Madras High Court
Bhanwarlal Sharma vs K.V.Sathyanarayanan on 4 October, 2011
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.10.2011
CORAM:
THE HON'BLE MR.JUSTICE T.MATHIVANAN
Crl.O.P.No.21270 of 2010
and
M.P.No.1 of 2010
Bhanwarlal Sharma .... Petitioner
Vs.
1.K.V.Sathyanarayanan
2.The Deputy Commissioner of Police
Central Crime Branch, Chennai
3.The Inspector of Police
Central Crime Branch, Team-III
Chennai ..... Respondents
Prayer : Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, seeking a direction to call for the records and quash the proceedings in Crl.M.P.No.1946 of 2010, pending on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai, in Crime No.703 of 2007.
For Petitioner : Mr.Udayat V.Lalit, Senior Counsel
for Mr.P.Krishnan
For Respondents : Mr.N.R.Elanto, Senior Counsel
for R.Vivekananthan for R1
Mr.A.N.Thambidurai
Addl.Public Prosecutor for RR2 & 3
O R D E R
After invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, this petition is preferred by the petitioner to call for the records and quash the proceedings in Crl.M.P.No.1946 of 2010, pending on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai, in Crime No.703 of 2007.
2. The excerpts of the contention of the petitioner Mr.Bhanwarlal Sharma:
The impugned proceeding in Crl.M.P.No.1946 of 2010 has been initiated by the first respondent/complainant Mr.K.V.Sathyanarayanan under the caption of 'protest petition' before the learned Chief Metropolitan Magistrate, Egmore, Chennai, to review his own order, whereby the final report filed by the third respondent was accepted and the complaint against the accused persons including the petitioner herein was closed as being 'civil in nature'. Though sufficient opportunity was given to the first respondent/complainant Mr.K.V.Sathyanarayanan to defend the proposal of closing the case, he has preferred the impugned protest petition at a belated stage, after the final order of closure was passed by the learned Chief Metropolitan Magistrate, Egmore, Chennai. Since the learned Chief Metropolitan Magistrate, Egmore, Chennai has become 'functus officio' after signing the final order of closure, hearing the matter afresh is against the very spirit of Section 362 of the Code of Criminal Procedure and would tantamount to abuse of process of law. Moreover, the claim of Mr.K.V.Sathyanarayanan has been struck down by the entire hierarchy of Civil Courts, including the Apex Court and the earlier complainant in Crl.M.P.No.507 of 2007 was also closed as 'civil in nature. Hence, the petitioner Mr.Bhanwarlal Sharma, being the fifth accused, has approached this Court to quash the said proceedings.
3. The facts germane for the disposal of this petition:
This petitioner is the fifth accused in the case in Crime No.703 of 2007, on the file of the third respondent viz.the Inspector of Police, Central Crime Branch, Team-III, Chennai. The first respondent Mr.K.V.Sathyanarayanan had preferred a complaint before the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai on 17.10.2007 in Crl.M.P.No.2145 of 2007 against the following five accused:
i. Mr.Shanthilal Surana, ii. Mr.Gowthamraj Surana, iii. Mr.Dineshchand Surana, iv. Mr.Vijayaraj Surana, and v. Mr.Bhanwarlal Sharma (petitioner herein).
4. Allegations levelled in the complaint:
a. The piece of land comprised in Survey Nos.1060/1 and 1060/2 at Madhavaram Village, measuring 7.72 Acres belonged to one Mrs.L.A.Bromwich, who allowed one Mrs.Margret Mennie and her family members to reside in the said land and maintain the same.
b. The said Mrs.L.A.Bromwich had passed away in the year 1984. After his demise, Mrs.Margret Mennie had executed a deed of power of attorney in favour of Mr.Shantilal Surana (A1), authorising him to alienate the above said land. However, on 03.03.1994, she had revoked the said deed of power of attorney and subsequently died on 05.10.1997.
c. Even prior to her death ie. On 12.01.1996 the said extent of land was purchased by the first respondent Mr.K.V.Sathyanarayanan and his family members by way of four different sale deeds, registered on the file of the Sub-Registrar, Sembium, Chennai.
d. While so, Mr.Shantilal Surana (A1) had sold the said property to his brothers namely Mr.Gowthamraj Surana (A2), Mr.Dineshchand Surana (A3) and Mr.Vijayraj Surana (A4) through six sale deeds on 06.08.1999 and 15.09.1999 respectively. Thereafter, on 10.10.1999 Mr.Dineshchand Surana (A3) had sold a portion of the said property to Mr.Bhanwarlal Sharma (A5), who is the petitioner herein.
e. Having known the facts that Mr.K.V.Sathyanarayan and his family are the owners of the land measuring an extent of 7.79 Acres, the accused persons 1 to 5 had colluded together and conspired to execute various sale deeds with a view to cheat and grab the said land.
5. It was, therefore, alleged that this petitioner along with other four accused had committed the offences punishable under Sections 468, 471, 420 r/w 120B I.P.C. This complaint was forwarded to the third respondent Police for enquiry by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai under Section 156(3) of the Code of Criminal Procedure.
6. The third respondent Police had taken up the case for investigation and after the completion of his investigation, he had filed a final report on 28.06.2009 before the learned Chief Metropolitan Magistrate, Egmore, Chennai, saying that this case is the one which should be tried in a civil court as the relief is to be sought therefrom, and therefore, this case is treated as civil in nature and in consequent thereof further action is dropped. It is also stated to you that the closure of this case as civil in nature was informed to the complainant Mr.K.V.Sathyanarayanan, vide R.C.Notice dated 27.06.2009 through H.C.Thiru.Sivantha Gowndar.
7. After receiving the negative final report, the learned Chief Metropolitan Magistrate, Egmore, Chennai had issued R.C.S. Notice to the complainant Mr.K.V.Sathyanaranan on 13.10.2009, which appears to have been received by him on 14.10.2009.
8. Thereafter, the learned Chief Metropolitan Magistrate had on 30.10.2009 passed an order and thereby closed the case in Crime No.703 of 2007 as 'civil in nature' after accepting the negative final report filed by the third respondent Police.
9. Challenging the negative final report, the first respondent, who is the complainant therein, has filed a protest petition in Crl.M.P.No.1946 of 2010, which is under challenge in the present quash petition, to reject the report filed by the third respondent Inspector of Police and to direct the Deputy Commissioner of Police, Central Crime Branch to reinvestigate the same personally and file the report.
10. During the pendency of the said protest petition, Mr.Bhanwarlal Sharma, petitioner herein (A5) has filed an impleading petition to implead himself as third respondent therein in order to putforth necessary factual aspects for better appreciation of the entire scenario. That petition is pending as unnumbered. Under this circumference, this petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioner herein, who is A5 in the case in Crime No.703 of 2007, to quash the proceedings in Crl.M.P.No.1946 of 2010 i.e.the proceeding in protest petition.
11. Before we go into the merits of the case, it may be quiet relevant to refer the first complaint filed by the first respondent Mr.K.V.Sathyanarayanan before the learned Chief Metropolitan Magistrate, Egmore, Chennai.
12. It appears from the records that verbatim the same complaint as that of in Crl.M.P.No.2145 of 2007 was preferred by Mr.K.V.Sathyanarayanan, first respondent herein before the learned Chief Metropolitan Magistrate in Crl.M.P.No.507 of 2007 on 21.02.2007 against the very same accused persons and infact under the same penal provisions of Indian Penal Code. This complaint was referred to the Inspector of Police, Central Crime Branch, Team VIII, Egmore, Chennai for taking suitable action. It was investigated by the concerned Inspector of Police and ultimately it was closed as the case is civil in nature.
13. Prior to that an R.C.S.Notice was issued to the complainant viz.Mr.K.V.Sathyanarayanan/first respondent herein on 16.04.2007, informing him that the matter appears to be civil case and that the complaint given by him was dropped without any action. To that effect, a negative final report dated 06.06.2007 was submitted by one Mr.Muthurasa, Inspector of Police, VIII Team, Egmore, Chennai, which appears to have been forwarded to the learned Chief Metropolitan Magistrate, Egmore, Chennai, by the Assistant Commissioner of Police, Crime Branch, Egmore, Chennai on the same date.
14. On receipt of the final report, it appears that the learned Additional Chief Metropolitan Magistrate had issued a notice on 24.09.2007 to the complainant viz. the first respondent herein stating that:
Based on complaint filed in the Police Station/Court/the complaint was forwarded to the Central Crime Branch and when enquired, your complaint was found to be of civil nature and the same has been mentioned in the final report which has been submitted in this Court by the Police department. For filing your objection in the above matter the case is posted on 23.10.2007. If you fail to file any objection on that day the court will presume that you don't have any objection on the final report filed by the police department and the court will pass orders on merits.
