IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 09-12-2009 CORAM: THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRIMINAL ORIGINAL PETITION NOS.12166 OF 2006 AND 32450 OF 2007 Mr.A.R.Sridharan ... Petitioner in Crl.O.P.No.12166/2006/ Ist Accused M/s. V.A.K Engineering Company Private Limited, No.326, M.K.N. Road,Alandur, Chennai-600 016. ... Petitioner in Crl.O.P.No.32450/2007 Versus 1. State, rep. by Deputy Superintendent of Police, Crime Branch CID, Headquarters, Chennai 600002. ... 1st Respondent in Crl.O.P.12166/2006/Complainant and Respondent in Crl.O.P.32450/2007 2. V.A.K Engineering Private Limited, No.326, M.K.N. Road,Alandur, Chennai-600 016. (2nd Respondent impleaded as per the order of this Court dated 18.07.2006 in Crl.M.P.No.3743/06 by CNJ.,) ... 2nd Respondent in Crl.O.P.No.12166/06 Criminal Original Petition No.12166 of 2006 has been filed under Section 482 of Cr.P.C. to call for the records of the proceedings in C.C.No.321 of 2002, on the file of the Court of Judicial Magistrate No.II, Poonamallee and quash the same. Criminal Original Petition No.32450 of 2007 has been filed under Section 482 of Cr.P.C. seeking to direct the Judicial Magistrate No.II, Poonamallee to dispose the case pending in C.C.No.321 of 2002. Mr.Xavier Flix for Mr.V.Pichaya ... For Petitioner in Crl.O.P.12166/2006 Mr.Abdu Kumar Rajarathinam ... For Petitioner in Crl.O.P.32450/2007 and for 2nd Respondent in Crl.O.P.12166/2006. Mr.V.R.Balasubramanian, Additional Public Prosecutor ... For R1 in Crl.O.P.12166/2006 and Respondent in Crl.O.P.32450/2007 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER M.SATHYANARAYANAN, J The present Original Petition is filed seeking to quash the proceedings in C.C.No.321 of 2002 pending on the file of the Court of Judicial Magistrate No.II, Poonamallee on the basis of the complaint given by the District Collector, Kancheepuram. In the final report, three persons were arrayed as accused and the first accused is Thiru.A.R.Sridharan, who is the petitioner in this Criminal Original Petition. 2. As per the final report, the accused are charged for the alleged commission of the offences under Section 120-B r/w 465, 466, 467, 471, 167, 420 r/w 109 IPC. The final report was taken on file in C.C.No.321 of 2002 by the Court of Judicial Magistrate No.II, Poonamallee. 3. The facts leading to the filing of this Criminal Original Petition are as follows:- M/s. V.A.K Engineering Private Limited, Alandur had sent a representation to the then Hon'ble Minister for Revenue, Government of Tamil Nadu, by means of petition alleging that the petitioner herein while he was working as the Village Administrative Officer, Adambakkam Village, has committed many malpractices and thereby, indulged in fabrication of records. It is alleged in the petition that M/s. V.A.K Engineering are the owners of the property in Paimash Nos.716, 717, 718, 721/3, l722/2, 859 and 860 corresponding to Town Survey Nos. 105, 121, 122, 138 of Adambakkam Village. The total extent of land covered in the above said Paimash Numbers are 11.42 Acres out of which, factory is located on 2.72 Acres of land. The balance area of 8.70 Acres are not covered by the boundary. The petitioner herein who is arrayed as the first accused in the above said case, had tried to grab 3.80 acres of vacant land by manipulating and fabricating Government Revenue records to show as if that he is in possession and enjoyment of the lands in Town Survey No.138, Adambakkam Village. 4. The Hon'ble Minister for Revenue, Government of Tamil Nadu, has made an endorsement to the Collector of Kancheepuram District to look into the matter for necessary action. In pursuant to the said endorsement, the Collector of Kancheepuram District has directed the Personal Assistant (LA) to Collector, who is in the rank of Deputy Collector/RDO, to conduct an enquiry. 5. The said official had conducted enquiry and came to the conclusion that the petitioner/first accused had successfully inserted his father's name in R.S.No.20, T.S.No.138 in the Survey and Land registers maintained in the Office of the Assistant Settlement Officer, Thiruvannamalai and Municipal Office, Alandur with the collusion of Survey field staff and got patta by fraudulent means from the Assistant Settlement Officer, Thiruvannamalai. The said report runs to 23 pages and ultimately https://hcservices.ecourts.gov.in/hcservices/ the above said official has also apart from suggesting remedial measures, recommended that criminal action may be initiated against the petitioner herein for fabrication of Government Revenue Records, cheating the Government and the Judicial forums. 6. A report was submitted to the Collector of Kancheepuram District who forwarded the same to the Government which in turn, directed the CBCID to probe into it. The CBCID has registered a case in Crime No.4/1998 for the alleged commission of the offences under Section 466, 467, 468, 471 of IPC on 22.12.1998 on the basis of the complaint given by the Collector of Kancheepuram District. The CBCID after investigation, has filed a final report which has been taken on file in C.C.No.321 of 2002 by the Court of Judicial Magistrate No.II, Poonamallee. 