IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.10.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN Crl.O.P.No.21270 of 2010 and M.P.No.1 of 2010 Bhanwarlal Sharma .... Petitioner Vs. 1.K.V.Sathyanarayanan 2.The Deputy Commissioner of Police Central Crime Branch, Chennai 3.The Inspector of Police Central Crime Branch, Team-III Chennai ..... Respondents Prayer : Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, seeking a direction to call for the records and quash the proceedings in Crl.M.P.No.1946 of 2010, pending on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai, in Crime No.703 of 2007. For Petitioner : Mr.Udayat V.Lalit, Senior Counsel for Mr.P.Krishnan For Respondents : Mr.N.R.Elanto, Senior Counsel for R.Vivekananthan for R1 Mr.A.N.Thambidurai Addl.Public Prosecutor for RR2 & 3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R After invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, this petition is preferred by the petitioner to call for the records and quash the proceedings in Crl.M.P.No.1946 of 2010, pending on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai, in Crime No.703 of 2007. 2. The excerpts of the contention of the petitioner Mr.Bhanwarlal Sharma: The impugned proceeding in Crl.M.P.No.1946 of 2010 has been initiated by the first respondent/complainant Mr.K.V.Sathyanarayanan under the caption of 'protest petition' before the learned Chief Metropolitan Magistrate, Egmore, Chennai, to review his own order, whereby the final report filed by the third respondent was accepted and the complaint against the accused persons including the petitioner herein was closed as being 'civil in nature'. Though sufficient opportunity was given to the first respondent/complainant Mr.K.V.Sathyanarayanan to defend the proposal of closing the case, he has preferred the impugned protest petition at a belated stage, after the final order of closure was passed by the learned Chief Metropolitan Magistrate, Egmore, Chennai. Since the learned Chief Metropolitan Magistrate, Egmore, Chennai has become 'functus officio' after signing the final order of closure, hearing the matter afresh is against the very spirit of Section 362 of the Code of Criminal Procedure and would tantamount to abuse of process of law. Moreover, the claim of Mr.K.V.Sathyanarayanan has been struck down by the entire hierarchy of Civil Courts, including the Apex Court and the earlier complainant in Crl.M.P.No.507 of 2007 was also closed as 'civil in nature. Hence, the petitioner Mr.Bhanwarlal Sharma, being the fifth accused, has approached this Court to quash the said proceedings. 3. The facts germane for the disposal of this petition: This petitioner is the fifth accused in the case in Crime No.703 of 2007, on the file of the third respondent viz.the Inspector of Police, Central Crime Branch, Team-III, Chennai. The first respondent Mr.K.V.Sathyanarayanan had preferred a complaint before the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai on 17.10.2007 in Crl.M.P.No.2145 of 2007 against the following five accused: i. Mr.Shanthilal Surana, ii. Mr.Gowthamraj Surana, https://hcservices.ecourts.gov.in/hcservices/ iii. Mr.Dineshchand Surana, iv. Mr.Vijayaraj Surana, and v. Mr.Bhanwarlal Sharma (petitioner herein). 4. Allegations levelled in the complaint: a. The piece of land comprised in Survey Nos.1060/1 and 1060/2 at Madhavaram Village, measuring 7.72 Acres belonged to one Mrs.L.A.Bromwich, who allowed one Mrs.Margret Mennie and her family members to reside in the said land and maintain the same. b. The said Mrs.L.A.Bromwich had passed away in the year 1984. After his demise, Mrs.Margret Mennie had executed a deed of power of attorney in favour of Mr.Shantilal Surana (A1), authorising him to alienate the above said land. However, on 03.03.1994, she had revoked the said deed of power of attorney and subsequently died on 05.10.1997. c. Even prior to her death ie. On 12.01.1996 the said extent of land was purchased by the first respondent Mr.K.V.Sathyanarayanan and his family members by way of four different sale deeds, registered on the file of the Sub-Registrar, Sembium, Chennai. d. While so, Mr.Shantilal Surana (A1) had sold the said property to his brothers namely Mr.Gowthamraj Surana (A2), Mr.Dineshchand Surana (A3) and Mr.Vijayraj Surana (A4) through six sale deeds on 06.08.1999 and 15.09.1999 respectively. Thereafter, on 10.10.1999 Mr.Dineshchand Surana (A3) had sold a portion of the said property to Mr.Bhanwarlal Sharma (A5), who is the petitioner herein. e. Having known the facts that Mr.K.V.Sathyanarayan and his family are the owners of the land measuring an extent of 7.79 Acres, the accused persons 1 to 5 had colluded together and conspired to execute various sale deeds with a view to cheat and grab the said land. 5. It was, therefore, alleged that this petitioner along with other four accused had committed the offences punishable under Sections 468, 471, 420 r/w 120B I.P.C. This complaint was forwarded to the third respondent Police for enquiry by the learned Additional https://hcservices.ecourts.gov.in/hcservices/ Chief Metropolitan Magistrate, Egmore, Chennai under Section 156(3) of the Code of Criminal Procedure. 