15. It also appears that this notice was received by the complainant/first respondent on 28.09.2007. Even after the receipt of the notice, the complainant did not file any objection against the said negative final report. Ultimately, the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, had proceeded to pass an order on 22.11.2007 saying that:
The Police has filed a final report in this case. It is stated in the final report that the case was referred as civil nature. Hence, the case is recorded as civil in nature.
16. Admittedly, the Order of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, dated 22.11.2007 and made in Crl.M.P.No.507 of 2007 has not been challenged by the first respondent/complainant.
17. It is pertinent to note here that the complaint filed by the first respondent/complainant in Crl.M.P.No.2145 of 2007, which was closed on 30.10.2009 as civil in nature is the second complaint.
18. The petitioner Mr.Bhanwarlal Sharma, who is A5 in the case, has contented that having been allowed the closure of the first complaint in Crl.M.P.No.507 of 2007 dated 22.11.2007 to become final, without challenging the order of closure dated 22.11.2007, the second complaint in Crl.M.P.No.2145 of 2007 ought not to have been entertained and referred to the third respondent Police under Section 156(3) of the Code of Criminal Procedure.
19. Mr.Udayat V.Lalit, learned senior counsel appearing for Mr.P.Krishnan, learned counsel for the petitioner on record has mainly based his arguments on the following two grounds:
a. When the first complaint in Crl.M.P.No.507 of 2007 was closed by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, on 22.11.2007 on the ground of 'civil in nature', the second complaint in Crl.M.P.No.2145 of 2007 without challenging the above said order, is not maintainable and it is nothing, but deliberate abuse of process of Court.
b. The criminal Court does not have power to recall it's own order under Section 362 of the Code of Criminal Procedure.
20. In this regard, Mr.Udayat V.Lalit, learned senior counsel, while advancing his argument, has made reference to the proviso to Sections 203 and 362 of the Code of Criminal Procedure. Section 203 of the Code of Criminal Procedure reads as follows:
203. Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
21. On the recommendation of law commission, in it's 41st report, the word 'may' appearing in the Section 203 of old Cr.P.C., has been substituted by the word 'shall' in the new section. The law commission, in it's 41st report, has observed:
Section 203 provides that if the Magistrate dealing with a complaint finds no sufficient cause for proceeding with the case even after considering the evidence of the complaint and his witnesses and the result of the inquiry or investigation made under Section 202 he 'may' dismiss the complaint. It is difficult to imagine what other course is possible in such circumstances, and the direction of law for the dismissal of such a complaint might as well be plainer. We propose therefore, to put in 'shall' in place of 'may'. It is thus clear that the Law Commission after careful analysation has inserted the word 'shall' after replacing the word 'may', to shape the wordings more strong and forceful that the Magistrate shall dismiss the complaint, if he is of opinion that there is no sufficient ground for proceeding.
22. From the above context, it is manifest that the intention of the Law Commission is that after considering the statements of the complainant on oath (if any) and of the witnesses and after the result of the inquiry or investigation (if any), the Magistrate is of opinion that there is no sufficient ground to proceed, he shall dismiss the complaint, and he while doing so shall record his reasons briefly.
Ground - I:
23. Mr.Udayat V.Lalit, learned senior counsel in support of his contention has placed reliance upon the following two decisions of the Apex Court:
i. Poonam Chand Jain and another vs. Fazru, AIR 2010 SC 659, ii. Ranvir Singh vs. State of Haryana and Another, (2009) 9 SCC 642,
24. In the first case viz. Poonam Chand Jain and another vs. 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. In paragraph No.27, the Division Bench of the Apex Court has held that:
27. Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint is not maintainable. This Court finds that the core of both the complaints is the same. Nothing has been disclosed in the second complaint which is substantially new and not disclosed in first complaint. No case is made out that even after the exercise of due diligence the facts alleged in the second complaint were not within the application of the first complaint. In fact such a case could not be made out since the facts in both the complaints are almost identical. Therefore, the second complaint is not covered within exceptional circumstances explained in Pramatha Nath (supra). In that view of the matter the second complaint in the facts of this case, cannot be entertained.
25. In the instant case on hand, the first complaint was closed by the learned Chief Metropolitan Magistrate on the ground of 'civil nature' based on the negative final report submitted by the third respondent. As in the case of the above cited decision, in the instant case also the second complaint was filed verbatim on the identical facts of the first complaint. As decided in Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876, let us discuss elaborately in the later paragraphs as to whether the second complaint has been covered within the exceptional circumstances.
26. In the second case viz. Ranvir Singh vs. State of Haryana and Another, (2009) 9 SCC 642 also the Division Bench of the Apex Court headed by His Lordship Hon'ble Mr.JUSTICE ALTAMAS KABIR after quoting Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876 has held that:
Even if a complaint is dismissed under Section 203, a second complaint would still lie under exceptional circumstances, e.g., where previous order was passed on an incomplete record or on misunderstanding of nature of complaint or it was manifestly absurd, unjust, fallacious or false or where new facts, which could not, with reasonable diligence, have been brought on record in a previous proceeding, have been adduced. His Lordship in Paragraph No.28, has further held that:
28. We are unable to appreciate the submissions made on behalf of the petitioner, since the law with regard to the filing of a second complaint is now crystallised. It is well settled that such a complaint is maintainable in different circumstances as enumerated in Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876 and Jainder Singh vs. Ranjit, (2001) 2 SCC 570 : 2001 SCC (Cri) 354."
27. The facts of the present case on hand are almost identical to the facts in A.Krishna Rao vs. L.S.Kumar 1998 (I) CTC 329. In this case the respondent L.S.Kumar had preferred a complaint against the petitioner and others before the SIPCOT Police Station at Ranipet and a receipt in F.D.R.No.110 of 1993 had been issued to him by the Police. As the police had not taken any further action on the said complaint, the complainant filed a private complaint before the learned Judicial Magistrate No.II, Wallajapet and the learned Judicial Magistrate had forwarded the said complaint to the police under Section 156(3) Cr.P.C., for investigation and report. The police registered a case in Crime No.389 of 1994 under Sections 323, 341 and 506(2) I.P.C., and after investigation the investigating officer had filed the final report on 09.12.1994 referring the case as 'Mistake of fact'. The learned Judicial Magistrate had sent a memo along with the R.C.S.Notice and the complainant did not file any objection and on the contrary he had filed another private complaint on 15.12.1994 and the same was taken by the said Court in C.C.No.274 of 1994. As the Police had already investigated the case and the matter had been referred to as 'Mistake of fact', the learned Magistrate ought not to have taken cognizance of the second complaint. In such circumstances, the learned Single Judge of this Court had concluded that the proceedings in the second complaint, which was pending in C.C.No.274 of 1994 on the file of the learned Judicial Magistrate, Wallajapet had to be quashed.
28. The learned Judge after referring various decisions viz., i. Murugesan vs. Kothandam, 1969 L.W.Crl. 268, ii. Ramasubbu vs. State, 1987 L.W. Crl.79, iii. Ansari vs. Mohammed Ali, 1990 L.W. Crl.201, has held that:
The Police have filed the referred charge sheet as 'mistake of fact'. It seems the Magistrate has accepted the R.C.S. It is not the case of the respondent herein that the Magistrate has not accepted the R.Cs., filed by the Police. In such circumstances, when the Magistrate has accepted the R.C.S., the second complaint should be filed only after setting aside the order passed by the learned Magistrate in the referred charge sheet. However, the respondent herein has not taken any such action and instead had filed a second complaint which the learned Magistrate has taken cognizance. It has been held in the above decisions that taking cognizance in the second complaint, makes the same not maintainable. I have no hesitation to follow the said view, and as such it has to be held that the second complaint which is pending before the learned Judicial Magistrate No.II, Wallajapet in C.C.No.274 of 1994 is not maintainable and the proceedings have to be quashed. Accordingly, the criminal proceedings were quashed. Ground II:
29. In the protest petition in Crl.M.P.No.1946 of 2010, on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai, the first respondent/complainant has sought the prayer of rejection of the report (negative final report) filed by the third respondent and to direct the second respondent to reinvestigate the complaint, which was closed as 'civil in nature' and to file a report.
30. In this connection, Mr.Udayat V.Lalit, learned senior counsel has adverted to that once the complaint was closed as 'civil in nature' by the learned Chief Metropolitan Magistrate after accepting the negative final report submitted by the third respondent herein, he had no power to recall his own Order of dismissal as contemplated under Section 362 of the Code of Criminal Procedure.
31. The learned senior counsel has also maintained that the learned Chief Metropolitan Magistrate had also erroneously entertained the said protest petition in Crl.M.P.No.1946 of 2010 and his proceedings to hear the issue that had already been decided by the same Court.
