Prayer :-Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., against the order passed by the learned Judicial Magistrate-I, Poonamallee in D.No.803 of 2010, dated 23.04.2010 and to set-aside the same.
ORDER
1. The history of the case are as follows:-
The second respondent herein / defacto complainant, viz., Mr.S.R.Y.Ankineedu Prasad lodged a complaint against the revision petitioner herein viz., Rajendra Raja, S/o.Bakthavatchala Raja, before the Commissioner of Police, Chennai Suburban Police Station, St.Thomas Mount, Chennai-6, stating that he is the Chairman of Amaravathi Cranes and Structural Private Limited. The said company had purchased barren lands measuring about 167.41 acres vide patta No.9, comprised in Survey Nos.489 to 514 etc., in Morai Village, Ambattur Taluk, Tiruvallur District for individual purpose, in the year 1965. From the year 2001 onwards, the revision petitioner herein, viz., Rajendra Raja and ten others are claiming ownership of the lands creating forged documents such as documents No.28 of 2007, at Sub Registrar Office, Ambattur, partition release deed No.3715 of 2009, dated 28.05.2009 and general power of attorney deed No.844 of 2009, dated 28.05.2009. Both the documents were registered on the file of Sub Registrar Office, Avadi, without any basic title deeds.
2. They also sold out some of the defacto complainant's company lands to many persons and cheated them of huge amounts. The said Rajendra Raja and his unlawful gang, apart from being involved in the above mentioned fabricated documents, have also trespassed into the defacto complainant's patta land with two JCB's with 20 rowdy elements, levelled the patta lands for illegal mining purpose and had also, intended to grab the patta lands with the help of some local elements. These activities disturbed the peace and tranquility in the village. Now, they are negotiating and doing "Katta Panchayat" and forcing the defacto complainant and his associates to sell their patta lands to them. Due to their illegal activities, the residents of the local area could not lead their life in a peaceful manner. The people, who purchased house sites in the area, from their hard earned money, lost belief and considered that their lands also would be taken possession of illegally by the above said persons through forged documents. The people of the area cannot perform their daily duty because of their activities, since there is a fear among them that the above miscreants would take possession of their house at any time through their illegal activities and thereby the public order in the area is badly affected. Hence, the defacto complainant had requested the Commissioner of Police to initiate action against Rajendra Raja and his associates, in accordance with law.
3. The said complaint was endorsed to the Assistant Commissioner of Police, CCB-1, vide Ref.C.No.545/COP/Camp/2009, dated 07.10.2009. The Assistant Commissioner of Police, CCB-1, endorsed it to the Inspector of Police, CCB-I, vide C.No.98/COP-Camp/Ac-CCB-1/2009, dated 07.10.2009.
4. The Inspector of Police, CCB-Team-I has registered a case in Crime No.122 of 2009, dated 21.10.2009, for the offence under Sections 120(B), 147, 447, 465, 471, 474, 420 and 506 (ii) r/w 34 IPC. The Inspector of Police had conducted enquiry and submitted the report, before the learned Judicial Magistrate-I, Poonamallee. The final report reads as follows:-
The defacto complainant, viz., Mr.S.R.Y.Ankineedu Prasad stated that the Amaravathi Cranes and Structural Private Limited is functioning at door No.10, Raman Street, T.Nagar, Chennai-17, and he is the Chairman of the Company. His brother S.R.Y.Padmanabha Prasad, his son, Satyajit Prasad, his daughter, Rajalakshmi and their sons Rameshwar Prasad, Harishwar Prasad, Divya Druga Prasad and Sangeetha Soundarrajan are Managing Directors of the Company. In the year 1965, the company had purchased lands at Morai Village, Ambattur Taluk, Tiruvallur District, an extent of about 167.41 acres, situated in Survey Nos.489 to 514, from various private individuals under registered sale deeds. After purchase, the company has been remitting tax to the Government departments. Under the circumstances, the said Thiru Rajendra Raja, S/o.Bakthavatsala Raja and his associates have joined with the local people and created forged documents of the company owned lands and had declared themselves as owner of the properties. A portion of the properties was sold to the public by creating sham and nominal sale deeds, after receiving sale considerations. Besides this, the said Rajendra Raja trespassed into the property and had illegally mined sand from the said land through 'JCB' vehicles.
5. The defacto complainant further stated that the said Amaravathi Company had purchased an extent of 167.41 acres of land in the year 1965 under 39 registered sale deeds. All these sale deeds were registered on the file of Poonamallee Sub-Registrar Office. The same was verified with the Investigation officer and he has come to the conclusion that 118.24 acres were sold to the company, but the defacto complainant, in his complaint, had stated that the company has purchased 167.41 acres of land. As such, the statement of the complainant is controversial to the facts. The Investigation Officer had verified revenue records on the file of District Collector, Tiruvallur; the settlement land register reveals that in the year 1976, one late C.Subramanian granted settlement patta, when he was the settlement Thasildar. A reading of the settlement patta shows that 163 acres of land have been assigned to the company by way of settlement patta. As per this settlement patta, four acres of excess land is being possessed by the defacto complainant. Therefore, there is a controversy even as per the settlement patta.
6. The said Amaravathi Company sold an extent of 45 acres of land to an in favour of one Madhavan, under the registered sale deed in the year 1979. Further, the company had sold 13 acres of land to one Ayeesha real estate. After selling out 58 acres of land, the company has no rights over the said property. As per original complaint, the company was said to own 167.41 acres of land. This is also controversial to the facts found in the said complaint. As per standard acre system, the company consists of 8 members viz., Chairman and Directors. As such, only 120 acres of land can be possessed by them. Already, the company has sold 58 acres. Therefore, as per standard acre scheme, 178 acres of land should have been possessed by the complainant but as per the original complaint they are possessing 167.41 acres of land. This fact also does not correlate with the statement made in the complaint.
