IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03/09/2003
CORAM
THE HONOURABLE Mr. JUSTICE V. KANAGARAJ
Crl.O.P.No.30135 of 2003
and
Crl.M.P.No.8349 of 2003
1. Mrs. Molly Abraham
2. Thomas Abraham
3. Prize Abraham .... Petitioners
-Vs-
State represented by the
Inspector of Police
Central Crime Branch Team VI
Office of the Commissioner of Police
Egmore, Chennai-8. .... Respondent
Criminal Original Petition filed under Section 482 Criminal Procedure
Code for the grant of relief as stated therein.
For Petitioner : Mr. M. Ravindran, S.C.
For Mr. S.B.s. Raman & Associates
For Respondent : Mr. V. Jayaprakash Narayanan
Govt. Advocate (Crl. Side)
:O R D E R
Petitioners are three in number, the first petitioner being
the mother and the second and third petitioners her sons and they have come
forward to file the above Criminal Original Petition praying to direct the
respondent not to harass the petitioners under the guise of investigation or
interfere with the peaceful possession and enjoyment of the petitioners’
property bearing No.9A, III Street, Dr.Subbaroya Nagar, Kodambakkam,
Chennai-600 024 having a total extent of 24 grounds 1390 sq.ft. except by due
process of an order from a competent Civil court.
2. The case of the petitioners is that the first petitioner’s
husband one Mr.A.G.Abraham has purchased the said property from one Selva
Saroja on payment of the entire agreed sale consideration with her for herself
and as Managing Director of M/s.T.P.Sokkalal Ram Sait Factory P. Ltd. and
required to execute a sale deed conveying the said property to him, but, in a
piquant situation met with by the said A.G. Abraham, he was not able to get
the registration done in his name; that the entire extent of 24 grounds 1390
sq.ft. is enclosed with the compound wall put up by the said A.G. Abraham
right from the year 198 5 further constructing their residential house in a
portion of the said property and making use of the remaining property for
their business run under the name and style of York Demolitions and the first
petitioner’s husband A.G.Abraham was in physical possession and enjoyment of
the said properties till his death.
3. Giving the entire description of the said property, the
petitioners would further submit that on the death of the said Smt. Selva
Saroja on 30.11.1994 and on the death of Mr.A.G. Abraham on 01.12.1997, the
legal heirs of the deceased Selva Saroja had taken over the management of
T.P.Sokkalal Ram Sait Factory P. Ltd. and taking advantage of the
non-execution of the sale deed in spite of the entire sale consideration
having been received by the deceased Selva Saroja still they negotiate with
the petitioners for additional payment or to surrender a portion of the
property even though they are quite aware of the interest of the petitioners
in the suit property.
4. The petitioners would further submit that two suits have
been filed by the legal heirs of the said Selva Saroja, one collusive suit in
O.S.No.4010 of 1999 on the file of the VII Additional Judge, City Civil Court,
Chennai instituted against Mr. Jacob George, who is the brother of the
deceased Mr.A.G. Abraham, even though the said person has no personal
interest in the suit property; that immediately on coming to know of the said
suit, the petitioners have also in their capacity as the legal heirs of Mr.
A.G. Abraham and being in possession and enjoyment of the property besides
being the owners of the property, have filed applications in I.A.Nos.14765 of
2002, 14763 of 2002 and 14764 of 2002 respectively for impleadment, for
preservation of status quo and for appointment of a guardian and the said suit
is being well contested by the petitioners also.
