While taking a very strong, principled and most straightforward stand on the Magistrate’s power under Section 156(3) of the CrPC, the Madras High Court has in an extremely commendable, cogent, composed and creditworthy judgment titled KL Prabhkar v. The State and another in Crl.O.P.No.13116 of 2022 and Crl.M.P.No.7090 of 2022 and cited in 2022 LiveLaw (Mad) 336 that was pronounced finally on July 28, 2022 has minced absolutely no words whatsoever to underscore that directions under Section 156(3) of the Code of Criminal Procedure should not be issued by Magistrates without the application of judicial mind. It must be noted that the order of the Magistrate was bereft of any details making it truly incomprehensible! The lower court had not followed due procedure by seeking a report from the investigating officer. It must be mentioned here that the prayer made in the Criminal Original Petition that was filed under Section 482 of Cr.P.C. sought to call for the records in Crime No.3121 of 2021 on the file of the first respondent police and also sought to quash the same. It merits mentioning here that while banking on the leading case of Priyanka Srivastava and another v. State of Uttar Pradesh and others in Criminal Appeal No. 781 of 2012 that was delivered on March 19, 2015, the Madras High Court underlined that the Magistrate must be vigilant with respect to the nature of allegations made in the application and should not routinely pass directions.
At the outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of the Madras High Court comprising of Hon’ble Mr Justice N Sathish Kumar sets the ball rolling by first and foremost putting forth in para 1 that, “This petition has been filed seeking to quash the F.I.R. filed against the petitioner for the offence punishable under Sections 457 and 380 of IPC in Crime No.3121 of 2021, on the file of the first respondent police.”
To put things in perspective, the Bench then envisages in para 2 that, “The crux of the allegation in the FIR is that the second respondent/first informant is an Advocate and an office bearer of Thiruvotriyur Bar Association. According to him, he is in possession of around 2852 sq.ft. of land belonging to Kaligambal Temple and he has kept his household utensils there. It is further stated that on 14.07.2021, he came to know that some persons entered his premises and removed his articles and also torn the banners, immediately, he gave a complaint to the police and as no action has been taken, he filed a petition under Section 156(3) of Cr.P.C. before the learned Judicial Magistrate, Thiruvotriyur and pursuant to the direction given in the said petition, a FIR has been registered against the petitioner for offence punishable under Sections 457 and 380 of IPC.”
No doubt, the Bench then brings out rightly in para 3 that, “The learned counsel appearing for the petitioner seeks to quash the said FIR and would submit that filing of the FIR is calculated and motivated only in order to grab the property, which is under the control and possession of the petitioner’s mother. It is his contention that the petitioner’s mother has purchased the superstructure measuring an extent of 2852 sq.fts from one S. Baby W/o Subramaniyam, by way of a registered Sale deed dated 28.04.1980, registered as Document No.872/1980, in the office of the Sub Registrar, Thiruvotriyur. He further submitted that water tax and property tax stands in the name of the petitioner’s mother and she is regularly paying the taxes to the authorities. Electricity service connection also stood in the name of the petitioner’s mother. The petitioner’s mother has let out the premises in the year 2008 to one Mr.Karthick for doing business and he has vacated the premises on 12.07.2021. Due to lock-down, the said tenant defaulted in payment of electricity charges for two years and due to which the electricity service connection was disconnected.”
Further, the Bench then states in para 4 that, “The learned counsel further submitted that on 14.07.2021, at about 6.00 p.m. he came know through neighbours that persons wearing black and white dress entered into the petitioner’s premises and tried to lock open the premises in order to take possession. When the petitioner rushed to the spot, he was threatened by the Advocates. The petitioner lodged a complaint and the police enquired the petitioner and the second respondent. The petitioner was requested not to press the complaint against the second respondent who is an Advocate and the said complaint was closed.”
Furthermore, the Bench then discloses in para 5 that, “The learned counsel for the petitioner further submitted that, when the petitioner made an application for restoration of the electricity service connection on 05.08.2021, he received a SMS from the Electricity Department that his application is put on hold for verification with the EB officials, as already another person by name Mrs.Lakshmi, the wife of the second respondent herein, has applied for electricity service connection for the very same premises belonging to the petitioner’s mother and therefore the EB officials have withheld both the applications. Thereafter only the petitioner came to know that the second respondent has created some residential certificate and produced the same before the EB officials in order to grab the property.”