7. The defacto complainant stated that the company had purchased lands from 39 private individuals under sale deeds, which were registered on the file of Sub Registrar Office, Poonamallee in the year 1965. To determine the veracity of the sale deed, a detailed enquiry was conducted, but proof regarding the sale of the land was not made out. The Investigation Officer had verified with the settlement land register and "A" register along with 39 registered sale deeds, but found that they are not corroborative with one another. The same was confirmed on the basis of the statement given by the officer to the Collector of Tiruvallur District. Besides this, the Tamil Nadu Government acquired an extent of 78.41 acres of land in the year 1990 and allotted them to 78 poor landless people. These lands are covered in Survey No.489 and 514. The Investigation Officer had sent two summons to the defacto complainant for enquiry and to come along with necessary documents including parent documents. But he did not appear. As such, the defacto complainant and his brother Padmanabha Prasad had not extended their co-operation in order to prove their complaint.
8. The Investigation Officer had stated in his report that the defacto complainant's company had alleged that they have purchased lands from 39 private individuals in the year 1965. On the strength of sale deed, the patta have to be issued in the name of the said company. Instead of that, the company got settlement patta in the year 1976 from one C.Subramanian, who was the settlement officer in the relevant time and it was he, who had issued patta in a hurried manner within the space of a day. The said Subramanian, settlement Tahsildar, had not followed the Tamil Nadu Estates Abolition and Raywarth Act, 1948, while issuing the settlement patta.
9. The Investigation Officer, after conducting proper enquiry and verification of revenue records of the collector office and after verification of sale deeds, which were registered on the file of Sub Registrar Office, Poonamalle and after conducting survey of local area and scrutiny of settlement patta and after taking into consideration the lands allotted to poor people by the Government, closed the complaint as mistake of facts. The said final report had been submitted to the learned Judicial Magistrate, Poonamalle.
10. On 10.02.2010, the said complaint had been transferred to CB CID for further investigation as per the order of the Director General of Police, in his proceedings No.R.C.No.20818/Crime 1(1)/2010. The Inspector of Police, Crime Branch CID, Metro Wing, Alandur, Chennai-16 had submitted a petition before the Judicial Magistrate-I, Poonamallee for re-investigation. The learned Magistrate had ordered re-investigation. The learned Magistrate had observed that two other counter complaints were given by Rajendra Raja against Ankineedu Prasad and others, which are registered in Crime Nos.6 of 2010 and 7 of 2010 for offence under Sections 468, 471 and 420 IPC, dated 13.01.2010. Another crime No.122 of 2009 was registered against Rajendra Raja and ten others. All the said three complaints, relate to one and the same transaction of land. Therefore, the learned Magistrate ordered re-investigation under Section 173(8) of Cr.P.C. This is the factual position of the case.
11. Aggrieved by the impugned order passed by the learned Magistrate, in D.No.803 of 2010, dated 23.04.2010, the above revision has been filed.
12. The learned counsel for the revision petitioner argued that the Judicial Magistrate-I, Poonamalle failed to note that with regard to the complaint, in the above said Crime No.122 of 2009, it was thoroughly investigated by the Crime branch Police who had subsequently referred the charge sheet as mistake of facts, but the learned judge without stating any reasons had ordered for re-investigation, which is against law. It was also pointed out that the learned Judicial Magistrate-I, has simply passed the order on the basis of the transfer order to the respondent police passed by the D.G.P of Tamil Nadu. It was also contended that the learned Judicial Magistrate-I failed to note that fresh investigation in the name of re-investigation into the same allegation would be a futile exercise, more particularly, when there was no adverse comment on concluded investigation and no fresh allegations had been made out. It was also pointed out that the learned judge erred in passing an order that the petition filed under 173(8) of Cr.P.C. was not in proper format prescribed in this regard. It was also contended that as per Criminal Procedure Code, further investigation can be ordered by the concerned learned Magistrate and re-investigation is unknown to law. It was also argued that the learned Judicial Magistrate failed to note that just because two other counter cases are pending as against the defacto complainant, the second respondent cannot seek re-investigation of another closed case, which had been filed by the defacto complainant.
13. The learned counsel further submitted written arguments and narrated the entire facts of the case:-
"1. The petitioner submits that originally all the lands in the Morai Village belongs to the petitioner's ancestors namely, Kumaravelu Razu, Bakthavachala Razhu and Seetharama Razhu who are shortriyumdar's/Inamdhars of that village and they were enjoying the property without any interruption and paid taxes to the concerned authority and they got both Waram rights (i.e.,Melwaram and Kudiwaram Rights).
2. The petitioner submits that they are cultivating the land with their direct supervision and enjoyed the same continuously till their life time and after their death, their generations enjoyed the entire property and now the petitioner is one of the persons who came from the above said generation.
3. The petitioner submits that the Inam estate of Morai Village in Ambattur Taluk, Thiruvallur District was notified and taken over by the Government under the Madras Estates (Abolition and Conversion into Ryotwari) Act 1948 (Madras Act XXVI of 1948 of 01.10.1951. Ryotwari Settlement has been introduced in this Estate in fasli 1970. The petitioner's ancestors got compensation from the Government for their Malvaram rights.
4. The petitioner submits that during the Second World War lands in the several villages in the District were occupied by the Military. In these estate Morai also, the Military occupied certain lands and accordingly these lands were requisitioned under the Defence of India Rules. At the time of requisitioning the lands within the ambit of the area requisitioned for the military was surveyed and were assigned survey numbers. So the petitioner's ancestors were not able to cultivate the lands in Morai and they kept it as a dry lands and again after the year 1946 certain extent of the land was de-requisitioned. After the estate of Morai was taken over by the Government, an initial Survey was done under the Provisions of Madras Act XXVI of 1948.
5. The petitioner submits that it is only after a lapse of 7 years, his ancestors and others send several representation about the wrong entries and the irregularities to the Government and then it was brought to the notice of the erstwhile Board of Revenue (Settlement of Estates) Chennai that the major area of agriculture lands occupied by the Military were not properly surveyed resulting in incorrect, correlation and consequential wrong Registry.
6. The petitioner submits that in order to separate the anomalies and discrepancies and irregularities, the board of Revenue set-aside the entire existing registry of the schedule lands Morai and Vellanoor Villages made at the settlement and directs a fresh denova final settlement enquiry after observing all the formalities under the Provisions of the Act XXVI of 1948 and the rules framed their under and further it gives liberty to parties interested to adduce such evidence as their deem fit in respect of their claims in the de-nova final settlement enquiry by its order in B1.5063/65, dated 11.09.1967.
