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2018 DIGILAW 3595 (MAD)

Angusamy v. Inspector of Police Umatchikulam Police Station Madurai District

2018-10-08

N.ANAND VENKATESH

body2018
JUDGMENT N.ANAND VENKATESH, J. 1. This petition has been filed seeking to quash the proceedings pending in C.C.No.105 of 2016 on the file of the learned Judicial Magistrate No.V, Madurai. 2. The petitioners are arrayed as A-6 and A-8 in the final report. 3. The brief facts of the case: It is the case of the prosecution that the third accused in this case had illegally executed a sale deed with respect to certain property in favour of the second accused. According to the prosecution, this act was done with the aid of the first and fourth accused persons. The fourth accused person is the Village Administrative Officer and the first accused is the husband of the fourth accused. A-5, A-6 and A-7 are the attesting witnesses to the document. The de facto complainant is said to have purchased this property in the year 1973, but however the patta was issued in the name of the third accused to an extent of 0.82 cents. When the de facto complainant approached the fourth respondent for changing of patta, A-1 and A-4 are said to have demanded bribe from the de facto complainant and the de facto complainant refused to pay any money. Therefore, using a false patta, A-3 is said to have sold the property with the help of A-1 and A-4, in favour of A-2. Initially, a First Information Report was registered in Crime No.1132 of 2010 against seven accused persons and the second petitioner name did not find place in the First Information Report. Thereafter, on investigation, the respondent police filed a final report by including the name of the second petitioner also. The second petitioner was serving as an Assistant in the Collectorate at the time of occurrence and he is also said to have involved in the conspiracy by which the property was illegally transferred in favour of A-2. 4. It is seen from the records that there are two public servants, who are involved in this Case. They are A-4 and A-8 / second petitioner. A-8 initially filed a discharge petition in Cr.M.P.No.6761 of 2013, on the file of the learned Judicial Magistrate No.II, Madurai and the said discharge petition was dismissed by the Court below, by an order dated 20.06.2014 and subsequently, the second petitioner challenged the same before this Court by filing Crl.R.C(MD) No.319 of 2014. A-8 initially filed a discharge petition in Cr.M.P.No.6761 of 2013, on the file of the learned Judicial Magistrate No.II, Madurai and the said discharge petition was dismissed by the Court below, by an order dated 20.06.2014 and subsequently, the second petitioner challenged the same before this Court by filing Crl.R.C(MD) No.319 of 2014. This criminal revision petition was dismissed by this Court, by an order dated 29.08.2018. This Court while dismissing the criminal revision petition has directed the Court below to spilt up the case against the absconding accused and take up the trial with regard to the remaining accused persons and complete the same within a period of six months. 5. It seems that even during the pendency of the discharge petition, the present criminal original petition has been filed seeking to quash the proceedings in C.C.No.105 of 2016. Therefore, the question that arises for consideration is whether after dismissal of the criminal revision petition, this Court can once again consider the issue raised by the petitioners independently under Section 482 Cr.P.C. It is true that even after dismissal of the discharge petition, a petition under Section 482 can be maintained before this Court. 6. Useful reference can be made to the judgment of the Hon'ble Supreme Court in Jitender Kumar Jain Vs. State of Delhi and Others, (1998) 8 SCC 770 . The relevant portions of the judgment are extracted hereunder:- The appellant had moved the High Court of Delhi in a petition under Section 482 of the CrPC invoking its inherent jurisdiction. The High Court assumed the petition to be as if one under Section 397(2) [sic 397(3)] of the CrPC, which according to it did not lie since the revision petition preferred by the appellant had been dismissed by the Court of Session. We are of the view that the High Court failed to distinguish its separate powers under Section 397 of the CrPC as also under Section 482 of the said Code. It is true that a second revision petition does not lie before the High Court when one is dismissed by the Court of Session. Still the Court of Session is a court subordinate to the High Court and, as such, its proceedings are open to scrutiny by the High Court in exercise of its inherent power under Section 482 of the CrPC. Still the Court of Session is a court subordinate to the High Court and, as such, its proceedings are open to scrutiny by the High Court in exercise of its inherent power under Section 482 of the CrPC. The High Court in these circumstances, should not have dismissed the petition of the appellant on the premise as it has done. It is otherwise open to the High Court not to interfere in a matter when examining a case under Section 482 of the CrPC. In this view of the matter, we set aside the impugned order of the High Court and remit the matter back to the High Court for reconsideration. It is ordered accordingly. 