6. The third respondent Police had taken up the case for investigation and after the completion of his investigation, he had filed a final report on 28.06.2009 before the learned Chief Metropolitan Magistrate, Egmore, Chennai, saying that this case is the one which should be tried in a civil court as the relief is to be sought therefrom, and therefore, this case is treated as civil in nature and in consequent thereof further action is dropped. It is also stated to you that the closure of this case as civil in nature was informed to the complainant Mr.K.V.Sathyanarayanan, vide R.C.Notice dated 27.06.2009 through H.C.Thiru.Sivantha Gowndar.” 7. After receiving the negative final report, the learned Chief Metropolitan Magistrate, Egmore, Chennai had issued R.C.S. Notice to the complainant Mr.K.V.Sathyanaranan on 13.10.2009, which appears to have been received by him on 14.10.2009. 8. Thereafter, the learned Chief Metropolitan Magistrate had on 30.10.2009 passed an order and thereby closed the case in Crime No.703 of 2007 as 'civil in nature' after accepting the negative final report filed by the third respondent Police. 9. Challenging the negative final report, the first respondent, who is the complainant therein, has filed a protest petition in Crl.M.P.No.1946 of 2010, which is under challenge in the present quash petition, to reject the report filed by the third respondent Inspector of Police and to direct the Deputy Commissioner of Police, Central Crime Branch to reinvestigate the same personally and file the report. 10. During the pendency of the said protest petition, Mr.Bhanwarlal Sharma, petitioner herein (A5) has filed an impleading petition to implead himself as third respondent therein in order to putforth necessary factual aspects for better appreciation of the entire scenario. That petition is pending as unnumbered. Under this circumference, this petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioner herein, who is A5 in the case in Crime No.703 of 2007, to quash the proceedings in Crl.M.P.No.1946 of 2010 i.e.the proceeding in protest petition. 11. Before we go into the merits of the case, it may be quiet relevant to refer the first complaint filed by the first respondent https://hcservices.ecourts.gov.in/hcservices/ Mr.K.V.Sathyanarayanan before the learned Chief Metropolitan Magistrate, Egmore, Chennai. 12. It appears from the records that verbatim the same complaint as that of in Crl.M.P.No.2145 of 2007 was preferred by Mr.K.V.Sathyanarayanan, first respondent herein before the learned Chief Metropolitan Magistrate in Crl.M.P.No.507 of 2007 on 21.02.2007 against the very same accused persons and infact under the same penal provisions of Indian Penal Code. This complaint was referred to the Inspector of Police, Central Crime Branch, Team VIII, Egmore, Chennai for taking suitable action. It was investigated by the concerned Inspector of Police and ultimately it was closed as the case is civil in nature. 13. Prior to that an R.C.S.Notice was issued to the complainant viz.Mr.K.V.Sathyanarayanan/first respondent herein on 16.04.2007, informing him that the matter appears to be civil case and that the complaint given by him was dropped without any action. To that effect, a negative final report dated 06.06.2007 was submitted by one Mr.Muthurasa, Inspector of Police, VIII Team, Egmore, Chennai, which appears to have been forwarded to the learned Chief Metropolitan Magistrate, Egmore, Chennai, by the Assistant Commissioner of Police, Crime Branch, Egmore, Chennai on the same date. 14. On receipt of the final report, it appears that the learned Additional Chief Metropolitan Magistrate had issued a notice on 24.09.2007 to the complainant viz. the first respondent herein stating that: “Based on complaint filed in the Police Station/Court/the complaint was forwarded to the Central Crime Branch and when enquired, your complaint was found to be of civil nature and the same has been mentioned in the final report which has been submitted in this Court by the Police department. For filing your objection in the above matter the case is posted on 23.10.2007. If you fail to file any objection on that day the court will presume that you don't have any objection on the final report filed by the police department and the court will pass orders on merits.” 