7. The grounds raised in this Criminal Original Petition are that the lands comprised in T.S.No.138, 132 etc., in Adambakkam Village were originally Inam lands and they fall within the scope of the provisions of Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Tamil Nadu Act 30 of 1963). The Assistant Settlement Officer who has been vested with power to enquire and grant pattas to the claimants in terms of the above said Act, had made enquiry and granted patta to the petitioner. 8. In respect of the above said properties, civil proceedings were initiated by M/s. Associated Trading Company and the petitioner has succeeded before the lower Courts and the High Court. SLP preferred by M/s. Associated Trading Company Ltd., before the Hon'ble Supreme Court of India has also ended in dismissal. 9. M/s. Associated Trading Company has also filed a private complaint on similar lines as that of the present complaint and it has been quashed by this Court and the Supreme Court has also confirmed the same. 10. It is further contended by the petitioner that the cognizance of the case by CBCID based on the enquiry report submitted by the Personal Assistant (LA) to the Collector of Kancheepuram District is clearly barred under Section 195(1)(b)(i) of Cr.P.C. In so far as V.A.K Engineering Company is concerned, it lost the civil proceedings against this petitioner and Second Appeals are pending adjudication before this Court. 11. The petitioner further contended that he is the owner of the property admeasuring to an extent of 3.80 Acres in Paimash Nos. 723/3 and 724 corresponding to T.S.No.138 Ward-E, Block-I in Survey No.20/1, Adambakkam Village and his title and possession has been upheld by the civil Court. It is further stated by the petitioner that M/s.V.A.K Engineering Company has filed a suit for declaration of its title and for consequential relief in O.S.No.1714 of 1997 on the file of the Court of District Munsif, Alandur which has been subsequently transferred to the file of the Court of District Munsif, Tambaram and the same is pending adjudication. The present https://hcservices.ecourts.gov.in/hcservices/ Criminal case is filed in order to wreck vengeance against him and it is purely an abuse of process of law. 12. On 23.11.2009, the petitioner herein raised additional grounds contending among other things that the allegations made in the FIR/Complaint even if they are taken on their face value and accepted in their entirety, prima facie do not constitute commission of any offence or make out a case against the petitioner/accused. 13. As the allegations in the FIR do not constitute cognizable offence, no investigation is permissible without an order of a Magistrate as contemplated under Section 155(2) of Cr.P.C. It is further stated in the additional grounds that the present criminal proceedings is per se mala fide solely with the object of wrecking vengeance. 14. The Respondent viz., the State, has filed a counter stating that M/s. V.A.K Engineering Company has submitted a petition dated 6.6.1997 to the Government of Tamil Nadu alleging about the manipulation and fabrication of Government Revenue Records and they made serious allegations against the petitioner. The petition was forwarded to the District Collector, Kancheepuram, who in turn, ordered his Personal Assistant in the rank of Deputy Collector to enquire into the allegations levelled against the petitioner. The enquiry officer after thoroughly perusing the various records at the concerned offices, has given a report stating that the petitioner herein had manipulated and fabricated Government Records and produced the same, before various civil and Revenue forums and managed to get favourable orders in his favour. 15. The said report was submitted to the then Collector of Kancheepuram District viz., Thiru.V.Irai Anbu, IAS, who in turn preferred a complaint to the Additional Director General of Police, CBCID, Chennai. The ADGP, CBCID in turn directed its, Chengalpattu East Unit and accordingly, registered a case in Crime No.4/1998 against the petitioner and two others for the alleged commission of the offence under Section 466, 467, 468 and 471 of IPC. The investigation conducted by CBCID, Chengalpattu East Unit revealed that: (i)VAO Sridharan (Petitioner/Accused) fabricated an extract of Survey Land Register by including his father's name "Rajagopala Pillai" among other entries against Resurvey No.20/1 of Ward E, Block I of Adambakkam and filed before the Civil Courts to claim 3.80 acres of land. Handwriting experts opinion confirmed that it is the writing of the petitioner/accused Sridharan who wrote the entries including Rajagopal Pillai which is not found place in the original Survey Land Register. (ii)Survey Land Register is a permanent record which shows the name of the owner of a land in a particular Resurvey Number as noted in Revenue https://hcservices.ecourts.gov.in/hcservices/ Records and in Survey department records, besides various other details. This register has been forged as paimash No.723/3 and 