A.S. Surendran and Another vs State and K.T. Surendran

N. Arumugham, J.—The challenge in Crl. R.C. No. 575 of 1993 by Petitioner A.S. Surendran is to the impugned order passed by the

learned Judicial Magistrate, Sivakasi, in Crl. M.P. No. 4271 of 1993 dated 3.8.1993 u/s 190(1)(b) of the Code of Criminal Procedure, for its

want of legality and propriety. Crl. O.P. No. 11152 of 1994 is to quash the proceedings pending before the Judicial Magistrate, Sivakasi, in Crl.

M.P. No. 2637 of 1994 u/s 482 of the Code of Criminal Procedure for it bears no basis at all. Crl. R.C. No. 905 of 1995 by Petitioner

Maheswaran is to challenge the impugned order passed in Crl. M.P. No. 1327 of 1995 dated 12.9.1995 by the learned Judicial Magistrate No.

II, Virudhunagar, in C.C. No. 176 of 1995, declining to discharge the accused/Petitioner u/s 239 of the Code of Criminal Procedure.

The first Revision above referred and the following Criminal Original Petition relate to one and the same transaction decided already by the

Judicial Magistrate, Sivakasi, wherein, it appears, he has formed an opinion already by passing the impugned order in it. This legal exercise was

between the same parties with almost identical reliefs in the converse but however, the court below was again made to look into the matter by one

of the respective parties on the different legal route. The latter revision though before the different forum of the law, the facts for the said legal

exercise stemmed out of the same facts which were involved in the earlier revision as a continuation with reference to overt acts between the same

parties. In this context, after hearing the Bar for the respective parties in all the three cases, also with their consent, I have proposed to dispose of

the three cases by passing this common order.

For the reason of the second case with a prayer to quash the proceedings before the Court below is inter related with the facts of the first

revision case, as instructed administratively while exercising the inherent jurisdiction of this Court, it was heard along with the other two revisions

under the revisional jurisdiction of the High Court and this has been schemed out to avoid any prejudice to either of the parties to the above

proceedings.

For the sake of convenience and easy reference Petitioner A.S. Surendran in Crl. R.C. No. 575 of 1993 and Crl. O.P. No. 11152 of 1994,

Petitioner Maheswaran in Crl. R.C. No. 905 of 1995; Respondent K.T. Surendran in Crl. O.P. No. 11152 of 1994 are hereinafter referred to as

Petitioner, Respondent No. 1 and Respondent No. 2 respectively.

The conspectus of facts in substratum to be narrated for appreciating the case in these matters are as extracted hereunder:

Petitioner A.S. Surendran was one of the partners of Uma Waste Paper Company, situated at Gnanagiri Road, Sivakasi and he owns a house

property bearing door No. 302 at Coronation Colony exclusively of his own. Respondent No. 2 K.T. Surendran is said to be the Manager of die

Respondent No. 1 Maheswaran, in Pondicherry Paper Mills limited and it appears they had business transactions in supplying goods and getting

money and so on. It was alleged that the Petitioner A.S. Surendran became liable to pay a sum of Rs. 6 lakhs to both the Respondents and that

outstanding remained to be discharged. While so, it was alleged that at about 9 a.m. on 3.8.1992 the first Respondent contacted the Petitioner and

got him at his office and demanded the payment of the said outstanding of Rs. 6 lakhs and as he pleaded inability to pay, it was stated that the

Petitioner was threatened by the Respondents 1 and 2 along with their henchmen and associates and thus the Petitioner was intimidated that he

would be done to death unless he agreed to their suggestions, which overt acts consist not only of physical threat but also in vulgar and violent

language. Pertinent at this stage to refer a reference made in the complaint that these facts were made known to one Mr. Ganesan, brother in law

of the Petitioner by the Respondent No. 1 over phone.

Alleging certain clear edged motives between the relatives of the Petitioner and the Respondents in connection with the functionary system of

Tamil Nadu Mercantile Bank elsewhere, it was complained that both these Respondents coerced and made the wife of the Petitioner by name

Uma Devi also brought to that place as he was under the wrongful confinement perpetrated by these Respondents. With their violent activities

criminal in nature, it was alleged that they were able to get the signature of the Petitioner and his wife in certain stamp affixed blank papers and

bond papers and that they were also able ""to get the signature of his wife in the necessary forms and receipts for the transfer of the title to a

Maruthi car owned by his wife brought at that time and that she was also put under wrongful confinement. This was followed by the taking of the

papers containing the signatures of the Petitioner and his wife very many in number and also the Maruthi car of the Petitioner''s wife by name Uma

Devi. As the Petitioner and his wife were warned with every serious consequences not to report this matter to anyone, they were to keep quiet.

