Madras High Court
Samiyappan vs Manimaran on 18 July, 2022
CRL.O.P.(MD).No.6113 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 29.06.2022
Pronounced on : 18.07.2022
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRL.O.P.(MD).No.6113 of 2019
and
CRL.M.P(MD)Nos. 3973 and 3974 of 2019
1.Samiyappan
2.Vasudevan
3.Yogapriya
4.Ponnamal
5.Gunasekaran : Petitioners/A1 to A5
Vs.
Manimaran : Respondent/Complainant
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C, to
call for the records in C.C.No.443 of 2018 on the file of the Judicial
Magistrate No.II, Karur and quash the same.
For Petitioners : Mr.K.Chengiz Khan,
For Respondent : Mr.R.Mathiyalagan.
https://www.mhc.tn.gov.in/judis
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CRL.O.P.(MD).No.6113 of 2019
ORDER
This Criminal Original Petition has been filed, invoking Section 482 Cr.P.C., seeking orders to call for the records in C.C.No.443 of 2018 pending on the file of the Judicial Magistrate No.II, Karur and quash the same.
2. The petitioners are accused 1 to 5 in C.C.No.443 of 218, on the file of the Judicial Magistrate Court No.II, Karur .
3. The case of the respondent put forth in C.C.No.443 of 2018 in short, is as follows :
(a) The second petitioner is the son and the third petitioner is the daughter of the first petitioner; that the petitioners 4 and 5 are the close relatives of the first petitioner and that the third petitioner is residing at Thiruppur and all other petitioners are residing at Orambupalayam, Vettamangalam Village, Manmangalam Taluk, Karur District.
(b) As per the partition deed, dated 08.09.1994, the property in S.No.549/A2 measuring 98 cents and 20 cents of land situated on west in Vettamangalam Village were owned by the respondent and his brother's wife Samiyathal and his brother's son Selvamani ancestrally. Subsequently, https://www.mhc.tn.gov.in/judis 2/21 CRL.O.P.(MD).No.6113 of 2019 there was a partition in the year 2004 between the petitioner, Thangamani, Samiyathal and Selvamani and the said deed refers to 16 links pathway.
They had spent more amount and made the pathway to enable the carts and the vehicles to move freely. Since some third parties and strangers had taken cattles and attempted to interfere with using of the said pathway, the complainant/petitioner had fixed a Bamboo gate and was enjoying the same.
(c) The petitioners 1 to 3 claiming rights in the said pathway, had created troubles and attempted to use the same and the third petitioner by alleging that she had taken sale in the year 2015 from Murugesan, has been claiming rights over the pathway. Though the complainant has informed that they are not having any right in the pathway, they were not accepting the same. The petitioners had threatened the complainant to remove the Bamboo Gate and on that day at about 08.00 pm, the accused were attempting to damage the Bamboo Gate and when the same was questioned, they have abused them and attempted to attack them. Subsequently, a complaint was lodged before the Police, but there was no action.
(d) Since the Bamboo Gate was removed by the petitioners and as there was no Police protection, the complainant by spending huge amount had erected cement pillars and fixed an iron gate. Meanwhile, the third petitioner has filed a civil suit before the District Munsif Court, Karur, claiming rights in the pathway and subsequently, one Banu wife of https://www.mhc.tn.gov.in/judis 3/21 CRL.O.P.(MD).No.6113 of 2019 Vasudevan has filed an another suit before the Karur Munsif Court for the very same pathway. On 23.09.2016 at about 05.00 am, when the complainant, his son Thangamani and brother's son Selvamani went to their field for watering, the petitioners/A1 to A5 had been attempting to remove the iron gate and that when the same was questioned, they had abused the defacto complainant and two others in filthy language, caused criminal intimidation and also attempted to attack them and that thereafter, they had escaped from that place. Subsequently, they came to know that all the accused had removed the iron gate and taken away. Hence, the complaint.
(e) Originally, the complaint was lodged with the Velayuthampalayam Police, but there was no action. Hence, the complainant has filed a petition in Crl.OP(MD)No.20125 of 2016 before this Court, seeking a direction to the Police for registration of the case and in pursuance of the order passed by this Court, FIR came to be registered in Crime No.601 of 2016 for the offence under Sections 147, 148, 447, 448, 294(b), 506(ii), 427 and 379 IPC. The jurisdictional Police, after completing the investigation, has filed a final report under Section 173 of Cr.P.C, dated 10.12.2016 referring the complaint as 'mistake of fact'. Though the complainant has entered into appearance on receiving RCS Notice, he has not chosen to file any protest petition and consequently that complaint was ordered to be closed. Thereafter, the complainant has filed a private https://www.mhc.tn.gov.in/judis 4/21 CRL.O.P.(MD).No.6113 of 2019 complaint under Section 200 Cr.P.C against the petitioners and the learned Magistrate, after conducting enquiry under Section 202 Cr.P.C, had taken cognizance of the case in C.C.No.443 of 2018 for the offence under Sections 147, 148, 448, 294(b), 427, 506(2) and 379 IPC against the petitioners 1 to 5/A1 to A5 and ordered for issuance of summons to the accused 1 to 5 vide order, dated 20.12.2018. Challenging the same, the present Criminal Original Petition came to be filed.
