(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C.,/Section 528 of BNSS, 2023, to call for the records relating to P.R.C.No.16 of 2025 on the file of the learned District Munsif-cum- Judicial Magistrate, Thiruporur, and quash the summons issued to the petitioner in the said proceedings, as the same have been issued prematurely before the protest petition was taken on file and without any order of cognizance.)

1. The prayer in this Criminal Original Petition is to quash the proceedings in P.R.C.No.16 of 2025, on the file of the learned District Munsif-cum-Judicial Magistrate, Thiruporur.

2. Heard Mr.Ma.Gouthaman, learned counsel for the petitioner; Mr.M.Mohamed Riyaz, learned Government Advocate (Criminal Side) for the first respondent; and Mr.P.M.Subramanian, learned Senior Counsel for the second respondent.

3. The brief facts leading to the filing of the present petition are that the second respondent/de facto complainant lodged a complaint to the effect that he had purchased certain land at Assissi Nagar, Pudupakkam, from his retirement benefits and established religious/charitable institutions at the site. The purchase was made in the name of his wife. However, taking advantage of his serious ill-health and by practising fraud on his wife, the first accused, being his daughter, along with others, created false documents in the form of a settlement deed, trespassed into the property, caused damage to the property, and also caused a deadly assault on the second respondent.

4. On the strength of the allegations, a case in Crime No.434 of 2023 was registered on 11.12.2023 for alleged offences under Sections 147, 447, 294(b), 323 and 506(i) of the Indian Penal Code. After investigation, the Inspector of Police, Kelambakkam Police Station, filed a Final Report on 09.04.2024, holding that the allegations in the complaint were not made out, closing the case as a ‘mistake of fact’, and serving RCS No.2 of 2024 on the de facto complainant. On receipt of the RCS notice, it appears that the de facto complainant filed a protest petition on 11.09.2024, making detailed allegations that the offences were not made out and praying that the protest petition be taken cognisance of as a complaint for offences under Sections 147, 447, 294(b), 307, 323, 380, 386, 406, 449 and 506(i) of the Indian Penal Code.

5. Pursuant thereto, a sworn statement was recorded on 05.02.2025, in which the second respondent herein submitted about the complaint that was lodged and the protest petition filed, and prayed that his protest petition be taken on file as a private complaint. After recording the sworn statement, the following order was passed on 25.03.2025:-

                   “Petitioner counsel present. Records perused. Prima facie case made out against accused Radhika, Prem Kumar, Babu and Roshan Thomas. Hence take cognizance for the offence u/s. 147, 447, 294(b), 307, 323, 380, 386, 406, 449 and 506(i) IPC. Assign PRC No.16/2025. Issue fresh summon to A1, A2, A3, A4 of PPF call on 22.04.2025.”

Upon cognisance being taken and summons being issued to the accused, the present accused had come up with the aforementioned prayer.

6. The primary contention of the learned Counsel for the petitioner is that when the Police had filed a Final Report referring the case as ‘mistake of fact’, upon which the second respondent had filed a protest petition, the petitioner/accused was never heard. Without any notice whatsoever, the protest petition cannot be allowed, and the cognizance of the offence could not have been taken. The learned Counsel would submit that none of the offences are made out, and that, when the petitioner’s mother is the owner of the property and had duly settled it on the petitioner, the second respondent, being the father, is lodging an untenable complaint. With reference to the title and possession of the property, the matter is absolutely civil in nature, and the other allegations are dressed up only to give a criminal colour to the otherwise civil dispute.

7. Per contra, the learned Senior Counsel for the second respondent would submit that it may be true that with reference to the title of the property the petitioner will resort to appropriate remedies. But if the civil transaction also gives rise to criminality, the petitioner is certainly entitled to maintain the prosecution. This is a case where a group of persons formed an unlawful assembly, thronged into the property of the second respondent, made a deadly attack on the second respondent, damaged the property, and caused injuries. Under these circumstances, when, admittedly, the second respondent is in possession of the property by building a church and other charitable organisations, the petitioner or any person claiming through her, being her henchmen, had no right to trespass into the property, and further, they committed the offences. He would submit that the second respondent has purchased the property out of his lawful earnings from his long Government service career and, when he has three children, this petitioner alone wants to usurp the entire property by creating a fraudulent deed, taking advantage when the second respondent was seriously ill.

8. I have considered the rival submissions on both sides and perused the material records of the case.

9. It can be seen that apart from the ownership of the property, allegations are made regarding forceful entry into the property, attacking the second respondent, threatening and damaging the property, etc. Therefore, it cannot be concluded that the entire matter is civil in nature. However, it must be noted that when the second respondent made the above allegations, a case was registered in Crime No.434 of 2023, and after investigation, a Final Report was filed on 09.04.2024, whereby the first respondent Police concluded that no offence was made out and sought to close the case as ‘mistake of fact’. As per the dictum of the Hon’ble Supreme Court of India, whenever the Police file a closure report, the de facto complainant is entitled to notice and hearing. The law in that regard has been laid down by the Hon’ble Supreme Court of India in Bhawat Singh Vs. Commissioner of Police and Anr.((1985) 2 SCC 537). When such an opportunity was given to the second respondent/de facto complainant, he filed a protest petition.