However, on 28.8.1992, it was also alleged that the Petitioner was taken to the office of the Respondents and both along with their associates

intimated the Petitioner criminally and made him to sign a power of attorney criminally in favour of Respondent No. 2 K.T. Surendran to seal his

house above referred and consequently took him to the Sub Registrar''s Office, Sivakasi and got it registered. The Petitioner had alleged that the

power of attorney to the abovesaid effect had already been prepared by the Respondents. Thus, the whole complaint made by the Petitioner

would reveal that he was put under the complete duress, coercion and threat by the Respondents. However, he was able to present a petition for

taking necessary action for all the above said unlawful activities before the Superintendent of Police, Virudhunagar on 10.6.1993 but with no effect.

Subsequently on 28.7.1993 under the said circumstances, the Petitioner seems to have filed a complaint before the Judicial Magistrate, Sivakasi,

for taking cognizance of the offences against the Respondents for the offences u/s 342, 386, 387 and 506(2) I.P.C.

The said complaint was forwarded by the Judicial Magistrate, Sivakasi, for investigation and report u/s 156(3) Code of Criminal Procedure and

accordingly was received and returned in Sivakasi East Police Station Crime No. 500 of 1993 for the offences u/s 342, 506II, 386 and 387

I.P.C. on 30.7.1993. Inspector of Police Sivakasi Rural, the Respondent in Crl. R.C. No. 575 of 1993 took up investigation and filed the final

report before die Judicial Magistrate, Sivakasi, on 30.7.1993 itself. It has become relevant at this stage to note that while giving the direction to the

Police for investigating the case after its registration, the learned Magistrate has fixed the time frame of four days from 28.7.1993 onwards to

register the case, investigate and report it. Accordingly, the final report was filed before the Court by the Inspector of Police on 30.7.1993

referring the case as a false one. In the final report, the typed copies could reveal that the Inspector of Police had given so many of his reasonings

and grounds which have emerged out of his investigation and enquiry and that he had also referred the fact that he had to investigate the case upon

a petition sent to him by the Superintendent of Police on an earlier occasion, which was found referred in the original compliant itself as 10.6.1993.

On 3.8.1993, after perusing the entire report and grounds filed by the Inspector of Police, Sivakasi Rural, the learned Judicial Magistrate has

passed the impugned order in the earlier revision, in the following words:

The Investigating Officer has filed the final report as ""False"" and closed the complaint. Hence F.I.R. is closed as False case. The Investigating

Officer''s request for prosecuting the complaint u/s 211 I.P.C. is rejected as he has no power to prosecute u/s 211 I.P.C.

In the final report the Inspector of Police, Sivakasi Rural has not only reported the complaint of the Petitioner as a false one but also has requested

the permission of the Court to prosecute the complainant for the offence u/s 211 I.P.C. It was under the said circumstances, the Court below has

rejected both the prayers, of the complainant as well as the Inspector of Police.

It was this order which is being challenged in the earlier revision by the Petitioner in the capacity of the aggrieved complainant, mainly on the

ground apart from the factual aspects that the impugned order passed by the learned Judicial Magistrate was without putting him on notice of any

report or such order and that therefore the said order became vitiated.

Subsequently, Respondent No. 2 K.T. Surendran has approached the same Court below, namely, Judicial Magistrate, Sivakasi, on 8.6.1994.

The relief asked for in this complaint which was entertained for proceedings by the Court below was to give a complaint in writing to the Chief

Judicial Magistrate or any other Court having jurisdiction against the Petitioner for having given harassment and false complaint for the alleged

offences under Sections 193, 196 and 211 of the Indian Penal Code. The one and the only ground on the basis of which the said complaint u/s

340 Code of Criminal Procedure was filed is that the Petitioner has given the false complaint above referred knowing fully well that it has no basis

at all and what he has done is only a frivolous one and a stage managed affair. Therefore, independently of the refusal of the permission by the

Court, Respondent No. 2 has approached the Court against for the same relief which was already rejected. The Respondent No. 2 seems to have

taken the stand for the delay in filing die said complaint as due to the fact that he was not intimated with the order passed in Crl. M.P. No. 4271 of

1993 in Crime No. 500 of 1993 and that he came to know of the final report only on 19.4.1994 when he was released on bail after his arrest

upon a false complaint given by the Petitioner in Cr. No. 8 of 1994 to the District Crime Branch, Virudhunagar.

This petition was being objected by and on behalf of the Petitioner herein by contending inter alia that the petition was not maintainable for die

one reason of the same relief has already been rejected by the Court below and for the another reason of a Revision before this Court challenging

die legality and propriety of the order passed by the trial Court in Crl. M.P. No. 4271 of 1993 on 3.8.1993, namely, earlier revision Crl. R.C. No.

575 of 1993 is pending. On other grounds also, the petition is being resisted. This proceedings was sought to be quashed subsequently by invoking

the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure by filing Crl. O.P. No. 11152 of 1994, the second case in this

proceedings.

The case records show that the Petitioner herein again on 22.3.1994 filed a private complaint before the Judicial Magistrate, Sivakasi, against

both the Respondent No. 1 and 2, for the offences under Sections 420, 452, 471, 477(a) read with 120B I.P.C.