More to the point, the Bench then further adds in para 6 that, “The learned counsel for the petitioner further submitted that thereafter, the second respondent filed an application under Section 156(3) of Cr.P.C. and without following the guidelines of the Hon’ble Apex Court in Priyanka Srivastava and another Vs. State of Uttar Pradesh and others reported in (2015) 6 SCC 287 the learned Judicial Magistrate passed a mechanical order and based on that a FIR has been registered against the petitioner. Hence, he would contend that the entire FIR is an abuse of process of law and it is only to grab the land of the petitioner. He has also brought to the notice of the Court that the sale deed is in favour of the petitioner’s mother, property tax receipts and electricity receipts in the name of the petitioner’s mother. It is his contention that the complaint given by the second respondent is calculated and motivated only to grab the land of the petitioner.”
Still more, the Bench then mentions aptly in para 7 that, “The learned counsel further submitted that the application filed under Section 156(3) of Cr.P.C. was also allowed mechanically by the learned Judicial Magistrate, Thiruvottiyur, where the second respondent was as member of the Bar and also an Office Bearer of the Bar Association, Thiruvottiyur. Hence, the learned counsel appearing for the petitioner contended that all these aspects clearly shows that it is a classic case of abuse of process of law by setting the criminal law in motion to grab the land of someone by a powerful section of the Society.”
Needless to say, the Bench then states in para 11 that, “Heard the learned counsel on either side and also perused the materials available on record.”
As it turned out, the Bench then clearly specifies in para 12 that, “Normally while exercising power under Section 482 of Cr.P.C., if there is a prima facie allegation and it discloses a cognizable offence, the Courts will not interfere with the F.I.R. but at the same time, the materials produced before this Court prima facie indicate that the F.I.R. is nothing but motivated and filed for some other purpose or maliciously instituted with an ulterior motive, the Court can very well interfere with such F.I.R. The impugned F.I.R. has been filed on the basic of the order passed by the learned Judicial Magistrate, Thiruvottiyur and the order of the learned Judicial Magistrate dated 15.09.2021, passed in C.M.P.No.2722 of 2021 is as follows:
“Heard, Perused, Order pronounced, Offences contained in the petition is cognizable. Hence this Court hereby directed to Station House Officer 118 Thiruvottiyur Police Station to register a FIR on the petition filed by petitioner before the respond police on 14.07.2021 on or before one month from this order date.””
Notably, the Bench then points out in para 13 that, “Normally, when a petition is filed under Section 156(3) of Cr.P.C. the learned Judicial Magistrate will seek a report and direct the investigating officer to investigate and file a report. Be that as it may, the affidavit filed before the learned Judicial Magistrate is bereft of details. According to the second respondent, the land in question was under his control and he was peacefully maintaining it from the year 2016 as per the oral orders passed by the Temple authorities. However, there is no whisper whatsoever in his affidavit about the so called lease as projected before this Court.”
While elaborating in detail on the nitty gritty of the case, the Bench then observes in para 14 that, “The sale deed dated 28.04.1980, filed in the typed set of papers by the petitioner, indicates that the superstructure has been sold with leasehold right in favour of the petitioner’s mother. It is a registered sale deed, the property tax receipts filed in the typed set of papers is also in the name of the petitioner’s mother Mrs. L. Gandhimathi, even in the year 2018. The encumbrance certificate also reflects the entry of the sale deed in the name of the petitioner’s mother. The electricity service charges has also been paid by the petitioner’s mother. From the records, it can be seen that in the year 2008, the premises was let out to one Mr.Karthick for doing business and he constructed a shed and was doing steel business and thereafter the said Karthick has also vacated the premises and handed over possession to the petitioner’s mother. In the additional typed set of papers filed before this Court by the petitioner, it is clearly shown that before the name-board of Karthick Steel some posters have been affixed. The second respondent/defacto complainant is stated to have obtained a residential certificate in the name of his wife to show that he is in possession from 23.07.2016. It is only a computer generated certificate and no other evidence has been placed by the second respondent to show that he was in possession from 2016. If really the second respondent is in possession of the property, there is no need to keep household vessels in the premises. This also clearly create some doubt his claim. It also probabilise the petitioner’s case that the same has been created only for the purpose of taking forceful possession and judicial process has been misused. As could be seen from the typed set of papers, several complaints have also been given against the second respondent in the Anti Land Grabbing Cell, Thiruvottiyur by the petitioner, but no action has been taken by the police authorities.”
