Madras High Court
Shyni … Revision vs State Represented Through on 28 February, 2025
Crl.R.C.(MD).No.1114 of 2024
'BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 12.02.2025
PRONOUNCED ON :28.02.2025
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.1114 of 2024
Shyni ... Revision Petitioner / Petitioner
Vs.
1.State represented through
The Inspector of Police,
Marthandam Police Station,
Kanyakumari District. ... 1st Respondent/Respondent
2.Thangamani
3.Selvi
4.Thangaraj
5.Devagi
6.Selvaraj .... Respondents 2 to 6/
Accused Nos.1 to 5
PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401
of the Criminal Procedure Code to call for the records pertaining to the
impugned order passed by the learned Judicial Magistrate in Cr.M.P.No.8411 of
2022, dated 21.12.2023 from the file of the learned Judicial Magistrate No.I,
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Kuzhithurai, Kanyakumari District and set aside the same and to direct the first
respondent police to register a case on the basis of the petitioner's complaint
dated 15.07.2022 within the time stipulated by this Court.
For Petitioner : Mr.M.R.Srinivasan
For Respondents : Mr.B.Thanga Aravindh
Government Advocate (Crl.Side)
for R.1
: Mr.V.Sasikumar
for R.2 to R.6
ORDER
This Criminal Revision is directed against the order made in C.M.P.No.
8411 of 2022, dated 21.12.2023, on the file of the Court of Judicial Magistrate
No.I, Kuzhithurai, dismissing the petition filed under Section 156(3) Cr.P.C.
2. The case of the petitioner is that the lands in S.No.8/4, 7/11 and 7/12 of
Nallur Village, are owned by the petitioner’s sister, that she constructed a house
leaving some vacant portiion adjacent to the house for her convenient enjoyment,
that though the respondents 2 to 6 are having separate pathway to the house of
the second respondent, with evil intention to form pathway through the
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petitioner’s sister’s land, attempted to trespass and harass the petitioner and her
family members, that on 15.07.2022, the respondents 2 to 6 with the help of
some rowdy elements trespassed into the petitioner’s land and caused damages to
the compound wall, that when the same was questioned, the fourth respondent
abused the petitioner in filthy language and attempted to outrage her modesty
and threatened the petitioner with dire consequences, that the fifth respondent
has assaulted the petitioner’s son and mother, that the respondents 2 to 6 caused
damages to the paver blocks and also damaged the floor and wall, that when the
petitioner attempted to prevent the illegal acts of the accused, they assaulted the
petitioner indiscriminately and as a result of which, the petitioner sustained
injuries all over her body, that she was admitted in Government Hospital,
Kuzhithurai and was taking treatment as inpatient till 17.07.2022, that since the
police did not registere the case, the petitioner sent a complaint to the
Superintendent of Police, Kanyakumari District, that since there was no action,
the petitioner was constrained to file a petition under Section 156(3) Cr.P.C.,
before the Judicial Magistrate No.I, Kuzhithurai, that the respondent police by
suppressing the real facts and in order to support the accused persons, filed a
false report, that the Judicial Magistrate, without considering the facts of the case
in proper perspective, relying on the report of the police, passed the impugned
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order dismissing the petition filed under Section 156(3) Cr.P.C., and that
therefore, challenging the said order, the present Criminal Revision Case came to
be filed.
3. The learned Judicial Magistrate No.I, Kuzhithurai, taking the petition
filed under Section 156(3) Cr.P.C., on file in C.M.P.No.8411 of 2022, called for a
report from the first respondent Police.
4. The case of the respondents 2 to 6 is that since the second respondent
was sick, he was admitted in the private hospital at Kuzhithurai, that when the
second respondent was taken to home through ambulance, the same was
restrained by the petitione and her family members by placing jalli and blocked
the common pathway, that when the blocking of common way was questioned,
the petitioner and her family members abused the respondnets in filthy language,
that even before the alleged occurrence, there was a wordy quarrel between the
second respondent and the petitioner and her family members and hence, a
complaint and a counter complaint had been made and on that basis, C.S.R.Nos.