7. The petitioner submits that the settlement authorities restored to a fresh initial Survey under the Estates Abolition Act 1948 which had created certain anomalies, since pattas have not been issued for several persons who are actually entitled to such pattas and some lands came to be treated as poramboke though previous to requisition they were treated as patta lands. In as much as, as the time the lands were requisitioned the titles have been verified and the Government have accepted the persons from whom the lands were so requisitioned in 1944 as the owners of the lands, equity and justice require that the tenure of the lands are maintained and their rights recognized under the Provisions of the Madras Act XXVI of 1948.
8. The petitioner submits that nearly after 9 years without any claim petition from any one, the settlement Tahsildar, Chengalpet-2, one C.Subramaniam conducted a denova enquiry on 23.07.1976 and on the very same day the enquiry was completed and an order of issuing patta was allowed on the very same day i.e., 23.07.1976 stating that notices were issued and served on the claimants as well as to the respondent who was a Tahsildar, Saidapet and they (claimant as well as the respondent) did not appear for enquiry and a Village Karnam was examined as claimant witness and one patta were issued to the claimants through the case numbers SRs.14/76, 15/76 and 16/76 and issued Ryotwari Pattas for an extent of 177 acres to the Amaravathy Crane structural company and 124.25 acres for other 56 persons. The Tahsildar was able to commence the enquiry, complete the same and orders were passed on the same day in the three cases granting Ryotwari Pattas for an extent of 385.32 acres.
28 persons including Amaravathy Cranes
9.The petitioner submits that it is really a pity to note that the Tahsildar was not able to know who were the claimants before him till he appended a schedule to his order please see title head of the order:-
"Name of the claimants, in para 5 of the said orders the settlement Tahsildar has specifically mentioned that notices was duly issued to the parties concerned and served and no one was present on the date of hearing. No documents were filed before him and marked as exhibits. The state was represented by the Tahsildar, Saidapet. He was also not present. He was not even allowed time to put-forth his objections. The foot note appended to these orders, under the head "list of exhibits as 'Nil'.
10. The petitioner submits that as per Madras Estates (Abolition & Conversion into Ryotwari Act, 1948 one who claims Ryotwari Patta should have either Kudivaram right or who are in possession of the property on or before 1948 but the defacto complainant got sale deeds in the year 1965 from bogus persons and obtained Ryotwari Patta in the year 1976 as against the provision of Ryotwari Act.
11. The petitioner submits that since all the lands in that Morai Village is dry vacant land and the petitioner and other family members enjoyed the same as a original Inamdars and they were not aware of all the above said facts and once defacto complainant tried to take possession of their property through bogus document, only then all the problems poured in by way of Civil and Criminal cases and even several writ petitions were filed before this Court seeking different reliefs and all these cases are pending till now and the petitioner also sent representation to the concerned authorities to set-aside the Tahsildar order and adjudicate the right of the petitioner dated 26.04.2010 and also sought for a fresh enquiry in these matters.
12. The petitioner submits that all the claims of the defacto complainant and others came through the impugned order passed by the settlement Tahsildar, Chengalpet-2, on behalf of Settlement Officer, Coimbatore. The petitioner further submits that all the posts of the Assistant Settlement Officers and Settlement Officers were abolished in G.O.P.No.139, Revenue Department (S.S.I.), dated 27.03.2001. In these Government Order Settlement Officer was appointed in Madras for the whole Sate.
13. The petitioner submits that, to get ryotwari patta from the Government the defacto complainant created 39 bogus sale deed to an extent of 120 acres from the bogus person and obtained Ryotwri patta in the year 1976 to an extent of 180 acres in a single day.
14. The petitioner submits that, all the sale deeds does not reflect how the vendors got the property but it simply said they are the owners of the property and they are in possession of the property. Even though the Survey Nos., Paimash Nos and patta numbers does not tally with each other. After complaint was lodged by the petitioner to the respondent police (i.e.) C.C.B., Chennai and in their investigation it was revealed that, the sale deeds were bogus one and all the revenue officials and settlement officer have stated that the defacto complainant obtained Ryotwari patta by way of fraud, coercion and undue influence.
15. The petitioner submits that, from the fact that Government officials came forward by way of filing counter before the Hon'ble High Court stating that fraud was played by the defacto complainant to get Royatwari patta in favour of him by citing the above said facts, it is clear that the defacto complainant does not have title over the property and all his rights came through bogus documents only.
16. The petitioner submits that their ancestors and other legal heirs of their ancestors were fighting nearly for the last 35 years as against the defacto complainant's fraudulent act by way of representation, and suits and further after gathering all the important documents the petitioner filed nearly 50 writ petitions challenging the order passed by the settlement Tahsildar who gave Ryotwari Patta to the defacto complainant and not only that after this, he filed more than 50 civil suits before the District Munsif Court, Ambattur to declare that the sale deed obtained by the defacto complainant is null and void and the defacto complainant also filed suit against the agent as well as against the petitioner.
17. The petitioner submits that, the list of writ petition is filed by the petitioner filed as document in the typed set and the list of civil suits pending before the District Munsif Court is filed as document in the typed set.
18. The petitioner submits that, he has filed documents to show how his ancestors are owners of the property situated at Morai and Vellanoor Villages and further he filed the order of the Board of Revenue as document to prove that the statement made by the petitioner is right one.
19. The petitioner submits that, when the litigations are pending before the Courts, the defacto complainant lodged a complaint in the year 2009 for the occurrence which happened in the year 2001 with regard to the above said property and the defacto complainant using his influence, was able to register a case as against the petitioner and others in Crime No.122 of 2009 for an alleged offence under Section 120(b), 147, 447, 465, 471, 474, 420 & 506 (ii) r/w 34 IPC and the petitioner was arrested along with some other accused and after that they were released on bail.
20. The petitioner submits that to bring out the truth, the petitioner also lodged a complaint as against the defacto complainant and other directors of the Company but their complaint was registered subsequently as counter cases in Crime No.6 and 7 of 2010 for an offence under Section 468, 471 and 420 IPC and the defacto complainant and others got anticipatory bails in that cases.
21. The petitioner submits that at the time of investigation before the Central Crime Branch Police, the petitioner produced several documents to prove his case but the defacto complainant never produced any single document before the respondent police and not only that, they refused to bring the original sale deeds which was challenged by the petitioner before the respondent police and not only that the respondent police has found that, the company was in existence only in paper and not in reality.
