Madras High Court
Viswanathan vs State Represented By
Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 18.04.2023
DELIVERED ON :10.07.2023
CORAM
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)Nos.9128 and 18189 of 2019
and Crl.O.P(MD)No.1784 of 2020
and
Crl.M.P.(MD)Nos.5804, 5805, 7110, 10703, 10704 of 2019
and 835, 836 and 7821 of 2020
Viswanathan : Petitioner
(in Crl.O.P.(MD)No.9128/ 2019)
Ramkumar Giri : Petitioner
(in Crl.O.P.(MD)No.18189/2019)
1.Basan
2.Subramanian
3.Duraisamy @ Antony Viyagappan
4.N.Maharajan
5.Viswanatha Naiar
6.Sudheesh Kumar
7.Sajilal
8.Rajesh Kannan
9.Danasekaran : Petitioners
(in Crl.O.P.(MD)No.18189/2019)
1/36
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020
Vs.
1.State represented by
The Inspector of Police,
Surandai Police Station,
Surandai, Tirunelveli District.
Crime No.69 of 2006. : 1st Respondent
(in all petitions)
2.Ganesan : 2nd Respondent
(in all petitions)
COMMON PRAYER : Criminal Original Petitions filed under Section
482 of Criminal Procedure Code, to call for the records in connection
with P.R.C.No.8 of 2019 on the file of the learned Judicial Magistrate,
Alangulam, Tirunelveli District in relation to Crime No.69 of 2006 on
the file of the first respondent Police and quash the same.
For Petitioner : Mr.S.Palani Velayutham
in Crl.O.P.(MD)Nos.9128/ 2019
and Crl.O.P(MD)No.1784 of 2020
For Petitioner
in Crl.O.P.(MD)No.18189/ 2019 : Mr.Arun Anbumani
For Respondents : Mr.R.Meenakshi Sundaram,
Additional Public Prosecutor
for R.1
in all petitions
: Mr.P.Samuel Guna Singh
for R.2
in all petitions
2/36
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020
COMMON ORDER
These Criminal Original Petitions have been filed, invoking Section 482 Cr.P.C., seeking orders, to call for the records in connection with P.R.C.No.8 of 2019, on the file of the Judicial Magistrate Court, Alangulam, Tirunelveli District and quash the same.
2. The petitioner in Crl.O.P.(MD)No.9128 of 2019 is the 12th accused; the petitioner in Crl.O.P.(MD)No.18189 of 2019 is the 11 th accused and the petitioners in Crl.O.P.(MD)No.1784 of 2020 are the accused 1, 2, 4 to 10 in P.R.C.No.8 of 2019, pending on the file of the Court of Judicial Magistrate, Alangulam. On the basis of the complaint lodged by the second respondent/defacto complainant, F.I.R.,came to be registered in Cr.No.69 of 2006, dated 21.03.2006 against 5 named persons and 8 unknown, but identifiable persons for the alleged offences under Sections 147, 148, 353 and 506(ii) I.P.C., on the file of the first respondent.
3. On the basis of the complaint lodged by the second accused Subramanian, F.I.R., came to be registered in Cr.No.68 of 2006 against 3/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 the defacto complainant herein, his assistant and 4 others for the alleged offences under Sections 147, 341, 294(b) and 506(ii) I.P.C. The first respondent, after completing the investigation in Cr.No.68 of 2006, has laid a final report against the same persons for the alleged offenes under Sections 147, 148, 341, 294(b) and 506(ii) I.P.C., and 149 I.P.C., and the same was taken on file in C.C.No.192 of 2008, on the file of the Judicial Magistrate Court, Thenkasi and subsequently, the same was transferred to the Court of the Judicial Magistrate, Senkottai and was taken on file in C.C.No.246 of 2006. It is not in dispute that after trial, the defacto complainant, his assistant and others were acquitted from all the charges, vide judgment dated 16.07.2013.
4. After completing the investigation in Cr.NO.69 of 2006, the Sub-Inspector of Police attached to the respondent police has filed a final report dated 21.03.2006 as mistake of fact. The defacto complainant has filed a petition in Crl.O.P.(MD)No.4794 of 2006 seeking transfer of the investigation in Cr.No.69 of 2006 and the learned Judge of this Court, taking note of the submission of the learned Government Advocate (Crl.Side) that the final report has already been filed, dismissed the 4/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 petition, vide order dated 28.11.2006. The defacto complainant has then filed a petition before the Court of the Judicial Magistrate, Thenkasi to change Investigating Officer and the learned Magistrate, vide order dated 07.09.2007, has directed the Inspector of Police of the concerned police station to conduct the investigation.