4. The learned counsel for the petitioners would submit that the complainant's case was already registered and after investigation, the same was closed as 'mistake of fact; that the complainant after receiving the closure notice, without exhausting the remedy under Section 173(8) Cr.P.C by filing the protest petition, he filed the private complaint under Section 200 Cr.P.C and that the learned Magistrate ought not to have taken the complaint on file and ought not to have issued summons to the petitioners, as the very taking the complaint on file by the learned Magistrate is nothing but an abuse of process of law.
5. The learned counsel for the petitioners would further submit that the order of accepting the negative final report filed under Section 173(8) Cr.P.C., after denouncing the option of protest petition holds a status of https://www.mhc.tn.gov.in/judis 5/21 CRL.O.P.(MD).No.6113 of 2019 judicial order making an end to the accusation levelled; that the Magistrate who accepted the materials and witnesses propounded by the Investigating Agency, cannot take an other view, while exercising his powers under Section 190(1)(a) Cr.P.C; that the order of taking cognizance by the Magistrate is bad in law and that the pre-cognizance sworn statement and materials placed along with the complaint does not disclose the cognizable offence and the ingredients of the alleged offences under Sections 147,148, 448, 294(b), 427, 506(2) and 379 IPC., are not made out.
6. The main contention of the petitioners is that since the Magistrate has already passed an order accepting the negative report, he has no jurisdiction to take cognizance on the basis of the private complaint under Section 200 Cr.P.C., and that therefore, the order taking cognizance is bad in law and the same is liable to be set aside.
7. It is necessary to refer a three Judge Bench judgment of the Hon'ble Supreme Court in Kishore Kumar Gyanchandani vs. G.D. Mehrotra And Another reported in AIR 2002 SC 483 and the Hon'ble Apex Court has specifically held that even if the Magistrate accepts the final report submitted by the Police, the right of the complainant to file a regular complaint is not taken away and the relevant portion is extracted hereunder:
https://www.mhc.tn.gov.in/judis 6/21 CRL.O.P.(MD).No.6113 of 2019 “4. When the matter was listed before a two-Judge Bench of this Court, thinking that there is some divergence of views, it referred the matter to a three-Judge Bench. On examining the different provisions of the Code of Criminal Procedure as well as the decisions of this Court relevant on the question, we see no divergence in the matter. 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 VermaV. Bhuneswar Prasad Sinha and Ors., 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.” https://www.mhc.tn.gov.in/judis 7/21 CRL.O.P.(MD).No.6113 of 2019
8. It is also necessary to refer the decision of the Hon'ble Supreme Court in State of Rajastan Vs. Aruna Devi and others reported in 1995 SCC (1) 1.
“3. A perusal of the impugned judgment of the High Court shows that it took the view that the Magistrate had no jurisdiction to take cognizance after the final report submitted by police had been once accepted. Shri Gupta, appearing for the appellant, contends that this view is erroneous in law inasmuch as Section 173(8) of the Code permits further investigation in respect of an offence after a report under sub-section (2) has been submitted. Sub- section (8) also visualises forwarding of another report to the Magistrate. Further investigation had thus legal sanction and if after such further investigation a report is submitted that an offence was committed, it would be open to the Magistrate to take cognizance of the same on his being satisfied in this regard.
4. Shri Francis for the respondents, however, contends that the order of the Magistrate taking cognizance pursuant to filing of further report amounted to entertaining second complaint which is not permissible in law. To substantiate the legal submission, we have been first referred to Pramatha Nath Taluqdar v. Saro Ranjan Sarkar1, in which a three-Judge Bench of this Court dealt with this aspect. A perusal of the judgment of the majority shows that it took the view that dismissal of a complaint under Section 203 of the Code is no bar to the entertainment of a second complaint on the same facts; but the same could be done only in exceptional circumstances some of https://www.mhc.tn.gov.in/judis 8/21 CRL.O.P.(MD).No.6113 of 2019 which have been illustrated in the judgment. Further observation in this regard is that a fresh complaint can be entertained, inter alia, when fresh evidence comes forward. In the present case, this is precisely what had happened, as on further investigation being made, fresh materials came to light which led to the filing of further report stating that a case had been made out.”
