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Judgment
V. Kanagaraj, J.—Both the above Criminal Original Petitions have been filed u/s 482 of the Code of Criminal Procedure, the first one in
Crl.O.P.No. 35909 of 2004 praying to issue a direction to the X Assistant City Civil Judge, Chennai to examine P.W.1 further and further to
cross-examine R.Ws.1 and 2 and to mark certain documents in the enquiry in I.A.No. 14332 of 2004 in Caveat Petition No. 1070 of 2004 by
setting aside the common order dated 15.10.2004 made in I.A.No. 17356 of 2004.
Crl.O.P.No. 35910 of 2004 has also been filed by the same petitioner u/s 482 of the Code of Criminal Procedure praying to set aside the
common order and to re-open the enquiry in I.A.No. 17355 of 2004 in I.A.No. 14332 of 2004 in Caveat Petition No. 1070 of 2004 dated
15.10.2004 passed by the X Assistant City Civil Judge, Chennai.
On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the respondent herein
has filed a Caveat Petition No. 1070 of 2004 before the Court of X Assistant Judge, City Civil Court, Chennai as against the petitioner; that
thereafter, the petitioner has filed a petition in I.A.No. 14332 of 2004 u/s 195 of the Code of Criminal Procedure praying to accord sanction and
permit her to initiate criminal proceedings and prosecute the same against the respondent under Sections 177 (furnishing false information), 181
(false statement on oath or affirmation to public servant or person authorised to administer an oath or affirmation) and 205 I.P.C (false personation
for purpose of act or proceeding in suit or prosecution) before the appropriate Court of criminal jurisdiction on averments such as that the
respondent has deliberately misdescribed the petitioner as ''Janaki Yerramalli'' while in fact she knows the petitioner as Janaki alone with a sinister
motive and purpose as the petitioner is a practising Advocate in the Courts at Madras; that the respondent organisation is a charitable organisation
with public purpose formulated by female and with avowed object of helping the needy public in various ways; that the petitioner is the President of
the Trust and the Secretary of the Trust is one Reshmi Jalan and besides them there are other members belonging to the governing body of the
Trust; that due to some misunderstanding between the members of the Trust in conducting the Trust affairs and handling finance, the petitioner had
to question the members regarding the misconduct and the misdirected way in which the Trust was carried on as a result of which enmity
developed between them and the said Rashmi Jalan; that some of the members did not like the petitioner questioning the conduct; that fearing that
the petitioner may move Civil Court for necessary relief in setting right the Trust affairs, the said Rashmi Jalan had set up the respondent to file and
lodge a caveat before the Court below by taking pre-conceived notice in the expected proceedings and there was exchange of notice also.
The further case of the petitioner is that the respondent who is not at all a member of the Trust and its governing Body as far as the knowledge
goes, has falsely described herself to be the Secretary of Anna Nagar Sakthi Mandal No. 3, Charitable Trust lodging caveat as above before the
Court below and moved the Court below with verification of false facts misdescribing herself as the Secretary of the Trust while in fact, she is not
even a member of the Trust Committee as far as the ascertainment of the petitioner is concerned; that while the petitioner continue to be the
President of the Trust, the said Reshmi Jalan alone is the Secretary and there is no and there cannot be any additional Secretary of the Trust and
thus the respondent had deliberately made a false declaration and statement and impersonating the post by using her name to be the recognised
Secretary of the Trust before the Court and made the Court below to believe the same to be true and act on the said statement and verification of
impersonation and mis-description of the post; that since a civil proceeding stand a proceedings within the meaning of suit under the provisions of
Section 148-A and Section 141 Cr.P.C., the petitioner has requested the Court below to accord sanction and permission for her to initiate
necessary criminal proceedings before the concerned criminal court against the respondent.
This petition filed by the petitioner was contested by the respondent and the Court below has also ordered an enquiry wherein on behalf of the
petitioner, she would examine herself as P.W.1 and on behalf of the respondent, two witnesses would be examined as R.Ws.1 and 2 and seven
documents would also be marked on behalf of the respondent as Exs.R.1 toR.7. One Court document as Ex.C.1 was also marked. At this stage,
when both sides evidence was closed and the matter was posted for further arguments, the petitioner herein has filed two petitions in I.A.Nos.
