Nallaya Gounder and Others vs Thiruvengadam

Arunachalam, J.—The petitioners are accused 1 to 3 in C.C.No.184 of 1989 pending on the file of the Judicial Magistrate,

Madhuranthakam.

On a private complaint instituted by the respondent before the learned Magistrate alleging commission of offence under Sections 341 and 447

IPC by the petitioners, in respect of an occurrence stated to have taken place on 13.6.1988 at Mathur village, after recording the sworn statement

of the respondent, the learned Magistrate chose to take the case on file only for an offence u/s 341 IPC.

The allegations in the complaint show that the respondent as well as the wife of the first petitioner Andal Ammal, the aunt of the respondent, had

equal share in the lands in S.No.186/1 and S.No.232/1A situated at Mathur village, to an extent of 0.49 hectare and 0.15 hectare, respectively.

The complaint also shows that both the parties had equal rights in the well and the pumpset motor.

The complaint alleges, that on 2.8.1987 when the respondent proceeded to his land to till the same, his aunt Andal Ammal, along with the first

and second petitioner, prevented, him from ploughing the land. Aggrieved respondent, chose to prefer a suit before the District Munsif,

Madhuranthakam praying for an injunction restraining Andal Ammal and her agents from interfering with his possession, of that portion of his land.

The complaint would further allege, that an order of injunction was granted and the said order was duly served on the petitioners and Andal

Ammal. After service of the order of injunction, petitioners 2 and 3 locked up the pumpset motor room situate in s. No. 186/1. The respondent

claims, that the petitioners are rich and influential people and inspite of an order of injunction, he could not enjoy his property.

The complaint further alleges, that in the said background, when the respondent went over to his land on 13.6.1988, he found the motor in

operation, pumping water to that portion of the land enjoyed by his aunt Andal Ammal. When he attempted to approach the motor pumpset room,

the petitioners wrongfully restrained him and prevented him from reaching the pumpset room. They also abused him in vulgar language. When the

petitioners attempted to beat him, out of rear, he ran away to his house.

On the next day (14.6.1988), he preferred a complaint before Melmaruvathur Police Station. Since Melmaruvathur Police directed him to file a

civil suit, he chose to prefer a private complaint before the trial Magistrate on 20.6.1988.

Learned Magistrate, on receipt of the private complaint, forwarded it u/s 156 (3) Crl.P.C. to the Melmaruvathur Police Station, for investigation

and report. On receipt of the complaint from the Magistrate, the Melmaruvathur Police registered Crime No. 151/88 u/s 341 and 447 I.P.C. After

investigation, Melmaruvathur Police chose to refer the complaint as ''mistake of fact''. Thereafter, setting out all these details, the respondent chose

to file the impugned private complaint, which as stated earlier, was taken on file for an offence u/s 341 IPC alone.

Mr. R. Rajasekaran, learned counsel representing Mr. T. Sudanthiram, contended that the respondent had suppressed the nature of order

passed by the civil court in O.S.No.401 of 1987 and had attempted to convert a case purely of civil nature, into one involving criminal liability. He

then contended, that once the learned Magistrate had accepted the report of the investigating agency, referring the case as ''mistake of fact'', on the

same facts a second complaint was not feasible and the respondent must have taken steps to have the order of the Magistrate set aside in revision.

I have heard Mr. S. Udayakumar, learned counsel representing the respondent on all these contentions. He contended that no opportunity was

given to the respondent before the learned Magistrate chose to accept the report of the Melmaruvathur police. He vehemently argued that the

impugned complaint was maintainable in law.

Mr. Rajasekaran has placed for my consideration certain decided cases, which I will refer to, at the appropriate time.

