SREENIVASAN Vs. NAIR

JUDGEMENT

(1.) The complainant in M. P. No. 8037 of 2004 on the file of Chief Judicial Magistrate, Ernakulam is the petitioner. This Writ Petition is filed challenging an order passed by the learned Chief Judicial Magistrate by which it was decided to conduct an enquiry under S.202 of the Code of Criminal Procedure on the complaint filed by the petitioner.

(2.) The petitioner is one of the Directors of M/s. Sujith Enterprises Pvt. Ltd. and Managing Director of Kalliyara Estates (Pvt.) Ltd. and Vasco Metals and Steels Pvt. Ltd. He is also stated to be the Managing Partner of G. P. Nair Plantations. It is averred that 41.5 cents of land in Survey No. 602/1 of Ernakulam Village along with a building standing thereon belongs to M/s. Sujith Enterprises Pvt. Ltd. 11 rooms in this building are rented out to various persons and the remaining rooms are occupied by M/s. Sujith Enterprises Pvt. Ltd. It is averred that rooms 1 to 5 are occupied by G. P. Nair Plantations, 6 to 14 by Kalliyara Estates Pvt. Ltd., 15 to 21 by K. K. Bhuvanadas Enterprises and 22 to 29 are let out to one V. R. Balakrishnan. It is averred that V. R. Balakrishnan sublet the rooms to Vasco Metals and Steels Pvt. Ltd. with the permission of the petitioner. It is averred that at about 10.00 p.m. on 11.11.2004, the respondents 1 to 6 along with a group of hired goondas, numbering around 100, broke open the lock of the gate, trespassed into the property, broke open the doors of the rooms and removed all the furniture. It is also alleged that they demolished the building by using an Earth Mover bearing registration No. KL 07/T 8483. It is also alleged that the records were destroyed and furniture, the value of which will come to more than Rupees One lakh, were taken away. It is averred that the total loss caused to the petitioner will come to Rs. 75 lakhs. It is also averred that immediately the petitioner telephoned to the Police Control Room and Central Police Station. But, the police did not take any action. Therefore, the petitioner filed a private complaint before the Chief Judicial Magistrate, Ernakulam. It is averred that the Chief Judicial Magistrate refused to receive the complaint and asked the Advocate to present the complaint before the Judicial First Class Magistrate II, Ernakulam. Accordingly the complaint was presented before the Judicial First Class Magistrate II, Ernakulam. The J.F.C.M. also refused to accept the complaint stating that it has to be filed before the Chief Judicial Magistrate as the place of occurrence is within the jurisdiction of Central Police Station. It is averred that the petitioner approached this Court for a direction to proceed with the petition in accordance with law by filing W. P. (C) No. 34106 of 2004. This Court directed the Chief Judicial Magistrate, Ernakulam to receive the complaint and proceed in accordance with law. It is averred that accordingly the petitioner again presented the very same complaint before the learned Chief Judicial Magistrate and the learned Chief Judicial Magistrate expressed the opinion of the Court that the Court is inclined to post the case for S.202 enquiry and insisted for the examination of the complainant. It is averred that the counsel appearing for the complainant made a request to the Court to refer the matter to the Station House Officer concerned under S.156(3) of the Code of Criminal Procedure. It is also averred that the learned counsel requested the Court not to discuss the merits or demerits of the case. But, the Court expressed its opinion that it is inclined to exercise the second option of conducting an enquiry under S.202. It is averred that the approach made by the learned Chief Judicial Magistrate is not legal because the Court is insisting enquiry under S.202 of the Code of Criminal Procedure in a matter where the petitioner seeks a relief of reference under S.156(3) of the Code of Criminal Procedure. Therefore, the petitioner seeks to quash Ext. P3 order dated 14.12.2004 passed by the learned Chief Judicial Magistrate posting the case for recording the sworn statement of the de facto complainant.

(3.) The petitioner filed a private complaint alleging that the respondents in the complaint committed the offences punishable under S.120B, 147, 148, 426, 448, 454, 390, 392, 506(2) read with S.140 of Indian Penal Code. In the complaint it is alleged that the petitioner is one of the Directors M/s. Sujith Enterprises Pvt. Ltd. and 41.5 cents of property with a building standing thereon belongs to that Company. It is averred that various portions of the building was let out to various tenants and the Company is occupying a portion of the same. It is averred that at about 10.00 p.m. on 11.11.2004 the respondents in the complaint along with about 100 others criminally trespassed into the building and after breaking open the locks, took away the records and committed robbery of electronic equipments worth about Rupees One lakh. It is also alleged that using an Earth Mover bearing registration No. KL 07/T8483 they destroyed the entire building and removed the old materials using which the building was constructed. It is averred that the loss due to destruction will come to Rupees 75 lakhs. It is also averred that though information was given to police, police had not taken any action. Hence the complaint.