A perusal of the entire complaint would reveal that both the Respondents Maheswaran and K.T. Surendran following their over acts in the

earlier complaint alleged to have committed on 3.8.1992 and 28.8.1992, had attempted to create a bogus sale-deed in their favour in respect of

the house property of the Petitioner bearing Door No. 1302, situated in Gnanagiri Road, Sivakasi, as if the Petitioner had sold the same to them

and that in order to avoid the same, the Petitioner had executed a registered revocation deed on 30.7.1993 which was followed by the issuance of

legal notice and that thereafter, even so, they had created a sale-deed fraudulently and thereby making all attempts to take possession of the same

and accordingly, they did by taking all the movables kept therein and thus indulged in various criminal activities. However, a reply notice was sent

by one of Respondents by name K.T. Surendran on 6.9.1993 pretending false facts. A scrutiny of the subsequent complaint shows that the

Petitioner had added the alleged overt acts of the Respondents No. 1 and 2 on two more occasions, namely, the dispossession of the said

Petitioner from the house property and the creation of the false sale-deed. For the sake of disposal of the present three petitions before me, since

no more facts are required, I do not propose to traverse in every detail.

On the receipt of the said complaint on 22.3.1994, it appears that the learned Judicial Magistrate has referred the same for investigation to the

Sivakasi Town Police inspector u/s 156(3) of the Code of Criminal Procedure and called for the final report on or before 25.4.1994.

It appears that on 7.4.1994, the said complaint with the order passed by the Judicial Magistrate, Sivakasi, was received by the District Crime

Branch Police with the instructions of the Superintendent of Police, Kamarajar District, to register the case and that accordingly, it was registered

in D.C.B. Cr. No. 8 of 1994 against the Respondents No. 1 and 2 for the offences u/s 420, 452, 471, 477-A r/w. 120(B) I.P.C. The abovesaid

fact has been culminated from the photo copy of the printed F.I.R. produced before me in D.C.B. Cr. No. 8/1994. with the Serial No. A 081854

dated 7.4.1994 with the following words:

SUBMITTED

On receipt of the report of the complainant on 7.4.1994 at 17.00 hrs on tapal, I registered his report in District Crime Branch, Cr. No. 8/94 u/s

420, 452, 471, 477-A and 120(B) I.P.C., as per the instructions of the Supdt. of Police, Kamarajar District.

The District Crime Branch after having registered the same appears to have sent the original F.I.R. along with the complaint to the Chief Judicial

Magistrate, Srivilliputhur and forwarded the other copies to the officers concerned. The Inspector of Police, D.C.B. took up the case for

investigation. However, the final report after completion of investigation by the District Crime Branch, was laid in report No. 4/95 on 18.4.1995

before the Chief Judicial Magistrate, Srivilliputhur against Respondents 1 and 2. Subsequently, it appears the case was transmitted to the file of the

Judicial Magistrate No. 2, Virudhunagar for the conduct of the trial. Learned Judicial Magistrate No. 2, Virudhunagar has taken the case to the file

in C.C. No. 176 of 1995 for the same offences against the accused and ordered the process and consequently, both the Respondents had entered

their appearance and copies were furnished to them. On behalf of Respondent No. 1 Maheswaran a petition u/s 239 of the Code of Criminal

Procedure praying for the total discharge was filed before the trial Court at Virudhunagar. After having denied the factual aspects alleged by the

Petitioner in the two complaints involved in the instant proceedings it was mainly contended while praying for the discharge that for the facts and

overt acts alleged the same had already been rejected by the Court of Law after investigation by the Police and that adding with two more

instances as a follow up action of the earlier one cannot be entertained by the other wing of the Police and that therefore the trial once started with

the relevant charges in C.C. No. 176 of 1995 was highly incompetent and against law. On resistance, in Crl. M.P. No. 1327 of 1995, learned

Judicial Magistrate No. 2, Virudhunagar on 12.9.1995 has dismissed the said petition on merits by giving various reasonings. It was this order

being challenged by the Respondent No. 1 Maheswaran, for its want of legality and propriety.

A petition, Crl. M.P. No. 4615 of 1995 was also filed on behalf of Maheswaran and Surendran to implead them as Respondents 2 and 3 in

Crl. R.C. No. 575 of 1993 for the reasoning that they were persons whose interest was directly involved and as such their presence for the proper

adjudication has become necessary and the same is also pending disposal on being resisted.

I have heard the Bar for the respective parties for and against the impugned order. I have looked into the entire case records. One of the

contentions mainly raised by and on behalf of the Petitioner, by Mr. N.T. Vanamamalai, learned senior counsel is that the impugned Order passed

by the learned Judicial Magistrate Sivakasi on 3.8.1993 lacks every Judicial sanctity as it has been passed without giving any notice to the

Petitioner herein who was the complainant therein. To substantiate his contention he has placed reliance on a decision held by the Supreme Court

in Bhagwant Singh Vs. Commissioner of Police and Another, wherein, it has been held as under:

In a case where the Magistrate to whom a report is forwarded under Sub-section (2) of Section 173 decides not to take cognizance 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. However, either from the provisions of the Code of Criminal Procedure or from the principles of natural justice, no obligation on the

Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at that time of

consideration of the report can be spelt out, unless such person is the informant who has lodged the F.I.R. But, even if such person is not entitled

to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for

the purpose of deciding what action he should take on the report.