7. It will also be relevant to refer the judgment of this Court in the case N.V.Thayumanavar Vs. State rep. by Deputy Superintendent of Police, Vigilance and Anti-Corruption,2015 2 MWN(Cri) 117. The relevant portions are extracted hereunder:- 7. The contention of the learned Additional Public Prosecutor is that the present petition filed by invoking the inherent jurisdiction of this Court under Section 482 of the Cr.P.C., is not maintainable as the petitioner filed filed Crl.M.P.No.98 of 2014 before the learned Special Judge for discharge and that was dismissed and without challenging the same, the present petition is not maintainable. 8. According to me, the argument of the learned Additional Public Prosecutor cannot be accepted having regard to the judgments the matter of Jitender Kumar Jain Versus State of Delhi and Others, (1998) 8 SCC 770 and the matter of Krishnan and another Versus Krishnaveni and another, (1997) 4 SCC 241 . (a) In the judgment reported in Jitender Kumar Jain V. State of Delhi and Others, (1998) 8 SCC 770 supra, it is held as follows:- 2. The appellant had moved the High Court of Delhi in a petition under Section 482 of the CrPC invoking its inherent jurisdiction. The High Court assumed the petition to be as if one under Section 397(2) [sic 397(3)] of the CrPC, which according to it did not lie since the revision petition preferred by the appellant had been dismissed by the Court of Session. We are of the view that the High Court failed to distinguish its separate powers under Section 397 of the CrPC as also under Section 482 of the said Code. We are of the view that the High Court failed to distinguish its separate powers under Section 397 of the CrPC as also under Section 482 of the said Code. It is true that a second revision petition does not lie before the High Court when one is dismissed by the Court of Session. Still the Court of Session is a court subordinate to the High Court and, as such, its proceedings are open to scrutiny by the High Court in exercise of its inherent power under Section 482 of the CrPC. The High Court in these circumstances, should not have dismissed the petition of the appellant on the premise as it has done. It is otherwise open to the High Court not to interfere in a matter when examining a case under Section 482 of the CrPC. In this view of the matter, we set aside the impugned order of the High Court and remit the matter back to the High Court for reconsideration. It is ordered accordingly. (b) In the judgment Vishaka V. State of Rajasthan, (1998) 2 LLN 965 supra, it is held as follows:- 10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397 (1) or under inherent power of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397 (3) or section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstance, to exercise the inherent power and in an appropriate case even revisional power and in appropriate case even revisional power under Section 397 (1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity or procedure, unnecessary delay in trial and protraction of proceedings .... 11. In Madhu Limaye V/s. The State of Maharashtra, (1977) 4 SCC 551 , a three-Judge Bench was to consider the scope of the power of the High Court under Section 482 and Section 397 (2) of the Code. This Court held that the bar on the power of revision was put in order to facilitate expedient disposal of the case but in Section 482 it is provided that nothing in the Code which would include Section 397 (2) also, shall be deemed to limit or affect the inherent powers of the High Court. On an harmonious construction of said two provisions in this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. Therefore, the petitioner is entitled to file the petition by invoking the inherent jurisdiction of the Court even though he has not challenged the order passed in Crl.M.P.No.98 of 2014. 8. Therefore, a mere dismissal of the discharge petition by the Court below, which was subsequently confirmed by this Court in the criminal revision petition, will not stand in the way of this Court to entertain a petition under Section 482 Cr.P.C, since it is an independent power vested on this Court, which merely recognises the inherent power of this Court. 9. However, it is important for this Court to consider the grounds that are raised before this Court in support of the relief sought by the petitioners. 10. 9. However, it is important for this Court to consider the grounds that are raised before this Court in support of the relief sought by the petitioners. 