9. In the said case, the complaint was forwarded under Section 156(3) of Cr.P.C and after investigation, final report was filed stating that the complaint was false, that the police report came to be accepted by the learned Magistrate, that subsequently the Superintendent of Police had independently ordered further investigation and filed the final report and that the Magistrate has taken cognizance of the said report and when the same was challenged, the learned Sessions Judge has dismissed the revision. But the High Court, set aside the order of cognizance and when the same was questioned, the Hon'ble Supreme Court has held that the High Court erred in quashing the cognizance taken by the learned Magistrate.
10. Section 210 of the Code of Criminal Procedure contemplates the procedure to be followed when there is a complaint case and police case in respect of the same offence. Sub Section 1 of Section 210 provides that when in a case instituted otherwise than on a police case, namely, a complaint case, the Magistrate is informed during the inquiry or trial, that an https://www.mhc.tn.gov.in/judis 9/21 CRL.O.P.(MD).No.6113 of 2019 investigation by the Police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate is required to stay the proceedings of such enquiry or trial and to call for a report on the matter from the Police Officer conducting the investigation.
Sub Section 2 provides that if a report is made by the investigating officer under Section 173 and on such report, cognizance of an offence is taken by the Magistrate against any person, who is an accused in the complaint case, the Magistrate shall inquire into or try the two cases together as if both the cases had been instituted on a police report.
Sub Section 3 contemplates that, if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.
11. Considering the above, the position of law is well settled that as per the Code of Criminal Procedure, the defacto complainant is entitled to file a private complaint, even if the case lodged with the police is referred or closed. The right of the defacto complainant to proceed with his complaint, even after the acceptance of the negative report of the police by the learned Judicial Magistrate, is very much available.
https://www.mhc.tn.gov.in/judis 10/21 CRL.O.P.(MD).No.6113 of 2019
12. No doubt, the respondent in his private complaint filed under Section 200 Cr.P.C., has mentioned about the registration of F.I.R., in Cr.No.601 of 2016 and filing of final report as 'mistake of fact', but he has not raised any averments as to how and why the negative report filed by the police is not correct and the same cannot be accepted. More importantly, the learned Magistrate, who conducted enquiry under Section 202 Cr.P.C., and passed the impugned order under Section 204 Cr.P.C., has not at all considered the final report filed by the concerned police, the statements recorded under Section 161 Cr.P.C., and the other documents filed along with the final report.
13. At this juncture, it is necessary to refer the judgment of this Court in Narayanamma and Others Vs. Chikka Venkateshaiah reported in (2019)4 MLJ (Crl.) 616 and the learned Judge of this Court after referring various decisions, has held as follows:
“20. It is clear from the above judgments that if the learned Magistrate wants to convert the protest petition into a private complaint, he has the jurisdiction to do so. However, at the time of taking cognizance, the learned Magistrate has to necessarily apply his mind on the closure report filed by the police and the statements recorded by the police during the course of https://www.mhc.tn.gov.in/judis 11/21 CRL.O.P.(MD).No.6113 of 2019 investigation. This exercise has not been done by the Court below, while converting the protest petition in to a private complaint and taking cognizance of the same.”
14. In the present case, the learned Magistrate has not even whispered anything about the negative report filed by the police and the statements recorded by them during the course of investigation. No doubt, while taking cognizance of a private complaint, after conducting enquiry under Section 202 Cr.P.C., the learned Judicial Magistrate is expected not to pass any elaborate order, but he is duty bound to record his satisfaction that there are prima facie materials to proceed against the accused.
15. The learned Magistrate has passed the following order while taking cognizance of the case;
“Defacto complainant present. Records perused. Prima facie materials available for the alleged offence u/s 147, 148, 448, 294(b), 427, 506(ii) & 379 IPC as against A1 to A5. Hence cognizance is taken against A1 to A5 for the offence u/s 147, 148, 448, 294(b), 427, 506(ii) & 379 IPC and this case is taken on file in C.C.No.443/18. Issued summons to A1 to A5 by 23.01.” https://www.mhc.tn.gov.in/judis 12/21 CRL.O.P.(MD).No.6113 of 2019
16. As already pointed out, the learned Magistrate has not at all recorded her satisfaction about the existence of prima facie materials to proceed.