22. The petitioner submits that at the time of investigation the respondent police conducted an enquiry with various Government officials in various Government Departments and Revenue Departments and they found that, the defacto complainant is a fraudulent person and that they had created bogus documents to get an undue advantage by way of fraud and further the investigation officer sent several questionnaires to the various higher officials in the revenue department and their answers were also recorded by the respondent police i.e, CCB, Chennai.
23. The petitioner submits that after a very long investigation and on the basis of several materials and documents the case against the petitioner was closed as mistake of fact and notice was also sent to the defacto complainant by the learned Magistrate.
24. The petitioner submits that after this, the defacto complainant's son sent a representation to the DGP of Police and used their influence politically, officially and monetarily and they were able to transfer the investigation which was closed by the Central Crime Branch, Chennai who is the previous investigation agency to the present respondent police i.e., CBCID and further they were able to use their influence to transfer the petitioner case to the present respondent police.
25. The petitioner submits that before transferring his case the DGP of Police had sought a note from the Commissioner of Police and accordingly the Commissioner of Police has also sent a detailed report to the DGP of Police through his letter vide No.C.No.062/COP/Camp/10, dated 28.01.2010 stating the entire above true facts and the same was received by the DGP of Police. The same was filed as document in the typed set.
26. The petitioner submits that in the office of the DGP of Police, an endorsement was made to the effect that "Madam the report may be perused, we may transfer the cases to CBCID" and it is signed on 09.02.2010. As per the endorsement even the report submitted by the Commissioner of Police was not at all perused either by the signed person or by the D.G.P. of Police and the same was filed as document in the typed set and without any material and only on the basis of the above endorsement, the DGP transferred the cases to the CBCID.
27. The DGP of Police transferred the closed case in Crime No.122 of 2009 to the CBCID without any additional materials or documents and further, the DGP of Police not at all applied her mind before transferring the closed case to the present respondent police and acted illegally on behalf of the defacto complainant for the reason best known to her and the order R.C.No.20813, Crime No.1 of 2010, dated 10.02.2010 was filed as document with regard to the same.
28.The petitioner submits that as per order of the DGP of Police the CD files were given to the CBCID and the present investigation officer without going through the CD files and other relevant documents, gave a letter to the Judicial Magistrate-1, Poonamallee seeking a prayer to reopen the closed case and in that letter he cited only one reason to reopen the case in Crime No.122 of 2009 as the Director General of Police, Tamil Nadu has ordered for reinvestigation of the case after getting permission of the jurisdiction Court. So, he asked the learned Judicial Magistrate to reopen the case on 12.04.2010.
29. The petitioner submits that the learned Judicial Magistrate-1, also closed her eyes and forget to discharge her duty legally and passed the impugned order by simply stating that,
"In pursuance of the order of Director General of Police, Tamil Nadu and also considering the facts and circumstances of this case, this Court is inclined to grant permission to the CBCID Metro Wing, Alandur, Chennai-16, to re-investigate this case under Section 173(8) Cr.P.C., and file your report within a period of three months from the date of receipt of this order" and as against this order only the petitioner have preferred a revision before this Court.
30. The petitioner submits that the grounds in the revision petition may be taken as part and parcel of this written submission.
31. The petitioner submits that the learned Judicial Magistrate failed to see that no documents or materials were placed before her to reopen the case by the respondent police and further the respondent police not at all stated in his letter that, he got any fresh materials or documents to reopen and re investigate the case and further he never filed any documents or any materials along with this letter dated 12.04.2010 to seek reopening the case.
32. Thee petitioner submits that, the learned Judicial Magistrate also failed to note that no documents or materials were placed before her and further, the respondent police was seeking only to reopen the case and not for reinvestigation the case but in spite of it, the learned Judicial Magistrate exceeded the limit and pass an impugned order illegally for the reason best known to her.
33. The petitioner submits that the learned Judicial Magistrate was not at all aware of the law stated under Section 173(8) Cr.P.C. As per under Section 173(8) Cr.P.C. state that,
"Nothing this Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-Section (2) has been forwarded to the Magistrate and where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary evidence, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall as far as may be apply in relation to such report or reports as they apply in relation to a report forward under Sub-Section (2)" as per this criminal procedure code if there is any additional evidence or documents or materials available with the respondent police and they should place it before the learned Magistrate and further they should state what are all the circumstances which made them to seek for any further investigation and then only the learned Judicial Magistrate should apply her mind independently and discharge her duties as per criminal procedure code and pass orders judicially but in this case, nothing has happened as per law and from DGP to the Judicial Magistrate all of them are acting in a biased manner and passed illegal order.
34. The petitioner submits that, before passing any order for reopen, the re-investigation of the case does not at all come into picture and further re-investigation is unknown to law and these facts were not at all kept in mind by the learned Judicial Magistrate before passing the impugned illegal order.
35. The petitioner submits that the learned Judicial Magistrate has not at all gone through the final report filed by the CCB respondent police and further she has not at all gone into the merits of the case and in turn she passed an impugned order.
36. The petitioner submits that, the CCB Police investigated the case fully and they collected material documents, evidences and witness statements from various person and questionnaires from the Government officials and thereafter only they came to the conclusion that, the defacto complainant lodged a false complaint and not only that he is the culprit and who got Ryotwari patta from the Government fraudulently and then only they closed the case as mistake of fact.
37. The petitioner submit that fresh investigation into same allegations would be a futile exercise more particularly when there was no adverse comment on concluded investigation by Central Crime Branch and a denova investigation would result in delay of justice and not only that it is also a great harassment to the petitioner.
With regard to the above submissions, the petitioner likes to submit the following Hon'be Apex Court as well as High Court judgments before this Court to render justice:-
38. The petitioner submits that our Hon'ble Supreme Court in 2011 (3) SCC 758 in Ashok KUmar Tode's case clearly held that,
"the fresh investigation into the same allegations would be a futile exercise and more particularly when there was no adverse comments on concluded investigation and further whether transfer of investigation from one agency to other is warranted one and it further discussed about the duty and responsibility of law enforcement and administrative agency to ensure / protect the innocent persons. As per this judgment, our Hon'ble Apex Court has clearly held that the fresh investigation into the same allegations would be a futile exercise.