15. It also appears that this notice was received by the complainant/first respondent on 28.09.2007. Even after the receipt of the notice, the complainant did not file any objection against https://hcservices.ecourts.gov.in/hcservices/ the said negative final report. Ultimately, the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, had proceeded to pass an order on 22.11.2007 saying that: “The Police has filed a final report in this case. It is stated in the final report that the case was referred as civil nature. Hence, the case is recorded as civil in nature.” 16. Admittedly, the Order of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, dated 22.11.2007 and made in Crl.M.P.No.507 of 2007 has not been challenged by the first respondent/complainant. 17. It is pertinent to note here that the complaint filed by the first respondent/complainant in Crl.M.P.No.2145 of 2007, which was closed on 30.10.2009 as civil in nature is the second complaint. 18. The petitioner Mr.Bhanwarlal Sharma, who is A5 in the case, has contented that having been allowed the closure of the first complaint in Crl.M.P.No.507 of 2007 dated 22.11.2007 to become final, without challenging the order of closure dated 22.11.2007, the second complaint in Crl.M.P.No.2145 of 2007 ought not to have been entertained and referred to the third respondent Police under Section 156(3) of the Code of Criminal Procedure. 19. Mr.Udayat V.Lalit, learned senior counsel appearing for Mr.P.Krishnan, learned counsel for the petitioner on record has mainly based his arguments on the following two grounds: a. When the first complaint in Crl.M.P.No.507 of 2007 was closed by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, on 22.11.2007 on the ground of 'civil in nature', the second complaint in Crl.M.P.No.2145 of 2007 without challenging the above said order, is not maintainable and it is nothing, but deliberate abuse of process of Court. b. The criminal Court does not have power to recall it's own order under Section 362 of the Code of Criminal Procedure. 20. In this regard, Mr.Udayat V.Lalit, learned senior counsel, while advancing his argument, has made reference to the proviso to Sections 203 and 362 of the Code of Criminal Procedure. Section 203 of the Code of Criminal Procedure reads as follows: “203. Dismissal of complaint.- If, after https://hcservices.ecourts.gov.in/hcservices/ considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.” 21. On the recommendation of law commission, in it's 41st report, the word 'may' appearing in the Section 203 of old Cr.P.C., has been substituted by the word 'shall' in the new section. The law commission, in it's 41st report, has observed: “Section 203 provides that if the Magistrate dealing with a complaint finds no sufficient cause for proceeding with the case even after considering the evidence of the complaint and his witnesses and the result of the inquiry or investigation made under Section 202 he 'may' dismiss the complaint. It is difficult to imagine what other course is possible in such circumstances, and the direction of law for the dismissal of such a complaint might as well be plainer. We propose therefore, to put in 'shall' in place of 'may'.” It is thus clear that the Law Commission after careful analysation has inserted the word 'shall' after replacing the word 'may', to shape the wordings more strong and forceful that the Magistrate shall dismiss the complaint, if he is of opinion that there is no sufficient ground for proceeding. 22. From the above context, it is manifest that the intention of the Law Commission is that after considering the statements of the complainant on oath (if any) and of the witnesses and after the result of the inquiry or investigation (if any), the Magistrate is of opinion that there is no sufficient ground to proceed, he shall dismiss the complaint, and he while doing so shall record his reasons briefly. Ground - I: 23. Mr.Udayat V.Lalit, learned senior counsel in support of his contention has placed reliance upon the following two decisions of the Apex Court: https://hcservices.ecourts.gov.in/hcservices/ i. Poonam Chand Jain and another vs. Fazru, AIR 2010 SC 659, ii. Ranvir Singh vs. State of Haryana and Another, (2009) 9 SCC 642, 24. In the first case viz. Poonam Chand Jain and another vs. Fazru, AIR 2010 SC 659, the Division Bench of the Apex Court has held that: “After dismissal of first complaint on merits, the second complaint, on almost identical facts, can be entertained only in exceptional circumstances. An order of dismissal of first complaint under Section 203 is, however, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances viz. (a) where previous order was passed on incomplete record, (b) or on a misunderstanding of the nature of the complaint, (c) or the order which was passed was manifestly absurd, unjust or foolish, or (d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings.” In paragraph No.27, the Division Bench of the Apex Court has held that: “27. Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint is not maintainable. This Court finds that the core of both the complaints is the same. Nothing has been disclosed in the second complaint which is substantially new and not disclosed in first complaint. No case is made out that even after the exercise of due diligence the facts alleged in the second complaint were not within the application of the first complaint. In fact such a case could not be made https://hcservices.ecourts.gov.in/hcservices/ out since the facts in both the complaints are almost identical. Therefore, the second complaint is not covered within exceptional circumstances explained in Pramatha Nath (supra). In that view of the matter the second complaint in the facts of this case, cannot be entertained.” 25. In the instant case on hand, the first complaint was closed by the learned Chief Metropolitan Magistrate on the ground of 'civil nature' based on the negative final report submitted by the third respondent. As in the case of the above cited decision, in the instant case also the second complaint was filed verbatim on the identical facts of the first complaint. As decided in Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876, let us discuss elaborately in the later paragraphs as to whether the second complaint has been covered within the exceptional circumstances. 26. In the second case viz. Ranvir Singh vs. State of Haryana and Another, (2009) 9 SCC 642 also the Division Bench of the Apex Court headed by His Lordship Hon'ble Mr.JUSTICE ALTAMAS KABIR after quoting Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876 has held that: “Even if a complaint is dismissed under Section 203, a second complaint would still lie under exceptional circumstances, e.g., where previous order was passed on an incomplete record or on misunderstanding of nature of complaint or it was manifestly absurd, unjust, fallacious or false or where new facts, which could not, with reasonable diligence, have been brought on record in a previous proceeding, have been adduced.” His Lordship in Paragraph No.28, has further held that: “28. We are unable to appreciate the submissions made on behalf of the petitioner, since the law with regard to the filing of a second complaint is now crystallised. It is well settled that such a complaint is maintainable in different circumstances as enumerated in Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876 and Jainder Singh vs. Ranjit, (2001) 2 SCC 570 : 2001 SCC (Cri) 354." https://hcservices.ecourts.gov.in/hcservices/ 27. The facts of the present case on hand are almost identical to the facts in A.Krishna Rao vs. L.S.Kumar 1998 (I) CTC 329. In this case the respondent L.S.Kumar had preferred a complaint against the petitioner and others before the SIPCOT Police Station at Ranipet and a receipt in F.D.R.No.110 of 1993 had been issued to him by the Police. As the police had not taken any further action on the said complaint, the complainant filed a private complaint before the learned Judicial Magistrate No.II, Wallajapet and the learned Judicial Magistrate had forwarded the said complaint to the police under Section 156(3) Cr.P.C., for investigation and report. The police registered a case in Crime No.389 of 1994 under Sections 323, 341 and 506(2) I.P.C., and after investigation the investigating officer had filed the final report on 09.12.1994 referring the case as 'Mistake of fact'. The learned Judicial Magistrate had sent a memo along with the R.C.S.Notice and the complainant did not file any objection and on the contrary he had filed another private complaint on 15.12.1994 and the same was taken by the said Court in C.C.No.274 of 1994. As the Police had already investigated the case and the matter had been referred to as 'Mistake of fact', the learned Magistrate ought not to have taken cognizance of the second complaint. In such circumstances, the learned Single Judge of this Court had concluded that the proceedings in the second complaint, which was pending in C.C.No.274 of 1994 on the file of the learned Judicial Magistrate, Wallajapet had to be quashed. 