S. Achi Ammal vs S. Ramakrishnan and Thangammal

M.M. Sundresh, J.—The petitioner herein has filed the petition to set aside the order passed by the learned Judicial Magistrate No. III, Tirunelveli in Cr.M.P. No. 396 of 2010, dated 25.01.2010, wherein the private complaint given by the petitioner has been taken without recording the sworn statement.

The learned Counsel for the petitioner submitted that when the complaint preferred by the learned Judicial Magistrate having the jurisdiction, a duty is caused upon him to record the sworn statement of the complainant and the statement of the witnesses available and only after analysing the same, come to the conclusion whether the power u/s 156(3) can be exercised or not by directing the concerned police to register the complaint or taking the same as a private complaint. The learned Counsel for the petitioner further submitted that in the absence of the said procedure, the order passed by the learned Judicial Magistrate No. III, Tirunelveli is liable to be set aside, since in the present case on hand admittedly neither the sworn statement of the petitioner nor the statement of the witnesses have been recorded. The learned Counsel for the petitioner relied on a judgment in Pachaiappan Veerappan v. M.A. Sirajuddin reported in (2010) 1 MLJ (Crl) 956, in support of his contention.

Per contra, the learned Counsel for the respondents submitted that the case is of purely civil in nature and he also produced the sale deed dated 03.03.1945, release deed dated 23.01.1990 and the subsequent sale deed dated 27.11.2008, in support of his contention. Therefore, he prayed for dismissal of this petition.

This Court is not willing to go into the merits of the case. This Court is of the opinion that when a private complaint is given, it mandates the learned Judicial Magistrate to follow the procedure in recording the sworn statement of the complainant and the statement of the witnesses. After doing the said exercise, the learned Judicial Magistrate will have to consider the above said statements, satisfy himself about the necessity to invoke the power u/s 156(3) of Cr.P.C. or taking the same as a private complaint u/s 200 of Cr.P.C. In the absence of the same, the learned Judicial Magistrate cannot reject the complaint, without following the above said procedure. In the judgment reported in (2010) 1 MLJ (Crl) 956, this Court observed as follows:

When a complaint is preferred before a Judicial Magistrate, having regard to the procedure adumbrated in Chapter XV of the Code of Criminal Procedure, it is incumbent on his part to record the sworn statement of the complainant and also the statement of the witnesses available and only thereafter, he can, by assessing the same and applying judicial mind, come to a conclusion one way or the other. In the case on hand, it appears that such procedure has not been adhered to, therefore, the ultimate order is liable to be set aside.

Hence, on a consideration of the above said principle of law and applying the same to the facts of the case, this Court is of the opinion that the order passed by the learned Judicial Magistrate No. III, Tirunelveli in Cr.M.P. No. 396 of 2010, dated 25.01.2010 is liable to be set aside and the learned Judicial Magistrate No. III, Tirunelvei is directed to take up the case in Cr.M.P. No. 396 of 2010 on file and follow the procedure as observed above and thereafter, decide the matter in accordance with law.

This Criminal Original Petition is ordered accordingly.