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Judgment
K. Chandru, J.—The petitioner in this writ petition seeks to forestall the criminal case being registered against him on a complaint given by
the fourth respondent who is none other than his widowed sister-in-law. There has been series of litigation between the petitioner and the fourth
respondent in civil courts, being O.S.No.371 of 2000 before the Sub Court, Coimbatore, O.S.No.1707 of 2000 before the Sub Court,
Coimbatore, O.S.No.453 of 2005 before the Additional District Court, Coimbatore and C.R.P.No.803 of 2009 before the High Court, Madras.
There was also civil litigation between the petitioner and one M. Sahul Hameed, a partner of M/s. R.K.R. Construction which started from civil
litigation in O.S.No.2654 of 2009 on the file of the District Munsif, Coimbatore. The interim order finally culminated in C.R.P.Nos.128 and 468 of
2010 before this court. It also transpires that the said Sahul Hameed filed a Criminal O.P. before this court on the ground that a criminal complaint
given by him was not registered as an FIR. Whereas the criminal complaint given by the petitioner was registered. Therefore, he wanted that the
acknowledgment made in CSR No.395 of 2009 lodged with the P-4 Police Station, Coimbatore to be registered as an FIR and that further
investigation should be done. In that complaint, a reference was also made to the suit filed between the petitioner and the said builder in
OS.No.2654 of 2009. The said criminal original petition came to be disposed of by an order dated19.08.2010 directing the police authority to
investigate the complaint of the said builder under the supervision of the Assistant Commissioner of Police, Coimbatore. The petitioner in turn filed
a criminal O.P.No.3792 of 2011 before this court seeking for completion of the investigation in Crime No.2198 of 2009 and that was also
ordered by this court on 11.2.2011. In essence, in respect of the property which the petitioner claimed to have been inherited through his father M.
Ganapathy Gounder, who in turn got the property from the petitioner''s grand father Muthu Gounder, has been subjected to series of litigation
between the close family members, i.e., fourth respondent as well as certain third party like the builder Sahul Hameed.
It was at this stage, the State Government had issued G.O.Ms.No.423, Home (Police-XI) Department, dated 28.7.2011 forming Anti Land
Grabbing Special Cells throughout Tamil Nadu. There will be one cell each at the State Police Headquarters, 7 Commission rates and 28 Districts
except Karur, Tiruvannamalai and Nagapattinam Districts for a period of one year. This was on the ground that the Hon''ble Chief Minister made
an announcement through a press release that such special cells will be formed throughout Tamil Nadu to deal with land grabbing cases in the
State.
The petitioner after issuance of the G.O., also had given the complaint to the Commissioner of Police, Coimbatore about the alleged forging of
documents by the fourth respondent. But, however, in this writ petition he has come forward to state that the second respondent Assistant
Commissioner of Police, Anti land Grab Cell had received a complaint from the fourth respondent against the petitioner in respect of the vacant
land with a small building in T.S.No.1/1235/1, Old Door No.5/29, Hosur Road, Coimbatore Town, alleging that the petitioner had grabbed the
property. Pursuant to the complaint, the second respondent had asked the petitioner to appear on 7.2.2012. When he went to meet him, he saw
the fourth respondent sitting in front of him in the office. He was in possession of the registered lease agreement granting lease by his Aunt
Palaniammal and took possession of the property as early as 16.12.1995. A suit was pending against the fourth respondent wherein an interim
order was still in force. The interim application filed by the builder Sahul Hameed was dismissed. Yet, the second respondent instead of driving the
fourth respondent to get appropriate relief from the civil court, had not only entertained the complaint, but even before registering the FIR had
started shouting at him and also threatened him. He had also threatened to register the FIR and put the petitioner behind the bar. The petitioner
also sent a representation to the higher authorities. Since even after his complaint, no response was forthcoming, but on the other hand as he is
apprehending registration of FIR and consequential further proceedings against him, has come forward to file the present writ petition.
Heard the arguments of Mr. K. Subramaniam, learned Senior Counsel leading for Mr. Javid Khan, learned counsel appearing for the petitioner.
It is not a fit case where any interference is called for at this stage of mere apprehension raised by the petitioner or the defence pleaded by him
and such a writ petition is unheard of that the court should interfere even before an investigation is completed by the authorities especially when
they have received a written complaint from the fourth respondent and that an FIR is yet to be registered. If an FIR is registered and if it discloses
any cognizable offence, the petitioner has also a remedy by way of getting an anticipatory bail before an appropriate court and thereafter to defend
himself if any proceedings are continued. In case of a noncognizable offence, he will always get notice from the appropriate court. It is only after
investigation, it can be seen whether any offence has been made out so as to proceed with the case on hand.