If the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is

sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information report,

the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part.

Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly

recognised by the provisions contained in Sub-section (2) of Section 154, Sub-section (2) of Section 157 and Sub-section (2)(ii) of Section 173 in

that the officer of the police station has u/s 157(2) to notify the fact to the first information that he is not going to investigate the case or cause it to

be investigated and u/s 173(2)(ii), the said Officer is obliged to communicate to the informant the action taken by him and the report forwarded by

him to the Magistrate, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the

offence and issues process, because that would be culmination of the First Information Report, lodged by him. There can, therefore, be no doubt

that when, on a consideration of the report made by the officer in charge of a police station under Sub-section (2)(i) of Section 173, the Magistrate

is not inclined to take cognizance of the 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 cognizance of the offence and issue process.

It is the common case among the parties herein that the original complaint given by the Petitioner u/s 200 of the Code of Criminal Procedure

against the Respondents 1 and 2 for the relevant offences, has been referred to the police by the learned Judicial Magistrate, Sivakasi for

investigation and report u/s 156(3) of the Code of Criminal Procedure and the same had been registered in Sivakasi East police station Crime No.

500 of 1993 for the offences under Sections 342, 506(II), 386 and 387 of Indian Penal Code on 30-7-1993 and the respective parties are not at

any controversy regarding the abovesaid facts in any manner. Another limb of the attack made by and on behalf of the Petitioner about the

impugned order is that the impugned order is not the resultant factor of the full and complete investigation of the entire case, but it is the resultant of

arbitrariness and hasty report and that therefore the learned Magistrate ought to have probed the matter further either by conducting the enquiry by

himself or by asking the police to do further investigation. Without doing so, passing the impugned order involved in the earlier revision lacks every

legal sanctity and correctness. It is seen that while referring to the original complaint by the Petitioner, on 26.7.1993 learned Magistrate has given a

direction fixing some time to the police to investigate the case and report till 30.7.1993 and accordingly, a final report, after investigation appeared

to have been forwarded to the learned Magistrate on 30.7.1993 containing various grounds and reasons which was the resultant factor of the

investigation done by the Inspector of Police, upon the basis of which he referred the case of the complainant as false and also sought the

permission of the learned Magistrate to proceed against the Petitioner u/s 211 of the Indian Penal Code, which was rejected by the learned

Magistrate. Presumably, upon the final report filed by the Police, viz. the Inspector of Police, Sivakasi in Crime No. 500/93, learned Magistrate

seems to have applied his mind in full and came to a conclusion that there exists no need to proceed further and accordingly, passed the impugned

order and at the same time, the request made by the Inspector of Police to proceed against the Petitioner u/s 211 of the Indian Penal Code has

also been rejected.

On factual aspects, with regard to the final report and its contents and grounds very many in numbers, I do not come across with any serious

grievance made by the Petitioner, nor any deep contention was made by the Bar on his behalf. It seems to me that the whole attack has been dwelt

upon the non-service of notice on the Petitioner prior to the passing of the order and an opportunity of being heard which the Petitioner has been

declined and that therefore, basing upon the ratio held by the Apex Court in the above cited case-law, an attempt was made to persuade me to

identify the illegality and impropriety of the impugned order. It is, therefore, under these circumstances, though several grounds were given in the

final report by the Inspector of Police, Sivakasi, I am not inclined to add any of my preference to more than what the learned Judicial Magistrate

has done already by accepting the final report after having gone through the whole report. This action of the learned Magistrate had practically

come to a close in view of Section 173(2) of the Code of Criminal Procedure for its detailed particulars and elaborate investigation. It was not as if

the inspector Police investigated the matter afresh after the order of the Magistrate u/s 156(3) of the Code. According to him, as evident from his

final report, he had already conducted an enquiry and investigated the matter upon a complaint given to the Superintendent of Police by the

Petitioner and on the direction for the Superintendent of Police, he had the occasion to investigate the whole matter and that was the reason

perhaps, why he has given the final report with every detail and ground on 30.7.1993 itself. The scathing attack or the grievance that each and

every witness acquainted with the facts has not been examined by the Inspector of Police in sending the final report as referred to above cannot be

countenanced for the very reason of its nebulous and vague nature. Therefore, I am not accepting the said contention as I do not wish to go into

the truth or veracity or otherwise of the final report sent by the investigating Officer on 30.7.1993 and as such, I am inclined to add my preference

with the finding given by the learned Judicial Magistrate in accepting the final report as correct.

But the question that remains to be seen is that whether the learned Judicial Magistrate is correct in passing the impugned order without giving

any notice to the complaint who is the Petitioner herein, in the context of the legal ratio laid down by the Apex Court in the abovesaid case-law and

if so, will it vitiate the whole proceedings deserving or warranting the interference of this Court?

