Madras High Court
Mohammed Abdul Hakkeem vs M.Ramachandran on 29 September, 2015
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.09.2015 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD)No.10887 of 2008 Crl.O.P.(MD)Nos.10887 and 12600 of 2008 and M.P.(MD)Nos.1 and 2 of 2008 1.Mohammed Abdul Hakkeem 2.N.Vanmathi 3.S.Saravanan 4.Sanjeevi Kugan 5.N.Meenakshi Sundaram 6.S.Sivakumar : Petitioners Versus M.Ramachandran : Respondent PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records pertaining to the proceedings of the learned Judicial Magistrate No.II, Madurai, pending trial in C.C.No.495 of 2008 and quash the same. !For Petitioners : Mr.G.Karnan ^For Respondent : Mr.C.Muthu Saravanan Crl.O.P.(MD)No.12600 of 2008: 1.Madurai Elavarasan 2.Ramachandran 3.Janaki 4.Sathya Bama Karpagam : Petitioners Versus 1.The Inspector of Police, X2 Karupayoorani Police Station, Madurai District. In Crime No.39 of 2008. 2.A.Mohammed Abdul Hakeem : Respondents PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records pertaining to the proceedings in C.C.No.154 of 2008 on the file of learned Judicial Magistrate No.II, Madurai, and quash the same. For Petitioners : Mr.C.Muthu Saravanan For Respondent No.1: Mr.A.P.Balasubramani, Government Advocate (Crl.side) For Respondent No.2: Mr.G.Karnan :COMMON ORDER
The petitioners in both the cases, who were facing criminal prosecution in C.C.Nos.495 and 154 of 2008 respectively, pending on the file of learned Judicial Magistrate No.II, Madurai, have come forward with the present petitions to quash the proceedings pending against them.
2. Heard the submissions made by the learned counsel appearing on either side.
3. The learned counsel for the petitioners in Crl.O.P.(MD)No.10887 of 2008 would submit that the petitioners in Crl.O.P.(MD)No.12600 of 2008 are the tenants of the property. There was a civil dispute pending between the father of the respondent in Crl.O.P.(MD)No.10887 of 2008 and one Balasubramaniam. During the pendency of the proceedings, the first petitioner in Crl.O.P.(MD)No.10887 of 2008 has purchased the property. He would further submit that the ingredients of Section 294(b) IPC have not been made out. There was a case and case in counter. Hence, he prayed for quashing the complaint in C.C.No.495 of 2008.
4. Adding further, the learned counsel would submit that the first petitioner in Crl.O.P.(MD)No.10887 of 2008 has purchased the property in 2002 and at that time, no case is pending. After his purchase only, when he wants the respondent to be evicted, the alleged occurrence is said to be taken place. It is a case and case in counter. Counter case in Crime No.115 of 2008 was closed as mistake of fact. He has not filed any protest application, but he has filed a private complaint and cognizance of offence has been taken and on that basis, C.C.No.495 of 2008 is pending against the petitioners herein. Therefore, for the same set of facts, the second complaint is not maintainable, as per the decision reported in 2011(3) MWN (Cr.) 201 [Bhanwarlal Sharma v. K.V.Sathyanarayanan] and hence, he prayed for allowing the petition in Crl.O.P.(MD)No.10887 of 2008 and dismissal of Crl.O.P.(MD)No.12600 of 2008. He has also taken me to paragraph Nos.106 to 112 of the said judgment and would submit that once the Magistrate concerned closed the First Information Report as mistake of fact, he shall not take the private complaint on file. Hence, he prayed for quashing the complaint in C.C.No.495 of 2008.
5. The learned counsel for the petitioners in Crl.O.P.(MD)No.12600 of 2008 would submit that the ingredients of Section 294(b) IPC have not been made out and the involvement of A-2 to A-4 have not been mentioned and this is a case and case in counter. Hence, he prayed for quashing the charge sheet laid in C.C.No.154 of 2008.
