IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.No.17917 of 2006 and M.P.No.1 of 2006 (D.Markaraj,now changed as) D.Manoharan ...Petitioner/Accused-3 -Vs- K.Radhakrishnan ...Respondent/Complainant Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the entire records concerned in C.C.No.157 of 2005 on the file of the learned Chief Judicial Magistrate, Coimbatore and quash the same. For Petitioner : Mr.C.Prakasam For Respondent : Mr.S.Ananthanarayanan O R D E R This petition has been moved towards calling for the entire records in "C.C.No.157 of 2005" on the file of the learned Chief Judicial Magistrate, Coimbatore and to quash the same. 2.The petitioner states that he is the 3rd accused in the case. The petitioner was the Inspector of Police, who had investigated the case in C.C.No.303 of 2003 before the learned Judicial Magistrate V, Coimbatore and on the allegation that by judgment dated 14.07.2004, such Court had specifically found certain misconduct on his part, the complaint has been filed in C.C.No.157 of 2005 before the learned Chief Judicial Magistrate, Coimbatore. Such proceedings are sought to be quashed on the ground that the judgment passed by the learned Judicial Magistrate V, Coimbatore, in C.C.No.303 of 2003 does not reflect any such finding as alleged in the complaint and that as he was a police officer, Section 197 Cr.P.C stood attracted in this case and in the absence of sanction for prosecution, the complaint would fail. 3.I have heard Mr.C.Prakasam, the learned counsel for the petitioner, Mr.S.Ananthanarayanan, the learned counsel for the respondent and perused the material on record. https://hcservices.ecourts.gov.in/hcservices/ 4.The petition before this Court is totally unfounded. C.C.No.157 of 2005 before the Chief Judicial Magistrate, Coimbatore is a petition under Section 195 r/w. 340 Cr.P.C. Such petition seeks recording of a finding that the three respondents therein one of whom is the petitioner, have conspired and colluded and created a false case against the petitioner therein and also tendered false evidence before the Court in the case in C.C.No.303 of 2003 on the file of learned Judicial Magistrate V, Coimbatore and to make a complaint thereon. 5.Section 340 of the Criminal Procedure Code reads as follows: "Procedure in cases mentioned in Section 195 (1)When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, (a)record a finding to that effect; (b)make a complaint thereof in writing; (c)sent it to a Magistrate of the first class having jurisdiction; (d)take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e)bind over any person to appear and give evidence before such Magistrate. (2)The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3)A complaint made under this section shall be signed (a)where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b)in any other case, by the presiding officer of the Court. (4)In this section, "Court" has the same meaning as in section 195." 6.It is not in dispute that from judgment of the learned Judicial Magistrate V, Coimbatore, an appeal would lie to the https://hcservices.ecourts.gov.in/hcservices/ learned Chief Judicial Magistrate, Coimbatore. When it is pointed out by this Court that as the Court which conducted the trial in C.C.No.303 of 2003 has not made any complaint under sub- section 1 of Section 340 nor has rejected an application for making of such complaint, the exercise of power under sub-section 1 of Section 340 could well be done by the learned Chief Judicial Magistrate, Coimbatore and it is the exercise of such power that is sought in the instant case, the learned counsel for the petitioner submits that the very petition informs that the same was returned by the learned Judicial Magistrate for the reason that the accused 3/petitioner herein was a police officer and therefore, such Court had no jurisdiction to entertain the petition and such was the reason that the petition was being filed before the learned Chief Judicial Magistrate. The submission of the learned counsel is that the return of the petition by the trial Court amounts to a rejection of an application and therefore, the petition ought not to have been entertained by the learned Chief Judicial Magistrate, Coimbatore. This Court is unable to agree with such submission. The reason for return of the application by the trial Court might well be erroneous but the same cannot be said to be a decision arrived at on due consideration of the merits. A return of papers by a Court may be for a myriad reasons but the rejection of an application necessarily must be on consideration of the merits of the case. Hence, this Court is unable to equate the mere return as a rejection of the application. When so construed, it would be clear that the learned Chief Judicial Magistrate, is well within his power in entertaining the application presently pending before him. It would be open for the petitioner to show to the satisfaction of such Court that there were no merits in the application before it and to seek dismissal of the same, just as it would be open to the respondent to canvass the merits thereof and seek prosecution by way of complaint. 7.The petition does not survive and accordingly, the same shall stand dismissed. Consequently, the connected miscellaneous petition is closed. 8.It is seen that the proceedings before the learned Chief Judicial Magistrate, Coimbatore has been pending for almost 5 years and stands protracted owing to the pendency of the Criminal Original Petition before this Court. In the circumstances, the learned Chief Judicial Magistrate, Coimbatore is directed to dispose of the petition pending before it within a period of three months from the date of receipt of a copy of this order. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ gm To. 1. The Chief Judicial Magistrate, Coimbatore. 2. The Public Prosecutor, High Court, Madras. + 1 cc to Mr.C.Prakasam,Advocate,SR.11284 Crl.O.P.No.17917 of 2006 and M.P.No.1 of 2006 BVN(CO) EM/2.3.10 https://hcservices.ecourts.gov.in/hcservices/