17. Now coming to the other aspects of the case, the learned counsel for the petitioners would submit that the property in S.No.549/A of Vettamangalam Keezhpagam Village is having total extent of 11.85 acres and the same is being enjoyed by several persons, that the third petitioner purchased 0.16.19 hectares by sale deed, dated 16.09.2015 from one Murugesan and from the date of purchase, she has been enjoying her land as its absolute owner; that there is a common cart track situated on the western side of S.No.549/A having a width of 20 feet running towards north south; that there is a Well situated in S.No.549/A and the same is being used by all the persons who are having lands in S.No.549/A and they are using the said common cart track to reach the Well and to ply their vehicles to reach their lands, which is in the other side of that land.
18. The learned counsel would further submit that the complainant, who is also having land nearby the cart track, has been using the said cart track to reach their land, but raised objections for the usage of the third https://www.mhc.tn.gov.in/judis 13/21 CRL.O.P.(MD).No.6113 of 2019 petitioner and some others and hence, the third petitioner has already filed a suit in O.S.No.249 of 2016 before the Principal District Munsif Court, Karur for the relief of declaration and injection; that thereafter, three more suits in O.S.No.344 of 2016, O.S.No.374 of 2016 and O.S.No.136 of 2017 have been filed and are pending on the file of the District Munsif Court, Karur with respect to the very same cart track right in S.No.549/A and that the complainant in order to wreck vengeance upon the third petitioner, who instituted the suit first, preferred a false complaint by alleging that on 23.09.2016 all the petitioners had demolished the gate and had taken away the same.
19. As rightly pointed out by the learned counsel for the petitioners, the Investigating Officer, in the final report filed under Section 173 Cr.P.C has also observed that except three persons, all other persons who are having land nearby cart track, are having right in the cart track and there existed disputes between the complainant side and the petitioners side in using the cart track situated in S.No.549/A; that several suits are also pending and that the complainant with evil intention to take revenge, by taking the gate by himself, had lodged the complaint falsely implicating the petitioners.
https://www.mhc.tn.gov.in/judis 14/21 CRL.O.P.(MD).No.6113 of 2019
20. It is evident from the records that the third petitioner Yogapriya has filed a suit in O.S.No.249 of 2016 to declare her rights to take their men, cattles and vehicles through the 'B' schedule pathway and for permanent injunction restraining the complainant and his men from interfering with usage of plaint 'B' schedule cart track to reach her 'A' schedule property and that the same is pending on the file of the District Munsif Court, Karur.
21. It is also not in dispute that one Banu wife of Vasudevan has also filed a suit against the complainant and his men in O.S.No.344 of 2016 to declare that the plaintiff therein is entitled to use the 'B' schedule pathway to reach 'A' schedule property by taking her men, cart, cattle, vehicle, etc., and for consequential relief of permanent injunction, restraining the defendants and their men from in any manner obstructing the plaintiff from using the 'B' schedule cart track by taking men, cart, cattle, vehicle etc., to the 'A' schedule property.
22. It is also not in dispute that subsequently one Subramanian has filed a suit against the petitioners 2, 4 and 5 and some others in O.S.No.374 of 2016 claiming permanent injunction restraining the defendants and their men from in any way interfering with the plaintiffs' right of user of 'B' schedule cart track to reach his 'A' schedule property. https://www.mhc.tn.gov.in/judis 15/21 CRL.O.P.(MD).No.6113 of 2019
23. It is further evident that in the year 2017, the complainant, his son, his brothers's wife and son have filed a suit against the petitioners and others in O.S.No.136 of 2017 to declare their right, title and interest over the suit schedule mud cart track and for permanent injunction restraining the petitioners 2, 3 and one Banu and their men from in any way interfering with the plaintiffs' possession and enjoyment of the suit mud cart track.
24. As rightly contended by the learned counsel for the petitioners the civil suits are pending on the file of the District Munsif Court, Karur with respect to the cart track, now in dispute. The complainant in his complaint, apart from himself, had listed out five witnesses, his son Thangamani, his brother's wife Selvamani and two other independent witnesses Subramani and Ravi and according to the complainant, the said witnesses Subramani and Ravi had witnessed the occurrence of taking the iron gate by the accused 1 to 5 in a tempo vehicle.
