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David Daniel v/s The Superintendent of Police, Nagercoil, Kanyakumari District & Others

    W.P.MD.SR.No. 109737 of 2018

    Decided On, 09 August 2019

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE G.K. ILANTHIRAIYAN

    For the Petitioner: T.S.R. Venkat Ramana, Advocate. For the Respondents: R1 to R4, No appearance, R5, K.P. Narayana Kumar, R6, E. Murugan, Advocates.



Judgment Text

(Prayer: Writ Petition filed under Article 226 r/w Article 215 of the Constitution of India to issue a Writ of Certiorarified Mandamus directing to call for the records in Crl.O.P.(MD)No.7534 of 2014 dated 19.09.2018 on the file of this Hon'ble Court, quash it and issue a direction to the third 1/22 W.P.MD.SR.No.109737 of 2018 respondent to restore the Crime No.08 of 2014 to his file and investigate and take it to its logical conclusions.)

This petition has been posted before this Court under the caption "For Maintainability". This petition is filed to quash the order passed in Crl.O.P.No.7534 of 2014 dated 19.09.2018 passed by the Madurai Bench of this Court, on the ground that the order was obtained by the respondents 5 & 6 on misrepresentation, fraud, suppression of facts and misled the Court.

2. The learned counsel appearing for the petitioner submitted that the petitioner is the fifth respondent in Crl.O.P.No.7534 of 2015 filed by the respondents 5 & 6, to quash the FIR in Crime No.8 of 2014 on the file of the fourth respondent Police, registered for the offences under Sections 120B, 420, 465, 467, 468, 471 of IPC. He further submitted that the father of the petitioner and the father of the respondents 5 & 6 and one Ramalinga Nadar are children of one Deniel Nadar and all of them filed a suit in O.S.No. 133/113ME (1938AD) for partition before the Additional District Munsif Court, Kuzhithurai. In the said suit item No.9 was old survey No.1619A measuring 1 acre 35 cents corresponding to new survey No.608/1. In that suit an extent of 57.325 cents was allotted to one Chellaiyan Nadar (D126) and it was not allotted to the father of the respondents 5 & 6 herein. It was challenged before the various forums and the same were rejected.

2.1. The learned counsel further submitted that the petitioner purchased the said property from the legal heirs of the said Chellaiyan Nadar by a Sale deed dated 15.09.1997 and the petitioner is in continuous possession of the said property. Unfortunately, the survey No.608/1 is wrongly mentioned in the sale deed as S.No.608/2A1. Utilising the mistake, the fifth respondent created fabricated document and registered the same as Document No.206 of 2000 in favour of the sixth respondent herein. Therefore, the petitioner was constrained to file a suit for declaration, possession and injunction in O.S.No.163 of 1998 on the file of the D

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istrict Munsif Court, Kuzhithurai. In the said suit, the said Samuel Nadar and the respondents 5 & 6 are the parties. Pending the suit, the petitioner also filed an amendment petition to correct the error in survey number of the property in the plaint in I.A.No.557 of 2005 and the same was allowed and the plaint was amended as new Survey No.608/1 instead of 608/2A1. In fact, the respondents 5 & 6 filed Civil Revision Petitions in C.R.P.(MD)Nos.921 and 922 of 2006 challenging the said order of amendment and by an order dated 25.09.2014, this Court dismissed the Civil Revision Petitions. Thereafter, the respondents 5 & 6 trespassed into the property and as such the petitioner filed amendment petition to amend the plaint to add the prayer for recovery of possession and mandatory injunction. It was also allowed and accordingly the plaint was amended and now the suit is pending for trial. In the mean time, petitioner lodged a complaint and registered in Crime No.8 of 2014 on the file of the fourth respondent Police as against the respondents 5 & 6.