Elaborating the above moot question, while laying down a new synthesis of law, their Lordships of Supreme Court in Bhagwant Singh Vs.

Commissioner of Police and Another, at page 1523 have laid down the following observations:

Obviously, the reason is that the informant who sets the machinery of investigation into motion by filing the First Information Report must know that

is the result of the investigation initiated on the basis of the First Information Report. The informant having taken the initiative in lodging the First

Information Report with a view to initiating investigation by the police for the purpose of ascertaining whether any offence has been committed and,

if so, by whom, is vitally interested in the result of the investigation and hence the law requires that the action taken by the officer incharge of a

police station on the First Information Report should be communicated to him and the report forwarded by such officer to the Magistrate under

Sub-section (2)(i) of Section 173 should also be supplied to him.

Now, when the report forwarded by the Officer-in-charge of a police station to the Magistrate under Sub-section (2)(i) of Section 173 comes up

for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have bene

committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take

cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceedings or (3) he may direct further

investigation under Sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in

the opinion of the police, the offence appears to have been committed and where such a report has been made, the Magistrate again has an option

to adopt one of three courses: (1) he may accept the report and drop the proceeding 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. Where, in either of these two situations, the Magistrate decides to take cognizance of

the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased

aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But, if the

Magistrate decides that there is no sufficient ground for proceeding or takes the view that though there is sufficient ground for proceeding against

some, there is no sufficient ground for proceeding against others mentioned in the First Information Report the informant would certainly be

prejudiced because the First Information Report by him would have failed of its purpose, wholly or in part.

Their Lordships in the abovesaid case-law itself at paragraph-5 have laid down the following observations:

The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not

the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of

the Code of Criminal Procedure 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person

or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person

is the informant who has lodged the First Information Report. But, even if such person is not entitled to notice from the Magistrate, he can appear

before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should

take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear

before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the

Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even

though Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the

deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives

of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on ak

consideration of the report.

Their Lordships of the Supreme Court have thus ruled that the non-giving of notice to the informant has no invalidating effect of such an order

passed by the learned Magistrate and Their Lordships felt that giving of such notice to the informant or his relative is only obligatory and

discretionary, the violation of which may not render any order passed by the learned Judicial Magistrate invalid. Though the above observations

and the rules enunciated by the Apex Court have emerged out in a case on first information report laid to the Police or in a case where the

complainant had informed and the report of the police was called for, it is not known whether it has got any direct effect and is made applicable to

a case instituted otherwise on a police report and as was held by Their Lordships of the Supreme Court that even in that case, if no notice is given,

any order passed by the Magistrate after having applied his mind with regard to the substratum set out in the final report by the police does not

assume the character of invalidating effect. It is, therefore, under such circumstances, the observations of Their Lordships in the above cited case

law itself would provide a fitting answer to the major and main contention raised on behalf of the Petitioner. Therefore, I am totally unable to

persuade myself to accept the contention of the Petitioner that the non-giving of any notice to the Petitioner upon the final report of the police dated

30.7.1993 and passing of the impugned order on 3.8.1993 vitiates the case, but, on the other hand, it has become valid in law as held by the

hierarchy of the Courts. In the light of the above observations and findings of the case-law cited above, though a number of case-laws of learned

Single Judges of this Court and other High Courts were relied on. I do not propose to traverse the same for the reason of the binding nature of the

ruling by the Supreme Court in Bhagwant Singh''s case cited supra. Therefore, I reject the contention of the Petitioner. Except the two grounds

above referred to no other contentions were made or added to improve the Petitioner''s case in the earlier revision.

It is worthwhile to note that in the impugned order passed by the learned Judicial Magistrate, Sivakasi itself, the request made by the

investigating Officer to proceed against the Petitioner u/s 211 of the Indian Penal Code was rejected. This order was seemingly passed on

3.8.1993 and consequently, the whole matter racked up by the Petitioner herein had come to a close against the Respondents 1 and 2 allegedly for

many offences. Even then, after a lapse of long time, probably, after coming to know of the filing of the present earlier Revision, the Respondents 1

and 2 have approached the Judicial Magistrate, Sivakasi by filing a petition u/s 340 of the Code of Criminal Procedure seeking permission to

proceed against the Petitioner for the commission of certain offences by giving a complaint in writing before the learned Chief Judicial Magistrate or

any other Court having jurisdiction against the Petitioner and the offences alleged therein were under Sections 193, 196 and 211 of Indian Penal

Code. This petition was resisted and the complaint was entertained and the learned Magistrate appears to have proceeded with the enquiry. It has,

thus, become necessary for the Petitioner to come forward with the second case in Crl. O.P. No. 11152 of 1994 praying to quash the

proceedings as a whole on the ground that for a similar relief, the Court has already passed an order and again the same relief has been requested

in a different form by a different person, that too, one among the two has come forward with the request which is totally bereft of any valid ground

either on facts or law to be granted and the very entertaining of the said petition u/s 340 of the Code of Criminal Procedure itself is not

maintainable and it amounts to abuse of process of law. The relief of quashing the proceedings was sought for by invoking the inherent power of

this Court u/s 482 of the Code of Criminal Procedure.