25. As rightly contended by the learned counsel for the petitioners, in the complaint lodged with the Police, originally the complainant has nowhere mentioned about the said witnesses Subramani and Ravi and he has not stated that the said two witnesses had informed him that they had seen the occurrence of taking the iron gate by the accused 1 to 5 in a tempo. https://www.mhc.tn.gov.in/judis 16/21 CRL.O.P.(MD).No.6113 of 2019
26. It is pertinent to note that the investigating officer in the final report has observed that the Advocate Commissioner appointed by the District Munsif Court, had visited the suit property on 23.09.2016 at about 07.30 am and found that there was no iron gate in the property at that time. Moreover, the investigating officer has specifically observed that since the third petitioner Yogapriya and the second petitioner's wife Banu had filed the civil suits against the complainant, in order to take revenge, the complainant by removing his own iron gate, has lodged a false complaint as if the accused came to the occurrence place at about 05.00 am on 23.09.2016, abused and threatened the complainant and two others and had stolen the iron gate.
27. As already pointed out, there existed disputes between the parties with regard to the usage of cart track and in the absence of any materials or evidence to show that the said cart track was exclusively owned and possessed by the complainant, the question of invoking Sections 427, 448 and 379 IPC does not arise at all.
28. Regarding the offence under Section 506(ii) IPC the prosecution has to show that the threat held by the accused is real and substantial. It is https://www.mhc.tn.gov.in/judis 17/21 CRL.O.P.(MD).No.6113 of 2019 necessary to refer the judgment of this Court reported in (1988) L.W. (Crl.)178 ( Noble Mohandass V. State) and the relevant paragraph is extracted hereunder:
“7. As far as the offence under Section 506(2) is concerned, the learned counsel for the revision petitioner contended that the threat was not a real one, that it was of the kind of words which are currently and frequently used by people when they are angry and that further the threat was not spoken to by P.W. 3 and P.W. 4 who by that time had already come to the scene of occurrence. It is, in fact, found from the records that the threat would have been lashed out after P.Ws. 3 and 4 came to the place and separated both the husband and wife. Therefore, the evidence of P.W. 1 should have been corroborated by the evidence of P.W. 3 and P.W. 4 who were necessary witnesses to the occurrence. Since they did not corroborate the testimony of P.W. 1 in this aspect, the offence cannot be held to be proved. Further for being an offence under Section 506(2) which is rather an important offence punishable with imprisonment which may extend to seven years, the threat should be a real one and not just a mere word when the person uttering it does exactly mean what he says and also when the person at whom threat is launched does not feel threatened actually. In fact P.W. 1 when she filed the complaint to the police officer, did not express any fear for her life nor asked for any protection. Therefore, the offence under S. 506(2) is not made out.” https://www.mhc.tn.gov.in/judis 18/21 CRL.O.P.(MD).No.6113 of 2019
29. In the present case, there is nothing on record to show that the complainant and two other witnesses were criminally intimidated. Now turning to the offence under Section 294(b) I.P.C., according to the prosecution, the petitioners had abused the defacto complainant in filthy language. The Kerala High Court in Latheef Vs. State of Kerala reported in 2014 (2) KLT 987 relying on the earlier judgements of Kerala High Court has held that abusive words or humiliating words or defamatory words will not as such amount to obscenity as envisaged in Section 292 and 294 (b) IPC and to make it punishable under Section 294(b) of IPC, the alleged words must be in a sense lascivious, or it must be appeal to the prurient interest, or will deprave or corrupt persons.
30. As rightly contended by the learned counsel for the petitioner, even assuming that the petitioner had uttered the words as alleged by the prosecution, the same will not satisfy the definition of obscenity and as such no offence under Section 294(b) is made out. Even assuming that the accused had uttered obscene words, there is no materials to show that the same had caused annoyance to others.
31. Considering the above, this Court has no hesitation to hold that the cognizance taken by the learned Magistrate is not good in law and the https://www.mhc.tn.gov.in/judis 19/21 CRL.O.P.(MD).No.6113 of 2019 same is liable to be interfered with. Consequently, this Court concludes that permitting the prosecution to proceed against the petitioners would amount to an abuse of process of law and hence, the proceedings in C.C.No.443 of 2018, pending on the file of the Court of Judicial Magistrate No.II, Karur as against the petitioners are liable to be quashed.
32. In the result, this Criminal Original Petition is allowed and the proceedings in C.C.No.443 of 2018, pending on the file of the Court of Judicial Magistrate No.II, Karur as against the petitioners are quashed. Consequently, the connected Miscellaneous Petitions are closed.
18.07.2022 das Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To The Judicial Magistrate No.II, Karur.
https://www.mhc.tn.gov.in/judis 20/21 CRL.O.P.(MD).No.6113 of 2019 K.MURALI SHANKAR, J.
das CRL.O.P.(MD).No.6113 of 2019 and CRL.M.P(MD)Nos. 3973 and 3974 of 2019 18.07.2022 https://www.mhc.tn.gov.in/judis 21/21