2.2. He further submitted that the respondents 5 & 6 knowing fully about the amendment of the plaint in respect of the survey number of the subject property, they filed the quash petition before this Court suppressing the said fact and raised ground that the allegation in the FIR in Crime No. 8 of 2014, is that they trespassed into the property comprised in Survey No.608/1. Whereas according to the petitioner/complainant, he has purchased the land in Survey No.608/2A1 and also filed a suit in respect of the said property. The respondents 5 & 6 mislead this Court and obtained order of quashment of FIR in Crime No.8 of 2014 registered as against them. Later the petitioner came to understand that the respondents 5 & 6 suppressed the above said fact and played fraud upon the Court and obtained the order. Therefore, he prayed that this petition filed under Article 226 r/w 215 of the Constitution of India is very much maintainable.

2.3. The learned counsel appearing for the petitioner also cited the following decision to consider the claim of the petitioner:-

1. 2007 (4) SCC 221 - A.V.Papayya Sastry and others Vs. Government of Andra Predesh and others.

2. 2011(0)SC (P& H) 1469 - Sher Mohd. Khan Vs. Madan Lal & Anr.

3. Judgment of this Court in C.S.No.1012 of 2007 in the case of G.Veda Vs. M.Manoranjitham

3. Per contra, the learned counsel appearing for the respondents 5 & 6 filed counter and submitted that the respondents 5 & 6 never played any fraud upon the Court and never mis-representated before this Court. They filed quash petition on the ground that there was a dispute between the petitioner and the respondents 5 & 6 in respect of the title over the property comprised in survey No.608/1 and 608/2A1, in which a suit is also pending in O.S.No.163 of 1998 on the file of the Additional District Munsif Court, Kuzhithurai. The said suit was filed for declaration, possession and injunction and on the course of action, the petitioner lodged complaint on 11.03.2014, alleging that on 31.03.1998 the respondents 5 & 6 were trespassed into the property and constructed building in the land comprised in survey No.608/1. He further submitted that the complaint itself lodged after the period of two decades and there is absolutely no explanation for the belated complaint and as such the FIR cannot be maintained on the ground of latches.

3.1. The learned counsel appearing for the respondents 5 & 6 further submitted that the entire disputes are civil in nature and this Court rightly quashed the FIR. In fact the respondents 5 & 6 categorically stated in the quash petition that initially the petitioner filed a suit in O.S.No.163 of 1998 on the file of the District Munsif Court, Kuazhithurai, and thereafter an amendment petition was filed insofar as the schedule property is concerned and the survey number was amended as 608/1 instead of 608/2A1 by an order dated 21.07.2006. The said order was challenging in C.R.P.(MD)No.921 and 922 of 2006 and the same were pending for consideration before this Court. Therefore, at the time of filing the quash petition ie., on 01.04.2014, the said CRPs were very much pending without disposed of. Even according to the petitioner the said CRPs were dismissed only on 25.09.2014. He further submitted that the petitioner did not file any counter in the quash petition. The counsel was very much appeared at the time of final hearing on the quash petition and he made detail submission and opposed the quash petition. The learned counsel appearing on behalf of the petitioner/ complainant in the quash petition did not even whisper about the points raised in that quash petition and as such it is the duty of the petitioner/ complainant to bring to the knowledge of this Court if there is any suppression or mis-representation by the respondents 5 & 6.

3.2. He further submitted that this Court quashed the FIR not only on the ground that a suit filed in respect of the land comprised in Survey No.608/1 and on the other grounds that all the allegations in the FIR are bald and vague and there is no specific allegations as against the respondents 5 & 6 to attract the offences under Sections 420, 465, 468 and 471 of IPC. The entire allegations are that the respondent 5 & 6 trespassed into the property comprised in Survey No.608/1 and caused damages by cutting and removing trees and created fabricated bogus documents for the purpose of grabbing the property.

3.3. Further he submitted that this writ petition is not maintainable since it amounts to review the order passed by this Court. In the Criminal Procedure Code, there is a bar under Section 362 of Cr.P.C. to review or recall the order passed by this Court. He also citied the following judgements to support of his arguments:-

1. AIR 1979 Supreme Court 87 - State of Orissa Vs. Ram Chander Agarwala

2. 1994 CRI.L.J 2184 Moti Lal Vs. State of Madhya Predesh

3. AIR 2001 Supreme Court 43 - Hari Singh Mann Vs. Harbhajan Singh Bajwa and others. 4. (2001)

4 Supreme Court Cases 752 and AIR 2001 Supreme Court 2145 - State of Kerala Vs. M.M.Manikantan Nair

5. (2019) 2 Supreme Court cases (Cri.) 634 -Mohammed Zakir Vs. Shabana and others.