While dealing with the scope on the necessary principles of law to be followed in seeking the relief of quashing by invoking the inherent power

of this Court, the Supreme Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, held as under:

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by

this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent power u/s 482 of the Code

which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be

exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down

any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of

cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their

entirely do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of

the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is

permitted by a police officer without an order of a Magistrate contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal Proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior native

for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the Court to act according to its whim or caprice.

The proceedings initiated by one of the Respondents herein u/s 340 of the Code of Criminal Procedure before the learned Judicial Magistrate,

Sivakasi on 8.6.1994 have thus been identified as the resultant factor or the sequel to the criminal revision case filed by the Petitioner before this

Court or the consequence of the order passed by the same Judicial Magistrate on 3.8.1993 which is also the subject matter of the very revision

itself. It is also noticed that one of the claims in the said petition was the same and identical which the Inspector of Police, Sivakasi had already

approached, and which was rejected. After coming to know the revisional proceedings, the present application was filed on 8.6.1994 which for

the very reasonings given above, ought not to have been entertained by the learned Magistrate. It is, therefore, under the circumstances, one needs

no further elaboration to brief the facts of the instant case, second in number which comes under No. 7 of the list formulated by the Apex Court in

the above case law, viz., ''where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted

with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge:

Having gone through the substratum of the whole case with the connected case records, I do not find any substance or materials for one of the

Respondents against whom already a complaint has been lodged, investigated and dropped by the Court of law and thus, a criminal proceeding

has already been initiated and attended by one of die parties. Therefore, the present case has come clearly within the teeth of one of the ratios held

by the Apex Court and accordingly, I am constrained to hold the same as absolutely frivolous and emerged out of pure malice which was the

resultant of serious enmity and bickerings existed among the parties herein. The reasons given by me would fortify the fact that it was instituted after

coming to know of the earlier Revision filed by the Petitioner, having thus considered all factual aspects and the legal conspectus of the instant case

with the connected case records, I am fully constrained to hold that this proceeding is purely a resultant factor of the serious enmity and bickerings

existed among the parties herein and there is no basis at all for allowing it to continue, if not it would result in a clear abuse of process of law. I

have to say, so far the very reasoning that the Court below has already adjudicated that it is not inclined to proceed further and the police itself is

not empowered to do so and the proceedings in question are intended only as a counter-blast to the revision case preferred by the Petitioner

herein.

Basing upon two incidents referred to in the earlier complaint that happened on 3.8.1992 and 28.8.1992, followed by a legal notice given by

him, as well as the registered revocation deed on 30.7.1993, the Petitioner seems to have alleged further overt acts against the Respondents 1 and

2 subsequently i.e., during 1994 by stating that a false and bogus sale deed has been created by undervaluing the property referred to and

belonging to him and in die pretext of the same, took forcible possession of the property from the Petitioner with the aid of his men and associates

and by so alleging, he has filed again a private complaint for the alleged commission of offences punishable under Sections 420, 452, 471, 477(A)

read with 120B of Indian Penal Code. This complaint, which was on perusal, also a similar one added with the allegation of a sale deed allegedly

fabricated with the signatures got in blank papers and taking forcible possession of the property by Respondents 1 and 2, was presented before

the same Judicial Magistrate, Sivakasi on 22.3.1994, obviously for the second time. Learned Magistrate on that date passed an order directing the

Inspector of Police, Sivakasi town Police Station to investigate the complaint and report by 25.4.1994 by giving more than 30 days time for

investigation. Accordingly, on receipt of the said complaint, the Inspector of Police, Sivakasi town was directed to register the case, investigate the

same and file a report on or before 25.4.1994. This was passed just as requested in the complaint itself with the following prayer:

It is, therefore, prayed that Your Honour may pleased to send the complaint u/s 156(3) of the Code of Criminal Procedure to the Inspector of

Police, Law and Order, Sivakasi town Police Station with a direction to register a case against accused No. 1, Maheswaran and accused No. 2

Surendran for the offences under Sections 420, 452, 471, 477(A) read with 120-B I.P.C. and investigate and submit a report on such

investigation within a date fixed by the Court.

A perusal of the complaint would also reveal that the witnesses cited in the said complaint are also the same persons cited in the earlier complaint.