10. Upon receipt of the Final Report, the learned Magistrate, after hearing the de facto complainant, (a) can accept the closure report filed by the Police and close the issue; (b) even from the materials filed by the Police, if the learned Magistrate is of the view that offences are still made out, the learned Magistrate is not bound by the opinion of the Police in the Final Report and can proceed under Section 190(1)(b) of the Cr.P.C., by taking cognizance of the offence and issuing summons to the accused. Or if the defacto complainant files a protest petition and from the materials produced therewith, if the learned Magistrate finds that there are materials to take cognisance of the offence, treating it were a complaint, cognisance of the offence be taken and summons be issued to the accused. Reference in this regard can be made to the judgments of the Hon’ble Supreme Court of India in Gangadhar Janardan Mhatre Vs. State of Maharashtra and Ors.((2004) 7 SCC 768) and Minu Kumari and Anr. Vs. The State of Bihar and Ors.((2006) 4 SCC 359).

11. In the present case, the learned Magistrate has taken cognizance of the offence. The first contention of the learned Counsel for the petitioner/accused is that the accused was not heard. This case is under the Code of Criminal Procedure, and the accused has no right to participate at the pre-cognisance or pre-process stage, and therefore, this contention cannot be accepted. A useful reference in this regard is the judgment of the Hon’ble Supreme Court of India in Manharibhai Muljibhai Kakadia Vs. Shaileshbhai Mohanbhai Patel((2012) 10 SCC 517). The order passed by the learned Magistrate on 25.03.2025 was extracted supra. In that order, the learned Magistrate does not indicate whether cognisance of the offences was taken on the strength of the protest petition and the materials filed along with it, or whether the learned Magistrate had rejected the Final Report of the Police and proceeded under Section 190(b) of the Code of Criminal Procedure. In this regard, it is essential that the learned Magistrate apply their mind, and the order taking cognisance should reflect the same. It is useful to refer to paragraph No.28 of the Hon’ble Supreme Court of India in Pepsi Foods Ltd. and Anr. Vs. Special Judicial Magistrate and Ors.((1998) 5 SCC 749), and the same is reproduced hereunder:-

                   “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

12. Similarly, the following passages from the judgment of the Hon’ble Supreme Court of India in Sunil Bharti Mittal Vs. CBI((2015) 4 SCC 609), are being relied and are reproduced hereunder:-

                   “53. However, the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.

                   54. However, there has to be a proper satisfaction in this behalf which should be duly recorded by the Special Judge on the basis of material on record. No such exercise is done. In this scenario, having regard to the aforesaid aspects coupled with the legal position explained above, it is difficult to sustain the impugned order dated 19-3-2013 in its present form insofar as it relates to implicating the appellants and summoning them as accused persons. The appeals arising out of SLP (Crl.) No. 2961 of 2013 and SLP (Crl.) No. 3161 of 2013 filed by Mr Sunil Bharti Mittal and Ravi Ruia respectively are, accordingly, allowed and order summoning these appellants is set aside. The appeals arising out of SLPs (Crl.) Nos. 3326-27 of 2013 filed by Telecom Watchdog are dismissed.”

13. The paragraph Nos.22 and 23 of the Hon’ble Supreme Court of India of Mehmood Ul Rehman Vs. Khazir Mohammad Tunda and Ors.((2015) 12 SCC 420) also reiterate the same and the said paragraphs are extracted hereunder:-

                   “22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court..

                   23. … there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 CrPC so as to proceed against the offender...”

14. In these proceedings, the petitioner had prayed only for quashing the proceedings on the ground of lack of hearing; that cannot be granted. However, as stated supra, the order of the learned Magistrate does not reflect any application of mind at all. It is not clear whether the learned Magistrate found that there was sufficient material in the Final Report filed by the Police and directed the proceedings to proceed further against the accused by taking cognisance of the offence, or whether, after considering the protest petition and the sworn statement, the offences were taken cognisance of as if it was a complaint. In either case, the order must reflect consideration of the ingredients of the alleged offences and the available materials on record so as to form the basis for proceeding further. The above order of cognisance does not detail anything. Though under certain circumstances, the mere averments that ‘records were perused and that a prima facie case is made out’ by itself can be held sufficient, but, in the context of the present case and the facts as stated above, the order cannot be held to reflect application of mind and that it contains reasons for taking cognisance of the offences. Since the cognisance in this case has not been properly taken, limited relief regarding thereto has to be granted.

15. In view thereof, this Criminal Original Petition is disposed of on the following terms:

(i) The order, dated 25.03.2025 made in Crime No.434 of 2023 in RCS No.1 of 2024 taking cognisance of the offences and issuing summons to the accused shall stand set aside;

(ii) The matter is remanded to the learned District Munsif-cum- Judicial Magistrate, Thiruporur to apply his mind afresh and consider the materials and pass a reasoned order with reference to taking cognisance of the offences;

(iii) Since the offences are alleged under the Indian Penal Code, needless to mention that the Code of Criminal Procedure applies and all applications made by the parties shall be considered under the relevant provisions of the Code of Criminal Procedure;

(iv) Consequently, connected miscellaneous petitions stand closed.