Madras High Court
A. Murugesan vs The State Rep By Its on 28 October, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.505 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.505 of 2018
1. A. Murugesan
2. C.Senthil
3. M.Duraisamy
4. D.Prakasam
5. A.Balan .... Appellants
Vs
The State rep by its
The Inspector of Police,
Mangalam Police Station,
Tiruppur District.
Crime No.145 of 2014 .... Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Code of Criminal
Procedure, to set aside the Judgment 23.07.2018 passed in S.C.No.2 of 2017 on
the file of the I Additional Sessions Judge at Tiruppur and acquit the appellants.
For Appellants : Mr.K.Myilsamy
For Respondent : Mr.A.Gopinath
Government Advocate (Crl. Side)
https://www.mhc.tn.gov.in/judis
Page 1 of 12
Crl.A.No.505 of 2018
JUDGMENT
This Criminal Appeal is directed as against the Judgment dated 23.07.2018 passed in S.C.No.2 of 2017 on the file of the I Additional Sessions Judge at Tiruppur, thereby convicting the appellants for the offence punishable under Sections 147, 148, 447, 294(b) and 506(ii) of IPC read with Section 3(1) of TNPPDL Act.
2. The case of the prosecution is that the defacto complainant and her husband owned property admeasuring 1.85 acres near rice mill. The said property was under the name of her maternal aunt, since her maternal aunt had no issues, she was under the care of the defacto-complainant and her aunt settled the property in her name. The accused are the sons of her maternal uncle and as such, very often used to pick up quarrel seeking partition over the property. P.W.1 is doing cultivation in the subject land with fencing. While being so, the accused persons trespassed into the subject property on 30.01.2014 at about 5.00 p.m and caused damages to the fencing by deadly weapons. When it was questioned by the defacto complainant, they scolded her in filthy language and also threatened her with dire consequences. Hence, the complaint.
3. On receipt a complaint, the respondent police registered an FIR in https://www.mhc.tn.gov.in/judis Page 2 of 12 Crl.A.No.505 of 2018 Crime No.145 of 2014 for the offence punishable under Section 147, 148, 447, 294(b) and 506(ii) of IPC read with Section 3(1) of TNPPDL Act. After completion of investigation, the respondent filed final report and the same has been taken cognizance by the Trial Court in S.C.No.2 of 2017.
4. In order to bring home the charge, the prosecution had examined P.Ws.1 to 7 and marked Exs.P1 to P8. On the side of the accused, no one was examined and no document was marked.
5. On perusal of the oral and documentary evidence, the Trial Court found the appellants guilty for the offence punishable under Sections 147, 148, 447, 294(b) and 506(ii) of IPC read with Section 3(1) of TNPPDL Act and sentenced them to pay a fine of Rs.2,000/- each, in default, to undergo one month simple imprisonment for the offence under Section 147 of IPC ; sentenced them to pay a fine of Rs.2,000/- each, in default, to undergo one month simple imprisonment for the offence under Section 148 of IPC; sentenced them to pay a fine of Rs.500/- each, in default, to undergo 15 days simple imprisonment for the offence under Section 447 of IPC ; sentenced them to pay a fine of Rs.2,000/- each, in default, to undergo one month simple imprisonment for the offence under Section 294(b) of IPC ; sentenced them to pay a fine of https://www.mhc.tn.gov.in/judis Page 3 of 12 Crl.A.No.505 of 2018 Rs.2,000/- each, in default, to undergo one month simple imprisonment for the offence under Section 506(ii) of IPC and sentenced to undergo simple imprisonment for one year each and to pay a fine of Rs.1,000/- each, in default, to undergo one month simple imprisonment for the offence under Section 3(1) TNPPDL Act. Aggrieved by the same, the present appeal.
