The Petitioners, who are arrayed as A1 to A4 in CC.NO.6411/2005 on the file of the XVIII Metropolitan Magistrate, have filed this Criminal Original Petition to quash the complaint and the consequential proceedings.
2. The brief facts, which are necessary for the disposal of this Criminal Original Petition, are as follows:-
The 3rd Petitioner is the mother of the Petitioners 1 and 2 and the 4th Petitioner is the employee of the Company run by the Petitioners 1 to 3 by name M/s.Gopinath Furniture and Home Appliances. The Petitioners are the tenants in the premises at Old No.285, New No.32, Royapettah High Road, Chennai-14 under one S.Mohd Zainuddin, the husband of the Respondent herein. There are civil disputes pending between the Petitioners and the Respondent in relation to the tenanted premises and rent control proceedings is also pending between them.
3. It is alleged in the complaint that on 27.7.2005, the Petitioners entered into a criminal conspiracy and put sand and mud, thus caused blockage on the sewage line, which is fixed on the corner of the ground floor in which the Petitioners are running the shop. Due to the said blockage caused by the Petitioners, sewerage line coming from the I Floor, in which the Respondent is residing with her family was blocked and when the same was questioned by the Respondent, it is alleged that all the Petitioners abused her in a filthy language and attempted to assault her. It is further alleged that she ran out of fear to the I Floor and she was chased by the Petitioners along with other rowdy elements and attempted to attack her with deadly weapons and also threatened her and her family members with dire consequences.
4. According to the complainant, she had given the complaint before the Inspector of Police, E2 Royapettah Police Station, but no action was taken by the Police and therefore, she was constrained to approach the higher authorities by lodging a complaint to the Assistant Commissioner of Police on 2.8.2005 and she had also sent a telegram on 3.8.2005 to the Commissioner of Police, Chennai, but no action was taken against the Petitioners so far. Therefore, she was constrained to file the present complaint before the learned Judicial Magistrate for the offences alleged in the complaint.
5. Mr.Paul Kanagaraj appearing for Mr.M.Gnanasekar, the learned counsel for the Petitioner on record, would contend that the learned Magistrate has not applied his mind before taking cognizance of the offence, in spite of the fact that the complaint given by the Respondent to the police was in progress and the same was not closed. He would contend that when it is brought to the notice of the learned Magistrate, which could be evident from the averment made in the complaint that the Respondent has lodged the complaint before the Police and no action was taken by the Police, the learned Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code and if he finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police to investigate into the offence and submit a report. He would submit that the learned Magistrate without taking into consideration of the above factors had mechanically taken cognizance of the offence without satisfying himself as to whether the allegations made in the complaint prima facie disclose any cognizable offence as against the Petitioners.
6. The learned counsel would contend that the criminal law cannot be set into motion as a matter of course and the order of the learned Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He relied on the decision of the Honourable Supreme Court rendered in the case of Pepsi Foods Limited and another Vs. Special Judicial Magistrate and others [1998-5-SCC-749] and drew the attention of this court to the observations made by the Allahabad High Court in the case of Ram Yash and others Vs. State of UP [1985-1-Crimes-129], wherein it is observed that when the investigation by the police is in progress and when the same had been brought to the notice of the learned Magistrate, then he ought to have perused the complaint and stayed his hand immediately after taking cognizance of the offence and he ought not to have proceeded with the examination of either the complainant or his witnesses. It further observed that the learned Magistrate had exceeded his jurisdiction in summoning the accused to appear before him.
7. With a great respect to the learned Single Judge of the Court of the Allahabad High Court, I humbly state that I am not in agreement with the view expressed by the learned Single Judge of the Court. It is well settled principle of law that when the information is lodged with the police, and no action in that behalf is taken, the complainant can under
Section 190 of Code of Criminal Procedure read with
Section 200 of Code of Criminal Procedure lay a private complaint before the learned Magistrate having jurisdiction to take cognizance of the offence and the learned Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case, the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate with the offence under Chapter XII of the Code of Criminal Procedure and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under
Section 203 of Code of Criminal Procedure. In case, he finds that the complaint/evidence recorded prima facie disclose an offence, he is empowered to take cognizance of the offence and issue process to the accused. These aspects have been highlighted by the Honourable Supreme Court in the case of All India Industrial Union (Reg) Vs. Union of India [1996-11-SCC-582]. The above factors was again highlighted in a series of decisions, few of which are Gangadhar Janardan Mhatre Vs. State of Maharashtra and others [2004-7-SCC-768], Minu KUmari and another Vs. State of Bihar and others [2006-4-SCC-359] and Hari Singh Vs. State of UP [2006-5-SCC-733].
8. That being so, it cannot be contended that the course open to the learned Magistrate is only to forward the complaint under
Section 156(3) of Code of Criminal Procedure for investigation by the Police and direct them to file a report. In fact in the complaint the Respondent has specifically stated that she gave the police complaint against the accused several times before the Inspector of Police, Royapettah Police Station, Chennai, but since they are highly influential persons, the Police had not taken any action against them. She has further stated that the complaint given by her to the higher police officers also did not yield any result, which necessitated to file the private complaint before the learned Magistrate .
9. The Respondent has narrated the incident in the complaint in detail and she has alleged that the Petitioners entered into a criminal conspiracy, put sand and mud into the sewage line and caused blockage to the sewage line, leading to I Floor, where the Respondent and her family members are residing. Admittedly, the Respondent is the owner of the premises and the Petitioners are the tenants and there are rent control proceedings pending between them. It is alleged that when the Respondent questioned the act of the Petitioners, they abused her in a filthy language and attempted to assault her and threatened her with dare consequences.
10. The allegations made thereon prima facie disclose cognizable offence. On looking into the allegations and also considering the sworn statement of the complaint, the learned Magistrate thought fit to take cognizance of the offences and issued process to the Petitioners, which does not suffer from any illegality or infirmity.
11. It is settled position of law that the inherent powers under
Section 482 of Code of Criminal Procedure should normally be exercised if it is necessary to prevent abuse of process of the court or otherwise to secure the ends of justice. In this case, no necessity has arisen to quash the order of the Magistrate either to prevent the abuse of process of law or to secure the ends of justice. On the contrary, if the order is quashed, the effect would be otherwise.
12. In the cases of Ashabai Machindra Adhagale Vs. State of Maharashtra and others [2009-2-CTC-163], Lakhwant Singh Vs. Jasbir Singh and others [2008-4-CTC-745] and UP Pollution Control Board Vs. Dr.Bhupendra Kumar Modi and another [2009-1-CTC-84], it is consistently held by the Honourable Supreme Court that the inherent powers of the High Court are meant to be exercised sparingly and with circumspection only when there is a reason to believe that a process of law is being misused. At the initial stage, the court has to consider the allegations made in the complaint and the documents accompanying thereto and it is not permissible for the High Court to act as if it is a trial court. It is not for the High Court to embark upon an enquiry as to whether the evidence is reliable or not or on reasonable appreciation of evidence accusation cannot be sustained. When the factual scenario is considered in the back ground of legal principle stated above, the inevitable conclusion that could be arrived at is that it is not justifiable to quash the complaint.
13. In the result, this Criminal Original Petition is dismissed. Consequently, the connected MPs are closed.
Srcm To:
The Public Prosecutor, High Court, Madras