5. In pursuance of the said direction, the Inspector of Police has filed a final report dated 18.08.2009 stating that he conducted re-investigation as per the directions of the jurisdictional Magistrate and his investigation has revealed that the final report filed by the Inspector of Police closing the case as mistake of fact is correct. The defacto complainant, after the receipt of the Referred Charge Sheet notice has filed the protest petition before the jurisdictional Court. The learned Magistrate, after recording the statements of the defacto complainant and other witnesses produced by him and on hearing the defacto complainant's side, has passed an order dated 01.03.2019, taking cognizance of the case in P.R.C.NO.8 of 2019, for the alleged offences under Sections 147, 148, 353, 506(ii) I.P.C., and under Section 3 of TNPPDL Act against all the respondents/accused shown in the protest 5/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 petition and the same is pending on the file of the Judicial Magistrate Court, Alangulam. Pending P.R.C., the accused A.1, A.2, A.4 to A.10 and the accused 11 and 12 have filed the present Criminal Original Petitions seeking quashment of the above said case.
6. The case of the defacto complainant is that on 21.03.2006, when he was in office, the Village Development Association President Thiru.Palavesam, Ward Nos.1 and 2 members and Patta Holders' Association Secretary – Mariraj and Surandai Community leader – Arumugam have given a written complaint and on receipt of the same, the defacto complainant, who was the then Village Administrative Officer of Kulaiyaneri along with Revenue Inspector – Tmt.Selvasundari, Village Assistant – Krishnan and the above referred complainants have visited the Pottal, Oorani, Canal and cart track situated in S.Nos.221/3 and 199/1 and at that time, the accused 1,2,4 and 5 and the retired police Inspector – Madasamy and the unknown, but identifiable 8 persons had assembled unlawfully with crowbar, aruval and other weapons with an intention to damage the water canal used by the general public, that in pursuance of their criminal conspiracy, the 6/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 water canal was being filled up with stones, sand, soil by using heavy vehicles like JCB etc., that when the same was questioned by the defacto complainant as to why they were damaging the water canal, as the waterflow to Ilanthaikulam would get affected and there would be floods during heavy rain fall, that the first accused had directed to close the water canal without leaving any trace, that when the defacto complainant was performing his official work, the above accused had abused him in filthy language and threatened him with weapons and that they would lodge a PCR complaint and thereby the official work of the second respondent was disrupted and that since the accused persons were displaying the weapons, the revenue Officials including the defacto complainant, with no other option, have returned fearing for their lives.
7. The case of the prosecution in Cr.No.68 of 2006 is that on 21.03.2006 at about 11.30a.m., when the defacto complainant in Cr.No. 68 of 2006 who was working in the Wind Mill Annai Construction, was proceeding in a vehicle with one Subramanian along with the South- North mud road in S.Nos.221/7 and 199/1 situated on the East of Kulaiyaneri Village, the Village Administrative Officer, his assistant and 7/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 four others had formed themselves into unlawful assembly and prevented JCB vehicle from proceeding further and they had abused with unparliamentary words and also caused criminal intimidation. According to the first respondent police, the occurrence shown in Cr.No.68 of 2006 alleged to have occurred at 11.30a.m., on 21.03.2006 is true, but whereas there was no such occurrence as alleged by the Village Administrative Officer at 12.00 noon on 21.03.2006.
8. At this juncture, it is necessary to consider the technical objection raised by the petitioners. The learned Counsel for the petitioners would contend that the defacto complainant, the then Village Administrative Officer, got retired from Government service, that the original complaint was given by him in the capacity of the Village Administrative Officer of Kulaiyaneri Village alleging that he was prevented from performing his official duty, that after his retirement, he had no authority or locus standi to file the protest petition or to pursue the above case and that the learned Magistrate has failed to consider the locus standi of the defacto complainant to proceed with the above case after his retirement.