223 of 2022 and 224 of 2022 came to be registered, that the first respondent
police advised both the parties to measure the property with the help of surveyor
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and settle the issue amicably, that on 20.06.2022, the petitioner restrained the
respondents 2 to 6 from entering the house and hence, a complaint was lodged in
C.S.R.NO.645 of 2022 and that while the said complaint was pending, the
alleged occurrence was said to have taken place.
5. It is the further case of the private respondents that the petitioner’s
vendor had executed a sale deed in favour of the petitioner in respect of the
property which was to be kept common use as a pathway, contrary to the
partition deed, that the respondent police referred both the parties before the
Revenue Divisional Officer, Padmanabhapuram under Section 145 Cr.P.C., that
the first respondent after analysing the civil dispute between the parties, filed
final report and that the learned Magistrate rightly dismissed the petition filed
under Section 156(3) Cr.P.C.
6. The first respondent has filed a counter statement stating that the
petitioner’s sister has got the property in Re.Sy.No.8/4, 7/11 and 7/12 measuring
9.968 cents in Nalloor Village, that there is a dispute in respect of a pathway
between the petitioner’s family and one Thangamani, that the petitioner’s
husband Rajiniganthan has earlier filed a complaint before the Marthandam
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Police alleging that one Rayappan @ Thangamani abused and criminally
intimidated him and on that basis, C.S.R., came to be registered in C.S.R.No.223
of 2022 and during enquiry, both of them agreed to measure the property with
the help of a surveyor and to fix the boundaries and on that basis, their complaint
was ordered to be closed, that the parties had again quarrelled with each other in
connection with the property dispute and on that basis of the complaint given by
the either side, C.S.R.Nos.760 of 2022 and 761 of 2022 came to be registered,
that since both parties have been disturbing the peace in the locality, the first
respondent referred both parties before the Revenue Divisional Officer,
Padmanabhapuram under Section 145 Cr.P.C., in L.I.R.No.28 of 2022 and that
the learned Judicial Magistrate, taking into consideration all the aspects, has
rightly dismissed the petition filed under Section 156(3) Cr.P.C.
7. It is not in dispute that subsequently, on the basis of the complaint
lodged by the petitioner’s husband for the alleged occurrence on 28.01.2024,
F.I.R., came to be registered in Cr.No.48 of 2024 for the offences under Sections
147, 148, 149, 294(b), 323, 379 NP, 506(ii) I.P.C., and Section 4 of Tamil Nadu
Prohibition of Harassment of Women Act.
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8. Before entering into further discussion, it is necessary to refer the
judgment of the Hon’ble Supreme Court in M/S Indian Oil Corporation vs M/S
NEPC India Ltd., and Others, in Crl.A.No.834 of 2002, dated 20.07.2002,
wherein, the Hon’ble Apex Court has deprecated the practice of attempting to
settle the civil disputes by applying pressure through criminal prosecution and
the relevant passage is extracted hereunder:
“10. While on this issue, it is necessary to take notice of a
growing tendency in business circles to convert purely civil
disputes into criminal cases. This is obviously on account of a
prevalent impression that civil law remedies are time consuming
and do not adequately protect the interests of lenders/creditors.
Such a tendency is seen in several family disputes also, leading
to irretrievable break down of marriages/families. There is also
an impression that if a person could somehow be entangled in a
criminal prosecution, there is a likelihood of imminent
settlement. Any effort to settle civil disputes and claims, which do
not involve any criminal offence, by applying pressure though
criminal prosecution should be deprecated and discouraged. In
G. Sagar Suri vs. State of UP [2000 (2) SCC 636], this Court
observed :
“It is to be seen if a matter, which is essentially
of civil nature, has been given a cloak of criminal
offence. Criminal proceedings are not a short cut of7/22
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Crl.R.C.(MD).No.1114 of 2024other remedies available in law. Before issuing process
a criminal court has to exercise a great deal of
caution. For the accused it is a serious matter. This
Court has laid certain principles on the basis of which
High Court is to exercise its jurisdiction under Section
482 of the Code. Jurisdiction under this Section has to
be exercised to prevent abuse of the process of any
court or otherwise to secure the ends of justice.”