Mr. K. Subramaniam, learned Senior Counsel had fairly stated that in this writ petition, the petitioner had not challenged the validity of the
constituting Anti Land Grabbing Cells vide G.O.Ms.No.423, Home Police Department, dated 28.7.2011. Even otherwise, the validity of the said
order is now pending consideration before a division bench. Therefore, at this stage, it is unnecessary to go into the issue as to whether any special
police cell can be created for a particular type of an offence. Even now it must be noted that if there are different units of police dealing with
different kinds of offences, such as Economic Offence Wing, Prohibition and Excise Wing, Anti Vice Squad, Idol Theft Wing, etc. The learned
Senior Counsel therefore very correctly did not challenge the vires of the said G.O. But his only endeavor was that the fourth respondent is
harassing the petitioner and that in the teeth of the orders of Civil Courts, the police have no right to investigate any matter which is purely civil
dispute between the parties.
In this context, the learned Senior Counsel referred to the power of the High Court under Article 226 of the Constitution to interfere with such
matters. A reference was made to a judgment of the Supreme Court in Divine Retreat Centre Vs. State of Kerala and Others, and referred to the
following passage found in paragraph 41 which reads as follows:
41.It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue
appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by
an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-
compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in
such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of
process as provided for in the Code.
There is no quarrel with the said proposition. But, in the very same judgment in paragraph 39, the Supreme Court had observed as follows:
39.The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an
offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the
cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, we may hasten to
add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one''s own choice. The power to
investigate must be exercised strictly on the condition of which that power is granted by the Code itself.
Ultimatley, it is for the investigating officer to decide whether any case has been made out for the purpose of filing a charge sheet against the
accused. Certainly, the investigating officer will also take note the civil court orders interdicting the right of any party and will proceed accordingly.
But at the same time, merely because certain civil suits are pending and in which some interim orders are passed by civil courts, that will not take
away the power of an investigating authority from enquiring into a crime unless they themselves were party to the very same proceedings. Even in
quash proceedings filed u/s 482 Cr.P.C or the writ petition filed under Article 226, the court cannot look into the counter pleadings or documents
produced by the parties. The documents filed in the typed set at the maximum indicate the defence likely to be taken by the petitioner.
Whether the High Court on the basis of some unsubstantiated materials produced in a petition filed before this court can deal with and derail
the criminal investigation even under Article 226 or 227 of the Constitution came to be considered by the Supreme Court vide its judgment in State
of Bihar and Another Vs. P.P. Sharma, IAS and Another, and in paragraphs 16,20,31 and 33 held as follows:
16.It is thus obvious that ""the annexures"" were neither part of the police reports nor were relied upon by the Investigating Officer. These
documents were produced by the respondents before the High Court along with the writ petitions. By treating ""the annexures"" and affidavits as
evidence and by converting itself into a trial court the High Court pronounced the respondents to be innocent and quashed the proceedings. The
least we can say is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has
repeatedly held that the appreciation of evidence is the function of the criminal courts. The High Court, under the circumstances, could not have
assumed jurisdiction and put an end to the process of investigation and trial provided under the law. Since the High Court strongly relied upon ""the
annexures"" in support of its findings, we may briefly examine these documents.
We do not wish to express any opinion on the rival contentions of the parties based on their respective appreciation of material on the record.
We have quoted ""the annexures"", the inferences drawn by the High Court and the factual assessment of Mr Sibal, only to show that the High Court
fell into grave error in appreciating the documents produced by the respondents along with the writ petitions and further delving into disputed
questions of facts in its jurisdiction under Article 226/227 of the Constitution of India.
Finally, we are at a loss to understand as to why and on what reasoning the High Court assumed extraordinary jurisdiction under Article
226/227 of the Constitution of India at a stage when the Special Judge was seized of the matter. He had heard the arguments on the question of
cognisance and had reserved the orders. The High Court did not even permit the Special Judge to pronounce the orders.
33.The above order was brought to the notice of the Patna High Court but the High Court refused to be persuaded to adopt the same course. We
are of the considered view that at a stage when the police report u/s 173 CrPC has been forwarded to the Magistrate after completion of the
investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline
itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction. We could have set aside the High Court judgment
on this ground alone but elaborate argument having been addressed by the learned counsel for the parties we thought it proper to deal with all the
aspects of the case.
In view of the above, there is no case made out. Hence the writ petition will stand dismissed. No costs. Consequently connected miscellaneous
petition stands closed