17355 and 17356 of 2004 before the Court below, both under Order 18 Rule 17 r/w Section 151 C.P.C., first one praying to re-open the
evidence of petitioner viz., P.W.1 and the respondent and the witnesses on her behalf viz., R.Ws.1 and 2, which was closed on 8.10.2004 and
posted for further arguments on 11.10.2004 and the second petition in I.A.No. 17356 of2004 praying to re-call the evidence of petitioner viz.,
P.W.1 and the respondent and the witnesses on her behalf viz., R.Ws.1 and 2.
The contention of the petitioner before the Court below in filing both the petitions is that certain questions pertaining to the conduct of the Anna
Nagar Sakthi Mandal No. 3 Charitable Trust and also the Anna Nagar Sakthi Mandal No. 3 Club registered under the Societies Registration Act
were not brought to the notice of the Court with relevant details and particulars such as constitution of the office bearers and other material
particulars pertaining to the affairs of the said Trust. These two petitions filed by the petitioner before the Court below were keenly contested by
the respondent by filing a common counter thereby submitting that herself and R.W.2 Rashmi Jalan were cross examined at length by the
petitioner''s counsel and the petitioner was also examined by counsel in a full-fledged manner and that the Court has given sufficient opportunities to
the petitioner and to the respondent as well in the preliminary enquiry conducted u/s 340 Cr.P.C and therefore, prayed to dismiss both the said
petitions.
The Court below, having conducted an enquiry into the matter, has ultimately dismissed both the petitions filed by the petitioner thus refusing to
re-open the matter and recall the witnesses as prayed for on the part of the petitioner. Aggrieved the petitioner has preferred Civil Revision Petition
Nos. 1912 and 1913 of 2004 before this Court under Article 227 of the Constitution of India and since a learned single Judge of this Court, by the
order dated 10.11.2004, has dismissed both the said Civil Revision Petitions on ground that ''under Article 227 of the Constitution of India, the
superintending power of the High Court cannot be invoked, when the remedy is available to the petitioner under the provisions of the Criminal
Procedure Code'', the petitioner has come forward to file both the above Criminal Original Petitions on certain grounds as brought forth in the
grounds of both the above criminal original petitions.
During arguments, the learned counsel for the petitioner would submit that the Court below ought to have given one more opportunity by re-
opening the case for the just decision of the case and for recalling the witnesses for further cross-examination since material questions concerning
the litigation of the petitioner as well as the respondent are to be placed before the Court for proper adjudication of the dispute. On such
arguments, the learned counsel for the petitioner would pray to allow both the above criminal original petitions.
On the contrary, on the part of the learned counsel for the respondent, it would be submitted that the enquiry u/s 340 Cr.P.C is for a limited
purpose; that the Court below has given sufficient and reasonable opportunities for both parties to place on record the entire facts and materials
concerning the case and even the witnesses on behalf of the respondent were cross-examined at length; that these two petitions are filed only to
drag on the proceedings and to harass the respondent and would pray to allow both the above criminal original petitions thus confirming the
merited common order passed by the Court below. The learned counsel for the respondent would also cite a judgment of the Honourable Apex
Court delivered in PRITISH v. STATE OF MAHARASHTRA and Ors. reported in 2002 1 L.W (Cri.) 347, wherein it has been held:
Reading of the Sub-section (1)in Section 340 of the Crl.P.C., makes it clear that the hub of this provision is formation of an opinion by the Court
(before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which
appears to have been committed. In order to form such opinion, the Court is empowered to hold a Preliminary inquiry. It is not peremptory that
such preliminary inquiry should be held. Even without such preliminary inquiry, the Court can form such an opinion when it appears to the Court
that an offence has been committed in relation to a proceeding in that Court. It is important to notice that even when the Court forms such an
opinion, it is not mandatory that the court should make a complaint. This sub-section has conferred a power on the Court to do so. It does not
mean that the Court, should as a matter of course, make a complaint. But once the Court decides to do so, then the Court should make a finding
to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the Court finds it
necessary to conduct a preliminary inquiry to reach such a finding, it is always open to the Court to do so, though absence of any such preliminary
inquiry would not vitiate a finding reached by the Court regarding its opinion. It should again be remembered that the preliminary inquiry
contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry,
even if the Court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to
have been committed.