724 have been inserted against Resurvey No.20/1 and subsequently stroked off. (iii)Correlation Register which shows how the paimash numbers have been correlated to Resurvey Numbers are also forged to facilitate, petitioner/accused to fraudulently claim 3.80 acres of lands in Resurvey No.20/1 (Town Survey No.138) (iv) VAO A.R.Sridharan (Petitioner/Accused) had his father's name entered against Resurvey No.20/1 (Town Survey No.138) in the Adangal of Adambakkam Village when he was the VAO of the said village. The Adangals of Adambakkam Village, which were maintained by other VAOs show that the lands covered in Resurvey No.20/1 (Town Survey No.138) are vacant lands. It clearly proved that VAO A.R.Sridharan entered his father's name in the village accounts to fraudulently establish his claim on land covered in paimash No.723/3 and 724 as in correlated to Resurvey No.20/1 (Town Survey No.138) and as being his family's possession since his father's time. (v)VAO A.R.Sridharan (Petitioner/Accused) has also inserted his father's name in the Adangal of Adambakkam Village at a time when he was not the VAO of Adambakkam Village. The forgery committed by VAO A.R.Sridharan (Petitioner/Accused) clearly establishes that he entered his father's name in the village accounts to establish his claim on lands to Resurvey No.20/1 (Town Survey No.138) and as being his family's time. (vi)VAO A.R.Sridharan (Petitioner/Accused) has also entered his associates name G.L.Ahamed and Bhuvannammal, W/o L.Ammer in the Adangal in respect of lands (in Ward E, Block I) of Adambakkam Village, Resurvey No.20/1 (Town Survey No.122) to facilitate the accused G.L.Ahamed and Bhuvannammal to enable them to produce the same before the various authorities to fraudulently claim the said lands." 16. The original charge sheet was filed on 14.6.2002 and after obtaining permission to conduct further investigation, the case was further investigated and a composite charge sheet was filed on 14.10.2005 which has been taken on file in C.C.No.321 of 2002. https://hcservices.ecourts.gov.in/hcservices/ 17. It is further contended in the counter that the applicability of Section 195(1)(b)(i) of Cr.P.C. no longer survives since the composite charge sheet has been filed. 18. M/s. V.A.K. Engineering Company has filed an intervening petition contending that the petitioner herein with the connivance of other accused, has committed various offences such as forging and fabrication of Government Revenue Records and managed to obtain patta through the orders of the Assistant Settlement Officer, Thiruvannamalai. The petitioner has inserted his father's name in the Fair Land Register of Adambakkam Village by misusing his official position as Village Administrative Officer of the same village. 19. It is further stated that the petitioner is per se guilty of cheating land grabbing, fraud and forgery and based on its complaint to the Hon'ble Minister for Revenue which was forwarded to the Collector of Kancheepuram District, further action was taken. It is further stated that since the allegations of mala fide and wrecking out vengeance had been made against M/s. V.A.K. Engineering Company, it is entitled to intervene in this Criminal Original Petition and is having to oppose this petition. 20. Heard the submissions of Mr.Xavier Felix, learned counsel appearing for the petitioner and Mr.V.R.Balasubramanian, learned Additional Public Prosecutor and Mr.Habibullah Badsha, learned senior counsel for Mr.Abudu Kumar Rajarathinam, learned counsel appearing for the intervenor viz., M/s.VAK Engineering Private Limited, Alandur, Chennai. 21. It is submitted on behalf of the petitioner that M/s.VAK Engineering Company Private Limited has filed W.P.No.6197 of 1995 fora direction to the Commissioner of police Chennai City and Inspector of Police, St.Thomas Mount to take action on the complaint lodged by them and to render police aid for protection of their property admeasuring 8.75 Acres of land in T.S.No.121, 122 and 138 in Ward E Block I Alandur Municipality and this Court after hearing the submissions made on behalf of the petitioner and Respondents, has held that the petitioner therein i.e. M/s VAK Engineering Private Limited is entitled to make complaint to the Inspector of Police, St.Thomas Mount in case of any new trespass is made by the third parties and on such complaint the second Respondent is directed to take suitable action in accordance with law. It was also clarified that the orders passed in the writ petition will not affect the rights of the said parties under the civil proceedings. 22. It is further submitted by the learned counsel for the petitioner that by suppressing, it M/s.VAK Engineering Private Limited has given a petition to the Hon'ble Minister for Revenue, Government of Tamil Nadu who in turn, forwarded the same to the Collector of Kancheepuram District for further action and the https://hcservices.ecourts.gov.in/hcservices/ Collector of Kancheepuram District after getting report of his P.A. ( In the rank of Deputy Collector), has lodged a complaint to the CBCID. 