32. Section 362 of the Code of Criminal Procedure enacts as follows:
Section 362. Court not to alter judgment.- Save as otherwise provided by this Code or by any other law for the time being in force, no court when it has signed its judgment or final order disposing of a case, shall after or review the same except to correct a clerical or arithmetical error.
33. The section applies to judgmenjts as well as final orders. It prohibits the Court from altering or revising any judgment or final order disposing of a case after it has been signed except for the purpose of correction of clerical or arithmetical error. As held in Hari Singh Mann vs. Harbhajan Singh Bajwa, AIR 2001 SC 43 : (2001) 1 SCC 169, as soon as the judgment or final order disposing of a case is signed it becomes final and the Court is functus officio. In an another decision in Sarbeswar Panda vs. Adhir Kumar Jana, (1959) 2 Cal 69, it is laid down that the Court has no jurisdiction to set aside or review its own judgment or final order which has already been signed.
34. The learned senior counsel has also added that the learned Chief Metropolitan Magistrate had now reopened the case, which was closed by the very same Court vide it's order dated 30.10.2010, by admitting the protest petition in Crl.M.P.No.1946 of 2010. It is well settled principle of law that once a final order signed, the Court becomes functus officio and cannot review the same subsequently as contemplated under Section 362 Cr.P.C.
35. The learned senior counsel has also maintained that the Order dated 30.10.2010 passed by the trial Court is still in force and has not been set aside by any superior Court of law. In such a scenario, the trial Court is barred from entertaining a petition much less protest petition that seeks to reconsider and review its own order.
36. The learned senior counsel would further submit that the criminal Courts do not have power to review except to set right the clerical or arithmetical error and that Section 362 of the Code of Criminal Procedure imposes an imbargo on the criminal courts to entertain any such plea after it has rendered its verdict. He has also canvassed that since the learned Chief Metropolitan Magistrate has already applied his mind on the final report and passed an order closing the case as civil in nature, reopening the same subsequently and hearing the matter afresh is violative of Section 362 Cr.P.C. He has also argued that the first respondent herein, under the guise of 'protest petition' seeks to achieve what is expressly barred under Section 362 Cr.P.C. Therefore, the impugned proceedings deserve to be quashed in limine.
37. The learned senior counsel has further contended that the impugned proceedings was based on the case in Crime No.703 of 2007, which itself deserved to be struck down as illegal. He has also contended that even prior to the registration of the case in Crime No.703 of 2007, the first respondent had preferred a complaint before the learned Chief Metropolitan Magistrate, Egmore, Chennai in Crl.M.P.No.507 of 2007, which was earlier closed on 22.11.2007.
38. He has also contended that the case in Crime No.703 of 2007 was registered only based on the second complaint lodged by the first respondent, which was nothing but a mere verbatim replication of the first complaint preferred by the first respondent. In the second complaint, the first respondent had not mentioned any new occurrence or development that necessitated fresh investigation of the issue, which was already decided. It is a well settled principle of law that in the absence of sufficient cause being shown, repetitive complaints in respect of the very same occurrence ought not to be entertained. The first respondent has not only failed to show sufficient cause, but has also intentionally suppressed the first complaint lodged by him from the knowledge of the Court and therefore the case in Crime No.703 of 2007 based on the second complaint is nothing but an abuse of process of law, which is absolutely bad in the eyes of law.
39. It is pertinent to note here that Sub-Section 3 to Section 156 of the Code of Criminal Procedure contemplates that:
Any Magistrate empowered under section 190 may order such an investigation by any Police Officer in charge of a Police Station.
40. It is also manifest from the available records that the Order of closure as 'civil in nature' in respect of the first complaint in Crl.M.P.No.507 of 2007 has not been challenged by the first respondent. Without challenging the Order of closure of first complaint dated 22.11.2007 on the ground of 'civil in nature', the first respondent has filed the second complaint in Crl.M.P.No.2145 of 2007 verbatim on the same allegations without even changing it's character excepting the insertion of the word in the bottom of Paragraph No.7 as "the present value of the said land is about Rs.1.55 Crores (market value)" against the very same accused persons, including the petitioner being A5 therein. The second complaint in Crl.M.P.No.2145 of 2007 does not have any reference about the filing of the first complaint in Crl.M.P.No.507 of 2007 and it's closure dated 22.11.2007.
41. Without disclosing the above facts, the first respondent has filed the second complaint, which itself would project that the act of the first respondent is nothing, but abuse of process of Court. This complaint was also forwarded to the respondent Police for investigation and ultimately a referred charge sheet was filed after dropping the further proceedings as 'civil in nature'. It also appears that a notice in respect of closure of the case was given to the first respondent/complainant and after accepting the final report, the learned Additional Chief Metropolitan Magistrate has also closed the second complaint in Crl.M.P.No.2145 of 2007 on 30.10.2009.
42. The above facts would go to show that the petitioner herein along with other accused persons were subjected to enquiry twice on the same allegations as that of in the first complaint.
43. Mr.N.R.Elango, learned senior counsel appearing for Mr.R.Vivekananthan, learned counsel for the first respondent on record has contended that the first respondent/complainant was not even informed as required under sub-clause (ii) to sub-section 2 of Section 173 Cr.P.C., and that the signatures found in the R.C.S.Notices purported to have been signed by the first respondent were disputed. He has also adverted to that based on the false information as though the first respondent was served with the R.C.S.Notice, the learned Additional Chief Metropolitan Magistrate had proceeded to close the case in Crime No.703 of 2007 as 'civil in nature'. The contention, in this connection, raised by the learned senior counsel would be discussed in the appropriate place in the later stage.
44. Mr.Udayat V.Lalit, learned senior counsel, while advancing his arguments has laid emphasis on the Articles 19 and 21 of the Constitution of India and submitted that the Court while adjudicating the criminal proceedings has to strike a balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C., empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate, provided there is special circumstances to project that with reasonable diligence the new or additional evidence collected could not have brought forward in the earlier investigation.
45. Mr.Udayat V.Lalit, learned senior counsel would argue that as observed by the Apex Court in T.T.Antony vs. State of Kerala and others, (2001) 6 SCC 181, the second complaint filed by the complainant, is absolutely void. In Paragraph No.28 of the above cited Judgement, the Apex Court has observed that:
28.......However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizble offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr.P.C., or under Article 226/227 of the Constitution.
46. For effective adjudication of this petition under Section 482 Cr.P.C., it may be more appropriate to refer the final report filed by the third respondent in the case in Crime No.703 of 2007 under Sections 468, 471, 420 r/w 120B I.P.C., based on the second complaint filed by the first respondent, before the learned Chief Metropolitan Magistrate.
47. The crux of the final report:
47a. The land measuring 7.72 Acres at Madhavaram Village was originally belonged to Maria Davitt and J.W.Thomson, who had jointly purchased the property under a registered sale deed in document No.450 of 1909 dated 23.04.1909. Mr.W.J.Thomson was unmarried and died without leaving any legal heir. Maria Davitt also died leaving behind her daughter Hanna Davitt and grand daughter, Margret Mennie as her legal heirs.
47b. Margret Mennie had been residing in the above said land along with her family. In order to prevent the acquisition of the land under the Urban Land Ceiling Act, she had entered into a Partnership Deed with Shanthilal Surana (A1) on 12.06.1985 and formed a firm under the name and style of 'M/s.Surana Steels' in the said land, to deal with steel rolling mill business. As the land was to be used for 'Surana Steels', Margret Mennie and Shanthilal Surana (A1) made various representations to the Government, seeking exemption from the provisions of the Urban Land Ceiling Act.
47c. The original title deeds of the land went missing and in order to prevent the misuse of those documents, a public notice was floated through a news paper, calling upon anyone claiming right over the said land to come forward with their claim. However, nobody came forward to dispute the title of Margret Mennie over the said land. Subsequently, in the year 1988, the Tahsildar, Saidapet had also issued 'Legal Heirship Certificate, certifying that Margret Mennie and her mother Hanna Davitt were the only heirs of Maria Davitt.
47d. Owing to the financial crunch in her family, Margret Mennie had decided to dispose off the land and therefore, she had entered into an agreement for sale of the land with Chandanmal Sharma. Thereafter, Maragarte Mennie and her heirs had executed an irrevocable Deed of Power of Attorney, in favour of Shantilal Surana (A1), which was registered as document No.608 of 1991, on the file of the Sub-Registrar, Sembium, authorising him to alienate the said land.
47e. The Government had awarded exemption for the said land from the provisions of the Urban Land Ceiling Act vide G.O.No.113 of 1994, on a condition that the said land should be utilised for industrial purposes within a period of one year. As a huge funds were required to commence the work on the said land, Gowthamraj Surana (A2), Vijayaraj Surana (A3) and Dineshchand Surana (A4) were also added as partners of 'Surana Steels' and accordingly the firm was registered in document No.290 of 1994 on the file of the Registrar of Firms, North Chennai.