In consideration of the facts pleaded, having regard to the material placed on record and upon hearing the learned counsel for the petitioner
and the respondent as well , what comes to be known is that a caveat petition filed by the respondent, as against the petitioner/expected plaintiff,
had come to be testified on the part of the petitioner, questioning the locus-standi of the respondent in filing the caveat petition against the
petitioner/expected plaintiff in filing the suit or applications, an enquiry had been held in caveat petition and with the available materials in which this
Court is able to find that the evidence of witnesses have also been recorded, particularly, examining P.W.1 and R.Ws.1 and 2 and a Court
document Ex.C.1 had also been marked and at that stage, when the evidence of both sides have been closed and the matter was posted for
arguments, the petitioner herein has filed two petitions in I.A.Nos. 17355 and 17356/2004 in the Court of Original Jurisdiction viz., the X Assistant
Judge, City Civil Court, Chennai under Order 18 Rule 17 read with Section 151 Civil Procedure Code. The first one is praying to reopen the
evidence of the petitioner viz., P.W.1 and that of the respondent in R.Ws.1 and 2 and the second one is praying to recall the witnesses viz., P.W.1
and R.Ws.1 and 2 and the trial Court having gone into these two interlocutory applications and on conducting an enquiry, has passed an order as
per Order dated 15.10.2004 in both the I.As mentioned supra, thereby, dismissing both the applications for the reasons assigned therein, as a
result of which, the petitioner seems to have preferred Civil Revision Petitions in C.R.P.Nos. 1912 and 1913/2004 before this Court, under Article
227 of Constitution of India and since the learned Single Judge of this Court, by Order dated 10.11.2004 dismissed both the C.R.Ps with the
observation:
Under Article 227 of Constitution of India, the superintending power of the High Court cannot be invoked when the remedy is available to the
petitioner under the provision of Criminal Procedure Code. Accordingly, the C.R.Ps are dismissed"".
Subsequent to the orders passed by the learned single Judge of this Court, the petitioner has come forward to initiate the above Criminal
original petitions u/s 482 of Code of Criminal Procedure, praying to issue direction to the X Assistant Judge, City Civil Court, Chennai, to examine
P.W.1 and cross examine R.W.s 1 and 2 and to mark certain documents in I.A.No. 14332/2004 and to set aside the common order passed by
the Court of Original jurisdiction and to reopen the enquiry in I.A.No. 17355/2004 dated 15.10.2004.
In the above scenario, the point for consideration is whether the petitioner is entitled to file an application of this sort in the above criminal
original petition, seeking to invoke the inherent powers of this Court u/s 482 of Code of Criminal Procedure.
Since the proceeding below and the common order passed by the Court of X City Civil Judge, Chennai, being purely civil in nature, basically,
no proceeding would lie u/s 482 Cr.P.C, which confers the inherent powers on the Judges of the High Court while sitting on criminal jurisdiction.
The Interlocutory applications filed by the petitioner before the Court of X Assistant Judge, City Civil Court, Chennai in a caveat proceeding,
which is envisaged u/s 148-A of CPC and the enquiry proceeding held and the common order passed in both the above I.As, being purely a civil
proceeding and a civil order in nature, this Court is of the view that no criminal proceeding would lie before any Criminal Court of law, particularly
before this Court, so as to invoke the provision of law u/s 482 Cr.P.C. The observations made by the learned Single Judge only says that in the
circumstances of the cases filed as Civil Revision Petitions invoking Article 227 of the Constitution of India against the common order passed in
I.As by the trial Judge and instead the petitioner can invoke remedy available under Cr.P.C, thereby, dismissing the C.R.Ps, does not anywhere
indicate that the petitioner should file the application u/s 482 Cr.P.C and since making use of Section 482 Cr.P.C, no civil order could be either
confirmed as set aside for want of jurisdiction and therefore, while dismissing the above Crl.O.Ps filed u/s 482 Cr.P.C praying to direct the X
Assistant City Civil Judge, Chennai, permitting the petitioner to examine P.W.1 and further cross examine R.Ws.1 and 2 and to mark the
documents in Interlocuatary applications filed in a caveat proceeding is neither proper nor legal within the permissible limits of jurisdiction conferred
on this Court u/s 482 Cr.P.C and therefore, the above Crl.O.Ps, on the question of maintainability and jurisdiction, before this Court becomes only
liable to be dismissed and hence the following order:
In result, both the above Criminal Original Petitions do not merit acceptance and for the foregoing reasons assigned ,they are dismissed.
Consequently, the connected Cr.M.P is closed.