AI Structured Summary
Not yet generated for this judgment
Judgment
T.S. Sivagnanam, J.—By consent, the writ petition is taken up for final disposal.
The petitioner has filed the above writ petition to quash the First Information Report by the second respondent in Crime No. 39 of 2008. The petitioner has contended that he is the owner of the immovable property situated at Ezhudesom Village, Kanyakumari District and the third respondent is intending to purchase the land from the petitioner and an unregistered sale agreement was also entered on 02.06.2005 wherein the petitioner agreed to sell the land at Rs. 31,050/- per cent and also received an advance of Rs. 8,00,000/- and thereafter received Rs. 2,00,000/-. The time limit to complete the transaction was fixed at 30.08.2005. It is the case of the petitioner that he had made several requests to the third respondent to get the land registered by paying the admitted balance sale consideration. After expiry of the period under the sale agreement, the petitioner sent a legal notice to the third respondent. Pursuant to the legal notice, the third respondent filed a suit in O.S. No. 541 of 2005 for a bare injunction restraining the petitioner from alienating the property to any other person and an exparte order of injunction has been obtained.
It is the further allegation of the petitioner that on 14.04.2006, the third respondent along with his henchmen trespassed into her property. Therefore, the petitioner preferred a complaint to the local police against 10 persons and the police registered a case in Crime No. 92 of 2006 and a charge sheet has been laid before the Judicial Magistrate No. II, Kuzhithurai and cognizance has been taken as C.C. No. 82 of 2006 and the same is pending trial.
The petitioner further submits that the third respondent with an intention to harass the petitioner and her family members had preferred a compliant in Cr.M.P. No. 2722 of 2008 on the file of the Judicial Magistrate No. II, Kuzhithurai. The learned Judicial Magistrate forwarded the complaint to the second respondent. The petitioner further submits that the third respondent has suppressed the fact that he has preferred a civil suit and the same is pending. The second respondent based on the direction issued by the Judicial Magistrate No. II, Kuzhithurai, registered a case in Crime No. 39 of 2008 against the petitioner for the alleged offence u/s 420 IPC. Hence, the petitioner has approached this Court by way of this writ petition to quash the case in Crime No. 39 of 2008.
Learned Counsel for the petitioner would submit that the Judicial Magistrate has got no jurisdiction to forward the complaint to the second respondent and the second respondent has no jurisdiction to register the FIR violating the order No. 584 (2)(b) of the Madras Police Standing Orders. Further, the third respondent has suppressed the pendency of the civil suit.
When the matter was posted under the caption ''adjourned admission'', this Court raised the issue as to whether the writ petition is maintainable to quash the First Information Report.
Learned Counsel for the petitioner while answering such contention would rely upon a decision of the Hon''ble Supreme Court reported in 2009 (1) SCC 371 (Ashfaq Khan and Anr. v. State of Uttar Pradesh and Ors.) and submit that the writ petition is maintainable since the Hon''ble Supreme Court reversed the order passed by the High Court and remanded the matter. Learned Counsel would also rely upon another decision of the Supreme Court reported in Hridaya Ranjan Pd. Verma and Others Vs. State of Bihar and Another, and submit that when the issue involved is purely of civil nature, the High Court is justified in interfering to quash the FIR on the said ground. By placing reliance on these judgments, the learned Counsel would submit that the writ petition is maintainable.
It is to be noted that the judgment in Ashfaq Khan''s case stated supra where a writ petition was filed before the High Court for quashing FIR for the alleged commission of offences punishable under Sections 420 and 424 of IPC and Sections 2 and 3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 and a stand was taken in the writ petition that even if FIR is taken on its face value, there is no scope for holding that the appellants therein committed cheating or an offence punishable under the Prevention Act and at the most it may make out a case for evasion of tax for which action is permissible under the Trade Tax Act concerned. In the said case, the Division Bench of the High Court had disposed of large number of cases after categorsing different type of cases and the High Court by holding that the said case also falls under one of such categories refused to exercise the jurisdiction. On facts, the Hon''ble Supreme Court held that the order of the High Court does not show as to how the ratio of the decision in a batch of writ petitions disposed of had any application or relevance, so far as the said case is concerned. Under such circumstances, considering the facts involved in the said writ petition, the matter was remanded for consideration. Therefore, I am of the view that this judgment of the Hon''ble Supreme Court does not advance the case of the petitioner.
The other decision in the case of Hridaya Ranjan Pd. Verma stated supra, the Hon''ble Supreme Court after taking note of the earlier judgment in R.S. Raghunath Vs. State of Karnataka and another, held that various categories of cases by way of illustration could be mentioned where the extra ordinary power under Article 226 of the Constitution of India or the inherent powers u/s 482 of the Cr.P.C could be exercised and laid down seven such categories. The Hon''ble Supreme Court also observed that in the case of Bhajan Lal added 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. Therefore, on facts, the Hon''ble Supreme Court in the said case found that there was justification for interference.
Considering the facts of the above case and the pleadings on record there is nothing to show that a mere reading of the FIR does not disclose the alleged offence. Further, this is not one of the rarest of rare cases where such a power is to be exercised.
In a recent decision of the Hon''ble Supreme Court reported in R. Kalyani Vs. Janak C. Mehta and Others, , the Hon''ble Supreme Court was considering the scope of the inherent power u/s 482 of Cr.P.C. in quashing the FIR has held that High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. The Hon''ble Supreme Court has further observed that for the said purpose, the Court save and except in very exceptional circumstances, would not look to any document relied upon by the defence and such power should be exercised very sparingly. and each case has to be considered on its own merits.
In another judgment of the Supreme Court reported in Maksud Saiyed Vs. State of Gujarat and Others, , the Hon''ble Supreme Court observed that the jurisdiction of the High Court to quash the FIR u/s 482 Cr.P.C is well known. The Court cannot enter into determination of a disputed question of fact at that stage.
In yet another judgment of the Hon''ble Supreme Court reported in 2005 (12) SCC 338 (Savita v. State of Rajasthan and Ors.) was considering the case where the High Court entertained the petition u/s 482 and gave a finding that the criminal complaint filed does not disclose any cognizable offence against any of the respondents in the said case. The Hon''ble Supreme Court while dealing with the matter held that it is too premature a stage for the High Court to give such a finding when even the investigation had not started and the said agency had no occasion to find out whether there was material to file a charge sheet or not. Consideration of a finding given by the Civil Court, the Hon''ble Supreme Court held that, the finding of the Civil Court cannot be done by a court entertaining a criminal petition for quashing the FIR wherein an investigation has not even started. The above decision though arising order u/s 482 Cr.P.C., could very well be applied to the present writ petition filed invoking the extra ordinary jurisdiction under Article 226 of the Constitution of India.
In the instant case, a complaint has been filed before the Judicial Magistrate No. II, Kuzhithurai and a direction has been issued u/s 156(3) of the Cr.P.C to the second respondent to investigate into the matter. Based on such a direction, the second respondent has taken up the investigation and FIR has been registered on 21.09.2008. Further, there is also another criminal case is pending in C.C. No. 82 of 2006 on the file of the Judicial Magistrate No. II, Kuzhithurai against the third respondent and his henchmen on the complaint filed by the petitioner. Further, I have also gone through the FIR and I am satisfied that this is not a fit case as held by the Hon''ble Supreme Court or rarest of rare cases where this Court should embark upon into the disputed questions of fact. It is open to the petitioner to defend herself in the proceedings in the manner known to law. Therefore, the writ petition is dismissed as devoid of merits. No costs. Consequently, M.P.(MD) Nos. 1 to 3 of 2008 are closed.