28. The learned Judge after referring various decisions viz., i. Murugesan vs. Kothandam, 1969 L.W.Crl. 268, ii. Ramasubbu vs. State, 1987 L.W. Crl.79, iii. Ansari vs. Mohammed Ali, 1990 L.W. Crl.201, has held that: “The Police have filed the referred charge sheet as 'mistake of fact'. It seems the Magistrate has accepted the R.C.S. It is not the case of the respondent herein that the Magistrate has not accepted the R.Cs., filed by the Police. In such circumstances, when the Magistrate has accepted the R.C.S., the second complaint should be filed only after setting aside the order passed by the learned Magistrate in the referred charge sheet. However, the respondent herein has not taken any such action and instead had filed a second complaint which the learned Magistrate has taken cognizance. It has been held in the above decisions that taking cognizance in the second https://hcservices.ecourts.gov.in/hcservices/ complaint, makes the same not maintainable. I have no hesitation to follow the said view, and as such it has to be held that the second complaint which is pending before the learned Judicial Magistrate No.II, Wallajapet in C.C.No.274 of 1994 is not maintainable and the proceedings have to be quashed. Accordingly, the criminal proceedings were quashed.” Ground – II: 29. In the protest petition in Crl.M.P.No.1946 of 2010, on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai, the first respondent/complainant has sought the prayer of rejection of the report (negative final report) filed by the third respondent and to direct the second respondent to reinvestigate the complaint, which was closed as 'civil in nature' and to file a report. 30. In this connection, Mr.Udayat V.Lalit, learned senior counsel has adverted to that once the complaint was closed as 'civil in nature' by the learned Chief Metropolitan Magistrate after accepting the negative final report submitted by the third respondent herein, he had no power to recall his own Order of dismissal as contemplated under Section 362 of the Code of Criminal Procedure. 31. The learned senior counsel has also maintained that the learned Chief Metropolitan Magistrate had also erroneously entertained the said protest petition in Crl.M.P.No.1946 of 2010 and his proceedings to hear the issue that had already been decided by the same Court. 32. Section 362 of the Code of Criminal Procedure enacts as follows: “Section 362. Court not to alter judgment.- Save as otherwise provided by this Code or by any other law for the time being in force, no court when it has signed its judgment or final order disposing of a case, shall after or review the same except to correct a clerical or arithmetical error.” 33. The section applies to judgmenjts as well as final orders. It prohibits the Court from altering or revising any judgment or final order disposing of a case after it has been signed except for the purpose of correction of clerical or arithmetical error. As held https://hcservices.ecourts.gov.in/hcservices/ in Hari Singh Mann vs. Harbhajan Singh Bajwa, AIR 2001 SC 43 : (2001) 1 SCC 169, as soon as the judgment or final order disposing of a case is signed it becomes final and the Court is functus officio. In an another decision in Sarbeswar Panda vs. Adhir Kumar Jana, (1959) 2 Cal 69, it is laid down that the Court has no jurisdiction to set aside or review its own judgment or final order which has already been signed. 34. The learned senior counsel has also added that the learned Chief Metropolitan Magistrate had now reopened the case, which was closed by the very same Court vide it's order dated 30.10.2010, by admitting the protest petition in Crl.M.P.No.1946 of 2010. It is well settled principle of law that once a final order signed, the Court becomes functus officio and cannot review the same subsequently as contemplated under Section 362 Cr.P.C. 35. The learned senior counsel has also maintained that the Order dated 30.10.2010 passed by the trial Court is still in force and has not been set aside by any superior Court of law. In such a scenario, the trial Court is barred from entertaining a petition much less protest petition that seeks to reconsider and review its own order. 36. The learned senior counsel would further submit that the criminal Courts do not have power to review except to set right the clerical or arithmetical error and that Section 362 of the Code of Criminal Procedure imposes an imbargo on the criminal courts to entertain any such plea after it has rendered its verdict. He has also canvassed that since the learned Chief Metropolitan Magistrate has already applied his mind on the final report and passed an order closing the case as civil in nature, reopening the same subsequently and hearing the matter afresh is violative of Section 362 Cr.P.C. He has also argued that the first respondent herein, under the guise of 'protest petition' seeks to achieve what is expressly barred under Section 362 Cr.P.C. Therefore, the impugned proceedings deserve to be quashed in limine. 37. The learned senior counsel has further contended that the impugned proceedings was based on the case in Crime No.703 of 2007, which itself deserved to be struck down as illegal. He has also contended that even prior to the registration of the case in Crime No.703 of 2007, the first respondent had preferred a complaint before the learned Chief Metropolitan Magistrate, Egmore, Chennai in Crl.M.P.No.507 of 2007, which was earlier closed on 22.11.2007. 38. He has