47f. Out of the total extent of 7.72 Acres, 7 Acres were allotted for 'Surana Steels' around which a compound wall was also raised. The remaining 72 Cents were retained by Margret Mennie and her family, which was later sold to various other persons. The process of setting up 'Surana Steels' got delayed due to a civil suit preferred by one Hope K.Moses and Veeraragavan, claiming to be the power agents of the legal heirs of L.A.Bromwich against Margret Mennie, before the learned Sub-Judge, Thiruvallur in O.S.No.29 of 1994. However, the said suit got dismissed.
47g. In the year 1994, without the knowledge of Shantilal Surana (A1), Margret Mennie and her heirs had cancelled the Power of Attorney granted by them in his favour. Meanwhile, the works for setting up 'Surana Steels' was in progress and in the same year, applications were made for electricity connection in the name of 'Surana Steels' on payment of necessary charges. The action taken by the 'Aadhi Dravidar Welfare Department' towards acquiring the said land was also successfully prevented on the representations made by Dineshchand Surana (A3).
47h. Considering the delay caused by the pendency of the civil suit, the Government vide G.O.No.262 of 1997 dated 06.03.1997, granted a further period of two years for setting up the industry in the said land. In such circumstances, Margret Mennie had passed away on 09.10.1997.
47i. In the year 1999, being unaware of the cancellation of the Power of Attorney granted in his favour, Shantilal Surana (A1) sold the 7 Acres of land on which 'Surana Steels' was set up, in favour of his brothers, Gowthamraj Surana (A2), Dineshchand Surana (A3) and Vijayaraj Surana (A4) by way of six different sale deeds dated 06.08.1999 and 15.09.1999 registered as document Nos.5440, 5441, 6184, 6185, 6414 and 6415 of 1999, on the file of the Sub-Registrar, Sembium.
47j. While so, during the years 2000-02, the sale executed by Shantilal Surana (A1) in favour of his brothers was ratified by the legal heirs of Margret Mennie vide ratification deeds registered on the file of the Sub-Registrar, Sembium. Thus, having derived the title as aforestated, Gowthamraj Surana (A2) and others continued to be in possession of the disputed land as its absolute owners. Patta for the said land also stands jointly in their names as per the orders of the District Revenue Officer dated 18.07.2008. The defacto complainant's challenge against the said order of granting patta in favour of Gowthamraj Surana (A2) and others, before the Madras High Court in W.P.No.20461 of 2008 has also been turned down, after granting liberty to the first respondent/complainant to approach the civil court by duly impleading all the necessary parties, which was never done.
47k. the petitioner Bhanwarlal Sharma (A5), in the case in Crime No.703 of 2007, has been claiming that he had purchased a portion of the said property from Mr.Dineshchand Surana (A3) on 10.10.1989.
On Merits
48. The first respondent/complainant in his counter has submitted that he had purchased the vacant land comprised in Survey No.1060/1 and 1060/2 measuring 7.72 acres at Madhavaram Village from the earstwhile owners under 4 sale deeds dated 12.01.1996, registered on the file of Sub Registrar Office, Sembiam, Chennai and ever since from the date of purchase, he has been in peacefully possession and enjoyment of the same.
49. The said vacant land was watch keeped by one Margaret Mennie and her family and they were allowed to reside in the said vacant land by the owners of the land viz. Mrs.L.A.Bromwich.
50. Mr.Shanthilal Surana (A1), had clandestinely instigated the said Margarate Mennie and her family members and created a power of attorney in his favour in respect of the said property with full power of alienation. The said Margaret Mennie and her family were described as servants under L.A.Bromwich, who was the real owner of the said land.
51. After the demise of Mrs.L.A.Bromwich, in the month of April 1984, the said Margaret Mennie and family were allowed to stay as watch keepers of the said land by the legal heirs of late Mrs.L.A.Bromwich. After realising the gross error committed by her, the said Margaret Mennie had revoked the said power of attorney given in favour of Mr.Shanthilal Surana (A1) on 03.03.1994 and thereafter, she had passed away on 05.10.1997.
52. The first respondent/complainant has also contended in his counter that a detailed enquiry was conducted by the Assistant Commissioner ULC, Madhavaram on 07.01.1999. While so, Mr.Shanthilal Surana(A1) even after taking five adjournments had never appeared for the enquiry. Noel Mennie and his siblings had accepted and given statements before the Assistant Commissioner ULC, that they were only care takers of the property and not the owners. The Assistant Commissioner had discussed all these facts in detail in his report and forwarded the same to the Principal Commissioner, ULC on 05.03.1999.
53. The Principal Commissioner in turn with his recommendation forwarded his report to the Revenue Secretary on 14.05.1999. The Revenue Secretary had passed his final orders on 30.03.2000 stating that "the exemption obtained under G.O.No.113 to utilize the lands expired on 05.03.1999. Since the children of Margaret Mennie themselves had accepted that they were not the owners of the property and the exemption given already had expired and since the ULC Act itself was repealed, there is no more proceedings on this.
54. Knowing fully well that the first respondent/complainant and his family members are the absolute owners of the said vacant land by virtue of the sale deed dated 12.01.1996 and this fact would be reflected in the encumbrance certificate, Mr.Shanthilal Surana (A1) had deliberately with malafide intention and fraudulently without any right over the said property had executed 3 sale deeds on 06.08.1999 in favour of accused nos.2 to 4 who are none other his brothers and further he had executed another three sale deeds on 15.09.1999 in favour of accused nos.2 to 4 at the office of the Sub Registrar, Sembiam. The 3rd accused had further sold a portion of the land (500sq.ft.) to the petitioner herein/5th accused within one month for a sale consideration of Rs.3,12,500/- (by jacking the land value by about 100 times) on 10.10.1999.
55. He has also contended in his counter that the accused 1 to 5 which includes the petitioner herein had conspired together to grab his property for which the accused 2 to 5 had abetted the first accused, Mr.Shanthilal Surana. He has further contended that the petitioner herein is not an innocent purchaser as claimed by him, but the alleged sale between the petitioner herein and his vendor (A3) is a fabricated document and this could be clearly elucidated from the fact that the address of Mr.Shanthilal Surana(A1) and this petitioner/A5 are one and the same.
56. Apart from this, the first respondent/complainant has also contended in his counter that all the accused persons had mortgaged the disputed property with several Banks viz. Bank of Baroda, Punjab National Bank, Bank of Maharashtra, Central Bank of India, Indian Overseas Bank, State Bank of India, Bank of Rajasthan and UCO Bank and obtained Rs.126 Crores as a loan during January 2006. But the worth of the property as on that time was only 10 Crores. This fact would go to show that there exist a greater conspiracy not only to cheat him but also to swindle the public money. Hence, a proper investigation alone would reveal the other offences including the one under the Prevention of Corruption Act as well as the involvement of the bank officials.
57. On perusal of the records this court is able to visualise that the first respondent/complainant and his family members had almost exhausted all the possible ways available in all the civil forums up to the level of Supreme Court of India. But all his attempts made in civil forums ended in futile. The records would further reveal that the first respondent/complainant and his family members had at first instituted a suit in O.S.No.187 of 1999 on the file of the Sub-Court, Ponnery seeking the relief of permanent injunction against the defendants therein. That suit was dismissed on 27.09.2002. Challenging the decree and judgment, the first respondent/complainant and his family members had filed an appeal in A.S.No.36 of 2003 on the file of the Learned Principal District Judge, Chengalpattu. This appeal was also dismissed with an observation that;
Therefore the plaintiffs ought to have approached the court for recovery of possession as they have not proved possession as on the date of the suit. Therefore, the plaintiffs are not entitled for the relief of injunction as claimed for and I have no reason to interfere with the judgment of the trial court except the findings of title against plaintiffs.
58. Challenging the decree and judgment in the appeal in A.S.No.36 of 2003, the first respondent/complainant and his family members had also filed a second appeal in S.A.No.1120 of 2006 on the file of this court. After hearing both sides this court has dismissed the second appeal along with the other interlocutory applications with the following observations;
Admittedly, there is no pleading on record pertaining to the alleged master servant relationship. The oral evidence of PW 3 would disclose that his mother Margaret Mennie had been dealing with the property in her own right. PW 4 has also spoken to this effect. The Government of Tamil Nadu had also granted exemption to land of Margaret Mennie only as a owner of the property. There is overwhelming evidence to show that Margaret Mennie considered the suit property her own and did not consider herself to be a caretaker. That being the evidence on record, the third substantial question of law would not arise for consideration at the second appeal stage.