I have carefully considered the rival contentions of the opposing counsel. As far as the first ground of challenge is concerned, I am afraid that it

would not enure in favour of the petitioners. I did agree to look into the order passed by the Civil Court in O.S.No.401 of 1987, dated 21.8.1987,

since in the complaint itself, it has been stated, that the interim order passed by the Civil Court had been appended thereto. As rightly contended

by the learned Counsel for the petitioners, the order is not one of injunction preventing the petitioners from interfering with the possession of the

respondent, as stated in the complaint, but one of maintenance of status quo. The words ''maintenance of status quo'' can only indicate that both

parties will have to maintain the same position that had existed before the passing of the order dated 21.8.1987. In the complaint as well as his

sworn statement, not only the entitlement to the land and the pumpset room has been mentioned by the respondent but it has also been stated that

when he exercised his right of possession, he was prevented, by the petitioners. It must also be borne in mind, that between 21.8.1987 and

13.6.1988, there has been no untoward incident between the parties. Anyhow, I do not want to dwelve on that aspect, since it has to be relegated

to the trial Court for consideration, after evidenced is brought on record. The fact remains, on the allegations made in the complaint, when

accepted at their face value, without addition or subtraction, that both parties have a right in the land and the motor pumpset room and both of

them were either in possession or were exercising acts, to indicate possession. The intricate questions of acts of possession by either party, will

again have to be canvassed and considered during trial. Once the allegations in the complaint, prima facie make out the ingredients of the offences

alleged, it will not be possible to halt the trial at its track, by invoking the inherent powers, u/s 482 Cr.P.C. The order of the Civil Court does not

appear to help either party, at this stage. If the learned Magistrate had taken the case on file for trespass as well, it could have easily been held, on

the material available, that taking of cognizance for an offence u/s 447 IPC, was not maintainable. I am unable to find any impediment in the

Magistrate having taken cognizance of an offence u/s 341 IPC alone, on the averments made in the complaint and the sworn statement. The first

ground of challenge, is rejected outright.

As far as the second ground of challenge is concerned, very many decisions have been placed before me. Padmini Jesudurai J., in Crl.

M.P.No.1548 of 1988, by an order dated 21.7.1989, in somewhat similar circumstances, held as hereunder:

Whatever that be, in view of the clear pronouncement of the Supreme Court in the two decisions referred to above, I have to necessarily hold that

when the Magistrate drops action on receipt of a report by the police referring the case, he accepts the reasons given in the refer report and agree

with the police that the matter has to be dropped. When therefore, he drops the matter, it has to be taken that he has acted on the report accepting

it. Under such circumstances, if on the same set of facts when exactly a similar (complaint) is given later, then it would not be open to the learned

Magistrate to take cognizance of the said complaint, contrary to his earlier decision agreeing to drop the matter. In the instant case, the learned

Magistrate had decided to drop action since the case was referred as a mistake of fact. It should be taken that the learned Magistrate agreed with

the report of the police and accepted them. He cannot therefore take cognizance of the said complaint.

Before Padmini Jesudurai, J., the judgment of S. Natarajan. J, (as he then was) reported in 1983 LW (Crl.) 319 Manoharlal v. Vasudev was

cited.

In that case, S.Natarajan, J., held as follows:

It is well-known that when a Magistrate sends a complaint for enquiry u/s 156 (3) Cr.P.C, he does not take cognizance of the case. Consequently,

when he receives a police report stating that the complaint be referred either as ''false'' or as ''mistake of fact'' or ''mistake of law'', he does not

pass any judicial order; but merely lodges the complaint and does not take any further action. In such circumstances, there is no bar in law for the

Magistrate to entertain a second complaint and take cognizance of it and issue process to the accused.

Padmini Jesudrai, J., referring to this decision of S. Natarajan, J., observed as follows:

I am not sure about the facts of the case which the learned Judge had to deal.

A perusal of the judgment rendered by S. Natarajan, J., shows in paragraph 2, that the respondent therein had filed a complaint against the

petitioner for offences of criminal breach of trust etc. The complaint was sent for enquiry, by the Magistrate u/s 156 (3) Crl. P.C. After enquiry, the

police gave a report stating that the petitioner had not committed any offence and the complaint deserved to be referred on the ground of ''mistake

of law.'' In view of the report of the police, no further action was taken on that complaint. Subsequently, the respondent filed another complaint

against the petitioner in respect of the very same offence complained of in the earlier complaint. The complaint was taken on file and process issued

to the petitioner. It was at that stage, the petitioner therein had chosen to invoke the inherent powers of the High court to have the pending

proceedings quashed.