Most commendably, the Bench then points out in para 15 that, “It is relevant to refer the judgment of the Hon’ble Supreme Court in Priyanka Srivastava and another Vs. State of Uttar Pradesh and others reported in (2015) 6 SCC 287, the Hon’ble Supreme Court has held that the remedy available under Section 156(3) Cr.P.C. is not of routine nature. Exercise of power thereunder requires application of judicial mind. The learned Magistrate exercising said power must remain vigilant with regard to nature of allegations made in the application and not to issue directions without proper application of mind. In an appropriate case, learned Magistrate can verify the truth and veracity of allegations made, having regard to nature thereof and the power under Section 156(3) of Cr.P.C. cannot be invoked by a litigant at his own whim to harass others. It can be invoked only by a principled and really aggrieved citizen approaching the Court with clean hands. Prior application under Section 154(1) of Cr.P.C. and Section 154(3) of Cr.P.C. have to be in existence while filing a petition under Section 156(3) of Cr.P.C. and these aspects should be clearly spelt out in the application under Section 156(3) of Cr.P.C. and necessary documents to that effect has to be filed.”
Be it noted, the Bench then notes in para 16 that, “The complaint filed by the first respondent under Section 156(3) of Cr.P.C. does not even whisper about the steps taken under Section 154(3) of the Cr.P.C. The learned Magistrate has simply allowed the application without making any enquiry and even the veracity of the allegations are not verified with the documents. The documents filed on the side of the petitioner clearly shows that he is in possession of the property and only during COVID period the tenant has vacated the premises, which has been taken advantage of by the second respondent by filing a complaint under Section 156(3) of Cr.P.C. and mechanically an order has also been passed by the learned Judicial Magistrate, Thiruvottiyur. The petitioner has also sent a complaint to the Superintendent of Police, Anti Land Grabbing Cell. He also sought details as to on what basis the residential certificate has been issued, however no reply has been given by the authorities.”
Most forthrightly, the Bench then deems it apposite to hold in para 17 that, “All the above facts clearly probabilise the contention of the petitioner that F.I.R. is nothing but an abuse of process of law. Further, the account summary in respect of the electricity service meter also shows that it is in the name of the petitioner’s mother all along. Such view of the matter, the learned Judicial Magistrate, Thiruvottiyur without applying his mind has mechanically passed the order without even verifying the veracity of the complaint. The second respondent as a member of the very same Bar and also an Official Bearer of the Bar Association, Thiruvottiyur, obtained the order. The learned Judicial Magistrate, Thiruvottiyur has mechanically passed the said order which suffers from non-application of mind. Further, the said order directing the first respondent police to register F.I.R. against the petitioner is contrary to the law laid down by the Hon’ble Supreme Court in Priyanka Srivastava case (cited supra).”
Most significantly, the Bench then while citing the most relevant case law hastens to add in para 18 that, “In the case of State of Haryana and Others vs. Bhajan Lal and Others reported in 1992 SUPP (1) Supreme Court Cases – 335, the Hon’ble Supreme Court has set out the following guidelines for quashing the complaint:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
Considering the above judgments, the Court finds that the FIR is motivated and a mala fide one.”
Finally, the Bench then concludes by holding in para 19 that, “Such view of the matter, this Court holds that the complaint in Crime No.3121 of 2021 on the file of the first respondent police, is nothing but an abuse of process of law and the same is liable to be quashed and accordingly quashed. The Criminal Original Petition is allowed. Consequently, the connected miscellaneous petition is closed.”
In essence, we thus see that this extremely laudable, learned, landmark and latest judgment by the Madras High Court quashes advocate’s “motivated” land grabbing complaint for the reasons as stated so very precisely hereinabove. This notable judgment by Madras High Court has left not even an iota of doubt to make it indubitably clear that the Magistrate’s power under Section 156(3) of CrPC must be exercised vigilantly and not arbitrarily without any application of mind. Of course, it merits no reiteration that all Magistrates must always adhere to what the Single Judge Bench of Hon’ble Mr Justice N Sathish Kumar has laid down so very elegantly, eloquently and above all most effectively! No denying it!
Sanjeev Sirohi