In view of the foregoing discussion, the substantial questions arise are answered accordingly, holding that the plaintiffs have failed to establish their possession over the suit properties and they are not entitled to the relief as sought for and as already stated earlier, i do not find any scope to interfere with the well considered concurrent findings rendered by both the courts below.
59. Challenging the judgment and decree of the second appeal in S.A.No.1120 of 2006 dated 28.01.2009, the respondent/complainant and his family members had preferred an SLP before the Supreme Court of India. The said SLP was also dismissed on 03.05.2010.
60. From the above context, it is thus crystal clear that the first respondent/complainant was defeated in his claim of title and possession over the disputed land measuring 7.72 acres up to Supreme Court starting from the Sub-Court Ponneri. It is also manifested from the records that the possession in respect of the land in question by the accused persons was upheld and their alleged trespass was over ruled. It is further revealed from the available materials on record that the accused persons had filed a suit in O.S.No.43 of 2000, against the first respondent/complainant and his family members, Tahsildar of Ambattur, and the Revenue Divisional Officer, Ponneri, for the relief of permanent injunction. That suit was decreed in favour of the accused persons on 08.07.2005, upholding their possession in respect of the disputed property. But the decree and judgment dated 08.07.2005, and made in O.S.No.43 of 2000 on the file of the District Munsif cum Judicial Magistrate, Tiruvatiyur were not challenged by the first respondent/complainant.
61. After referring all the judgments viz., O.S.No.187 of 1999 on the file of the Sub-Court Ponneri dated 27.11.2002, A.S.No.36 of 2003 on the file of the learned Principal District Judge, Chengalpattu dated 29.11.2005, S.A.No.1120 of 2006 on the file of this Court dated 28.01.2009 and SLP on the file of the Supreme Court of India dated 03.05.2010, Mr.Udayat V.Lalit, learned senior counsel appearing for the petitioner herein would submit that since, the first respondent/complainant had lost all the remedies in various civil forums up to the level of Supreme Court, the question of land grabbing by this petitioner along with other accused persons in the case in Crime No.703 of 2007 would not at all arise.
62. The learned senior counsel has also submitted that based on the tile and possession of the accused persons including the petitioner herein, the Revenue Authority had granted patta for the said land and it also stood jointly in the names of Mr.Gowthamraj Surana (A2) and others as per the orders of the District Revenue Officer dated 18.07.2008. He has also added that the first respondent/complainant and his family members had challenged the said order of granting patta in favour of Gowthamraj Surana (A2) and others, before this court in W.P.No.20461 of 2008 and the same was dismissed, granting liberty to the first respondent/complainant to approach the civil court by duly impleading all the necessary parties, but the first respondent/complainant had never done so.
63. On perusal of the materials available on record it reveals that the writ petition in W.P.No.20461 of 2008 seems to have been filed by the first respondent/complainant and his family members against the District Revenue Officer, Revenue Divisional Officer Thiruvallur District and Tahsildar, Ambattur as well as against Gowthamraj Surana (A2), Dineshchand Surana (A3) and Vijayaraj Surana (A4) and Bhanwarlal Sharma (petitioner herein). It also appears that a petition was filed by the first respondent/complainant and others for the grant of patta before the Tahsildar which was ordered on 04.06.2002. Then the respondents 4 to 7 therein had filed appeal before the Revenue Divisional Officer, Ponneri and the appeal was also allowed on 19.11.2007,in which status quo was ordered to be maintained till the disposal of the appeal in S.A.No.1120 of 2006. Against the said order, the first respondent/complainant and others had filed a revision before the District Revenue Officer which was also dismissed on 18.07.2008, with a direction to file revision before the Special Commissioner, Land Admistration, Chepauk, Chennai-5. The said order was challenged in the above said writ petition.
64. In the above said writ petition, the District Revenue Officer had filed a counter in which he had stated that the Government in their G.O.Ms.No.113, Revenue (LR.IV(1) Department dated 18.02.1994 have exempted the excess vacant land of 25,750 Sq.Mts., in Survey No.1060/1 & 2 of Madhavaram Village in Madras Urban Agglomeration held by Tmt.Margaret Mennie, partner of M/s.Surana Steels from the privisions of Chapter-III of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 with certain conditions for public purpose. Subsequently, the Government in their G.O.Permanent No.262, Revenue (Na.Ni.Va.3(1) Department dated 06.03.1997 have extended the exemption for 2 years from the date of issue of it in favour of M/s.Surana Steels. It may be seen from the above G.Os. that there were buildings, Appurtenance Additional Appurtenance etc., on the above lands held by M/s.Surana Steels from the year 1994 itself.
65. In paragraph No.9 of the counter, the District Revenue Officer had stated that;
I submit that subsequent to the execution of the sale deeds on 12.01.1996, only Thiru Eric Ashton Bull more executed as power of attorney on 18.01.1996 in favour of Thiru.K.V.Sathyanarayanan alone for the purpose of to appoint surveyors, draughtsman, architect for the purpose of drawing plans in order to design a house or flats etc.
66. On a perusal of the counter submitted by the District Revenue Officer (Enquiry) he has stated that the first respondent/complainant was not the real owner of the land in dispute. This court after analysing all the facts has dismissed the writ petition on 18.12.2008. In para No.11 of the order in W.P.No.20461 of 2008 this court has observed as follows;
In the light of the above decisions of the Supreme Court as well as the judgments of this court and having regard to the availability of the alternate remedy of filing civil suit as per G.O.Ms.No.409 Revenue Department dated 02.07.2008, the petitioners are not entitled to challenge the order by way of this writ petition and they can only establish their right through the civil court by duly impleading all the parties, who are likely to be affected by virtue of the grant of patta.
67. While dismissing the writ petition this court has also granted liberty to the petitioners to approach the civil court to redress their grievances. But this order in W.P.No.20461 of 2008 dated 18.12.2008 has not been challenged by the first respondent/complainant.
68. Mr.Udayat V.Lalit, learned senior counsel has also adverted to that when the works for setting up M/s.Surana Steels was in progress, applications were made for effecting electricity connection in the name of M/s.Surana Steels on payment of necessary charges. In this connection Mr.Gowthamraj Surana who is the second accused in the case in Crime No.703 of 2007 had filed a writ petition in W.P.No.277 of 2002 praying to issue a writ of mandamus directing the respondents viz., Assistant Executive Engineer (O&M), Chennai Electricity Distribution Circle/North, Madhavaram, Chennai to effect electricity service connection to his premise. The learned single judge, based on the order passed in C.R.P.No.3304 of 2000 dated 03.08.2001, and of the fact that the petitioner therein was in possession of the property in question had directed the respondents to provide electricity supply on fulfilling statutory requirements. Being aggrieved by the impugned order, the first respondent/complainant and his family members had preferred a writ appeal in W.A.No.1608 of 2002. The Division Bench of this Court on evaluating the facts and other materials had dismissed the writ appeal after confirming the order of the learned single judge of this court with an observation that, we are satisfied with the direction of the learned single judge for effecting service connection and it cannot be faulted with.
69. Apart from this, the learned senior counsel while advancing his arguments has invited the attention of this court to one public interest litigation in W.P.No.28419 of 2007 which was dismissed on 26.11.2007. On perusal of the records it appears that one K.R.Ramasamy had filed the above said writ petition against the Ministry of Finance and six others including M/s.Surana Corporation Ltd. Represented by its Chairman,Mr.Gowthamraj Surana(A2). In the above said writ petition, the petitioner had sought a direction to direct the 6th respondent viz., Regional Director South Reguion, CBI to investigate the manipulated loan transaction passed on by the 3 Officers of the Bank viz., The Chairman, MD and AGM of Bank of Baroda officials including M/s.Surana Corporation Ltd., Chennai and to take proper criminal action. This petition was also dismissed.
70. On the other hand Mr.N.R.Elango, learned senior counsel appearing for the first respondent/complainant has submitted that in so far as the closure of the first complaint in Crl.M.P.No.507 of 2007 is concerned, the first respondent was not even informed by the second respondent, Inspector of Police and that the alleged signature of the first respondent/complainant in the RCS notice dated 16.04.2007 was not that of the first respondent/complainant and the signature found therein with the date as 18.04.2007 is disputed. He has also invited the attention of this court to other two RCS Notices dated 24.07.2007 and 22.10.2007 pertaining to the first complaint in Crl.M.P.No.507 of 2007 and the other referred charge sheet notice pertaining to the closure of second complaint in Crl.M.P.No.2145 of 2007 relating to the case in Crime No.703 of 2007.
71. In this connection Mr.N.R.Elango, learned senior counsel has submitted that the first respondent/complainant had disputed all the signatures, purported to have been signed by him in the R.C.S.Notices and that he was not even served with the notice with regard to the closure of his complaint as required under Section 173(2)(ii) of Cr.P.C. He has also added that in the first closure report dated 22.11.2007 relating to the first complaint in Crl.M.P.No.507 of 2007, the learned Additional Chief Metropolitan Magistrate, while closing the complaint as civil in nature had stated as "crime number not known". In this connection the learned senior counsel would submit that when no crime number was given or assigned by the respondent police, how the case could be closed.
