Madras High Court
V.Selvam vs R.Ramachandran on 7 July, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.Nos.6559 & 6663 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.07.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.Nos.6559 & 6663 of 2020
and Crl.M.P.Nos.3642, 3669 & 3673 of 2020
1. V.Selvam
2. K.Vinoth ...Petitioners in Crl.O.P.
No.6559 of 2020
Kavitha Rani ...Petitioner in Crl.O.P.
No.6663 of 2020
-Vs-
R.Ramachandran ... Respondent in both
Crl.O.Ps.
Common Prayer: Criminal Original Petitions filed under Section 482 of
Code of Criminal Procedure, to call for the records herein in C.C.No.66
of 2020 pending on the file of the learned Judicial Magistrate-I,
Chengalpattu and quash the same.
For Petitioners in
Crl.O.P.No.6559 of 2020 : Mr.P.Wilson
For Mr.A.Saravanan
For petitioner in
Crl.O.P.No.6663 of 2020 : Mr.L.Baskaran
For Respondent in
both Crl.O.Ps. : Mr.G.Balamanikandan
For Mr.A.Venkatesan
https://www.mhc.tn.gov.in/judis
Page 1 of 12
Crl.O.P.Nos.6559 & 6663 of 2020
COMMON ORDER
These petitions have been filed to quash the proceedings in C.C.No.66 of 2020 on the file of the learned Judicial Magistrate-I, Chengalpattu, thereby taken cognizance for the offences punishable under Sections 294(b), 427 of IPC as against the petitioners.
2. The respondent lodged a private complaint alleging that his father owned property comprised in survey No.696/1 to an extent of 1.25 acre out of 1.75 acre situated at Kayar Village, Thiruporur Taluk, Chengalpattu District. His father died on 09.10.2001. Thereafter, the respondent along with his family members were enjoying the said property. While being so, in the year 2002, seven unknown persons were attempted to enter into the peaceful possession of the respondent's property so that, the respondent's mother was constrained to file a suit in O.S.No.66 of 2002 for declaration and permanent injunction. The said suit was decreed in her favour. After demise of her mother, the respondent constructed a house and living there along with his family members.
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3. While being so, on 23.02.2019 the accused persons entered into the suit property along with JCB vehicle and attempted to demolish the house of the respondent. When it was questioned by him, all the accused persons scolded him with filthy language and also threatened him with dire consequences. Further the respondent informed the accused persons that already the trial Court decree in their favour in respect of the subject property. But the accused did not bother about the said decree passed by the trial Court and attacked the respondent with iron rod. They also demolished the entire house. Immediately, he lodged complaint on 23.02.2019 before the Inspector of Police Thiruporur Police Station. However, no action was taken. Thereafter, the respondent lodged complaint before the Superintendent of Police, on 25.02.2019 and even then no action was taken as against the accused persons.
4. Therefore, the respondent filed a complaint seeking direction under Section 156(3) of Cr.P.C., before the learned Judicial Magistrate-I, Chengalpattu in C.M.P.No.7599 of 2019. The learned Magistrate after recording the sworn statement of the respondent had taken cognizance for the offences under Sections 294(b), 427 of IPC. https://www.mhc.tn.gov.in/judis Page 3 of 12 Crl.O.P.Nos.6559 & 6663 of 2020
5. The learned Senior Counsel appearing for the petitioners in Crl.O.P.No.6559 of 2020 submitted that the learned Magistrate had taken cognizance without even satisfying with the offences under Sections 294(b) and 427 of IPC. The learned Magistrate without even conducting any enquiry in respect of the case of the respondent had taken cognizance without any iota of evidence. In fact, the respondent filed complaint only for direction under Section 156(3) of Cr.P.C. Whereas the learned Magistrate treated the complainant, as if filed under Section 200 of Cr.P.C., and had taken cognizance for the offences under Sections 294(b), 427 of IPC. When the petition filed for direction under Section 156(3) of Cr.P.C., it should be filed in the form of affidavit. Admittedly in the case on hand, the respondent filed verified petition and not supported by any affidavit of the respondent herein. Therefore, the very complaint is vitiated and cannot be sustained as against the petitioners.
5.1. The learned Senior Counsel further submitted that the respondent claimed the subject property under the exparte decree granted in favour of her mother. However, the petitioners were not the parties to the said suit. The respondent's mother had set up fictitious person and https://www.mhc.tn.gov.in/judis Page 4 of 12 Crl.O.P.Nos.6559 & 6663 of 2020 filed declaration suit and obtained exparte decree in her favour. Whereas the petitioners are concerned, they purchased the subject property by the registered sale deed dated 16.07.2019 vide document No.9728 of 2019 from M/s. E.P.K. Property Developers as Power of Attorney agent of one Dhandapani for the valuable sale consideration. From the date of purchase, all the revenue records were mutated in their name and they were issued patta in patta no.2625. The vendor of the petitioners got title by way of settlement deed dated 06.12.2006 registered vide document No.10628/2006. The respondent claimed the subject property only by way of exparte decree obtained by his mother. His mother claimed the said property as if her husband viz., the respondent's father owned the property. He also pointed out that the respondent's mother filed suit for possessory title without producing any deed in respect of the subject property. Therefore, he prayed for quashment of the entire proceedings.
6. Per contra, the learned counsel appearing for the respondent would submit that the learned Magistrate after recording the sworn statement of the respondent had taken cognizance for the offences under Sections 294(b), 427 of IPC. Summons issued only after compliance of https://www.mhc.tn.gov.in/judis Page 5 of 12 Crl.O.P.Nos.6559 & 6663 of 2020 all the procedure laid down under the Cr.P.C. The grounds raised by the petitioners are mixed question of fact and it has to be gone into by full fledged trial before the trial Court. Therefore, he prayed for dismissal of the petition.