4. Heard Mr.T.S.R.Venkat Ramana, learned counsel appearing for the petitioner, Mr.K.P.Narayana Kumar, learned counsel appearing for the fifth respondent and Mr.E.Murugan, learned counsel appearing for the sixth respondent.

5. This petition has been filed under Article 226 r/w Article 215 of the Constitution of India to set aside the order passed in Crl.O.P.(MD) No.7534 of 2014 dated 19.09.2018, thereby quashing the FIR in Crime No.8 of 2014 on the file of the fourth respondent herein. This petition is posted for maintainability and the points for consideration are that :-

i. Whether this Writ Petition is maintainable against the order passed under Section 482 of Cr.P.C.?

ii. If the Writ Petition is maintainable, whether the respondents 5 & 6 were obtained an order by playing fraud, cheating and misrepresentation played upon this Court?

6. The respondents 5 & 6 filed a quash petition in Crl.O.P.(MD)No. 7534 of 2014 to quash the FIR in Crime No.8 of 2014 registered for the offences under Sections 120(b), 420, 465, 468 and 471 of IPC on the file of the fourth respondent herein, on the following grounds :-

"a. The defacto complainant claimed title under the L.Rs. of on Chellaian for R.S.No.608/1 Pacode Village. The title of Chellaian was already decided by the Civil Court in O.S.No.133/1113 M.E. and A.S.No.95 of 1952.

b. The dispute of title in R.S.No.608/1 between the defacto complainant and the petitioners herein who all the accused is pending adjudication before the Principal District Munsif, Kuzhithurai in O.S.No.163/1998.

c. The Supreme Court has held that the FIR shall not be registered on a case essentially involving civil dispute.

d. The defacto complainant filed a suit for injunction as O.S.No.669 of 1967 for bare injunction against the petitioner. That suit was dismissed. Hence, the subsequent suit was barred by resjudicata.

e. The defacto complainant did not make out even prima facie case.

f. The petitioners and their predecessors in title are in continues possession for the past 191 years. The petitioners are not residing within the disputed property by constructing buildings.

g. The petitioners obtained sanction for construction of building within the dispute property and constructed buildings after getting loan from IOB, Melpuram."

7. In the quash petition the respondents 5 & 6 further averred that the petitioner/defacto complainant lodged false complaint as if he has title over the property comprised in Survey No.608/1. In fact, the petitioner filed a suit in O.S.No.163 of 1998 on the file of the District Munsif, Kuzhithurai, in respect of the property situated at Pacode Village, Vilavancode Taluk, Kanyakurai to an extent of 57.325 cents comprised in Survey No.608/2A1. He obtained interim order of injunction in respect of the said property. The respondents 5 & 6 do not claim any title in respect of the said property. But subsequently, the petitioner filed a petition to amend the Survey number from 608/2A1 to 608/1. Though it was allowed, it was challenged by the respondents 5 & 6 in Civil Revision Petitions in C.R.P.(MD)Nos. 921 and 922 of 2006 and the same were pending. Therefore, the respondents 5 & 6 never suppressed any of the fact as contended by the petitioner herein.