8/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020
9. The learned Additional Public Prosecutor appearing for the first respondent would also reiterate that the defacto complainant after his retirement has no authority to file the protest petition or to proceed further and that he had not taken any prior permission from the higher authorities to pursue the above case.
10. Considering the above submissions, the question to be decided is as to whether the defacto complainant has locus standi to file the protest petition and to pursue the case, which came to be registered on his complaint.
11. The words “locus standi” has been defined in Black's Law Dictionary as “the right to bring an action or to be heard in a given forum”. In Shri P.Ramanatha Aiyar's The Law Lexicon, it has been defined as “ a right of appearance in a Court of justice”. Generally any person who is aggrieved or affected, has right or authority to approach the Court for seeking justice. The Hon'ble Supreme Court in Ratanlal Vs. Prahlad Jat and Others reported in (2017)9 SCC 340, has 9/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 specifically held that locus standi of the complainant is a concept foreign to criminal jurisprudence, save and except where the statute enacting or creating an offence indicates to the contrary and the relevant passage is extracted hereunder:
“9. However, criminal trial is conducted largely by following the procedure laid down in Cr.P.C. Locus standi of the complaint is a concept foreign to criminal jurisprudence. Anyone can set the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary. This general principle is founded on a policy that an offence, that is an act or omission made punishable by any law for the time being in force, is not merely an offence committed in relation to the person who suffers harm but is also an offence against the society. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. In A.R. Antulay v. Ramdas Sriniwas Nayak & Anr. (1984) 2 SCC 500, a Constitution Bench of this Court has considered this aspect as under:-
“In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra- indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law 10/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 for the time being in force [See Section 2(n) CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception”.
10. In Manohar Lal v. Vinesh Anand & Ors. (2001) 5 SCC 407, this Court has held that doctrine of locus standi is totally foreign to criminal jurisprudence. To punish an offender in the event of commission of an offence is to subserve a social need. Society cannot afford to have a criminal escape his liability since that would bring about a 11/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 state of social pollution which is neither desired nor warranted and this is irrespective of the concept of locus.”
12. In the case on hand, as already pointed out, the Village Administrative Officer has preferred a complaint and on that basis, F.I.R., came to be registered and that since the police officials have filed two negative final reports, the defacto complainant, after receipt of RCS notice, has filed the protest petition before the jurisdictional Court.
13. Considering the above and also the legal position above referred, this Court has no hesitation to hold that the second respondent has locus standi to file the protest petition and pursue the above case and hence, the technical objection raised by the petitioners is liable to be rejected.
14. The next objection raised by the learned Counsel for the petitioners is that the learned Magistrate, without conducting any enquiry under Sections 202 and 203 Cr.P.C., and without recording his satisfaction that there are sufficient grounds for proceeding against the 12/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 accused, has passed a cryptic and non-speaking order and as such, the entire proceedings in violation of the settled position of law and settled procedures are only to be considered as illegal and the same are liable to be quashed.
15. The learned Counsel for the petitioners would contend that the learned Magistrate, upon receiving a negative report, is duty bound either he has to accept the same or drop the same or to direct further investigation or investigate himself or order for re-investigation or take cognizance under Section 200 Cr.P.C., as a private complaint, if the materials warrant, that there must be an application of mind on the part of the Judicial Magistrate and he is also duty bound to pass a speaking order as to why it was taken on file as a private complaint, but in the present case, the learned Magistrate has not passed any speaking order and simply passed an order to take the case on file and issued summons for the petitioners/accused, that though the Magistrate is duty bound to conduct enquiry under Sections 202 and 203 Cr.P.C., before taking the same on file as a private complaint and in the case on hand, no enquiry was conducted and no sworn statement was recorded and no order under 13/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 Section 204 Cr.P.C., was passed before proceeding further.
16. The learned Counsel for the petitioners have relied on the judgments of the Hon'ble Supreme Court in Pepsi Foods Ltd., and another Vs. Special Judicial Magistrate and Others reported in (1998)5 SCC 749 and GHCL Employees Stock Option Trust Vs. India Infoline Limited reported in (2013)4 SCC 505.
17. In both the decisions, the Hon'ble Apex Court has specifically observed that summoning of an accused in a criminal case is a serious matter and hence, criminal law cannot be set into motion as a matter of course and the relevant passages in the above decisions are extracted hereunder:
(i) Pepsi Foods Ltd., and another Vs. Special Judicial Magistrate and Others [ (1998)5 SCC 749]
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 14/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 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.