It is also pertinent to note, at this stage, that the offences alleged in this complaint are also akin and same offences alleged in the earlier complaint,

which was closed for its falsehood as revealed in the order passed by the then learned Judicial Magistrate on 3.8.1993. However, the case

records show that the Inspector of Police, Sivakasi town appears to have not investigated the case as directed and ordered by the learned Judicial

Magistrate, Sivakasi. It is not known as to how and under what circumstances and under what authority, he has not performed his duty, especially

when the Court below gave a direction to him. The matter does not end with this. The xerox copy of the printed first information report available in

the case records shows that the District Crime Branch Police of Kamarajar District, on receipt of the complaint dated 7.4.1994 at 17.00 hours by

tapal, registered the same in D.C.B. Crime No. 8/94 for the offences under Sections 420, 452, 471, 477(A) read with 120(B) of Indian Penal

Code as per the instructions of the Superintendent of Police, Kamarajar District by showing the Respondents herein as accused. It is surprising to

note that the printed first information report prepared by the District Crime Branch Police refers to the date and time of occurrence involved as

28.8.1992 to 24.9.1993. This job was done by Mr. Muthuvel, Inspector of Police, District Crime Branch, Virudhunagar. On seeing these

particulars, I am really shocked to note the very attitude and approach adopted by the police by-passing the powers of the Court in implementing

the procedural law. It is not known under what authority the order passed by a Court of law, viz., the Judicial Magistrate, Sivakasi dated

22.3.1994 fixing time for investigation and report before 25.4.1994, was over-looked and by-passed by a police Officer, either the District Crime

Branch Inspector or the Superintendent of Police or whoever he may be. It appears that either the Superintendent of Police, Kamarajar District (as

he then was) or the Inspector of Police, District Crime Branch or the Inspector of Police, Sivakasi town had no mind at all to comply with the

order of the Court and they did not want to follow the directions given by a Court of law, quite for the reasoning that they had taken the law in their

own hands by usurping the power of the Court for the purpose of obliging obviously and reasonably the Petitioner herein.

As I have already observed in the previous paragraph of this order, the overt act alleged by the Petitioner in the latest complaint was the mere

continuation of the overt act referred to in the earlier complaint which is the subject matter of 1995 Cri. R.C. 575 of . Even if it is stated that the

overt act in the earlier complaint clearly amounts to a motive for the subsequent overt act of creating a false document under the nomenclature of

sale deed and taking the possession of the property forcibly, then, the procedure laid down in this regard ought to have been followed by the

police which they did not do for the obvious reasons known to them.

The further irony of the matter for all the charges on the alleged investigation done by the District Crime Branch claims that there are enough

materials to file the final report and the final report appears to have been filed u/s 173 of the Code of Criminal Procedure not before the Court

which ordered the investigation u/s 156(3) of the Code, but, however, before the learned Chief Judicial Magistrate, Srivilliputhur for taking

cognizance of the offences above referred to. It would be seen further that for the administrative reasons, the learned Chief Judicial Magistrate,

Srivilliputhur has transmitted the case to the file of learned Judicial Magistrate, Virudhunagar for the purpose of trial. Thus, having looked into the

uncontroverted circumstances culled out from the case records, I have come across with a total indifferent and partisan attitude pressed into

service by certain Officers of the Police department to give life to a case initiated by the Petitioner which has already been closed by a Court of law

on 3.8.1993 itself and to this extent, the Superintendent of Police and the District Crime Branch Police who registered the case and the Inspector

of Police, Sivakasi town in not following the directions given by a Court of law had committed dereliction of duty bypassing the judicial order and

directions given by a Court of law which is highly deprecated and reprehensible.

29A. In the facts and circumstances, my anxiety is to identify the characteristic feature and the duty of the police department which is supposed to

be the law and order implementing agency upon which the executive is depending upon. If die law and order investigating agency which is

supposed to be the law protector, is allowed to break the law or abdicate the law and also to disregard the directions of the Court by usurping the

powers of the Court, then, there would be a complete chaos and no rule of law would take predominance in maintaining the very basic structure of

the society.

The Court below, viz., the Judicial Magistrate, Virudhunagar, in my considered view, have also contributed to this malady to some extent. It

appears from the case records that a petition u/s 239 of the Code of Criminal Procedure was filed before the trial Magistrate, Virudhunagar in Crl.

M.P. No. 1327 of 1995 in C.C. No. 176 of 1995 praying for total discharge of the Respondent No. 1. On resisting stiffly learned Judicial

Magistrate has passed the impugned order in Crl. R.C. 905 of 1995 rejecting the said petition in-toto by observing that there were no materials or

adequate facts established to accept the said prayer. In short, the learned Magistrate while passing the impugned order has observed that the case-

laws cited before him would clearly reveal that the criminal acts alleged to have been committed by both the accused viz., Respondents 1 and 2

cannot be determined before the commencement of the trial and in this regard, he has given his finding in paragraph 10 of the impugned order. On

going through the entire case papers, impugned order and the circumstances referred to above, in the light of the rival contentions, I may straight

away observe that the very approach adopted by the learned Magistrate in passing the impugned order in Crl. M.P. No. 1327 of 1995 dated

12.9.1995 is highly erroneous and cannot be a correct one for the very reasonings that the learned Magistrate has deliberately omitted and

overlooked the above circumstances pointed out by me and the very fact that he had accepted the final report filed by the District Crime Branch