8. It is also seen that at the time of filing the quash petition, the said Civil Revision Petitions were pending before this Court, challenging the order of amendment. At the time of final disposal of the quash petition, the said Civil Revision Petitions were dismissed by the Madurai Bench of this Court by an order dated 25.09.2014. In fact, the petitioner appeared through counsel and he did not file any counter in the quash petition and failed to brought to the notice of this Court about the dismissal of the Civil Revision Petitions. That apart, this Court, as rightly pointed out by the learned counsel appearing for the respondents 5 & 6, quashed the FIR not only on the ground that the Survey numbers differed from the suit and the complaint, but also on the other grounds. The relevant portion of the order is extracted here under:-

"6. Admittedly, there was a dispute between the petitioners and the defacto complainant in respect of the property comprised in Survey No.608/2A1, in which, the defacto complainant filed the suit in O.S.No.163 of 1998 on the file of the District Munsif, Kuzhithurai and it is pending. In fact, the learned District Munsif pleased to grant an interim injunction restraining the petitioners herein not to put up any construction in respect of the land comprised in Survey No.608/2A1. As contended by the petitioners, the petitioners have constructed the house and they have been in possession and enjoyment for the past several years in the land comprised in Survey No.608/1. Therefore, Survey Number mentioned in the complaint and the suit are completely different one.

7. Further, it is seen from the complaint that all the allegations made by the defacto complainant are bald and vague. There is no specific allegations as against the petitioners to attract the offences under Sections 420, 465, 468 and 471 I.P.C. The allegations are that the petitioners have committed the offences by way of illegal trespass and caused damages by cutting and removing trees and created fabricated bogus documents for the purpose of grabbing the property and also violated the Court order of injunction.

8. On reading of the said complaint, there is absolutely no whisper about the allegation of fabrication of document and forged signature of the defacto complainant. Admittedly, the civil suit has been filed by the defacto complainant in O.S.No.163 of 1998 on the file of the District Munsif, Kuzhithurai and it is pending. If at all any violation of the order passed by the learned District Munsif, it is open to the defacto complainant to file an appropriate petition before the concerned Court. Therefore, the present complaint is nothing but clear abuse of process of law. On the one hand, the defacto complainant filed the suit, obtained interim order and on the other hand, with the same allegation, he filed the complaint that too after a period of six years from the date of the suit. Therefore, the complaint cannot be sustained and no offence is made out as against the petitioners.

9. It is clear from the above that respondents 5 & 6 did not suppress any of the fact before this Court and did not mis-represent about the facts. The counsel, who appeared on behalf of the petitioner/complainant in the quash petition, also did not bring to the knowledge of this Court about the dismissal of the Civil Revision Petitions filed by the respondents 5 & 6. That apart, the petitioner amended the Survey number only in the plaint and even till today, he did not take any steps to rectify the said mistake in his Sale Deed dated 15.09.1997. The Survey number of the property still remains as S.No. 608/2A1 in the sale deed. Now the petitioner come forward with this petition, challenging the order passed by this Court under Article 226 r/w Article 215 of the Constitution of India. It is relevant to extract the Article 215 of the Constitution of India as below :-

215. High Courts to be courts of record.—Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 215 contemplates that the High Court has power to punish for contempt of itself.

10. The learned counsel appearing for the petitioner relied upon the judgement of the Hon'ble High Court of Punjab and Haryana reported in 2011 (0) SC (P&H) 1469 in the case of Sher Mohd. Khan Vs. Madan Lal & Anr., as follows :-

"36. There is yet another aspect which needs to be referred to here. The High Court is a Court of Record and under Article 215 of the Constitution of India, has all powers of such a Court of record including the power to punish contempt of itself. One distinguishing characteristic of superior Courts is that they are entitled to consider questions of their jurisdiction raised before them. It is thus, for the Court to consider whether any matter falls within its jurisdiction or not unlike a Court of limited jurisdiction. Court of Record can be defined as a Court where acts and judicial proceedings are enrolled and preserved for a perpetual memorial and testimony and are called the records of the Court. These records are of such high and supereminent authority that their truth cannot be questioned. Meaning thereby that these records are conclusive evidence of that which is recorded therein. The High Court, as a Court of record, has inherent power to correct the record. It, as a Court of record, has a duty to keep its all records correctly and in accordance with law. In case any apparent error is noticed by the High Court or brought to its notice in respect of any orders passed by it, the High Court has not only the power but a duty to correct it. This is a plenary power of the High Court being a Superior Court and a Court of Record. When favourable orders are obtained by playing fraud on the Court, the High Court, as a Court of Record, has jurisdiction to set aside the order. The High Court has inherent powers by virtue of this Article to prevent abuse of process of Court. Jurisdiction in contempt is an independent jurisdiction of original nature which also flow from this Article.