39. The petitioner submits that our Hon'ble High Court 2011 (2) MWN (Crl) 122 in Lakshmi's case has clearly held that,
"once investigation is completed then the jurisdiction vest with the judiciary it is for the Magistrate to pass judicial order as per power conferred under Cr.P.C and not for Government to exercise its executive power for transferring investigation to other agency and the same amounts to reinvestigation of matter already settled judicially by a competent court.
40. The petitioner submits that, our Hon'ble Apex Court in 2010 (12) SCC 29 in Sivan Moorthy's case it was clearly held that,
"As per 173(8) only further investigation can be made and not a re-investigation and this concept was reiterated after following various apex Court judgments.
41. The petitioner submits that, our Hon'ble Apex Court 2010(9) SCC 171 has held that no reason was indicated in impugned order necessitating change of investigation agency and hence the impugned order for transferring the case is bad in law and further distinguish the meaning of further investigation and re-investigation and further it was held that the Court alone would decide whether the investigation is to be done by any other agency and no opinion from DGP officer would have been sought therefore.
42. The petitioner submits that our Hon'ble High Court in 2010(2)MWN (Crl) 263 in Vidya's case, it was clearly held that,
"An order of fresh investigation is not proper and any such order would vitiate fundamental rights of the accused under Article 21 of the Constitution"
43. The petitioner submits that our Hon'ble Apex Court in 2009(7) SCC 685 in Kishanlal case our Apex Court clearly held that Sec.173(8) can be invoked under three circumstances
i) When new facts come to light or
ii) When Superior Courts find that the investigation is tinted and unfair or
iii) When Superior Courts find that, it is required in the ends of justice.
And further it was held that the Magistrate order for further investigation is an unwarranted one and not only that the powers and duties of the Magistrate under Section 173 (8) is clearly stated by our Apex Court. In that above case, our Apex Court have also stated what are all the rights of the complainant as per Cr.P.C., When a case was closed as mistake of fact and he should get remedy as per law and not otherwise.
44. The petitioner submits that our Hon'ble Apex Court in 2008(5) SCC 413 in Ramachandran case our Apex Court held that,
"Fresh investigation or reinvestigation cannot be permitted under Section 173(8) and further it was held that, in choice of investigation agency in further investigation can be decided by High Court only".
45. The petitioner submits that, our Hon'bnle Apex Court in 2006(4) SCC 359 in Minukumari and another case, it was clearly held that
Our Apex Court elaborately discussed the powers of the Magistrate under Section 173, 193, 201 & 202 Cr.P.C.
46. The petitioner submits that, our Hon'ble High Court in 1999(1) MWN (Crl.)306 it was clearly held that,
"Memo filed by the police for further investigation merely on the direction of Superintendent of Police and no fresh facts had come to light then the permission of Magistrate cannot be valid in law."
47. The petitioner submit that our Hon'ble High Court 2006 (46) AIC 28 is clearly held that,
"The proper remedy for the defacto complainant was to file an appeal or revision as against Magistrate accepting final report and the order of transferring investigation from one agency to another agent is an illegal one."
48. From the above settled cases, it becomes clear that the re-investigation is unknown to law and further investigation cannot be permitted without any new materials or evidence and further fresh investigation into the same allegation is a futile exercise and not only that, the powers of the Magistrate was limited only, while deciding the petition for further investigation and merely on the direction of the D.G.P. of Police or Superintendent of Police and no fresh facts have come to light the order of the Magistrate held cannot be valid in law."
14. The learned counsel for the revision petitioner had filed additional typed set of papers viz., (i) order passed by the Board of Revenue on 11.09.1967. The said order reveals the extent of land, classification of land, possession of land etc., As such, it was pointed out that the contention raised by the defacto complainant, viz., Thiru. S.R.Y.Ankineedu Prasad is not maintainable. The settlement Tahsildar order dated 23.07.1976 disclosed that the settlement patta was issued in favour of Amaravathi Crane Structural Limited. This was an irregular proceeding passed by the settlement Tahsildar, Subramanian. The same was confirmed by the Investigation Officer i.e., the Inspector of Police, attached to the Central Crime Branch, St.Thomas Mount, Chennai.16.
15. The learned counsel further submitted that about 52 writ petitions are pending and 10 civil revision petition (N.P.D) are pending on the file of this Court, besides this, the revision petitioner has filed 54 civil suits on the file of District Munsif Court, Ambattur. Out of 54 cases, about 13 cases are against the defacto complainant's company. The learned counsel submitted that various writ proceedings, civil revision petitions and civil suits are pending over the said lands regarding ownership, possession and enjoyment. Under the circumstances, the re-investigation is not required.
16. The learned counsel for the revision petitioner has cited the following judgments:-
(i) ASHOK KUMAR TODI v. KISHWAR JAHAN reported in (2011) 3 SCC 758
"Penal Code, 1860 - Ss.306 and 506 r/w S.120-B-Inter-religious/inter-class marriage-Abetment of suicide and criminal intimidation of one spouse - Interference with investigation already concluded - Unsustainability - CBI investigation ordered by single judge of High Court and pursuant thereto charge-sheet filed under S.120-B r/w Ss.306 and 506 - Investigation transferred to CBI due to nexus alleged between police officials and girl's relatives -In appeal Division Bench directing CBI to start investigation afresh and register a case of murder against accused - Sustainability of - Held, once an FIR had been registered lawfully and investigation had been conducted, leading to filing of charge-sheet before competent court of law for trial of accused persons, there was absolutely no justifiable reason for Division Bench to direct CBI to start investigation afresh after three years - Fresh investigation into same allegations would be a futile exercise more particularly when there was no adverse comment on concluded investigation by CBI - De nova investigation would result in delay of justice - Single Judges' orders, restored - Any action against officers of the State Police Department, as directed by Single Judge, to be in accordance with law and service conditions applicable to them and after affording them opportunity of hearing - Criminal Procedure Code, 1973 - Ss.173(8) and (2) and 156 - Interference with concluded investigation and ordering fresh investigation - When not warranted."