While no one with a legitimate cause or grievance should be
prevented from seeking remedies available in criminal law, a
complainant who initiates or persists with a prosecution, being
fully aware that the criminal proceedings are unwarranted and
his remedy lies only in civil law, should himself be made
accountable, at the end of such misconceived criminal
proceedings, in accordance with law. One positive step that can
be taken by the courts, to curb unnecessary prosecutions and
harassment of innocent parties, is to exercise their power under
section 250 Cr.P.C. more frequently, where they discern malice or
frivolousness or ulterior motives on the part of the complainant.
Be that as it may.”
9. In Mitesh Kumar J Sha vs The State Of Karnataka (Crl.A.No.1285 of
2021, dated 26.10.2021), the Hon’ble Supreme Court has reiterated that cloaking
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a civil dispute with a criminal nature in order to get quicker relief is an abuse of
process of law which must be discouraged. Bearing the above legal position on
mind, let us consider the case on hand.
10. It is also not in dispute that the first respondent had already referred
the matter to the Revenue Divisional Officer under Section 145 Cr.P.C., in
L.I.R.No.28/2022 treating the private respondents as “A” party and the
petitioner’s group as “B” party.
11. The learned Counsel for the private respondents would submit that the
property comprised in S.No.8/4 of Nallur village to an extent of 1.578 cents is a
common property as per the registered partition deed dated 14.07.1982 and as
per the said deed, one Rengasamy was allotted 5th Schedule property, who in turn
had executed a registered Will in favour of one Sathananthavalli, vide registered
document No.57/2003, that he had executed the Will including the portion of the
common property, which was earmarked for pathway and that taking advantage
of the Will, the said Sathananthavalli obtained patta and executed a sale deed in
favour of the petitioner’s sister.
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12. Even according to the petitioner, the petitioner’s sister constructed a
house leaving some vacant portion adjacent to the house for her convenient
enjoyment. But according to the private respondents, it is a common pathway.
As rightly contended by the learned Government Advocate (Crl.Side),
considering the case of both parties, it is clearly evident that there existed
pathway dispute between them, that they have been quarrelling each other very
often and on the complaint lodged by either side, C.S.R., came to be registered,
that they have agreed to measure the property with the help of the Surveyor, but
without taking any steps, they have again started to quarrel among themselves
and that therefore, the first respondent was constrained to refer the matter before
the Revenue Divisional Officer under Section 145 Cr.P.C.
13. The learned Counsel for the petitioner would submit that since their
petition filed under Section 156(3) Cr.P.C., discloses the commission of
cognizable offence, the learned Judicial Magistrate is duty bound to forward the
complaint to the concerned police for registering an F.I.R., and that he has no
power or jurisdiction to dismiss the same by himself. The learned Counsel for
the petitioner would rely on the decision of the Hon’ble Supreme Court in
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Kailash Vijayvargiya Vs. Rajalakshmi Chaudhuri and others reported in
2023(2) MWN (Cr.) 18 (SC), wherein the Hon’ble Apex Court referring to its
earlier judgment in Lalita Kumari Vs. Government of Uttar Pradesh and others
reported in 2014(2) SCC 1 reiterated the position that the police is bound to
proceed to conduct investigation upon receiving the information about the
commission of cognizable offence and that once an offence is disclosed, an
investigation into the offence must necessarily follow in the interest of justice.