72. In support of his contention he has also placed reliance upon the decision in Union Public Service Commission vs. S.Papaiah and Others reported in (1997) 7 SCC 614. In this case admittedly no notice was issued by the Magistrate to the appellant before accepting the final report submitted by the CBI and deciding not to take cogniznace and drop the proceedings. Under this circumstance, in paragraph No.9, the division bench of Apex Court has held that;
"In the present case, admittedly, no notice was issued by the Vth Metropolitan Magistrate to the appellant before accepting the final report submitted by the CBI and deciding not to take cognizance and drop the proceedings. This omission vitiates the order of the learned court accepting the final report. The issue is no longer res-integra. A three Judge Bench of this Court in the case of Bhagwant Singh vs. commissioner of Police & Anr. (1985) 2 SCC 537 speaking through Bhagwati, J while dealing with a situation arising out of the report being forwarded by an officer-in- charge of a police station to the Magistrate under sub- section 2(i) of Section 173, stating the no offence appears to have been committed, opined that on receipt of such a report the Magistrate can adopt one of the three courses i.e. (1) he may accept the report and drop the proceedings or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section 3 of Section 156. The bench, dealing with the first option of dropping the proceedings went on to say:
"There can, therefore, be no doubt that when, on a consideration of the report made by he officer-in-charge of a police station under sub-section (2) (i) of Section 173, the Magistrate is not inclined to take cognizance of this offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take congnizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take congnizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report."
In paragraph No.10 the Apex Court has held that;
"As per the law laid down in Bhagwant Singh's case(supra), the issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is a "must". This binding precedent which is the law of the land, has not been followed by the vth Metropolitan Magistrate and was wrongly ignored by the revisional court also."
73. Mr.N.R.Elango, the learned senior counsel would contend further that since no notice was given with regard to the closure of the first complaint in Crl.M.P.No.507 of 2007, another complaint which was filed by the first respondent/complainant in Crl.M.P.No.2145 of 2007 based on which the case in Crime No.703 of 2007 was registered could not be construed as a second complaint. He would submit further that the private complaint viz., Crl.M.P.No.2145 of 2007, which was filed by the respondent/complainant was also forwarded to the respondent police and a case was registered in Crime No.703 of 2007. This case was also investigated and subsequently closed as civil in nature.
74. In this connection he would submit that the signature of the first respondent/complainant found in the alleged referred charge sheet notices were not admitted by the first respondent and hence, those signatures were disputed. The learned senior counsel has also drawn the attention of this court to the RCS notice said to have been issued by the respondent police to the first respondent/complainant in the case in Crime No.703 of 2007 and the other notice dated 13.10.2009 which is said to have been received by the first respondent/complainant on 14.10.2009. The learned senior counsel has strongly disputed the signatures found in the above referred RCS notices.
75. He has also invited the attention of this Court to the final order dated 30.10.2009 passed by the learned Chief Metropolitan Magistrate closing the complaint in Crl.M.P.No.2145 of 2007 as 'civil in nature'. In this connection he would submit that the closure order of the Learned Chief Metropolitan Magistrate without issuing notice to the first respondent/complainant, as held by the Apex Court in Union Public Service Commission's case, (1997) 7 SCC 614 is nonest in law and hence, liable to be set aside. He has also submitted that the first respondent/complainant was not aware of the fact of closure of his complaint and when he was put to understand about this fact, he was constrained to file a protest petition in Crl.M.P.No.1946 of 2010, the proceedings of which has now been sought to be quashed by the petitioner in the present petition. The learned senior counsel has also submitted that the first respondent/complainant was on a bonafide belief that the 3rd respondent would enquire the accused persons including the petitioner herein and file a charge sheet, but he was put to understand only on 15.06.2010 that the third respondent had closed the complaint as 'civil in nature' on 30.10.2009 without serving notice on him. He has also submitted that when the protest petition is pending on the file of the Learned Chief Metropolitan Magistrate, Egmore, the petitioner who is the 5th accused therein had also filed an impleading petition seeking to implead himself as the 3rd respondent in the protest petition which was also not maintainable under law.
76. The learned senior counsel, Mr.N.R.Elango while advancing his arguments has raised the following five questions:
1. Whether the order of closure of the first complaint by the Learned Chief Metropolitan Magistrate without serving of RCS Notice to the first respondent/defacto complainant is maintainable?
2. Whether the non-speaking order dated 30.10.2009 closing the second complaint in Crl.M.P.No.2145 of 2007 without assigning valid reason is maintainable?
3. Whether the petitioner/5th accused is having right to implead himself in the protest petition?
4. Whether the present petition under Section 482 Cr.P.C. to quash the proceedings in Crl.M.P.No.1946 of 2010 (protest petition) pending on the file of the Learned Chief Metropolitan Magistrate, Egmore is maintainable?
5. Whether the complaint in Crl.M.P.No.2145 of 2007 which was referred to the 3rd respondent for enquiry and report could not be termed as second complaint ?
77. In support of his contention Mr.N.R.Elango, learned senior counsel has placed reliance upon the following decisions:
1. Mahesh Chand vs. Janardhan Reddy and Another reported in (2003) 1 SCC 734,
2. Ranvir Singh vs. State of Haryana and Another reported in (2009) 9 SCC 642,
3. Chelliah v. Yesuvadial reported in 1998 (2) MWN (Cr.) 213,
4. Gangadhar Janardhan Mhatre vs. State of Maharashtra and Others reported in (2004) 7 SCC 768,
5. Chandra Deo Singh v. Prokash Chandra Bose reported in (1964) 1 SCR 639,
6. Smt.Nagawwa vs. Veeranna Shivalingappa Konjalgi and Others reported in (1976) 3 SCC 736, and
7. Balraj Khanna and others v. Moti Ram reported in 1971 (3) SCC 399.
78. In Mahesh Chand's case reported in (2003) 1 SCC 734 and Ranvir Singh's case reported in (2009) 9 SCC 642, the Hon'ble Supreme Court of India has held that it is settled law that there is no statutory bar in filing a second complaint on the same set of facts. In Mahesh Chand's case, in paragraph No.19 the Apex Court has held that;
"... In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Sec. 204 Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Taluqdar's case (1962) Supp.2 SC R 297 second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced."
79. In Chelliah v. Yesuvadial reported in 1998 (2) MWN (Cr.) 213, this Court in paragraph No.27 has held as follows;
"27. TO SUM UP: Order accepting the referred report and dropping of the proceedings in a private complaint by the Magistrate is certainly a judicial order, as he is entitled to pass such an order, as held by the Apex Court. However, mere recording as "lodged", "filed" or "mistake of fact" would not be regarded as a judicial order, as it would not indicate the mind of the Court to accept the same and drop the proceedings. The said wording recorded on the referred report by the Magistrate at the most is an endorsement or the acknowledgement for having received the referred report from the police. Unless the learned Magistrate applies his mind in order to find out whether to accept and drop the proceedings and unless in the process of finding out the same, the complainant in the private complaint is heard after intimation and unless the learned Magistrate records his reasons for doing so, the said order cannot be termed to be a judicial order, as provided in the first course out of three courses to be adopted, by the Apex Court. Only when such a judicial order is passed, the second complaint on the same set of facts is impermissible. In such a situation, the complainant has to question the said judicial order before the higher forum to get it set aside in order to pursue his complaint. In the instant case, as there is no judicial order and there is only an endorsement as "lodged", the complainant cannot be prevented from ventilating her grievance through the same Court by filing a second complaint."
80. The learned senior counsel appearing for the first respondent/complainant would submit that as per the observations made by this Court in the above cited decision, an order accepting the referred charge and dropping of the proceedings in a private complaint by a Magistrate could be termed certainly a judicial order, but if the Learned Magistrate happens to pass a non-speaking order without assigning any reason, certainly it could not be considered as a judicial order.
81. The decision in Smt.Nagawwa vs. Veeranna Shivalingappa Konjalgi and Others reported in (1976) 3 SCC 736 and Balraj Khanna and others v. Moti Ram reported in 1971 (3) SCC 399, the Apex Court has explained the scope and applications of Section 202 and 203 of Cr.P.C. In Smt.Nagawwa's case it is held that;
"The scope of the inquiry under Section 202 of Code of Criminal Procedure is extremely limited, only to the ascertainment of the truth or falsehood of the allegations made in the complaint.-
(i) on the materials placed by the complainant before the Court;
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and
(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.
82. It is also held that it is not the province of magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one. In proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.