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. “
(ii) GHCL Employees Stock Option Trust Vs. India Infoline Limited [ (2013)4 SCC 505].
“14. Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the 15/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.”
18. Regarding the objection with respect to non-following of the provisions under Sections 202 to 204 Cr.P.C., it is the specific contention of the petitioners that the learned Magistrate has not followed the settled procedures upon the receipt of the protest petition, that the Court has not chosen to record any sworn statement from the defacto complainant and no enquiry was conducted under Section 202 Cr.P.C., and that without assigning any reasons, has passed a cryptic order taking cognizance of the case against all the accused shown in the protest petition and for the offences alleged therein.
19. It is settled law that the Magistrate can very well treat the protest petition as a complaint and deal with the same as required under Secton 200 r/w 202 Cr.P.C.. In Vishnu Kumar Tiwari Vs. State of Uttar Pradesh through Secretary Home, Civil Secretariat Lucknow and another reported in (2019)3 MWN (Crl.)197, the Hon'ble Supreme Court has held as follows:
“45. If a protest petition fulfills the requirements of a 16/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition.
The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second respondent against the final report.”
20. It is pertinent to note that the Magistrate is vested with the discretion either to treat the protest petition as a complaint under Section 200 Cr.P.C and proceed in accordance with law, or the Magistrate can close the protest petition by giving liberty to the informant or defacto complainant to file a private complaint. In the case on hand, the defacto complainant has filed a protest petition with a specific prayer not to accept the final report and to treat his complaint as a private complaint. It is evident from the records that the learned Magistrate, after recording the statement of the defacto complainant, has then proceeded to record 17/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 the statements of all the four witnesses produced by the defacto complainant. Upon perusing the records available, the Magistrate has passed an order taking cognizance. No doubt, it is a cryptic order. Whether a cryptic and non-speaking order by itself can be a ground to quash the proceedings is the next question required to be considered. No doubt, as rightly contended by the learned Counsel for the petitioners, the Magistrate has to record his satisfaction that there are sufficient grounds for proceeding against the accused.
21. At this juncture, it is necessary to refer the judgment of the Hon'ble Supreme Court in Kanti Bhadra Shah and another Vs. State of West Bengal reported in (2000)1 SCC 722, wherein the Hon'ble Apex Court has specifically held that there is no legal requirement for the trial Court to write an elaborate order for issuance of process and the relevant passages are extracted hereunder:
“12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the the court procedures and to chalk out measures to avert all 18/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stage in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the Court should avoid expressing one way or other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.”
22. It is also necessary to refer the judgment of the Hon'ble Supreme Court in Bhushan Kumar and another Vs. State (NCT of Delhi) and another reported in (2012)5 SCC 424, wherein another judgment of the Hon'ble Supreme Court in Dy.Chief Controller of Imports and Exports Vs. Roshanlal Agarwal and others reported in (2003)4 SCC 139 was referred and the relevant passage is extracted 19/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 hereunder:
“9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722, it was held as follows: (SCC p. 749, para 6) The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.”
23. By referring to its earlier decision, the Hon'ble Apex Court has specifically settled the legal position that the order passed by the 20/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 Magistrate could not be faulted with only on the ground that summoning order was not a reasoned order and that therefore, the process issued to the accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Considering the above, the objections raised by the learned Counsel for the petitioners, which is devoid of substance, is liable for rejection.
24. As already pointed out, the Sub-Inspector of Police as well as the Inspector of Police of the Surandai Police Station have filed their negative reports by holding that the incident as alleged by the defacto complainant was not at all occurred and hence, the complaint has to be treated as mistake of fact. In the negative reports, both the Investigating Officers have taken a stand that there existed a mud road starting from poromboke odai and the same was in use for several years for agricultural purposes and that the Windmill companies were also using the same for taking their vehicles and that the defacto complainant without raising any objection till the completion of 3/4th of the work of the Windmill, has now raised objections and prevented the Windmill company from using that pathway, so as to force the Windmill 21/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 Companies to approach him and pay money.