5. While such being the state of affairs, a mutual agreement
was also entered into between the petitioners and one T.P.S.H.Prasanna,
daughter of T.P.S.H.Selva Saroja, thereby agreeing to part with the portion of
the property admeasuring 6 grounds and 710 sq.ft. to be conveyed in favour of
the petitioners on a regular deed of sale and on such execution of the sale
deed, the petitioners to surrender the remaining extent of the property to the
legal heirs of late Selva Saroja; that in the meantime, yet another suit in
O.S.No.1061 of 2003 on the file of the XI Assistant Judge, City Civil Court,
Chennai has been instituted by Mr.Jacob George praying for a permanent
injunction restraining the petitioners from parting with the possession of the
property and the legal heirs of Tmt.T.P.S.H.Selva Saroja from taking
possession of the property and an interim order directing the petitioners not
to part with possession has also been granted as on 27.12.2002 by the said
Court; that since the compromise required the other party to consider the same
in the Board and to pass resolutions and for causing production of the said
resolution, pursuant to the sale of the agreed portion of the petitioners,
three weeks time was allowed by mutual understanding and the said resolution
is yet to be produced; that in the meantime, Smt. T.P.S.H. Prasanna,
daughter of late Smt.Selva Saroja has renewed her effort to implicate the
petitioners in some false criminal complaint by the use of police force to
secure possession of the entire property with intent to avoid the Memorandum
of Compromise entered into between the genuine parties on 24.2.2003 has
resorted to the respondent with a false complaint, based on which the
respondent has caused the notice in question issued under Section 160 and 91
Criminal Procedure Code calling for the petitioners to appear before the
respondent relating to the said complaint said to be under investigation of
the respondent and to examine the petitioners regarding the same has directed
to appear before him on 24.08.2003 at 10.00 a.m. resenting which the
petitioners have come forward to file the above Criminal Original Petition
seeking a direction of this Court in the manner extracted supra.
6. Today, when the above Criminal Original Petition was taken
up for consideration in the presence of the learned senior counsel appearing
on behalf of the petitioners and the learned Government Advocate representing
the respondent contra, what gathered from all the sources particularly from
the materials placed on record and upon hearing the learned counsel for both
is that by lodging the complaint, the complainant before the respondent has
attempted to give a criminal colour for a case purely civil in nature
particularly in view of the fact that two suits and many applications filed
therein are pending before the Civil Court. Needless to mention that it is a
property dispute by rival claimants since the original parties, who transacted
the entire sale business have passed away, the legal heirs without proper
guidance have entered into the civil dispute and in all respects, the solution
lies only before the Civil Court as parties have rightly resorted to.
Whileso, under the pretext of a complaint lodged by the said T.P.S.H.
Prasanna, the respondent has issued notice and therefore, being alarmed by the
same and seeking protection against frivolous criminal proceedings, it is
undesirable in the context of the facts and circumstances of the case, the
petitioners have resorted to file the above Criminal Original Petition for
fear that the respondent should not, under pretext of the said complaint, ma
ke inroads nor cause hindrance initiating a criminal proceeding against them.
7. Of course, the very notice caused by the respondent on the
petitioners, itself is specific to the effect that only in a case investigated
by the police such a notice under Section 160 and 91 Criminal Procedure Code
could be issued and in fact in a case registered and investigated into, the
police are at liberty to summon any person under these provisions, but not on
a mere complaint received. It is too much on the part of the respondent to
have travelled to issue a notice of that kind, which in the circumstance of
the case could only be construed as a threatening measure, as though a
cognizable offence has been committed on the part of the petitioners and the
same is not only undesirable but unwarranted as well. Unless a case is
registered, the police cannot gain the authority to investigate into a subject
and unless the matter is under the respondent’s investigation, no such notice
under Section 160 or 91 of the Criminal Procedure Code could be issued and
therefore, it is enough if it is ascertained that such a notice could be
issued only in a definite case registered and taken up for investigation and
not otherwise. Since it is the basic dictum of law that the law itself is set
on motion only by registering the first information report and in any manner
any act done without registering a case is only bereft of the authority of
law. It is too much on the part of the respondent to have caused the notice
and therefore not only the prayer of the petitioners is liable to be answered
in the affirmative, but also the notice sent to the petitioners calling for
them to appear before the respondent on 24.8.2003, besides having already
become infructuous, also becomes liable to be dismissed and hence the
following order.
In result,
i) for all the above discussions held, the above Criminal
original Petition succeeds directing the respondent not to harass the
petitioners under the guise of investigation and not to cause interference
with the petitioners’ peaceful possession and enjoyment of the property
bearing No.9A III Street, Dr. Subbaroya Nagar, Kodambakkam, Chennai 600 024
in the entire extent of 24 grounds and 1390 sq.ft. except by due process of
law.
ii) The notice issued under Sections 160 and 91 of Criminal
Procedure Code dated 23.08.2003 calling for the petitioners to appear before
the respondent on 24.08.2003 besides becoming infructuous, also is quashed
specifically since being irregular and not in adherence with law.
iii) Consequently, Crl.M.P.No.8349 of 2003 is closed.
Index:Yes
Internet:Yes
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To
1. Inspector of Police
Central Crime Branch Team VI
Office of the Commissioner of Police
Egmore, Chennai 8.
2. The Public Prosecutor,
High Court, Madras.