83. As discussed earlier, Mr.N.R.Elango, learned senior counsel has also argued that the comparison of the signatures, purported to have been signed by the first respondent/complainant in the R.C.S.Notices dated 16.04.2007, 24.09.2007, 22.10.2007 and another notice dated 27.06.2009 are very much essential and that the first respondent/complainant had not accepted those signatures and vehementally disputed to say that those R.C.S.notices were not served on him. He would rather submit that the first respondent/complainant was not aware of the fact of closure of his complaint. On account of this reason, he was constrained to file the protest petition belatedly.
84. In support of his argument, he has also laid emphasis on the proviso to Section 73 of the Indian Evidence Act, 1872. Section 73 of the Indian Evidence Act, 1872 is extracted as under:
73.Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
85. With regard to Section 73 of the Indian Evidence Act, 1872, it is common judicial parlance that normally the Courts should be slow to compare disputed document with admitted document for comparison although Section 73 empowers the Court to compare disputed writings with the specimen/admitted documents shown to be genuine. Prudence demands that Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. This ratio has been laid down by the Hon'ble Supreme Court of India in State of Maharashtra vs. Sukhdeo Singh, AIR 1992 SC 2100 :(1992) 3 SCC 700.
86. Therefore, despite there is no legal bar to a Judge using his eyes, the Judge should hesitate to base his findings with regard to identity of handwriting solely on comparison made by himself. This principle is laid down in State vs. Pali Ram AIR 1979 SC 12 and Ajit vs. State AIR 1997 SC 3255 : (1997) 7 SCC 110 : 1997 SCC (Cri) 992 : 1997 CrLJ 3964.
87. On the other hand, Mr.A.N.Thambidurai, learned Additional Public Prosecutor appearing for the second and third respondents has submitted that based on the order of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, forwarding the complaint of the first respondent/complainant under Section 156(3) of the Code of Criminal Procedure and also on the orders of the superior officers, a case in C.C.B.X Crime No.703 of 2007 under Sections 468, 471, 420 r/w 120(B) I.P.C., was registered on 02.11.2007 and the case was also taken up for investigation.
88. He has also added that the investigating officer had taken much pain to delve deep into the facts involved in this case and the statements of the witnesses, who were examined during the course of investigation were also recorded duly. He has also submitted that during the course of investigation, it was brought to the notice of the third respondent police that earlier the first respondent/complainant had preferred an identical complaint in Crl.M.P.No.507 of 2007 before the learned Chief Metropolitan Magistrate, Egmore, Chennai and it was also referred to the third respondent Police for investigation under Section 156(3) Cr.P.C.
89. He has also maintained that the said complaint was investigated and ultimately referred by the respondent Police as 'Civil in Nature' and the same was also accepted by the learned Additional Chief Metropolitan Magistrate and closed on 22.11.2007 on the ground of 'Civil in Nature'. He would submit further that the present complaint was preferred subsequent to the earlier complaint, which was closed by the court.
90. He would urge further that even in the present complaint also proper investigation was conducted and the statement of the witnesses recorded and based on the collection of the material documents and after obtaining of the opinion of the Additional Public Prosecutor, the then Inspector of Police had closed the case on the ground of 'Civil in Nature' on 28.06.2009 as required by the law and that the case was also closed by the learned Chief Metropolitan Magistrate, Egmore, Chennai on 30.10.2009.
91. He would submit further that the first respondent/complainant had moved the learned Chief Metropolitan Magistrate Court, Chennai, by way of filing a protest petition under Section 173(8) of the Code of Criminal Procedure to review the final order of the third respondent police, which is not permissible under law and the prayer for reinvestigation is totally unknown to the Code of Criminal Procedure, as the proviso to Section 173(8) of the Code of Criminal Procedure empowers the Magistrate to order for further investigation.
92. This Court has carefully perused all the materials, which are germine to the case on hand. This Court has also given due consideration to the submissions made on behalf of the petitioner and the respondents 1 to 3.
93. Having regard to the related facts and circumstances, this Court is of considered view that the second complaint in Crl.M.P.No.2145 of 2007 is not covered by the special circumstances enumerated by the larger Bench of the Apex Court in Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876. The facts of the second complaint in Crl.M.P.No.2145 of 2007 and the first complaint in Crl.M.P.No.507 of 2007 are one and the same.
94. It is also pertinent to note here that the earlier complaint in Crl.M.P.No.507 of 2007 was duly investigated by the third respondent Police and the further action was dropped as 'Civil in Nature' and after giving R.C.S.Notice to the first respondent/complainant, a negative final report was filed before the learned Chief Metropolitan Magistrate. He inturn after issuing a notice to the first respondent/complainant giving him an opportunity to protest the negative final report had closed that complaint on the ground of 'Civil in Nature'.
95. Admittedly, the order of closure in respect of the first complaint in Crl.M.P.No.507 of 2007 was not challenged by the first respondent/complainant. Instead, he had come forward with the second complaint in Crl.M.P.No.2145 of 2007 on the same allegations against the same accused persons including the petitioner herein. On reference, under Section 156(3) of the Code of Criminal Procedure, by the learned Additional Chief Metropolitan Magistrate, the third respondent Police had registered a case in Crime No.703 of 2007, investigated and ultimately he had referred the case as 'Civil in Nature'. Due notice was also given to the first respondent/complainant and the referred charge sheet was also filed before the learned Chief Metropolitan Magistrate. The learned Chief Metropolitan Magistrate, after accepting the referred charge sheet, has passed a final order on 30.10.2009 after closing the case as 'Civil in Nature'.
96. The contention of Mr.N.R.Elango, learned senior counsel on behalf of the first respondent/complainant that no R.C.S.notice was served on the first respondent and that the signatures, purported to have been signed by the first respondent in the R.C.S.notice, were not that of the first respondent/complainant is not discernible.
97. On a combined reading of the materials available on record, this Court is of view that the second complaint in Crl.M.P.No.2145 of 2007 was duly investigated by the third respondent after registering a case in Crime No.703 of 2007 and it was duly closed as 'Civil in Nature' and the negative final report submitted by the third respondent Police was also accepted by the learned Chief Metropolitan Magistrate. Ultimately, he has also closed the case on 30.10.2009 on the ground of civil in nature. Hence, the order of the learned Chief Metropolitan Magistrate, dated 30.10.2009, need not be disturbed as it does not require any interference of this Court.
98. As observed in State of Maharashtra vs. Sukhdeo Singh, AIR 1992 SC 2100 :(1992) 3 SCC 700, the Court should be slow to compare the disputed document for comparison although Section 73 empowers the Court to compare the disputed writings with the specimen/admitted documents shown to be genuine.
99. This Court has also carefully examined the R.C.S.Notices, which were said to have been issued both by the third respondent as well as by the learned Chief Metropolitan Magistrate to the first respondent/complainant.
100. Having regard to the various Judgments in O.S.No.187 of 1999, on the file of the Sub-Court, Ponneri; A.S.No.36 of 2003, on the file of the Principle District Court, Chengalpet; S.A.No.1120 of 2006, on the file of this Court; S.L.P.No.12351 of 2010, on the file of the Hon'ble Supreme Court of India; O.S.No.43 of 2005, on the file of the District Munsif Court, Thiruvotriur; W.A.No.1608 of 2002 on the file of this Court and W.P.No.20461 of 2008 on the file of this court, this court finds that the arguments advanced by Mr.N.R.Elango, learned senior counsel on behalf of the first respondent/complainant does not sound much.
101. The records are manifested that the first respondent/complainant had exhausted all the possible remedies through various civil forums including the Hon'ble Supreme Court of India. In all his battle of litigation against the accused persons including the petitioner herein, he had miserably failed. Ofcourse, without finding any exit to initiate any new civil proceedings against the accused persons, he had resumed his legal battle, this time, through criminal forum by way of second innings, in which also, he had failed as he had no legs to stand. The contention putforth on his behalf, that the R.C.S.Notice were not served on him and that the signatures found in those R.C.S.Notices were not that of him, seems to have been invented only for the purpose of sustaining the protest petition in Crl.M.P.No.1946 of 2010 filed by him before the learned Chief Metropolitan Magistrate, Egmore, Chennai.
102. This Court has endorsed the view expressed by various High Courts as well as the Apex Court that there is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint had been dismissed under Section 203 of the Code of Criminal Procedure. This Court also accepts the view that as a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under Section 204(1) of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of a second complaint on the same allegations. This Court could say in other words, that there must be good reasons as to why the Magistrate thinks that there is "sufficient ground for proceeding" with the second complaint, when a previous complaint on the same allegations was dismissed.
103. After examining various circumstances and the related facts, the larger Bench of the Apex Court has carved out the exceptional circumstances under the following three categories to answer the question of entertainment of a second complaint on the same allegations, when a previous complaint had been dismissed under Section 203 of the code of Criminal Procedure:
i. Manifest error, ii. Manifest miscarriage of justice, and iii. New facts, which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings.