6. The learned Government Advocate (Criminal side) would submit that the points raised by the petitioners are only questions of fact and not questions of law and that can be decided only at the time of trial. Hence, he prayed for dismissal of these petitions.
7. I have considered the rival submissions made on either side and perused the materials available on record in the form of typed-set of papers.
8. Admittedly, the petitioners in Crl.O.P.(MD)No.12600 of 2008 are the tenants of the property in question. The defacto complainant, who is the first petitioner in Crl.O.P.(MD)No.10887 of 2008, has purchased the property from the original landlord. There was a dispute between both parties. The alleged occurrence has been taken place on 14.02.2008 and hence, a case has been registered in Crime No.39 of 2008, on the basis of the complaint given by A.Mohammed Abdul Hakeem, for the offences punishable under Sections 341, 294(b), 427 and 506(ii) IPC. Since the complaint given by the accused in C.C.No.154 of 2008 has not been registered, the respondent in Crl.O.P.(MD)No.10887 of 2008 has approached the Magistrate concerned and filed a petition under Section 156(3) Cr.P.C., and on that basis, a case in Crime No.115 of 2008 has been registered for the offences punishable under Sections 147, 148, 452, 294(b) and 506(ii) IPC. But, both the cases have been investigated and Crime No.115 of 2008 has been closed as mistake of fact and referred charge sheet has also been filed. It is admitted by both sides that the defacto complainant, by name, Ramachandran has not preferred any protest application, but, however, he approached the Magistrate concerned, by filing a private complaint and on that basis, cognizance of offence has been taken by the learned Magistrate and after following the procedures, it was taken on file as C.C.No.495 of 2008. On the basis of the complaint given by Mohammed Abdul Hakeem, a case has been registered in Crime No.39 of 2008 and investigation has been completed and charge sheet has been laid for the offences punishable under Sections 341, 294(b), 427 and 506(ii) IPC, which was taken on file in C.C.No.154 of 2008. Now, the accused in both the cases have come forward with the present petitions to quash the same.
9. In respect of Crl.O.P.(MD)No.12600 of 2008, the learned counsel for the petitioners would submit that the ingredients of Section 294(b) IPC have not been made out and the involvement of A-2 to A-4 have not been mentioned and those aspects are only questions of fact and not questions of law.
10. It is the well settled dictum of the Apex Court that whether the ingredients of the offences have been made out or not, is only a question of fact and that can be decided only at the time of trial, after letting oral evidence. In such circumstances, I am of the view that the question as to whether the ingredients of Sections 341, 294(b), 427 and 506(ii) IPC have been made out or not, could be decided only at the time of trial. Hence, I do not find any reason to quash C.C.No.154 of 2008 on the file of learned Judicial Magistrate No.II, Madurai. Hence, the petition in Crl.O.P.(MD)No.12600 of 2008 deserves to be dismissed as devoid of merits and accordingly, it is, hereby, dismissed. However, since the case in C.C.No.154 of 2008 is of the year 2008 and it is pending for more than seven years, the learned Judicial Magistrate No.II, Madurai, is directed to dispose of the same, on merits and as per law, within a period of three months from the date of receipt of a copy of this order. The learned Judicial Magistrate No.II, Madurai, is also directed to consider the application filed by the petitioners for dispensing with the personal appearance in accordance with law. Consequently, the connected miscellaneous petition is also dismissed.