10. The learned counsel for the petitioners without going into merits of the case, principally made the following submissions:- (i) the sum and substance of the case of the prosecution is that the demand of bribe by A-4 for changing the patta in favour of the de facto complainant and that the second petitioner, who was also a Public servant, had conspired and had jointly aided A-3 to create a false document in favour of A-2. Therefore, the offence is principally committed under the Prevention of Corruption Act and therefore, the case ought to have been investigated by the concerned police officer under the said act and the respondent police did not have the power or authority to investigate this case. (ii) The final report ought to have been filed before the Special Court trying the Prevention of Corruption Cases and the Court below should not have entertained the final report. (iii) The fact that the final report was filed including the offences under Section 163 and 164 IPC, which have been repealed in the year 1988, after coming into force of the Prevention of Corruption Act, 1988, will clearly show that even the respondent police had based their case only on the allegation of corruption and therefore, the entire procedure followed in this case is illegal and it vitiates the entire investigation. (iv)The second petitioner as a public servant, has protection under Section 19 of the prevention of Corruption Act, wherein sanction has to be obtained before proceeding further against the public servant and the respondent police by proceeding against the public servant under IPC offences have deprived the said opportunity to the second respondent. (v)Therefore, the learned counsel for the petitioners submits that the entire investigation has to be quashed and the case has to be remanded to the DVAC to investigate the case by invoking the provision of Prevention of Corruption Act. 10. (v)Therefore, the learned counsel for the petitioners submits that the entire investigation has to be quashed and the case has to be remanded to the DVAC to investigate the case by invoking the provision of Prevention of Corruption Act. 10. The learned Additional Public Prosecutor submit that the grounds raised by the learned counsel for the petitioners in this petition was also raised in the discharge petition filed before the Court below, which was dismissed by the Court below and confirmed by this Court and therefore, the very same grounds cannot be entertained and re appreciated by this Court, in exercise of its power under Section 482 Cr.P.C. 11. This Court has carefully considered the arguments made on either side and also the grounds raised in this petition. It is important to extract the relevant portions in the order passed by the Court below while dismissing the discharge petition, which are as follows:- IMAGE 12. This order passed by the Court below in the discharge petition has also been confirmed by this Court by an order dated 29.08.2018, passed in Crl.R.C(MD) No.03.09.2014. From the above extracted portions of the judgment of the Court below, it can be seen that the second petitioner has raised the very same ground even in the discharge petition and the same has been considered and rejected by the Court below and confirmed by this Court 13. If this Court once again independently considers the very same ground in this petition, the same will amount to reviewing the order passed by the Court below, which was confirmed by this Court. It is true that the jurisdiction exercised under Section 482 Cr.P.C is independent and the power is very vide. However it is important for this Court to exercise the self imposed restraint while exercising the said power. In this case, since the very same grounds have already been considered and rejected, this Court does not want to exercise its jurisdiction under Section 482 Cr.P.C and once again consider the very same grounds independently. This is more so since this Court has already directed the Court below to complete the proceedings within a period of six months, while dismissing the criminal revision petition by an order dated 29.08.2018. This is more so since this Court has already directed the Court below to complete the proceedings within a period of six months, while dismissing the criminal revision petition by an order dated 29.08.2018. Therefore, it will be open to the petitioner to raise all the grounds before the court below, in the course of proceedings and the Court below shall consider the same on its own merits. The dismissal of the criminal revision case and this criminal original petition will not have any bearing on the Court below to consider the grounds raised by the petitioners, independently on its own merits. 14. In the result, this Criminal Original Petition is dismissed and the Court below is directed to continue the proceedings and complete the same as directed by this Court in the order passed in Crl.R.C(MD) No.319 of 2014 dated 29.08.2018. Consequently, connected miscellaneous petitions are closed.