25. It is evident from the records that the Sub-Inspector of Police, in the negative report, has stated that he had examined 12 witnesses including the defacto complainant, the then Revenue Inspector and his assistant and except in the statement of the defacto complainant and his assistant Krishnan, it has been recorded in the statements of others that since the defacto complainant had prevented the Windmill people to take their vehicles, there arose wordy quarrel between them, that the first accused was not at all present at that time and that they came to know subsequently that the defacto complainant had done everything for his personal benefit.
26. As rightly pointed out by the learned Counsel for the second respondent, the defacto complainant has given statement before the jurisdictional Court reiterating his earlier complaint. The defacto complainant has produced 5 witnesses including the then Revenue Inspector and at the time of giving statement, the Tahsildar, Secretary of Kulaiyaneri Panchayat and all of them have given statements reiterating 22/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 the version of the defacto complainant. As rightly pointed out by the learned Counsel for the second respondent, the Tahsildar – Selvasundari has given a statement that she had accompanied the defacto complainant to the spot, that 13 persons connected with the Wind Mill company were there holding weapons, that they had damaged the water course and laid pathway and that when the same was questioned, they had abused them and caused criminal intimidation. The defacto complainant as well as the Tahsildar have specifically stated that the accused had caused damages to the Oodai to the tune of Rs.8,00,000/-.
27. The learned Counsel for the petitioners/ the accused 6 to 13 would submit that original F.I.R., does not contain the names of the accused 6 to 13, but for the first time had implicated the said accused in the protest petition filed in the year 2017 and the statements given in 2018 and that the F.I.R., lodged in 2006 and the various proceedings instituted by the second respondent before various Forums does not refer the names of the accused 6 to 13 nor attributed any criminal act to them.
28. The 11th accused in his original petition would submit that he 23/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 purchased certain lands in Tirunelveli District in 2006 for the purpose of installing Windmills, that the Windmill was duly erected and commissioned for valuable consideration by M/s NEG Micon, a wind turbine manufacturer and installer and their sub-contractors and that subsequently the 11th accused had sold the said land and the said windmill in the year 2017 itself. It is pertinent to note that after the alleged occurrence on 21.03.2006, the Ilanthaikulam agriculturists have filed a civil suit in O.S.No.204 of 2006 against M/s NEG Micon India Private Ltd., and the second accused Subramanian and the State of Tamil Nadu represented by the District Collector, Tirunelveli claiming the relief of permanent injunction restraining the defendants 1 and 2 and their men from in any manner destroying or altering the Kulaiyaneri pottal, Oorani marukal, Oorani and vaikkal and for mandatory injunction for removing the bridge and all the electrical posts installed in the vaikkal and more importantly, the suit was laid on 22.03.2006, the very next day of the alleged occurrence.
29. As rightly pointed out by the learned Counsel for the second respondent, the plaintiffs who filed the suit in a representative capacity, 24/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 have specifically stated that the defendants 1 and 2 therein had been attempting to damage the water course and attempted to lay a pathway from 21.03.2006 onwards. The second respondent has produced a copy of the Advocate Commissioner's report filed in the suit in O.S.No.204 of 2006, wherein the learned Advocate Commissioner has pointed out that a road was recently laid damaging the water course portions. It is also evident from the records that the defacto complainant has filed a criminal revision in Crl.R.C.(MD)No.798 of 2013 to call for the records relating to the judgment dated 16.07.2013 passed in C.C.No.192 of 2008, by the Judicial Magistrate Court, Sengottai and expunge the remark of acquittal and hold it as honorary acquittal for the defacto complainant, who is the third accused therein and a learned Judge of this Court vide order dated 05.12.2013, has allowed the petition and the finding of the trial Court that the petitioner is acquitted on the benefit of doubt was modified to the effect that the petitioner/accused shall stand acquitted honorarily.
30. As rightly pointed out by the learned Counsel for the second respondent, in the said order, the learned Judge of this Court has specifically observed that apart from disbelieving the evidence of 25/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 prosecution witnesses P.W.1 to P.W.3, who did not support the prosecution in the trial, the learned Magistrate considered the defence evidence and found that the accused were discharging their official duties and the entire occurrence had occurred while they were attempting to protect the Odai poromboke from being encroached. Moreoever, the defacto complainant and other witnesses in their statements before the learned Magistrate, has specifically implicated the involvement of the petitioners in the alleged occurrence.