S. Natarajan, J. has referred in Manoharlal''s case (supra), the judgment of Maheswaran, J., in T.K. Subramanian and others v. T.K.

Gnanasekaran and another 1982 Law Weekly (Crl.) 245. The learned Judge observed as hereunder:

When the Magistrate orders investigation under S.156 (3) of the Crl.P.C., he cannot be said to have taken cognizance of the offence. In the instant

case, the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding. He ordered only

an investigation under S.156(3) of the Crl.P.C. In the case of a complaint in respect of a cognizable offence, the Magistrate can invoke S.156 (3)

before he takes cognizance of the offence under S.190 (1)(a) of the Code. In the present case, the Magistrate did not embark upon the procedure

under Chapter XV of the Cr.P.C. He did not examine the complainant and the witnesses under S.200 Cr.P.C. The question of dismissing the

complaint under S.203, Cr.P.C, therefore, did not arise.

The argument of the petitioners that the order stating ''Lodge the F.I.R.'' will amount to a dismissal under S.203, Cr.P.C. is devoid of substance

and must fail. As the complaint had not been dismissed under S.203 of the Crl.P.C. there is no prohibition for the entertainment of a second

complaint.

As before Padmini Jesudurai, J., learned counsel for the petitioners contended before me, relying upon the decisions of the Supreme Court in

Tula Ram and Others Vs. Kishore Singh, and H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State

(Union Territory of Chandigarh), that a magistrate receiving a police report u/s 173 (2) Cr.P.C. on a complaint sent by him to the police u/s 156

(3) Crl.P.C. had only three courses open, whereas in the instant case, the learned Magistrate had embarked upon a fourth course of action, which

law does not permit.

S. Natarajan, J., Padmini Jesudurai, J., and Maheswaran, J., had no occasion to consider the judgment of the Supreme Court in Bhagwant

Singh Vs. Commissioner of Police and Another, . The Apex Court observed, that in a case where the Magistrate to whom a report is forwarded

under sub-sec.(2) of S.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. It was further stated by the Supreme Court, that 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. The further observations of the Supreme Court need extraction:

Now, when the report forwarded by the Officer-in-charge of a police station to the Magistrate under sub-section 2(i) of S.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 been

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 proceeding, or

(3) he may direct further investigation under sub-section(3) of S.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, no 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:

he may accept the report and drop the proceedings; or

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

he may direct further investigation to be made by the police under sab-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 further and drops the proceedings or takes the view that though there is sufficient ground for proceeding against some, there is no

sufficient ground for proceedings 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 S. 154, sub-sec. (2) of S.157 and sub-sec. (2)(ii) of Section 173, 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 S.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.

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 S.173 decides not

to take cognizance of the offence and to drop the proceedings 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.

Admittedly, on the facts placed before me, no notice was given to the respondent, before the learned Magistrate, chose to accept the referred

report forwarded to him u/s 173 Crl.P.C. The respondent, who had lost a vital right, to place before the Magistrate his submissions, to persuade

the Magistrate to take cognizance of the offence and issue process, cannot be prevented from filing a complaint over again on the same set of facts.

Principles of Natural Justice, would permit it, since the earlier disposal is a non-est, in the eye of law. Hyper technical approach can only account

for ""laws delays"". At the risk of repetition, it will have to be stated, that every detail of all that had happened prior to the filing of the impugned

complaint, have been stated by the respondent, in his private complaint. As a clear decision is possible on the facts of this case, as to the

sustainability of the impugned complaint, controversy, if any, between the views expressed by Padmini Jesudurai, J. and those expressed by S.

Natarajan, J., and Maheswaran, J. need no further scrutiny. On the basis of the law Laid down by the Supreme Court in Bhagwant Singh Vs.

Commissioner of Police and Another, , the impugned complaint should be held to be maintainable.

M.N. Moorthy, J. and David Annousamy, J.,

have taken the very same view, enunciated by the Supreme Court, in the aforestated Bhagwant Singh''s case.

This petition, which has no merit, shall stand dismissed.