Mahesh v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.04.2019

CORAM

THE HONOURABLE MR. JUSTICE M.DHANDAPANI CRL.O.P.(MD)No.4888 of 2019 and CRL.M.P.(MD)Nos.3031 and 3032 of 2019 1.Mahesh 2.Ashok 3.Rajkumar 4.Gokula Krishnan 5.Guru ... Petitioners / Accused Vs.

1.The State represented by The Inspector of Police, Kurumbur Police Station, Thoothukudi District.

(Crime No.126 of 2014) ... 1st Respondent / Complainant 2.Pauldurai Nadar ... 2nd Respondent / Defacto (Died) Complainant PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records relating to the impugned complaint in P.R.C.No.135 of 2018 on the file of the learned Judicial Magistrate, Srivaikuntam and quash the same. For Petitioners : Mr.R.Anand for M/s.M.Saravanan For R1 : Mr.A.P.G.Ohm Chairma Prabhu, Government Advocate (Crl.Side).

ORDER

This petition has been filed to quash the impugned complaint in P.R.C.No.135 of 2018 on the file of the learned Judicial Magistrate, Srivaikuntam.

2.The case of the prosecution is that there was a dispute with regard to the administration of the temple, in which one group lodged a complaint under Sections 147, 148, 294(b) and 506(ii) IPC and Section 3 of TNPPDL Act. Challenging the said complaint, the present petition has been filed.

3.The learned counsel appearing for the petitioners relied upon the judgment of the Hon'ble Apex Court in the case of Rasheed

Khan Vs. The State of Uttar Pradesh and another in Spl.A.No.3159 of 2018. The relevant portion of the said judgment reads as follows:- "The question that emerges for consideration is whether the learned Magistrate, while entertaining a complaint under Section 200 and taking cognizance under Section 204 of the Code of Criminal Procedure, is obliged to record his satisfaction.

In paragraph 53 of the decision of this Court rendered by a three-judge Bench in Sunil Bharti Mittal V. Central Bureau of Investigation (2015) 4 SCC 609, it has been held thus:

"53.However, the words 'sufficient ground for proceeding' appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.""

4.A perusal of the above decision makes it clear that the learned Magistrate while entertaining the complaint under Section 200 Cr.P.C., and taking cognizance under Section 204 Cr.P.C., must record his satisfaction for issuance of process and further the learned Magistrate has to satisfy sufficient ground for proceeding further in respect of the complaint and after formation of opinion the learned Magistrate has to issue summon to the parties. 5.Though the prayer sought for herein is to quash the complaint, however, the learned counsel for the petitioner has restricted his argument to the effect that before issuing summons, the learned Magistrate has to satisfy and there is sufficient ground to proceed further in respect of the complaint filed by the second respondent. However, the mandatory procedure was not followed.

Accordingly, he relied upon the decision referred above. 6.On perusal of the order dated 16.11.2018, this Court is of the view that without recording the reasons as required under Section 204 Cr.P.C., issuing process is not sustainable. 7.In view of the above, I am inclined to set aside the order dated 16.11.2018 and remit back the same to the learned Judicial Magistrate, Srivaikuntam, for fresh consideration and the learned Magistrate is directed to pass appropriate orders as per Section 204 Cr.P.C., in this regard.

8.Accordingly, this Criminal Original Petition is allowed. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar (Crl Side) // True Copy // Sub Assistant Registrar(CS) To 1.The Judicial Magistrate, Srivaikuntam.

2.The Inspector of Police, Kurumbur Police Station, Thoothukudi District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+3cc to Mr.M.SARAVANAN, Advocate, SR.No.60482 CRL.O.P.(MD)No.4888 of 2019 10.04.2019 MYR KK/SAR/20.05.2019/ 3P- 7C