6. The learned counsel for the appellant would submit that the occurrence had taken place on 30.01.2014. However, the complaint was lodged only on 11.04.2014. There was absolutely no explanation for the delay in lodgment of complaint. The alleged damage was not proved by the prosecution. Since, P.W.2, who is the husband of the defacto complainant, had taken photograph of the incident and copies of photograph were marked as Ex.P2. In fact, he did not file any affidavit and or oath of confirmation for proving the photographs. No negatives were marked for confirming the veracity of photographs. Based on the consequential evidence, the Trial Court convicted the appellants.
7. He further submitted that they proved the dispute between the appellants and the defacto complainant. The property originally belonged to the appellants' father and it was stated to the defacto complainant without giving https://www.mhc.tn.gov.in/judis Page 4 of 12 Crl.A.No.505 of 2018 any share to the appellants. In fact, the appellants are in possession and enjoyment of the property and as such, there is no necessity for them to trespass into the subject property. Therefore, the offence under Section 3(1) of TNPPDL Act would not be attracted. Admittedly, the subject property is a patta land owned by private parties. Even according to the prosecution, the occurrence had not taken place due to riot or any untoward incident by the general public.
8. Per contra, the learned Government Advocate (Criminal Side) submitted that admittedly the appellants trespassed into the property of the defacto complainant and caused damages. Though the complaint was lodged belatedly, P.Ws.1 and 2 have properly explained it in their deposition. Immediately, after the occurrence, i.e., on 30.01.2014, the defacto complainant lodged a complaint and it was refused to be received by the respondent. The defacto complainant approached the higher officials and thereafter, the respondent registered the case. Therefore, on the part of the defacto complainant, there was no delay. Insofar as the charge under Section 3(1) of TNPPDL Act is concerned, it is applicable to the case on hand, since though the property belonged to the private parties, the offence under Section 3(1) of TNPPDL Act would stand attracted. Therefore, the Trial Court rightly https://www.mhc.tn.gov.in/judis Page 5 of 12 Crl.A.No.505 of 2018 convicted the appellants and it does not warrant any interference by this Court.
9. Heard, Mr.K.Myilsamy, learned counsel appearing for the appellants and Mr.A.Gopinath, learned Government Advocate (Criminal Side) appearing for the respondent and perused the materials available on record.
10. The subject property admeasuring 1.85 acres originally belonged to the maternal aunt of P.W.1. She was under the care of P.W.1. Therefore, she executed a settlement for the reason that she had no issues. The Appellants are the sons of the maternal uncle. Therefore, they often used to pick up quarrel with P.W.1 seeking partition of the property. While being so, on 30.01.2014 at about 5.00 p.m., they trespassed into her property and had broken cement fencing stones by using crowbar and caused damage to the tune of Rs.18,000/-. When, it was questioned by the defacto complainant, they scolded her in filthy language and also threatened her with dire consequences.
11. A perusal of the deposition of P.W.1 reveals that the appellants entered into her property and caused damage to the fencing stones and had broken 30 fencing stones. When it was questioned, they scolded her in filthy language and also threatened her with dire consequences. It was also reiterated by P.W.2, who is the husband of P.W.1. Therefore, the prosecution proved its https://www.mhc.tn.gov.in/judis Page 6 of 12 Crl.A.No.505 of 2018 case beyond any doubt in respect of the charges under Sections 147, 148, 447, 294(b) and 506(ii) of IPC.
12. Insofar as the charge under Section 3(1) of TNPPDL Act is concerned, it is to extract the provision under Section 3(1) of the TNPPDL Act as follows :-
“3. Punishment for committing mischief in respect of property.- Whoever,-(i) Commits mischief by doing any act in respect of any property and thereby causes damage or loss to such property to the amount of one hundred rupees or upwards;” The "Property" means any property, movable or immovable or machinery owned by or in possession of, or under the control of any person including
(a) the Central Government; or,
(b) the State Government; or,
(c) any local authority; or,
(d) the Tamil Nadu State Electricity Board; or,
(e) any University in this State; or
(f) any co-operative society including a land development bank registered or deemed to be registered under the Tamil Nadu Co - operative Societies Act, 1983; or
(g) any corporate body constituted under any Act passed by Parliament or the Legislative Assembly of this State; or
(h) any other corporation owned or controlled by the Central Government or the State Government; or
(i) any institution concern or undertaking; or
(j) any company.