\ 14. The learned Counsel for the petitioner would rely on the decision of
this Court in M.Veluthai Vs. Superintendent of Police, Thoothukudi and
another reported in 2024 (1) MWN (Cr.) 13, wherein, a learned Magistrate has
passed an order under Section 156(3)Cr.P.C. in Crl.M.P.No.5511 of 2023
directing the respondent police therein to register an FIR and for conducting
investigation but the respondent police has conducted an enquiry and finally
filed a closure report and in that fact situation, a learned Judge of this Court has
held,
“14. In the case on hand, the petitioner filed a complaint under Section
156(3) of Cr.P.C. and the same was referred to police. The police instead
of registering FIR has closed the same stating that there is no cognizable
offence made out. The procedure followed by police is incorrect.
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15. Considering the discussions above, filing of a closure report by the
respondent police after the complaint referred to by learned Magistrate
under Section 156(3) of Cr.P.C. is illegally not permissible. Once the
Magistrate refers the complaint to the police under Section 156(3) of
Cr.P.C. the police have no option except to register FIR and investigate
the case. Once the complaint has been referred by learned Magistrate to
police under 156(3) of Cr.P.C. it means that the learned Magistrate has
prima facie satisfied that the cognizance has already been committed.
Therefore, the police should have registered the FIR and started
investigation.”
15. I had an occasion to deal with the similar fact situation in the case of
D.Vinoth Vs. Superintendent of Police, Virudhunagar District and another
passed in Crl.O.P.(MD)No.22627 of 2022 dated 20.01.2023 and the relevant
passages are extracted hereunder:-
“8. At the outset, it is pertinent to note that the learned Judicial
Magistrate, in the case on hand, has not passed any order, directing
the Station House Officer to register the FIR and the contention of
the learned counsel for the petitioner in this regard is patently
incorrect. The learned Judicial Magistrate, as already pointed out,
has specifically directed the Station House Officer to peruse the
complaint and other documents and to conduct an enquiry and in
case, if the compliant disclose any cognizable offence, he has to
register the FIR and then to submit a report. Since the learned12/22
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Crl.R.C.(MD).No.1114 of 2024Judicial Magistrate has not specifically directed the second
respondent to register the FIR, the procedure adopted by the second
respondent in conducting enquiry and submitting the report, cannot
be found fault with.
9. Now turning to the other submission of the learned counsel for the
petitioner, even though the learned Magistrate has forwarded the
complaint under Section 156(3) Cr.P.C., to conduct enquiry/
investigation, the Station House Officer has no other go, but to
register the FIR and then to proceed with the investigation.
10. No doubt, such was the position prevailing prior to the judgment
of the Constitution Bench in Lalita Kumari Vs. Government of Uttar
Pradesh and Others reported in (2014) 2 SCC 1.
11. As rightly pointed out by the learned counsel for the petitioner,
the Hon’ble Supreme Court, in the case of Madhu Bala Vs. Suresh
Kumar and others reported in (1997) 8 SCC 476, has specifically
observed that even in the absence of a direction to register the case
by the Magistrate, the Police is bound to formally register a case
and then investigate into the same and the relevant passage is
extracted hereunder :
“10.From the foregoing discussion, it is evident that whenever a
magistrate directs an investigation on a ‘complaint’, the police has to
register a cognizable case on that complaint treating the same as the
FIR and comply with the requirements of the above rules. It,
therefore, passes our comprehension as to how the direction of a
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Crl.R.C.(MD).No.1114 of 2024investigation under section 156(3) legally unsustainable. Indeed,
even if a magistrate does not pass a direction to register a case, still
in view of the provisions of section 156(1) of the Code which
empowers the police to investigate into a cognizable ‘case’ and the
rules framed under the Indian Police Act, 1861, it (the police) is duty
bound to formally register a case and then investigate into the same.