7. Heard Mr.P.Wilson, learned Senior Counsel appearing for the petitioners in Crl.O.P.No.6559 of 2020, Mr. L.Baskaran, learned counsel appearing for the petitioner in Crl.O.P.No.6663 of 2020 and Mr.G.Balamanikandan, learned counsel appearing for the respondent in both petitions.
8. On perusal of the impugned complaint which had been taken cognizance for the offences under Sections 294(b), 427 of IPC revealed that, the respondent filed private petition seeking direction under Section 156(3) of Cr.P.C., in the form of verified petition. It is not supported by any affidavit of the respondent herein. However, the learned Magistrate treated that petition as private complaint filed under Section 200 of Cr.P.C., and examined the respondent and his wife, had taken cognizance for the offences under Sections 294(b), 427 of IPC. On perusal of their https://www.mhc.tn.gov.in/judis Page 6 of 12 Crl.O.P.Nos.6559 & 6663 of 2020 statement revealed that on 23.02.2019, the accused persons demolished their house and also scolded them with filthy language. He lodged complaint on the same, however it was not enquired by the concerned police station.
9. On perusal of the complaint dated 25.02.2019 lodged by the respondent revealed that the petitioner did not lodge complaint on 23.02.2019 viz., on the date of occurrence. Whereas the respondent lodged complaint only on 25.02.2019 that too before the Superintendent of Police, Kancheepuram. If at all the respondent lodged complaint on the date of occurrence, it would have been referred in the complaint dated 25.02.2019. There is no whisper about the complaint lodged before the Inspector of Police, Thiruporur Police Station. Therefore, there is no explanation for the belated complaint. If at all the entire house owned by the respondent was demolished by the petitioners and also beaten by them, definitely he would have been lodged complaint on the same day.
10. That apart even according to the respondent, the petitioners and other henchmen trespassed into their property and demolished their https://www.mhc.tn.gov.in/judis Page 7 of 12 Crl.O.P.Nos.6559 & 6663 of 2020 house. Whereas the respondent lodged complaint only as against four persons. Further there is no specific allegations made as against the petitioners to attract the offences under Section 294(b) of IPC. To attract the offence under Section 294(b) of IPC, there must be an uttering of words to affect the person who lodged the complaint. In this regard it is relevant to extract the Section 294(b) of IPC, as follows :-
"294. Obscene acts and songs —Whoever, to the annoyance of others— (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."
Admittedly, there is absolutely no words uttered by the petitioners as such to constitute the offence under Section 294(b) of IPC, there is no averments and allegations. Further the charges do not show that on hearing the obscene words, which were allegedly uttered by the petitioners, the witnesses felt annoyed. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that the words uttered by the petitioners annoyed others, it can not be said that the ingredients of the offence under Section 294(b) of IPC is made out.
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11. It is relevant to rely upon the judgment reported in 1996(1) CTC 470 in the case of K.Jeyaramanuju Vs. Janakaraj & anr., which held as follows :-
"To prove the offence under Section 294 of IPC mere utterance of obscence words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case."
The above judgment is squarely applicable to the present case and therefore, the offence under Section 294(b) of IPC is not at all attracted as against the petitioners.
12. Insofar the Section 427 of IPC is concerned, mischief causing damage to the amount of fifty rupees - whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished for the offence under Section 427 of IPC. On perusal of records revealed that though the respondent stated that the petitioners had demolished his house, he failed to mentioned what is the damages caused by the petitioners. As aforesaid, on the date of occurrence there was no complaint and there is no explanation for the belated complaint.
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13. That apart, the petitioners also filed suit in O.S.No.135 of 2020 on the file of the District Munsif Court, Chengalpattu, for declaration declaring that the judgment and decree passed in O.S.No.66 of 2002 on the file of the District Munsif Court, Chengalpattu dated 08.03.2004 is null and void and also permanent injunction in respect of the subject property and it is pending for trial before the trial Court. Therefore, all the allegations are civil in nature, for which the petitioners cannot be held liable for the offences under Sections 294(b) & 427 of IPC.
14. It has to see that, whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the Court. In the present case, the averments in the complaint, read on its face, do not disclose the ingredients necessary to constitute offences under the Penal Code and a civil dispute is attempted to be given a criminal color in this case. An attempt has been made by the respondent to cloak a civil https://www.mhc.tn.gov.in/judis Page 10 of 12 Crl.O.P.Nos.6559 & 6663 of 2020 dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence. The complaint filed by the respondent against the petitioners constitutes an abuse of process of Court and it is liable to be quashed.
15. Accordingly, the proceedings in C.C.No.66 of 2020 on the file of the learned Judicial Magistrate-I, Chengalpattu, is hereby quashed and both the Criminal Original Petitions are allowed. Consequently, connected miscellaneous petitions are closed.
07.07.2022 Internet: Yes Index : Yes/No Speaking/Non Speaking order rts https://www.mhc.tn.gov.in/judis Page 11 of 12 Crl.O.P.Nos.6559 & 6663 of 2020 G.K.ILANTHIRAIYAN. J, rts To
1. The Judicial Magistrate-I, Chengalpattu Crl.O.P.Nos.6559 & 6663 of 2020 and Crl.M.P.Nos.3642, 3669 & 3673 of 2020 07.07.2022 https://www.mhc.tn.gov.in/judis Page 12 of 12