Police is without any jurisdiction and he has failed to note that the order of the learned Judicial Magistrate, Sivakasi passed on 22.3.1994 has not

been followed and the final report filed before the learned Chief Judicial Magistrate by the District Crime Branch Police was not in pursuance of

the order passed by the Court of law above referred to. On this score alone, I am constrained to hold that the very complaint or the final report

filed by the District Crime Branch ought not to have taken cognizance of for any purpose for they have no locus standi and it lacks jurisdiction. A

gross incompetency inherent in die learned trial Magistrate or the learned Chief Judicial Magistrate, exhibited in this case, in the context of the

above circumstances referred to, would clearly got to show that the impugned order is liable to be set aside immediately. Taking cognizance of the

final report by the Chief Judicial Magistrate or keeping the proceedings pending by the learned Judicial Magistrate, Virudhunagar is not correct and

die District Crime Branch Police, Virudhunagar had also no legal authority or competency to investigate and file the final report before the Court of

law especially in a case where it was directed by a Court of law to a particular wing of Police to investigate and report. Having looked into die

every aspect of the case, I am able to identify the very illegality and impropriety committed by the Court below in passing the impugned order in

Crl. M.P. No. 1327 of 1995.

While looking into the matter from the other angle, particularly on factual aspects, the substratum of the subsequent complaint is the exact

replica of the previous complaint which was duly investigated by the Police having jurisdiction and final report was filed on 30.7.1993 and for the

veracity of the same, the Court of law, viz., the Judicial Magistrate, Sivakasi had already applied his mind and brought the proceedings to a close

on 3.8.1993. Therefore, it is pertinent to note, at this stage, just to avoid the resultant factors of the previous proceedings, the subsequent order

passed by the same Magistrate on 22.3.1994 has been taken to a different route by the police as if they have every power to do so for which they

are not entitled to and thus, it fomented the litigation among the two arch-rival groups. All these factors have been deliberately omitted and over-

looked by the Court below while passing the impugned order.

Even while entering into the factual aspects of the case, on the face of the allegations made in the subsequent complaint, the Court below ought

to have seen that it is a case of pure civil nature and it does not warrant any investigation or taking cognizance of any offence under Indian Penal

Code. One of the allegations of the Petitioner is that with the signature obtained under threat or coercion or force from the Petitioner by

Respondents 1 and 2 on 28.8.1992, a sale deed was created as if, it was really executed by him and the Petitioner was dispossessed. If it is the

allegation of the Petitioner, then, it is purely a civil case for which a civil suit may be filed and thereby orders may be obtained by adducing legal

evidence, for the very reasoning that the Petitioner himself has admitted that he was present before the Registrar and subscribed his signature for

the registration of the sale deed before the competent authority which was followed by the execution of a registered revocation deed by the

Petitioner. If the matter is considered in his line, once the possession has been admittedly taken by the Respondents 1 and 2, I wonder as to how a

criminal liability can be mulcted on the Respondents 1 and 2 for the obvious reasoning that the proceedings before a Court of law had already

come to a close by passing an order on 3.8.1993 upon the final report filed by the Inspector of police on 13.7.1993 which pertains to the first

Revision case and which precipitated the parties to file a proceeding u/s 340 of the Code of Criminal Procedure before the Judicial Magistrate,

Sivakasi and another latest complaint which was wrongly taken cognizance of and fired from the wrong end of investigation. The resultant factors,

however, the real defects which are legal in character and nature have emerged out in these Revisions while probing the same.

I would like to emphasise that the whole narration of the factual aspects with my observations given above would clearly reveal that the actual

tussle between the Petitioner and the Respondents is purely civil in nature on the one hand and that the complaint lodged by the Petitioner was

already thoroughly investigated and accepted by a Court of law which was taken as the basis for either of the parties to escalate the same matter in

different area by different proceedings, which is the subject matter of Crl. O.P. No. 11152 of 1994 and Crl. R.C. No. 905 of 1995. For the

various findings and observations given by me, the proceedings initiated by the Respondents 1 and 2 before the learned Judicial Magistrate,

Sivakasi and the case pending against the Respondents 1 and 2 in C.C. 176 of 1995 before the learned Judicial Magistrate, Virudhunagar have no

basis for further continuance. I have already referred to the legal principles in this regard to be followed, held by the Supreme Court in State of

Haryana and others Vs. Ch. Bhajan Lal and others,

In the result, for all the reasonings and various findings given by me, Crl. R.C. No. 575 of 1993 is dismissed. Consequently, the order passed

by the learned Judicial Magistrate, Sivakasi in Crl. M.P. No. 4271 of 1993 dated 3.8.1993 stands confirmed and maintained. Crl. O.P. No.

11152 of 1994 is allowed and the proceedings pending before the learned Judicial Magistrate, Sivakasi in Crl. M.P. No. 2637 of are hereby

quashed. Crl. R.C. No. 905 of is admitted and allowed. Consequently, the order passed by the learned Judicial Magistrate No. 2, Virudhunagar in

Crl. M.P. No. 1327 of 1995 dated 12.9.1995 is hereby set aside and consequently, the first accused/first Respondent is hereby discharged.