11. In respect of Crl.O.P.(MD)No.10887 of 2008, the learned counsel for the petitioners would submit that the private complaint taken on file by the Magistrate concerned itself is illegal. To substantiate his argument, he relied upon a decision reported in 2011(3) MWN (Cr.) 201 [Bhanwarlal Sharma v. K.V.Sathyanarayanan]. He relied upon paragraph No.24 of the judgment, wherein it was held that in what circumstances, the second complaint can be entertained. But, here in the case on hand, it is pertinent to note that it is admitted fact that the defacto complainant/Ramachandran is a tenant under one Balasubramaniam. During the subsistence of tenancy, the first petitioner herein has purchased the property. The alleged occurrence has been taken place on 14.02.2008 and the first petitioner herein has given a complaint and on that basis, a case in Crime No.39 of 2008 has been registered. Since the respondent/defacto complainant is a tenant and the complaint given by him has not been taken on file by the Inspector of Police concerned, he approached the Magistrate concerned under Section 156(3) Cr.P.C., and on the direction given by the Magistrate concerned only, a case has been registered in Crime No.115 of 2008 and the same has been closed as mistake of fact and referred charge sheet has also been filed. It is also admitted fact that he has not filed any protest application, but, whereas, he filed a private complaint and the same has been taken on file as C.C.No.495 of 2008. Merely because he has not filed protest application, whether his right to file a private complaint has been taken away, has to be considered. Admittedly, the first petitioner herein is an Advocate by profession. The Investigating Agency, by following PSO 588-A, finds out as to who is the aggressor and on the basis of the enquiry conducted, he filed a final report as mistake of fact in one case and filed a final report in another case. Hence, the Investigating Agency has gone to the extent of non-registering the case and thereafter, the respondent/defacto complainant filed a private complaint before the learned Magistrate concerned and cognizance of offence has been taken and C.C.No.495 of 2008 has been assigned. The Investigating Agency registered one case and rejected another case and thereafter, pursuant to the direction issued by the learned Magistrate concerned, registered the case in Crime No.115 of 2008 and thereafter, closed the same as mistake of fact, which shows the vindictive nature of the Investigating Agency. The petitioners, who are the accused in C.C.No.495 of 2008, relied upon paragraph No.24 of the judgment in Bhanwarlal Sharma's case cited supra, which reads thus:
"24. In the first case viz., Poonam Chand Jain and another v. Fazru, AIR 2010 SC 659, the Division Bench of the Apex Court has held that:
"After dismissal of First Complaint on merits, the Second Complaint, on almost identical facts, can be entertained only in exceptional circumstances.
An order of dismissal of First Complaint under Section 203 is, however, no bar to the entertainment of a Second Complaint on the same facts but it can be entertained only in exceptional circumstances viz.-
(a) where previous order was passed on incomplete record,
(b) or on a misunderstanding of the nature of the Complaint,
(c) or the order which was passed was manifestly absurd, unjust or foolish, or
(d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings.
..........................................................................."
12. In my considered view, the above citation is not applicable to the facts of the present case. In the said case, private complaint has been filed and it was dismissed, against which, for the same set of facts, second complaint has been filed. However, in the case on hand, originally complaint has been preferred and it was not registered and he approached the learned Magistrate concerned, by invoking Section 156(3) Cr.P.C., and thereafter, a case has been registered and at a later point of time, it was closed as mistake of fact. Applying Paragraph No.24 of the judgment cited supra to the case on hand, I am of the view that the second private complaint given by the defacto complainant is maintainable. However, whether the ingredients of Sections 147, 148, 452, 294(b) and 506(ii) IPC have been made out or not, is only a question of fact and that can be decided only at the time of trial, after letting evidence. Hence, I do not find any reason to quash the complaint in C.C.No.495 of 2008 on the file of learned Judicial Magistrate No.II, Madurai. Hence, the petition in Crl.O.P.(MD)No.10887 of 2008 deserves dismissal and accordingly, it is, hereby, dismissed. However, since the case in C.C.No.495 of 2008 is of the year 2008 and it is pending for more than seven years, the learned Judicial Magistrate No.II, Madurai, is directed to dispose of the same, on merits and as per law, within a period of three months from the date of receipt of a copy of this order. The learned Judicial Magistrate No.II, Madurai, is also directed to consider the application filed by the petitioners for dispensing with the personal appearance in accordance with law. Consequently, the connected miscellaneous petition is also dismissed.
To
1.The Judicial Magistrate No.II, Madurai.
2.The Inspector of Police, X2 Karupayoorani Police Station, Madurai District.
In Crime No.39 of 2008.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..