37. In Hamza Haji's case (supra), the Hon'ble Supreme Court in para 26, while dealing with the powers of the High Court under Article 215 of the Constitution of India, held that the High Court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the Court being a Court of record.

38. Therefore, this Court being a Superior Court and a Court of Record has the power to put the record straight as no Court will allow itself to be used as an instrument of fraud. It cannot close its eyes to the fact which has been brought or comes to its notice which satisfies the Court that it is being used as an instrument of fraud. Such judgment, order or decision cannot be allowed to stay nor can such an order, which is a nullity and which has been obtained by playing fraud on the Court, be sustained. The Court would not hesitate in recalling/setting aside such an order, which has been obtained on a false plea or on a claim, which the party knew to be false and suppressed documents or transactions which has relevance in deciding his claim as the same would amount to a fraud. The power enshrined in this Court under Article 215 of the Constitution must be exercised in such like circumstances to preserve the proceedings of the Court from being deflected or interfered with so that the Court is not used as a tool to obtain undue benefit which a person is not entitled to. To keep the stream of justice pure, serene and undefiled, it is the duty of the Court to preserve it, lest the faith of a common man is shaken on the Court."

The High Court of Punjab and Haryana held that the High Court, as a Court of Record, has inherent power to correct the records in accordance with law. In case any apparent error is noticed by the High Court or brought to its notice in respect of any orders passed by it, the High Court has not only the power but a duty to correct it. This is a plenary power of the High Court being a superior Court and a Court of Record. When favourable orders are obtained by playing fraud on the Court, the High Court, as a Court of Record, has jurisdiction to set aside the order. In the case on hand, as discussed above the respondents 5 & 6 did not play any fraud upon the Court and never misrepresent any facts as alleged by the petitioner herein. Though this Court has inherent power by the virtue of Article 215 of the Constitution of India, to prevent abuse of process of Court, in the present case, there is absolutely no fraud played by the respondents 5 & 6, as such this writ petition itself is not maintainable.

11. The learned counsel appearing for the respondents 5 & 6 relied upon the judgement of the Hon'ble Supreme Court of India, reported in AIR 2001 Supreme Court 2145 in the case of State of Kerala Vs. M.M.Manikantan Nair, which held as follows :-

"6. The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed. By the first order dated 31.05.2000, the High Court rejected the prayer of the respondent for quashing the criminal proceeding. This order attained its finality. By the impugned order, the High Court reversed its earlier order and quashed the criminal proceeding for want of proper sanction. By no stretch of imagination it can be said that by the impugned order the High Court only corrected any clerical or arithmetical error. In fact the impugned order is an order of review, as the earlier order was reversed, which could not have been done as there is no such provision under the Code of Criminal Procedure, but there is an interdict against it.

7. This court in Hari Singh Mann versus Harbhajan Singh Bajwa & Ors. [2001 (1) SCC 169] held that Section 362 of the Criminal Procedure Code mandates that no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error and that this section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by the court of competent jurisdiction."

The Hon'ble Supreme Court of India repeatedly held that the Section 362 of Cr.P.C., contemplates that no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. It is also made clear that the High Court should not exercise the power under Section 362 of Cr.P.C. for correction on merits. The whole purpose of Section 362 of Cr.P.C. to correct the clerical or arithmetical error. Though the earlier order was passed erroneously, it cannot be corrected on merits and it is impermissible under law.

12. That apart, this Court quashed the FIR on the other grounds viz., the FIR registered after the period of so many years from the date of occurrence and the allegations are bald and vague and no avernments to attract the offences under Sections 420, 465, 468 and 471 of IPC. Therefore, this Court finds no merits in this petition and the main writ petition is also not maintainable.

13. Accordingly, this Writ Petition stands dismissed. Consequently, connected miscellaneous petition, if any, is closed. No costs
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