23. The said procedure according to the learned counsel appearing for the petitioner is in gross violation of business Rules of Government of Tamil Nadu which has been framed under Article 166 of the Constitution of India and also Secretariat Manual. 24. It is further submitted by the learned counsel appearing for the petitioner that the District Collector, Kancheepuram ought not to have ordered discreet enquiry without placing the matter for reference such as scope of enquiry areas and officers to be visited officer conducting the enquiry. 25. The vires of the discreet enquiry conducted by the P.A. to the District Collector is also challenged stating that the said report is concocted, baseless and mala fide only to satisfy the request of M/s.VAK Engineering Company. 26. It is the submission of the learned counsel appearing for the petitioner that the Collector of Kancheepuram ought not to have initiated further action on the basis of the discreet enquiry report submitted by his P.A. and he cannot be deemed to be the complainant or informant in terms of Section 154(1) of Cr.P.C. It is further submitted that the complaint in any event is purely an abuse of process of law as the earlier private complaint given by M/s. Associated Trading Company on the same lines has been quashed by this Court which has been confirmed by the Hon'ble Supreme Court of India also. Since there is an illegality in the commencement of investigation, it cannot be cured under Section 465 of Cr.P.C. and the matter which is purely a civil in nature, is given the colour of criminality at the instance of M/s. VAK Engineering Private Limited with the sole aim of harassing the petitioner so that he can tow the lines of the said company. 27. Per contra, the learned Additional Public Prosecutor would submit that originally FIR registered in Crime No.4/1998 by CBCID, Chengalpattu East Crime was the subject matter of the challenge in Criminal O.P. 11431 of 2002 and the same was dismissed. Thereafter, after the case was taken on file in C.C.No.321of 2002 the petitioner filed an application under Section 239 of Cr.P.C. praying for discharge and the same was dismissed by the Court of Judicial Magistrate No.II, Poonamallee on 14.10.2004. The petitioner herein aggrieved by the dismissal of the same, has preferred a Revision in Crl.R.P.No.112 of 2005 before the Court of Principal Sessions Judge, Chengalpattu and the same was also dismissed on 25.4.2006. Therefore, the present O.P. filed by the petitioner amounts to second revision which is clearly barred under Section 397(3) of Cr.P.C. It is further submitted by the learned https://hcservices.ecourts.gov.in/hcservices/ Additional Public Prosecutor that the points raised by the petitioner in this Criminal O.P. relatable to the appreciation of materials collected during the investigation and the same cannot be challenged by filing this Criminal Original Petition. The merits and otherwise of the materials collected during investigation can be put into issue only during the course of trial. 28. It is also the submission of the learned Additional Public Prosecutor that mala fide on the part of the investigating agency cannot be raised now as the quashment of FIR on the ground of mala fide, has been rejected by this Court vide order dated 21.6.2002 in Crl.O.P.No.11431 of 2002. 29. It is the further submission of the learned Additional Public Prosecutor that the present Criminal Original Petition is purely an abuse of process of law and therefore, prayed for its dismissal. 30. The learned senior counsel appearing for the intervenor would submit that the present Criminal Original Petition amounts to second revision and therefore it is liable to be dismissed inlimine. It is the further submission of the learned senior counsel appearing for the intervenor that the petitioner herein has abused and misused his position such as Village Administrative Officer of Adambakkam Village and forged and fabricated the records so as to enable him to claim title and possession to the lands in question and truth or otherwise of the materials collected during investigation, can be thrashed out only during the course of trial and prayed for dismissal of the Criminal Original Petition. 31. The learned counsel appearing for the petitioner by way of reply would submit that the petition for discharge pertain to the charge sheet which was originally filed on 14.6.2002 and thereafter, after obtaining leave of the Court to conduct further investigation, the matter was investigated further by the prosecuting agency and they laid composite charge sheet on 14.10.2005, which is the subject matter of challenge in this Criminal Original Petition. Therefore, it is the submission of the learned counsel appearing for the petitioner that the present Criminal Original Petition will not amount to second revision and it is maintainable. 32. This Court carefully considered the submissions made by the learned counsel appearing for the respective parties. 