The provisions of the Code, therefore, do not in any way stand in the
way of a magistrate to direct the police to register a case at the
police station and then investigate into the same. In our opinion,
when an order for investigation under section 156(3) of the Code is
to be made, the proper direction to the police would be to register a
case at the police station treating the complaint as the First
Information Report and investigate into the same.”
12. Section 154 (1)Cr.P.C, contemplates that any information
relating to the commission of a cognizable offence, is given orally,
such information is to be reduced in writing and after getting the
signature of that person, the matter shall be entered in a book to be
kept by that Officer. If a person is aggrieved by refusal on filing a
complaint by the Officer in charge of the Station, then in such a case,
the said person has to send such information in writing to the
Superintendent of Police concerned. If still no action is taken, then
the said person can approach the Magistrate under Section
156(3)Cr.P.C. If a complaint is received by the Police Officer from
the complainant directly or from the Court under Section
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Crl.R.C.(MD).No.1114 of 2024Police Officer, is duty bound to register an FIR and then to
investigate the same. But the Constitution Bench of the Hon’ble Apex
Court in Lalita Kumari‘s case, has conferred some extra rights on
the Police, which is not contemplated by Cr.P.C, for conducing
primary enquiry in cases where the police is not able to find out
whether the complaint discloses any cognizable offence or not.
13. No doubt, the Hon’ble Supreme Court has specifically clarified
that the registration of FIR is mandatory under Section 154Cr.P.C, if
the information discloses commission of a cognizable offence and in
that situation, no preliminary enquiry is permissible.
14. The Hon’ble Apex Court has held that if the information received
does not disclose a cognizable offence, but indicates the necessity for
an inquiry, a preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not. It is necessary to
refer the directions issued by the Hon’ble Supreme Court in Lalita
Kumari‘s case, hereunder for better appreciation :
120. In view of the aforesaid discussion, we hold:
120.1. Registration of FIR is mandatory under Section 154 of the
Code, if the information discloses commission of a cognizable
offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable
offence but indicates the necessity for an inquiry, a preliminary
inquiry may be conducted only to ascertain whether cognizable
offence is disclosed or not.
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120.3. If the inquiry discloses the commission of a cognizable
offence, the FIR must be registered. In cases where preliminary
inquiry ends in closing the complaint, a copy of the entry of such
closure must be supplied to the first informant forthwith and not
later than one week. It must disclose reasons in brief for closing the
complaint and not proceeding further.
120.4.The police officer cannot avoid his duty of registering offence
if cognizable offence is disclosed. Action must be taken against
erring officers who do not register the FIR if information received by
him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity
or otherwise of the information received but only to ascertain
whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to
be conducted will depend on the facts and circumstances of each
case. The category of cases in which preliminary inquiry may be
made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
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(e) Cases where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months delay in reporting the
matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
120.7.While ensuring and protecting the rights of the accused and
the complainant, a preliminary inquiry should be made time bound
and in any case it should not exceed 7 days. The fact of such delay
and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the
record of all information received in a police station, we direct that
all information relating to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be mandatorily and
meticulously reflected in the said Diary and the decision to conduct
a preliminary inquiry must also be reflected, as mentioned above.
15. The learned counsel for the petitioner would contend that the
above directions issued by the Hon’ble Supreme Court are applicable
only in the cases of complaint received by the Police under Section
154Cr.P.C and not when the complaint is forwarded by the Judicial
Magistrate under Section 156(3)Cr.P.C.
16. Section 156(3)Cr.P.C says that any Magistrate empowered under
Section 190Cr.P.C, may order such enquiry as above mentioned.
17. No doubt, the above provision is very briefly worded. But the
Hon’ble Apex Court in catena of decisions has specifically observed
that Section 156(3)Cr.P.C., is wide enough to include all such powers
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in a Magistrate which are necessary for ensuring a proper
investigation, and it includes the power to order registration of an
F.I.R. and of ordering a proper investigation. To put it in short,
Section 156(3)Cr.P.C is very wide and it would include all such
incidental powers as are necessary for ensuring a proper
investigation.
