Subramaniyan vs E. Karuppiah and Others

S. Vaidyanathan, J.—1. This petition has been filed, seeking to quash the order dated 16.06.2015 passed by the Judicial Magistrate No. IV, Madurai, in and by which, the Magistrate has refused to remand the 1st respondent/A1 and further let him go scotfree on the same day itself.

The case of the petitioner is as follows:

"i) It is submitted that pursuant to the complaint lodged by the defacto complainant, a case in Crime No. 123 of 2015 for offences under Sections 420, 406 r/w 34 IPC was registered by the 4th respondent against the respondents/A1 to A3. In consequence of the same, the 4th respondent arrested the 1st accused Karuppiah and produced him before the Judicial Magistrate No. IV, Madurai. The Magistrate, vide Order dated 16.06.2015, impugned herein, instead of remanding him into custody, allowed to go free on the same day, but observing that the missing document as per the version of the accused was only the sale deed under dispute, not the Power Deed.

ii) It is further submitted that the 1st accused, on receipt of full consideration, transferred the property to his two sons, namely, the 2nd and the 3rd accused by cancelling his Power of Attorney without informing to the defacto complainant and therefore, the criminal intention of the accused is apparent. Hence, it is argued that the action of the Magistrate in letting the accused go free without either remanding or even obtaining bond at the time of his production before the Court would amount to abuse of the process of Court under Section 59 of Cr.P.C.. Aggrieved by the said action, the petitioner is before this Court, seeking the above relief."

Heard the counsel on either side and perused the material documents available on record.

It is seen from the First Information Report that the petitioner, who is in the real estate business, bought the house plot No. 4 comprised in R.S. No. 403/5 and R.S. No. 403/6, Madakkulam Village, Palanganatham, Madurai Corporation Limit, from the 1st accused for a total sale consideration of Rs. 20,00,000/- along with Power of Attorney and Sale Certificate. Pursuant to the same, it is clear that the petitioner is empowered to alienate the same, but, however, the 1st accused has subsequently cancelled the Power unilaterally and then executed a Gift Deed in respect of the same property in favour of the 2nd and 3rd accused on 30.07.2014 with an intention to create encumbrance on the property.

Admittedly, no amount has been repaid to the petitioner and therefore, pursuant to the document, the petitioner is the absolute owner of the property. It is seen that when the petition for anticipatory bail filed by the 1st accused in Crl.O.P.(MD) No. 441 of 2015 came up for hearing, this Court, on 30.01.2015, observed thus:

"9. However, on causal comparison of the alleged signature of the petitioner in the receipt dated 11.04.2012 with the signature in other admitted documents, like Power of Attorney dated 11.04.2012 and the gift deed dated 30.07.2014, this Court does not find any great differences."

This Court further went on to add that only to cover up this aspect, the petitioner/1st accused has given a false complaint before the Anna Nagar Police Station that original documents were lost and thereby declined to grant anticipatory bail to the 1st accused. Pursuant to the dismissal of the anticipatory bail petition, Police have arrested and produced the 1st accused before the Magistrate and the Magistrate passed an order without reference to Section 59 Cr.P.C., by holding that there is no need to arrest the accused, as there is no overt act attributed against the accused in respect of offences under Sections 406, 420 r/w 34 IPC and that the punishment is also less than seven years. The Magistrate simply directed the accused to appear before the Court as and when summons are received. According to the petitioner, the said action of the Magistrate is non est in law and that the Magistrate has merely played the role of an Investigating Officer.

The respondents/accused did not refute the facts mentioned supra, especially the factum of execution of power of attorney and receipt of sale consideration. However, the respondents have contended that though appropriate words are not used, the Court below felt that there is no need for arrest.

The Government Advocate (Crl.Side), by drawing the attention of this Court to Sections 59, 88, 89 and 167 Cr.P.C., would contend that Police have arrested the 1st accused and produced him before the Magistrate within 24 hours of arrest and the Magistrate under Section 39 came to the conclusion that the accused need not be arrested. Therefore, it is contended that the order is not illegal and the dispute is not civil in nature. Even assuming that the order is set aside, Police cannot rearrest the accused, as they have already arrested the accused and at the most, in terms of Section 88 Cr.P.C., bonds or sureties can be sought for and after such order being passed, in case of non execution of sureties or bonds, the Magistrate is empowered to take appropriate action against the accused as per Section 65, like issuance of NBW and remand, etc.

The counsel for the petitioner has, in support of his submission, relied upon the judgment of the Apex Court in the case of Arnesh Kumar v. State of Bihar and another, reported in , (2014) 3 MLJ (Crl) 353 (SC),. Though the respondents would submit that the above case is applicable only to the offence committed under Section 498(A) IPC, the petitioner would controvert the same stating that there is nothing wrong in quoting the above judgment, wherever the punishment for the offence is less than seven years.

A glance at the copy of Power and other documents would amply prove the fact that fraud has been committed by the accused and the Magistrate should have either remanded or passed an order in terms of Section 59 of Cr.P.C., and the observation made by the Magistrate is not warrant and is also not germane to the facts and circumstances of the case. It is a general principle of law that it is better that ten guilty persons go free than that one innocent person be convicted. In this case, there seems to be a clear case of fraud committed by the accused 1 to 3 and the criminal should not be allowed to escape from the clutches of law. Therefore, this Court is of the view that the order passed by the Magistrate is liable to be set aside.

Accordingly, this Criminal Original Petition is allowed and the impugned order dated 16.06.2015 is set aside. The Judicial Magistrate No. IV, Madurai is directed to act on the issue in the manner known to law, bearing in mind the mandates of the provisions of the Code of Criminal Procedure as expeditiously as possible. In the event of any order being passed by the Magistrate, the fourth respondent is expected to have recourse to the law forthwith.

However, it is made clear that the observations made hereinabove are for the purpose of disposal of this petition and the Trial Court shall decide the matter purely on the basis of the materials placed before it.