Madras High Court
Jacqueline Kala vs Sisily Joy on 3 November, 2022
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Crl.O.P.(MD)No.16569 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.11.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
CRL.O.P.(MD)No.16569 of 2018
and
CRL.M.P.(MD)No.7330 of 2018
1.Jacqueline Kala
2.K. Vijayaraj
3.Selvaraj ...Petitioners /Accused 2 to 4
Vs.
Sisily Joy ... Respondent/Complainant
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C.,
to call for the records in C.C.No.1 of 2018 on the Judicial Magistrate
No.II, Kuzhithurai and quash the same.
For Petitioner : Mr.M.P.Senthil
For Respondent : Mr.M.R.Sreenivasan
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https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.16569 of 2018
ORDER
This petition has been filed by the petitioners/A2 to 4 to quash the proceedings pending before the Judicial Magistrate Court No.II, Kuzhithurai, in C.C.No.1 of 2018.
2. The respondent gave a police complaint before the Nithiravilai Police Station on 07.08.2015 to the effect that the petitioners/ accused persons tress-passed into the property belonging to the respondents on 06.08.2015 at about 12.30 p.m. and they damaged the compound wall and demolished the same and when the respondent attempted to interfere with the same, he was abused in filthy language and was threatened with dire consequences. Even thereafter, the accused persons tress-passed into the property and damaged the remaining compound wall also.
3. Based on the above complaint, the Police registered an FIR in Crime No.331 of 2015, for offences under Sections 147, 148, 427, 2/7 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16569 of 2018 447, 294B, 506(ii) IPC as against three accused persons. The investigation was taken up and ultimately, a referred charge sheet was filed before the Court below and the same was taken on file in R.C.No.85 of 2016 and the case was closed.
4. The grievance of the petitioners is that the respondent based on the very same allegations, filed a private complaint before the Court below and the Court below straight-away proceeded to issue summons against the petitioners. Aggrieved by the same, the present petition has been filed before this Court.
5. Heard Mr.M.P.Senthil, learned counsel appearing for the petitioner and Mr.M.R.Sreenivasan, learned counsel appearing for the respondent.
6. It is clear from the records that there are suits pending between the parties and it is not necessary for this Court to go into the inter se rights in the property as between the contesting parties. This Court must only see whether the Court below was right in straight-away 3/7 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16569 of 2018 issuing summons inspite of being aware of the fact that the earlier police complaint came to an end through a referred charge sheet.
7. When the police after investigation filed a referred charge sheet and the defacto complainant filed a private complaint on the very same facts, it is left open to the learned Magistrate to treat it as a protest petition and proceed further to issue process. It is also possible for the Court below to treat the complaint as a private complaint. However, before the process is issued under Section 204 of Cr.P.C, it is the duty of the Magistrate to apply his mind on the closure report as well as the statements that were recorded by the police. The law on this issue was discussed by this Court in Narayanamma and Others Vs. Chikka Venkateshaiah reported in 2019 (2) LW (Crl) 522. This position of law has also been followed in the latest judgment in Alaguthangamani and Others Vs. Saravanan reported in 2022 (4) MLJ (Crl) 156.
8. In the present case, admittedly there was an earlier police complaint which resulted in filing a referred charge sheet. The Court below did not apply its mind on the closure report filed by the police and 4/7 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16569 of 2018 the statements recorded and filed along with the closure report. Hence, the very cognizance taken by the Court below suffers from non- application of mind and the same is liable to be interfered by this court.
9. In view of this illegality, the continuation of the criminal proceedings as against the petitioners will clearly amount to abuse of process of Court, which requires the interference of this Court in exercise of its jurisdiction under Section 482 Cr.P.C.
10. In the result, the proceedings C.C.No.1 of 2018, on the Judicial Magistrate Court No.II, Kuzhithurai, is hereby quashed in its entirety and this Criminal Original Petition is accordingly allowed. Consequently, connected miscellaneous petition is closed.
03.11.2022 Index: Yes/No Internet: Yes/No rm 5/7 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16569 of 2018 To
1.The Judicial Magistrate Court No.II, Kuzhithurai,
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
6/7 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16569 of 2018 N.ANAND VENKATESH, J.
rm CRL.O.P.(MD)No.16569 of 2018 03.11.2022 7/7 https://www.mhc.tn.gov.in/judis