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13. The TNPPDL Act was originally introduced to protect the public property only. Subsequently it was amended, whereby, the private properties which were damaged in the course of agitation by the political parties or other such groups, either communal, religious, linguistic agitating against the State and in the course of the agitation, the vehicles and the properties, even though belonging to private parties, are also damaged, are included. But in the solitary incidents, the private properties whether, building or vehicle are not covered under the amendment. For those purpose, already provisions are available under the Indian Penal Code. The Investigating Officer mechanically invoked the provisions of the TNPPDL Act, which cannot be accepted by a Court of law, as it is against the legislation intended by the amendment brought by the State.
14. The object of the Act makes it very clear that only during such political party agitations or ethnic agitations, demonstration or other activities or communal clash if any private properties are damaged to fix the liability on such groups, the amendment has been brought in. The object itself is to compensate the loss of the private properties for the damage caused by the said groups. Therefore, this Court is of the view that ordinary mischief caused by any individual, in a fight, cannot be brought under Section 3(1) of the TNPPDL Act. It is routine practice of the police to implicate even the individual, who allegedly https://www.mhc.tn.gov.in/judis Page 8 of 12 Crl.A.No.505 of 2018 cause damage of property worth about hundred rupees under Section 3(1) of TNPPDL Act. Such practice should be stopped herewith. The object of the Act has to be given preference. Not in every case, Section 3(1) of TNPPDL Act can be invoked.
15. Admittedly, the subject property is a patta land owned by P.W.1, as per the settlement executed by her maternal aunt. It is seen in evidence of P.Ws.1 & 2 deposed that after the occurrence, immediately, P.W.1 lodged a complaint. However, the respondent refused to receive the same. Therefore, P.W.1 approached the higher officials and only on direction issued by the higher officials, the respondent registered an FIR in Crime No.145 of 2014. Therefore, P.Ws.1 and 2 properly explained the delay in lodgment of complaint.
16. Thus, it is clear that the charge under Section 3(1) of TNPPDL Act would not at all be attracted as against the appellants. The Trial Court, without considering the above framed charges under Section 3(1) of TNPPDL Act, convicted the appellants. Hence, the conviction under Section 3(1) of TNPPDL Act cannot be sustained as against the appellants and it is liable to be set aside. Accordingly, the conviction and sentence imposed by the Court below in respect of the offence under Section 3(1) of TNPPDL Act is hereby set aside. https://www.mhc.tn.gov.in/judis Page 9 of 12 Crl.A.No.505 of 2018
17. In view of the above, the conviction and sentence imposed under Sections 147, 148, 294(b) and 506(ii) of IPC are hereby confirmed. Insofar as the sentence for the offence under Section 447 of IPC is concerned, it stands modified to the effect that the appellants shall pay a compensation of Rs.20,000/- each payable to P.W.1 directly by way of Demand Draft, within a period of four weeks from the date of receipt of a copy of this order, in default, the appellants shall undergo simple imprisonment for a period of four weeks.
18. In the result, this Criminal Appeal is partly allowed.
28.10.2022 Index : Yes/No Speaking/Non Speaking order Lpp To
1. The I Additional Sessions Judge, Tiruppur
2. The Inspector of Police, Mangalam Police Station, Tiruppur District.
3. The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis Page 10 of 12 Crl.A.No.505 of 2018 G.K.ILANTHIRAIYAN. J, Lpp https://www.mhc.tn.gov.in/judis Page 11 of 12 Crl.A.No.505 of 2018 Crl.A.No.505 of 2018 28.10.2022 https://www.mhc.tn.gov.in/judis Page 12 of 12