After carving out the above said exceptional circumstances, the Apex Court has held that:
Any exceptional circumstances coming within any one or more of the aforesaid three categories would fulfil the test. It is also held that:
One new category mentioned was where the previous order of dismissal was passed on an incomplete record or a misunderstanding of the nature of the complaint. This new category would perhaps fall within the category of manifest error or miscarriage of justice.
104. In the instant case on hand, this Court finds that the second complaint in Crl.M.P.No.2145 of 2007 does not come under the above said three categories and this Court also finds that the Order of the learned Chief Metropolitan Magistrate dated 30.10.2009 has not resulted in a miscarriage of justice and therefore it does not create any necessity to entertain a second complaint on the same allegations made in the first complaint in Crl.M.P.No.507 of 2007.
105. In sofar as the second complaint in Crl.M.P.No.2145 of 2007 is concerned, on its reference by the learned Chief Metropolitan Magistrate, Egmore, Chennai under Section 156(3) of the Code of Criminal Procedure, the case in C.C.B.X Crime No.703 of 2007 under Sections 468, 471, 420 r/w 120B I.P.C., was registered. After thorough investigation, an elaborate final report dated 28.06.2009 was submitted by the third respondent Police before the learned Chief Metropolitan Magistrate, Egmore, Chennai, in which he had narrated all the previous incidents as well as several civil litigations initiated by the first respondent/complainant as against the accused persons.
106. The previous complaint in Crl.M.P.No.507 of 2007, which was received by him from the learned Chief Metropolitan Magistrate Court, Egmore, Chennai, on reference under Section 156(3) Cr.P.C. was duly investigated. Both parties were examined and all the related documents were perused. Eventually, it was closed as 'Civil in Nature', and a final report was also filed before the learned Additional Chief Metropolitan Magistrate. Though summons were sent to the complainant informing him that the Police had completed the investigation and submitted the final report closing the matter as 'Civil in Nature' there was no objection on the part of the complainant.
107. The first respondent had not even chosen to file either any appeal or revision against the closure of the first complaint. Hence, the basic ingredients of the complaint that had been filed before the learned Chief Metropolitan Magistrate, Egmore, Chennai in Crl.M.P.No.507 of 2007, dated 21.02.2007 and of the other complaint filed before the learned Additional Chief Metropolitan Magistrate in Crl.M.P.No.2145 of 2007, dated 17.10.2007 are one and the same without effecting any change .
108. The third respondent has also stated in his final report that when he had examined the first respondent/complainant, he did not disclose anything about the complaint lodged by him earlier.
109. In the conclusion, the third respondent has stated that as this case is one, which should be tried in a Civil Court and the relief is to be sought there from, this case is treated as a civil case and the further action is dropped. This final report reveals that R.C.S.Notice dated 27.06.2009 was served on the first respondent/complainant through one H.C.Sivantha Gowndar.
110. The first complaint in Crl.M.P.No.507 of 2007 was closed as 'Civil in Nature' based on sufficient grounds. Admittedly, the order of closure of the first complaint has not been challenged. The second complaint in Crl.M.P.No.2145 of 2007 (Crime No.703 of 2007) has also been closed as 'civil in nature' on the basis of sufficient grounds projected by the third respondent Police.
111. As held in Poonam Chand Jain and another vs. Fazru, AIR 2010 SC 659, the principles laid down in Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876 are settled and are holding the field since 1962 and this has been followed by several High Courts as well as the Apex Court.
112. Under the above circumstances, this Court finds that the second complaint is not maintainable as this has been filed by the first respondent/complainant on identical facts, which were raised in the first complaint in Crl.M.P.No.507 of 2007. This Court also finds that the allegations levelled against the accused persons in both the complaints are one and the same and nothing new allegations are disclosed in the second complaint. The first respondent/complainant has also miserably failed to make out the case that even after his exercise of due diligence the facts alleged in the second complaint were not within the application of the first complaint. It is therefore crystal clear that the second complaint in Crl.M.P.No.2145 of 2007 in Crime No.703 of 2007 is not covered within the exceptional circumstances envisaged in Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876 and in view of the aforestated reasons, the second complaint cannot be entertained.
113. It is more relevant to note here that the dismissal of the earlier complaint was not disclosed by the first respondent/complainant either in the second complaint in Crl.M.P.No.2145 of 2007 or when he was examined by the third respondent Police.
114. The Apex Court has also clearly laid down the ratio in Reeta Nag vs. State of West Bengal and Others, (2009) 9 SCC 129 saying that the Magistrate cannot order for further investigation and the application of the defacto complainant subsequent to the acceptance of the final report. The Apex Court has also clarified that entertaining such application itself is bad in law. In Paragraph No.26, the Apex Court has observed as follows:
"26. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the defacto complainant under Section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the defacto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the defacto complainant."
115. In Kishan Lal vs. Dharmendra Bafna and another, (2009) 7 SCC 685 also the Apex Court has indicated that Section 173(8) can be invoked under the following circumstances:
i. When new facts come to light, or ii. When superior courts find that the investigation is tainted and/or unfair, or iii. When superior courts find that it is required in the ends of justice
116. By way of reply, it was argued on behalf of the petitioner that no offence of cheating or forgery was made out in the present case and that the first respondent/complainant had attempted to prejudice this Court by stating about various bank loans alleged to have been obtained by the accused persons by offering the land in dispute as security and had also levelled allegations against the bank officials. He has also added that those allegations are unrelated to the case on hand and unwarranted, as decided by this Court in its Order dated 26.11.2007 in W.P.No.28419 of 2007 a public interest litigation.
117. The inherent power under Section 482 Cr.P.C. is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent power in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court.
118. Where there is no such changed circumstance and the decision has to be arrived at on the facts that existed as on the date of earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362. In a matter is covered by an express letter of law, the court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction. The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362 Cr.P.C. This proposition of law is laid down in Mostt.Simrikhia vs. Smt.Dolley Mukherjee @ Smt.Chhabimukherjee and Another, 1990 AIR 1605 : 1990 SCR (1) 788.
119. Keeping in view of the observations made above and on considering the relevant facts and circumstances and also on considering the submissions made on behalf of both sides, this Court is of considered view that the proceedings in Crl.M.P.No.1946 of 2010 on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai in Crime No.703 of 2007 is liable to be quashed for the simple reason that the learned Chief Metropolitan Magistrate, Egmore has exceeded his jurisdiction in entertaining the above said petition viz. Crl.M.P.No.1946 of 2010. Apart from this, the proceedings in Crl.M.P.No.1946 of 2010 is also liable to be quashed on the following grounds:
i. The previous order dated 22.11.2007 closing the first complaint as 'civil in nature' has not been challenged by the first respondent/complainant, ii. It is not the case of the first respondent that the previous order was passed on incomplete record, iii. It is also not the case of the first respondent/complainant that the learned Additional Chief Metropolitan Magistrate had passed the earlier order dated 22.11.2007 on a misunderstanding of the nature of the complaint, iv. The first respondent/complainant has not contested the earlier order as manifestly absurd, unjust or foolish, v. It is not the case of the first respondent/complainant that the new facts, which could not, with reasonable diligence, have been brought on the record in the previous complaint, Secondly, by entertaining the protest petition in Crl.M.P.No.1946 of 2010, the learned Chief Metropolitan Magistrate has reopened his own order dated 30.10.2010, under which the second complaint was closed as 'civil in nature'. It is a well settled principle of law that once a final order is signed the Court becomes 'functus officio' and cannot review the same subsequently as contemplated under Section 362 Cr.P.C. This principle has also been highlighted and upheld by the Hon'ble Supreme Court of India in Hari Singh Mann vs. Harbhajan Singh Bajwa, AIR 2001 SC 43 : (2001) 1 SCC 169.
120. In the above circumstances, this Court is also of opinion that the bringing of the fresh complaint is a gross abuse of process of law and is not with the object of furthering the interests of justice.
121. In the result, this criminal original petition is allowed and the Proceedings in Crl.M.P.No.1946 of 2010, on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai in Crime No.703 of 2007 is quashed. Consequently, connected miscellaneous petitions are closed.
04.10.2011
Index : Yes/No
Internet : Yes/No
krk/prm
To:
1.The learned Chief Metropolitan
Magistrate, Egmore, Chennai.
2.The Deputy Commissioner of Police
Central Crime Branch, Chennai
3.The Inspector of Police
Central Crime Branch, Team-III
Chennai
4.The Public Prosecutor,
High Court, Madras 600 104.
T.MATHIVANAN, J.
krk/prm
Pre-Delivery Order
in Crl.O.P.No.21270 of 2010
04.10.2011