(ii) V.Lakshmi v. the Government of Tamil Nadu reported in 2011 (2) MWN (Cr.) 122
"CRIMINAL PROCEDURE CODE, 1973 (2 of 1974), Sections 173(2), 173(8), 190(1) & 202(1) - DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946, (25 OF 1946), Sections 5 and 6 - INDIAN PENAL CODE, 1860 (45 of 1860), Sections 420 & 511 - Transfer of Investigation - G.O. transferring case registered by police against petitioners to CBI - Challenge to impugned G.O.-Petitioners, Deputy Warden (Ladies Hostel) and Maintenance Supervisor of Medical College allegedly induced student promising admission in College and attempted to receive huge amount - Case registered under Section 420 & 511, IPC - Investigation conducted and final report filed before Magistrate, who after taking case on file issued summons to accused posting case on 06.08.2010 - Impugned G.O. came to be passed on 25.06.2010 when investigation already completed - When investigation was completed by Police, Government certainly cannot have power of referring investigation to CBI by giving consent under Section 6 - Once investigation is completed, jurisdiction vests with judiciary and it is for Magistrate to pass judicial order as per powers conferred under Cr.P.C. and not for Government to exercise its executive power for transferring investigation to CBI - Same amounts to reinvestigation of matter already settled judicially by a Competent Court - If really Government is not satisfied with quantum of punishment imposed, it is for Government to take appropriate steps by filing Appeal and Revision - And, only during pendency of such Appeal/Revision, it is for Appellate / Revisional Court to take note of situation for purpose of deciding whether any further investigation is required - And, in such event investigation can always be ordered - And, it will be open to executive to exercise its power under DSPE Act - Therefore, held, impugned G.O. liable to be set aside for want of jurisdiction."
(iii) SIVANMOORTHY v STATE reported in (2010) 12 SCC 29
"Criminal Procedure Code, 1973 - Ss.173(8) and (2)-Scope and applicability of S.173(8)-Held, although S.173(8) refers to the term "further investigation", however, the term has not be defined in Cr.P.C-It must therefore depend on the facts of each case as culled from record-Nevertheless, reiterated, further investigation and not a re-investigation can be made - Nature of investigation whether amounts to a further investigation or a reinvestigation has to be seen from nature of investigation conducted - On facts, investigation conducted by PW 27 (SP, CB CID), on directions of High Court, was in the nature of further investigation - Hence, conviction of appellant-accused, by looking into evidence collected by PW27 based on such investigation, held, proper - Penal Code, 1860, Ss.302, 148 and 341."
(iv) S.VIDHYA v. STATE BY DEPUTY SUPERINTENDENT OF POLICE, KANCHEEPURAM DISTRICT AND OTHERS reported in 2010 (2) MWN (cr.)263
"INVESTIGATION-DNA test - Requiring Accused to submit himself to DNA test, if, would amount to testimonial compulsion - DNA testing has been found to be scientifically accurate - In view of ratio laid down by Constitutional Bench of Apex Court, held, requiring accused to submit himself to a DNA Test would not amount to testimonial compulsion-However, in circumstances of case it would be open for trial Court to consider whether conduct of DNA Test would serve interest of justice."
(v) KISHAN LAL V. DHARMENDRA BAFNA reported in (2009) 7 SCC 685
"A. Criminal Procedure Code, 1973 - Ss.173(8) and 482 - Further investigation - Nature and scope - Instances When S.173(8) may be invoked - Interference by Courts - When permissible - Held, S.173(8) can be invoked (1) When new facts come to light or (2) when superior Courts find that the investigation is tainted and/or unfair or (3) when superior Courts find that it is required in the ends of justice - Practice and Procedure-Equiry-Ends of justice-Further investigation.
B.Criminal Procedure Code, 1973-Ss.397 and 173(8) - Revision - Interference in Magistrate's discretionary power under S.173(8) - When permissible - Further investigation - When not warranted - Investigation being done by two independent agencies - Magistrate not finding investigating officers biased, rather finding them as responsible police officers - Complainant not specifying the subjects and hidden truths."
17. The learned counsel for the second respondent / defacto complainant argued that the revision petitioner and his henchmen had attempted to trespass into the defacto complainant's property, without any valid documents. The defacto complainant's company had purchased the property in the year 1965. In order to prove his title, the settlement pattas were issued in the name of defacto complainant's company and there is entry in the settlement land register, 'A' register and other connected records. Besides this, the defacto complainant also possesses registered sale deeds and tax remitted to the Government for enjoyment of landed properties.
18. The learned counsel for the second respondent has filed detailed statement regarding how the second respondent acquired the land and is enjoying the same and has provided a list of dates and events in the relevant time:-
DATES AND EVENTS
26.10.1944
An extent of 1743 acres were taken over by the Collector, Chengalpet under Rule 75 A (1) of the Defence of India Rules during the Second World War.
After the Second World War, the lands were derequisitioned to the respective land owners.
25.01.1965
For sale deeds in Doc.Nos.131, 145 to 147/1965
01.02.1965
Seven sale deeds in Doc.Nos.173 to 179 of 1965
19.02.1965
Four sale deeds in Doc.Nos.297 to 300 of 1965
23.02.1965
Five sale deeds in Doc.Nos.342 to 346 of 1965
06.03.1965
One sale deed in Doc.No.455 of 1965
17.03.1965
Three sale deeds in Doc.Nso.576 to 578 of 1965
23.03.1965
Seven sale deeds in Doc.Nso.645 to 651 of 1965
23.04.1965
Four sale deeds in Doc.Nos.931 to 934 of 1965
07.05.1965
four sale deeds in Doc.Nso.1105 of 1108 of 1965
Under the above said 39 sale deeds, an extent of more than 130 acres had been purchased by M/s.Amaravathy Cranes and Structurals Ltd.,
11.09.1967
The Board of Revenue in SE-B1/5063/65 took decision to set-aside the existing Registry made at the time of settlement in respect of the lands and ordered to conduct denova final settlement enquiry in compliance with Act XXVI of 1948.
19.05.1976
Suo motu enquiry was taken up for grant of Ryotwari patta. The settlement Tahsildar, Chengalpattu conducted enquiry and passed an order to include the lands mentioned in the Schedule of the order to grant ryotwari patta on the basis of the claimants' right under old Ryotwari holdings as well as the purchase of inheritance.
