156(3) of Cr.PC., directing the 1st respondent to register an FIR.
6.The next important issue to be taken into consideration is that the Complainant has not filed any sworn affidavit before the Court below and merely based on the complaint and the submission made on the side of the Complainant by a counsel, the Court below has ordered for registration of an FIR u/s. 156(3) of Cr.PC. Such practice of entertaining application u/s 156(3) of Cr.PC., without a supporting affidavit has been deprecated by the Apex Court in Priyanka Srivastava .v. State of U.P. This judgment was once again taken note of by the Apex Court in Babu Venkatesh v. State of Karnataka reported in 2022 (5) SCC 639 and it was held as follows:
28. From the perusal of the complaint it can be seen that, the complainant Respondent 2 himself has made averments with regard to the filing of the original suit. In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156(3)Cr.PC. The High Court has also 3/6 https://www.mhc.tn.gov.in/judis Crl OP (MD)No.1404 of 2022 failed to take into consideration the legal position as has been enunciated by this Court in Priyanka Srivastava v. State of U.P. [Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 : (2015) 3 SCC (Civ) 294 :
(2015) 4 SCC (Cri) 153] , and has dismissed the petitions by merely observing that serious allegations are made in the complaint.
7.It is clear from the above that when a complaint is not supported by an affidavit, the Magistrate ought not to have entertained the application u/s 156(3) of Cr.PC. The Court below has entertained the complaint and has heard the learned counsel for the Complainant and has proceeded to direct the police to register an FIR. Such order, on the face of it is illegal and the FIR that was registered pursuant to the order passed by the Court below also suffers illegality.
8.In the light of the above discussion, the FIR registered in Crime No.1 of 2022, pending investigation before the 1st respondent is hereby quashed and this criminal original petition is accordingly allowed. Consequently, connected miscellaneous petition is closed.
27.07.2023 1/2 Index : Yes/No Speaking order:Yes/No Neutral citation:Yes/No kp 4/6 https://www.mhc.tn.gov.in/judis Crl OP (MD)No.1404 of 2022 To
1.The State rep.by The Inspector of Police District Crime Branch Theni District.
2. Judicial Magistrate Theni (Special Court for Trial of Criminal Cases against M.P. And MLA's)
3. The Public Prosecutor High Court, Madras.
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