18. As already pointed out, in the case on hand, the learned
Magistrate has not given a finding/observation that the complaint of
the petitioner discloses commission of a cognizable offence. But, on
the other hand, the learned Magistrate directed the Station House
Officer to conduct an enquiry and to register an FIR, if the complaint
and enquiry discloses commission of a cognizable offence. Since the
learned Magistrate has not taken a decision as to whether any
cognizable offence is disclosed or not and the complaint was
forwarded directing the Police Official to find out whether any
cognizable offence is disclosed or not, after conducting enquiry, it
can easily be inferred/observed that the Station House Officer has to
act under Section 154 r/w 156(i)Cr.P.C.
19. The learned counsel for the petitioner has relied on another
judgment of the Hon’ble Supreme Court in Hemant Ashwant Dhage
Vs. State of Maharashtra and others reported in (2016) 6 Supreme
Court Cases 273, wherein the Division Bench of the Hon’ble Apex
Court has referred its earlier decision in Mohamed Yousuf Vs. Afaq
Jahan reported in 2006 (1) SCC 627, wherein the Hon’ble Apex
Court has pointed out that to enable the police to start investigation,
it is open to the Magistrate to direct the police to register an F.I.R.
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and even where a Magistrate does not do so in explicit words but
directs for investigation under Section 156(3) of the Code, the police
should register an F.I.R.
20. As already pointed out, the Mohamed Yousuf‘s case was decided
prior to the judgment in Lalita Kumari‘s Case.
21. In view of the above, the procedure adopted by the second
respondent cannot be found fault with and hence, this court
concludes that the above Criminal Original Petition is devoid of
merits and the same is liable to be dismissed.”
16. Moreover, as rightly contended by the learned Counsel for the
respondents, the complainant does not have an unqualified right to demand
police investigation in all circumstances and moerover, it is not mandatory on the
part of the learned Judicial Magistrate to refer the complaint to the concerned
police for registration of the case. It is pertinent to note that it is always open to
the petitioner to file a private complaint and to proceed to prosecute the accused
even if the learned Judicial Magistrate refused to exercise his power under
Section 156(3) Cr.P.C. It is settled law that the learned Judicial Magistrate while
exercising power under Section 156(3) Cr.P.C., cannot act in a mechanical or
casual manner and its duty to consider the nature of the offence or the offence
alleged and to decide about the course of action to be taken and it cannot be
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stated that the order of the Judicial Magistrate refusing to direct the police to
register an F.I.R., completely shut out all the opportunites for the complainant. If
the petitioner is having necessary particulars and materials to show a prima facie
case against the proposed accused, he can very well file a private complaint
under Section 200 Cr.P.C., and there is absolute no bar or prohibition for filing a
private complaint on the ground that the petition filed under Section 156(3)
Cr.P.c., was dismissed by the Magistrate. In the present case, the learned
Magistrate, considering the averments raised in the complaint and also taking
note of the report of the police, has come to a decision that the dispute is of civil
in nature, dismissed the petition.
17. Considering the above, this Court has no hesitation to hold that the
petitioner has been attempting to give a civil case a criminal colour and as such,
the impugned order dismissing the petition filed under Section 156(3) Cr.P.C.,
cannot be found fault with. Consequently, this Court concludes that the Criminal
Revision is devoid of merits and the same is liable to be dismissed.
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18. In the result, the Criminal Revision Case is dismissed. The petitioner
is at liberty to file a private complaint, if so advised.
28 .02.2025
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
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To
1. The Judicial Magistrate Court No.I, Kuzhithurai,
Kanyakumari District.
2. The Inspector of Police,
Marthandam Police Station,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C.(MD).No.1114 of 2024
K.MURALI SHANKAR, J.
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Pre-Delivery order made in
Crl.R.C.(MD)No.1114 of 2024
28.02.2025
22/22
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 07:55:58 pm )
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