23.07.1976
The settlement Tahsildar, Chengalpet passed an order in S.R.No.14/76/Sec.11(1)/XXVI/48/SDT to grant Ryotwari patta in respect of
Survey No.489/1-0.03 acre
Survey No.489/2-2.96 acres
Survey No.489/3-0.12 acre
Survey No.489/4-0.04 acre
Survey No.489/5-0.50 acre
Survey No.489/6-10 acres
Survey No.489/7-1.84 acres
Survey No.489/9-0.60 acre
Survey No.489/10-252 acres
Survey No.491/1-0.03 acre
Survey No.491/3-2.19 acres
Survey No.491/6-1.20 acres
Survey No.494/2-4.43 acres
Survey No.494/3-1.49 acres
Survey No.498/8-0.70 acres
04.09.1992
Land Ceiling proceedings were cleared the Gazette Notification was issued against the company. The complainant company filed a revision before the Land Commissioner Madras and it was dismissed. The appeal filed before the Land Tribunal in L.T.C.M.A.No.86 of 1991 was allowed and remanded.
21.10.2009
Crime No.122 of 2009 (CCB Chennai Sub Urban) was registered against one Rajendra Raja and others for the offences under Sections 120 B, 147, 447, 465, 471, 474, 420, 506 (ii) r/w 34 IPC on the complaint of the complainant company.
13.01.2010
On the complaint of the revision petitioner Rajendra Raja, a case in Crime No.6 of 2010 (CCB, Chennai, Sub Urban) was registered against Ankineedu Prasad and others under Sections 468, 471 and 420 IPC.
12.01.2010
On the complaint of revision petitioner Rajendra Raja, a case in Crime No.7 of 2010 (CCB Chennai, Sub Urban) was registered against Padmanabha Prasad and other under Sections 468, 471 and 420 IPC.
01.02.2010
Inspector of Police, CCB Chennai Sub Urban hurriedly closed the case in Crime No.122 of 2009 has "mistake of fact" in R.C.S.No.1 of 2010 even without conducting the investigation in the manner known to law.
10.02.2010
The Director General of Police, Tamil Nadu, Chennai by an order in R.C.No.20813/Crime 1(1)/2010 transferred the investigation in Crime No.122 of 2010, Crime No.6 of 2010 and Crime No.7 of 2010 to the Crime Branch CID for "further investigation".
13.04.2010
CB CID has filed a petition under Section 173 (8) Crl.P.C. before the Judicial Magistrate-I, Poonamalli seeking formal permission for further investigation in Crime No.122 of 2009.
23.04.2010
Learned Judicial Magistrate-I, Poonamalli has passed an order granting permission to the CBCID to conduct further investigation in Crime No.122 of 2009 under Section 173 (8) Crl.P.C.
30.09.2011
After one year and five months, the revision petitioner Rajendra Raja (accused in Crime No.122 of 2009) has filed this Crl.R.C.No.1411 of 2011 challenging the order dated 23.04.2010 made in D.No.803 of 2001 passed by the learned Judicial Magistrate-I, Poonamalli.
The learned counsel for the second respondent submitted that the order dated 23.04.2010 granting permission under Section 173 (8) Crl.P.C. is an interlocutory in nature, therefore, criminal revision is not maintainable in view of the bar under Section 297 (2) Crl.P.C.
19. The learned counsel for the second respondent had cited the below mentioned judgments in support of his case:-
(i) Madhu Limaye v. State of Maharashtra reported in AIR 1978 SUPREME COURT 47
"12. Ordinarily and generally the expression "interlocutory order" has been understood and taken to mean as a converse of the term "final order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606:-
".... a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required." In para 1607 it is said:
"In general a judgment or order which determines the principle matter in question is termed "final".
"An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals."
13..... But in our judgment such an interruption and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by S.397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chap.XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code... that although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (AIR 1949 FC1) (supra), but, yet it may not be an interlocutory order - pure or simple. Some kinds of order may falling between the two. By a rule of harmonious construction, we think that the bar in sub-s (2) of S.397 is not meant to be attracted to such kinds of intermediate orders... We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-sec.(2) of S.397. In our opinion it must be taken to be an order of the type falling in the middle course.
(ii) Emperor v. Khwaja Nazir Ahmad reported in AIR (32) 1945 PRIVY COUNCIL
"........ In their Lordship's opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the Police, just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 Criminal P.C. to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that S.561A has given increased powers to the Court which it did not possess before that Section was enacted. But this is not so. The Section given no new powers. It only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam, J, may well have decided rightly in AIR 1938 Mad.129.
(iii) RAM LAL NARANG v. STATE (DELHI ADMINISTRATION) reported in (1979) 2 SCC 322
"Penal Code, 1860-Section 120-B-Two conspiracies - First one forming part of the subsequent larger conspiracy which came to light on receipt of fresh information - Some conspirators common but the object of conspiracy in the two cases not the same - Determination of whether the two conspiracies identical or not - Substance of the matter to be seen - Held on facts, the conspiracies not identical.
Criminal Procedure Code, 1898 - Sections 173, 156 & 190 - Statutory rights of police to further investigate after submitting report under Section 173(1) and where Magistrate has already taken cognizance of the offence, upheld Final discretion to take fresh cognizance being on the Magistrate, abuse of power by the police cannot be alleged - Police should ordinarily seek formal permission of Court for fresh investigation - Prosecuting authority should move for trying the two cases together - But in absence of any malice, failure on its part would not render the investigation illegal.
(iv) RAM LAL NARANG v. STATE (DELHI ADMINISTRATION) reported in (197() 2 SCC 322
"We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.
(v) SRI BHAGWAN SAMARDHA SREEPADA VALLABHA VENKATA VISHWANANDHA MAHRAJ reported in (1999) 5 SCC 740
"10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Lal Narang v. State (delhi Admn.) . The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the Court and seek formal permission to make further investigation.
(vi) Hasanbhai Valibhai Qureshi v. State of Gujarat and others reported in 2004 Crl.L.J.2018
"The hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth. Sub-section (8) of S.173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the moreso, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted. It would ordinarily be desirable that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice.
(vii) Ranjeet Singh and others vs. State of U.P. and another reported in 2000 CRI.L.J.2738
"83. The latest case law of the Hon'ble Supreme Court in Shri Bhagwan (sura) has already been noted above. It has been held that there is nothing in Sec.173(8) to suggest that the Court is obliged to hear the accused before any direction of further investigation is made. "Causing of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard.