31. It is necessary to refer the judgment of the Hon'ble Supreme Court in State of Haryana and Ors. v. Bhajan Lal and Others, reported in 1992 Supp (1) SCC 335, wherein the Hon'ble Apex Court enumerates seven categories of cases where the power can be exercised under Section 482 Cr.P.C., and the same are extracted hereunder:
“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.26/36
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a 27/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
32. At this juncture, it is necessary to refer the following judgments of the Hon'ble Supreme Court, relied on by the learned Counsel for the second respondent:
(i) Ramveer Upadhyay and another Vs. State of U.P., and another (2022 SCC Online SC 484):
“37. Ends of justice would be better served if valuable time of the Court is spent on hearing appeals rather than entertaining petitions under Section 482 at an interlocutory stage which might ultimately result in miscarriage of justice as held in Hamida v. Rashid @ Rasheed and Others ((2008) 1 SCC 474) 28/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020
38. In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out.
The allegations in the complaint constitute offence under the Attrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Complaint Case No.19/2018 is not such a case which should be quashed at the inception itself without further Trial. The High Court rightly dismissed the application under Section 482 of the Cr.P.C.”
(ii) Rathish Babu Unnikrishnan Vs. State (Govt., of NCT of Delhi) and another (2022 SCC Online SC 513):
29/36
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 “15. In the impugned judgment, the learned Judge had rightly relied upon the opinion of Justice J.S.Khehar for a Division Bench in Rajiv Thapar (supra), which succinctly express the following relevant parameters to be considered by the quashing Court, at the stage of issuing process, committal, or framing of charges, 6 AIR 1992 SC 604. “28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/ complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/ complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same.”
16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of possibility 30/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 particularly because of the legal presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence need to be of an unimpeachable quality, so as to altogether disprove the allegations made in the complaint.
17. The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable. Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an un-merited advantage in the criminal process. Also because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption.
18. Situated thus, to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the trial court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be 31/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited.”
33.It is settled law that the High Court is having power and jurisdiction to quash the proceedings, if it comes to the conclusion that allowing the proceedings to continue, would be abuse of process of the Court or that the ends of justice required that the proceedings are to be quashed and that this Court while exercising the power under Section 482 Cr.P.C does not function as a Court of Appeal or Revisional Court.
34.It is pertinent to note that though the inherent jurisdiction under the said Section is very wide, it has to be exercised sparingly, carefully and with caution and that the same is to be exercised exdebito justitiae to do real and substantial justice for the administration of which alone, Courts exist. More over, the inherent power should not be exercised to stifle a legitimate prosecution.
35. In the case on hand, since there are prima facie materials available to proceed against the accused and taking note of the above 32/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 legal positions reiterated by the Hon'ble Supreme Court, this Court has no hesitation to hold that it is not a fit case for quashing of the case and hence, scuttling the criminal process at a pre-trial stage is not warranted.
Hence, this Court concludes that the Criminal Original Petitions are absolutely devoid of the merits and the same are liable to be dismissed.
36. Considering the fact that the case was registered in the year 2006 and P.R.C., is pending from 2019, the learned jurisdictional Magistrate is hereby directed to proceed with the case and dispose of the same within two months from the date of receipt of a copy of this order and in case of committal, the learned Principal Sessions Judge, Tirunelveli is directed to take the case on file and made over the same to any of the Sessions Court within fifteen days from the date of receipt of the committal order and the Sessions Judge to whom the case is made over, is directed to complete the trial and dispose of the case as expeditiously as possible preferably within a period of six months thereafter.
33/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020
37. With the above directions, all the Criminal Original Petitions are dismissed. Consequently, the connected Miscellaneous Petitions are also dismissed.
10.07.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
SSL
To
1.The Judicial Magistrate, Alangulam,
Tirunelveli District.
2.The Inspector of Police,
Surandai Police Station,
Surandai, Tirunelveli District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
34/36
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 35/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 K.MURALI SHANKAR,J.
SSL Pre-delivery order made in Crl.O.P.(MD)Nos.9128 and 18189 of 2019 and Crl.O.P(MD)No.1784 of 2020 Dated: 10.07.2023 36/36 https://www.mhc.tn.gov.in/judis