Madras High Court
Mahesh Deodatta Gupta vs State Of Tamil Nadu on 4 September, 2019
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 04.09.2019
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.363 of 2018
and
Crl.M.P.(MD)No.124 of 2018
Mahesh Deodatta Gupta ... Petitioner
Vs.
1.State of Tamil Nadu
Through Inspector of Police,
District Crime Branch (DCB),
Tiruchirappalli District.
2.M/s Cethar Vessels Ltd.,
Registered office at 4, Dindigul Road,
Tiruchirappalli-621006.
Western Regional Officer at B-701, Citi Point,
Andheri Kurla Road, J.B.Nagar,
Andheri (East), Mumbai-400009.
... Respondents
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to
call for the records in order dated 18.12.2017 passed by the Trial
Judicial Magistrate, Thuraiyur, Trichy, in C.C.No.11 of 2010 framing
charges against the petitioner herein for commission of offences
punishable under Sections 418, 420, 120B IPC and quash the same.
For Petitioner : Mr.D.P.Singh
For R1 : Mr.K.Suyambulinga Bharathi
Government Advocate(Crl.side)
http://www.judis.nic.in
2
ORDER
This Criminal Original Petition has been filed to quash the order dated 18.12.2017 in C.C.No.11 of 2010 passed by the learned Judicial Magistrate, Thuraiyur, Trichy.
2.The learned counsel appearing for the petitioner submitted that there are totally 4 accused in this case and they filed a quash petition to quash FIR in Crime No.5 of 2009. While pending the same, the first respondent filed a final report and the same was closed.
Again all the accused have approached this Court by way of quash petition to quash the entire proceedings in C.C.No.11 of 2010 on the file of the learned Judicial Magistrate, Thuraiyur, Trichy.
3.This Court vide order, dated 06.11.2017 exonerated the charges against accused Nos.3 and 4 and directed the trial Court to proceed with the trial as against the accused Nos.1 and 2 in C.C. No. 11 of 2010. The said quash petition was filed, before framing of charges against the accused persons. After order passed by this Court, the learned Magistrate framed charges in C.C.No.11 of 2010, without even changing any word in the final report filed by the first respondent. He further submitted that the learned Magistrate did not follow the procedure laid down under Section 211 Cr.P.C., and procedures laid down under Section 228 Cr.P.C., while framing http://www.judis.nic.in 3 charges as against the accused Nos.1 and 2. He further submitted that even then this Court exonerated the accused Nos.3 & 4, the learned Magistrate framed charges as against all the accused persons. He also relied a judgments of the Hon'ble Supreme Court reported in (1979) 3 SCC 4 and (2012) 9 SCC 460.
4.The learned Government Advocate(Crl.side) appearing for the first respondent submitted that the present quash petition is nothing but a clear abuse of process of law and that the petitioner already approached this Court and filed a quash petition in Crl.O.P.(MD) No.3309 of 2010 in which, this Court allowed the said petition only in favour of A3 and A4 and dismissed the same in favour of other accused. He also submitted that C.C. is of the year 2010 and it is pending for the past 9 years and therefore, he prayed for dismissal of this petition.
5.Heard the learned counsel appearing for the petitioner and learned Government Advocate(Crl.side) appearing for the first respondent.
6.The petitioners herein are arrayed as A1 and A2 in C.C.No.11 of 2010 on the file of the learned Judicial Magistrate, Thuraiyur, Trichy. It is seen that already petitioners, along with other accused, approached http://www.judis.nic.in this Court by way of quash petition to quash the 4 proceedings in C.C.No.11 of 2010, in Crl.O.P.(MD)No.3309 of 2010.
This Court vide order dated 06.11.2017, exonerated accused Nos.3 and 4 from the charges and directed the trial Court to proceed with the trail as against the other accused.
7.Now, the learned counsel appearing for the petitioner submitted that the learned Magistrate framed charges as against all the accused, even after this Court exonerated the accused nos.3 and
4. It is also seen from the charges that it is nothing but re-production of the final report filed by the first respondent herein. Further, the learned Magistrate, without any lookout of the order passed by this Court in Crl.O.P.(MD)No.3309 of 2010, dated 06.11.2017, framed charges as against the accused Nos.3 and 4 for the offence under Sections 120(b) r/w 418, 420 IPC.
8.Hon'ble Supreme Court held in a decision reported in (1979) 3 SCC 4 as follows:
10.Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court http://www.judis.nic.in disclose grave suspicion against the accused which has 5 not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
In the above judgment, Hon'ble Supreme Court laid down principles while framing charges. Accordingly, the learned Magistrate followed the procedures contemplated in Cr.P.C., and framed charges mechanically.
9.The learned counsel for the petitioner also sited a judgment of http://www.judis.nic.in the Hon'ble Supreme Court reported in (2012) 9 SCC 460 wherein, 6 Hon'ble Supreme Court held as follows:
27. Having discussed the scope of jurisdiction under these two provisions, i.e.,Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
http://www.judis.nic.in 7 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ‘civil wrong’ with no ‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the http://www.judis.nic.in courts have to observe is that it cannot examine the 8 facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10.It is neither necessary nor is the court called upon to hold a full-
fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
http://www.judis.nic.in 9 27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence.
10.In the above said decision, our Hon'ble Supreme Court held that the trial Court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on.
http://www.judis.nic.in 10
11.In the case on hand, the learned Magistrate framed charges by re-producing the final report, without even changing any word.
12.In view of the above discussion, the learned Judicial Magistrate, Thuraiyur, Trichy is directed to follow the procedures laid down under Section 228 Cr.P.C., and frame charges as against the petitioner herein and proceed with the trail. The entire process should be completed, including trail, within a period of four months from the date of receipt of a copy of this order. Accordingly, this Criminal Original Petition is disposed of. Consequently, connected Miscellaneous Petition is closed.
04.09.2019
Index : Yes/No
Internet : Yes/No
gns
To
1.The Inspector of Police,
District Crime Branch (DCB),
Tiruchirappalli District.
2.The Judicial Magistrate, Thuraiyur, Trichy.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 11 G.K.ILANTHIRAIYAN,J.
gns Crl.O.P.(MD)No.363 of 2018 04.09.2019 http://www.judis.nic.in