84. It is also to be noted here that the Hon.Mr.Justice J.C.Gupta in Karan Singh v. State, 1997 ACC 163 (1997 AIHC 376) Hon.Mr.Justice R.R.K.Trivedi in S.C.Misra v.State, 1996, AWC (supp) , 318. Hon.Mr.Justice K.Narain in S.K.Sharma reported in 1994 ACC, 748 and Hon.N.B.Asthana in Anil Kumar V.State, 1994, ACC 535 have held that the Magistrate is not required under the law to hear an accused before rejecting a final report submitted by the Investigating Officer or while hearing an informant in opposition of filing of such final report.
85. In view of the aforesaid observations there is absolutely no scope to uphold the argument of the learned counsel for the petitioners that the accused should be afforded an opportunity by the Magistrate / Court before accepting or rejecting a final report submitted by the police after investigation of a First Information Report. The learned Single Judge's view in Gajendra Kumar Agarwal 1991 ACC 313 does not lay down the correct law and is hereby over ruled."
(viii) Hemant Dhasmana Vs. CBI reported in (2001) 7 SCC 536
"16. Although the said sub-section does not, in specific terms, mention about the powers of the Court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. When any such order is passed by a Court which has the jurisdiction to do so, it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation, the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back on that track. If they come to the same conclusion, it is of added advantage to the persons against whom the allegations were made, and if the allegations are found false again the complainant would be in trouble. So from any point of view the Special Judge's direction would be of advantage for the ends of justice. It is too premature for the High Court to predict that the investigating officer would not be able to collect any further material at all. That is an area which should have been left to the investigating officer to survey and recheck."
20. The learned State Public Prosecutor submits that the revision petitioner as well as second respondent do not have valid title deeds over the said properties. As per Government revenue records, the properties have been classified as Morai Poramboke land, and only cattles are grazing over the land. bot the respondents are not in physical possession of the properties. The claims of both parties are not bonafide. The learned State Public Prosecutor further submits that the learned Judicial Magistrate, Poonamallee ordered for further enquiry to determine the veracity of the documents which are in possession of the revision petitioner and the second respondent herein. Therefore, the learned Magistrate's order is an appropriate one. If further enquiry is conducted on the said complaint, the interests of both the parties will not be prejudiced. The Government records have not been mutated either in favour of the revision petitioner or in favour of the second respondent herein. Both parties have created sale deeds in favour of the third parties over the said properties. Some persons have trespassed into the property and their possession is an unlawful one. If the first respondent conducts further enquiry as per learned Magistrate's order, the revenue authorities and other Government departments would also extend their co-operation to determine the genuinity of the documents which are being possessed by both the parties. Hence, the learned Public Prosecutor prays to dismiss the said revision and permit the first respondent to conduct further enquiry.
21. On verifying the entire facts of the case and on perusing the impugned order of the learned Magistrate, arguments advanced by the learned counsels on either side, and on perusing the citations submitted by the learned counsels, this Court is of the considered view that:-
(i) Each of the parties are claiming civil rights over the said properties and both parties have levelled criminal case against each other. It is seen that the revision petitioner, viz., Rajendra Raja had lodged a complaint against the second respondent / Mr.S.R.Y.Ankineedu Prasad and that the said complaints had been registered on the file of Central Crime Branch in Crime No.6 of 2010 and Crime No.7 of 2010 for alleged offence under Sections 468, 471 and 420 IPC. Likewise, the second respondent / Mr.S.R.Y.Ankineedu Prasad had lodged a criminal complaint against the revision petitioner viz., Rajendra Raja. The said complaint had been registered in Crime No.122 of 2009 for the alleged offence under Sections 120(B), 147, 447, 465, 471, 474, 420 and 506 (ii) r/w 34 IPC on the file of Central Crime Branch.
(ii) The above mentioned three complaints had been registered by the first respondent herein without obtaining legal opinion from the Government Pleader as well as Public Prosecutor, since several issues have arisen in the said case, which has to be analyzed carefully by the learned Government Pleader as well as learned Public Prosecutor, on the basis of available records. This Court further views that in this case, a second opinion, other than that of the Government Pleader and Public Prosecutor of the District, has to be obtained from the learned State Public Prosecutor and learned Advocate General of the State, as it is necessary to correctly ascertain the legal implications regarding the rightful holder of the said property.
(iii) About 46 writ petitions are pending on the file of this Court for the same property dispute. In the said writ petitions, numerous third parties have also extended their claim over the said properties.
(iv) About 10 civil revision petitions (NPD) are pending on the file of this Court regarding the same property dispute, and in each of the said revision petition, the vrious petitioners have claimed civil rights, over the said property.
(v) The revision petitioner, viz., Rajendra Raja has filed 54 civil suits (title suit against the second respondent herein and others on the file of District Munsif Court, Ambattur.
(vi) The first respondent had duly conducted enquiry and submitted his report before the Judicial Magistrate-I, Poonamallee, stating that the complaint as filed by the said Mr.S.R.Y.Ankineedu Prasad was closed as mistake of facts. The same was recorded by the learned Magistrate.
(vii) The Director General of Police had not disclosed any reasons justifying omission for the earlier findings of the first respondent, viz., Inspector of Police, CBCID, Metro Wing, and had also not given any reasons for ordering further investigation.
(viii) The learned Judicial Magistrate-I, Poonamallee had also not advanced any reasons as to why, a reinvestigation was ordered.
22. On considering the above discussions, arguments of the learned counsels on either side, citations put-forth by them and this Courts opinion on the points listed as (i) to (viii), this Court directs that the order passed in D.No.803 of 2010, on the file of Judicial Magistrate-I, Poonamallee, dated 23.04.2010 be kept at abeyance till disposal of all the civil cases and writ proceedings which are pending on the file of this Court and District Munsif Court, Ambattur.
23. In the result, the above Criminal Revision is disposed of with the above observations. Consequently, the order passed in D.No.803 of 2010, on the file of Judicial Magistrate-I, Poonamallee, dated 23.04.2010 is kept at abeyance, till disposal of all the writ proceedings, civil revision petitions, pending before this Court and till disposal of the civil suits pending on the file of the District Munsif Court, Ambattur. Consequently, connected miscellaneous petitions are closed. Accordingly ordered.