33. The point for consideration is:- Whether the proceedings in C.C.No.321 of 2002 pending on the file of the Court of Judicial Magistrate No.II, Poonamallee are liable to be quashed as against the petitioner/A1.? https://hcservices.ecourts.gov.in/hcservices/ 34. The intervenor viz., M/s. VAK Engineering Company has submitted a petition to the Hon'ble Minister for Revenue, Government of Tamil Nadu on 6.6.1997. The then Hon'ble Minister for Revenue has made the following endorsement on the said petition: " Collector for Anna District" " may be examined and necessary action". The then Collector of Kancheepuram District viz., Mr.Rajamanickam, IAS, has directed his Personal Assistant (Local Administration), who is in the rank of Deputy Collector, to conduct enquiry and submit a report. Thereafter, the said official has conducted a detailed enquiry and submitted a report on 11.7.1997 stating that the petitioner herein has committed serious acts of fraud by fabricating and forging Government Revenue records. 35. Mr.Rajamanickam, IAS was succeeded by Mr.V.Irai Anbu, IAS, as Collector of Kancheepuram District and after perusing the said enquiry report, he referred the matter to the Department of Vigilance and Anti-corruption. He was also directed by the Government during December 1997, to prefer a complaint and accordingly he has preferred a complaint to ADGP, CBCID, Chennai for necessary criminal action against the petitioner. The ADGP, CBCID, directed the Chengalpattu East Unit, of CBCID to register a case against the petitioner. Hence, a case in Crime No.4/1998 was registered against the petitioner and two others. 36. The submission of the learned counsel appearing for the petitioner that without following the Government business Rules, the complaint lodged by Mr.V.Irai Anbu, IAS, Collector of Kancheepuram District is per se unsustainable, in the opinion of the Court lacks substance and merits. According to prosecution, serious acts of fraud and manipulation of Government Revenue Records had been committed by the petitioner and two others and the petitioner using his official position as the Village Administrative Officer of the Adambakkam Village had fabricated and manipulated the records to claim ownership of the lands admeasuring 3.80 Acres in the above said paimash/survey numbers at Adambakkam Village. It is not as if based on the endorsement made by the Hon'ble Minister for Revenue in the petition submitted by the intervenor, case has been straight away registered. In fact, the then Collector of Kancheepuram District Mr.Rajamanickam, IAS, has directed his P.A. who is in the rank of Deputy Collector to conduct an enquiry and the said official has submitted his report recommending penal action and also other measures. By that time Mr.Rajamanickam, IAS, got transferred and Mr.V.Irai Anbu, IAS, took charge of the Collector of Kancheepuram District, who after getting advice of the Government, has lodged a complaint to ADGP, CBCID, who in turn directed the local wing to register a case. 37. It is a settled position of law that anybody can set the criminal law in motion. In respect of the case on hand serious https://hcservices.ecourts.gov.in/hcservices/ allegations have been levelled against the petitioner and two others for fabrication and manipulation of Government Revenue Records and therefore, the Collector of Kancheepuram District has got the locus standi to lodge and maintain a complaint. 38. The submission made on behalf of the petitioner that the Government Business Rules and Guidelines pertaining to office administration have not been followed while ordering the discreet enquiry, cannot be sustained as whether the said Rules or Guidelines have been followed or not, can be elicited only at the time of the examination of the concerned witnesses. The above said Rules or Guidelines are silent with regard to the non-compliance and its effect on the investigation done by CBCID. In any event, it is the subject matter of trial and this Court is not expressing any opinion on that aspect. 39. As regards the submission made on behalf of the petitioner that some complaint of similar line preferred by the Associated Trading Company was quashed by this Court which was confirmed by the Apex Court and therefore the present complaint amounts to double jeopardy, this Court is of the view that the present proceedings has nothing to do with the private complaint lodged by Associated Trading Company. The prosecution has been launched by CBCID based on the complaint given by the Collector, Kancheepuram District, which pertains to fabrication and manipulation of Government Revenue Records said to have done by the petitioner and others and investigating agency after a detailed investigation, has laid a final report which has been taken on file and it is entirely a different proceedings. Therefore, the quashing of the private complaint filed by M/s. Associated Trading Company has nothing to do with the charge sheet which has been taken on file in C.C.No.321 of 2002 by the Court of Judicial Magistrate No.II, at Poonamallee. 40. The contention raised by the learned counsel appearing for the petitioner that as regards the title of the petitioner pertaining to the lands in question, civil proceedings has reached finality, lacks