Madras High Court
V.Ganesan vs The Inspector Of Police on 4 July, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.07.2018
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
CRL OP(MD).No.14407 of 2012
and
M.P.(MD).Nos.1 and 2 of 2012
1.V.Ganesan
2.M.Soundarapandian ...Petitioners/Accused Nos.
1 and 3
Vs.
1.The Inspector of Police,
Ayioor Police Station,
Kariapatti Taluk, Virudhunagar District.
2.The Deputy Superintendent of Police,
Aruppukottai Sub-Division,
Virudhunagar District. ...1st and 2nd
Respondents/Complainants
3.C.Irulappan ...3rd Respondent / 1st De facto Complainant
4.S.Raju ...4th Respondent / 2nd De facto Complainant
PRAYER: This Petition filed under Section 482 of Cr.P.C to call for the
records pertaining to Spl.S.C.No.20 of 2012 on the file of the Hon'ble
Principal Sessions Court, Srivilliputhur and quash the same in so far as the
petitioners are concerned.
!For Petitioners : Mr.T.Sakthikumaran
^For R1 and R2 : Mr.A.Robinson
Government Advocate (Crl. side)
For R3 and R4 : Mr.V.Kannan
:ORDER
Heard the learned counsel appearing for the petitioners as well as the learned Government Advocate (Crl Side) appearing for the respondents 1 and 2 as well as the learned counsel appearing for the respondent Nos.3 and 4.
2. The petitioners herein are figuring as accused Nos.1 and 3 in Spl.S.C.No.20 of 2012 on the file of the Principal Sessions Court, Srivilliputhur. The third respondent Thiru C.Irulappan, on 13.10.2006, lodged a information, leading to registration of Crime No.131 of 2006 on the file of the Inspector of Police, Aviyoor Police Station, Virudhunagar District for the offences under Sections 147, 323, 336 r/w. 3 (1) (x) of SC/ST Act. The case was investigated by the Deputy Superintendent of Police, Aruppukottai Sub Division. He after examining the witnesses recorded their statements under Section 161(3) of Cr.P.C. The second respondent herein filed a Closure Report before the learned Judicial Magistrate No.II, Virudhunagar. It is not known as to what happened to the said final report closing the case as ?Mistake of fact?.
3. Be that as it may, the third respondent herein filed a Protest Petition. The same was treated as a private complaint and taken on file by the learned Judicial Magistrate No.II, Virudhunagar in P.R.C.No.18 of 2011. Since the offences under SC/ST Act are triable only by the Special Sessions Court, the matter was committed to the Special Court which issued summons to the accused. There are totally nine accused in this case. The petitioners are figuring as Accused Nos.1 and 3. To quash the said proceedings, this Criminal Original Petition has been filed.
4. This Court went through the entire materials on record. It is seen that there was an election related dispute between two groups in Kambikudi Village. One Muthirulan was beaten up on 13.10.2006 leading to registration of Crime No.130 of 2006 on the file of the Aviyoor Police Station. One Mayilvahanan and nineteen others have been shown as accused. The complainant herein C.Irulappan was shown as the 20th accused. The said occurrence had taken place at 03:10 p.m. Crime No.131 of 2006 was registered at the instance of the said Accused No.20 C.Irulappan.
5. It is necessary to have a closer look at the original complaint of the complainant herein viz., C.Irulappan, he would say in his complaint dated 13.10.2006 that Ganesh Vagayara had objected to the casting of vote in favour of Kannan and also abused them by referring to their caste. Nowhere Irulappan/complainant herein has mentioned that he was present in the scene. That is why, the Deputy Superintendent of Police, Aruppukottai Sub Division, filed a Closure Report closing the case as ?mistake of fact?. A specific finding has been given that Irulappan was not injured and that he was not even present in the scene of occurrence. That apart, quite a few witnesses have specifically given their statement to the effect that there was no abuse by referring to community of the accused in Crime No.131 of 2006. This Closure Report was very much pending on the file of the learned Jurisdictional Magistrate. It is not in dispute that the complainant was given notice with regard to the said Closure Report. That is why, the complainant herein filed Protest Petition in Cr.M.P.No.2288 of 2007. This Protest Petition has been taken on file as a private complaint and assigned P.R.C.No.18 of 2011. The same was subsequently committed to the Special Court and taken on file as Spl.S.C.No.20 of 2012.
6. As rightly contended by the learned counsel appearing for the petitioners, when the Protest Petition was filed, the Closure Report was already available on file. Therefore, the Court below ought to have closely scrutinized the material on record before taking the same on file and issuing summons to the accused. He placed reliance on the decision of the Hon'ble Supreme Court reported in (2015) 12 SCC 420-(Mehmood UL Rehman Vs. Khazir Mohammad Tunda and others). He drew the attention of this Court to paragraphs 20 to 22 in which it was held as follows:-
?20.The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the Criminal Court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited. to in motion the process of criminal law against a person is a serious matter.
21.Under Section 190(1)(b) Cr.P.C, the Magistrate has the advantage of a Police report and under Section 190 (1) (c) Cr.P.C, he has the information or knowledge of commission of an offence. But under Section 190 (1) (a) Cr.P.C., he has only a complaint before him. The Code hence specifies that ?
a complaint of facts which constitute such offence?. Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190 (1) (a) Cr.P.C. The complaint is simply to be rejected.
22.The steps taken by the Magistrate under Section 190 (1) (a) CrPC followed by Section 204 Cr.P.C should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the Court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the Court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a Post Office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C, if any, the accused is answerable before the Criminal Court, there is ground for proceeding against the accused under Section 204 Cr.P.C, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190 /204 Cr.P.C, the High Court under Section 482 Cr.P.C is bound to invoke its inherent power in order to prevent abuse of the power of the Criminal Court. To be called to appear before the Criminal Court as an accused is serious matter affection one's dignity, self respect and image in Society. Hence, the process of Criminal Court shall not be made a weapon of harassment.?
7. The ratio laid down is that there must be due application of mind before issuing process. In the present case, there is absolutely nothing to indicate that there was any application of mind before cognizance was taken and process was issued to the accused. This Court is in full agreement with the aforesaid submission of the learned counsel appearing for the petitioner.
8. That apart, a mere comparison of the original complaint given by Irulappan and the subsequent Protest Petition would show that there has been a considerable improvement in the case projected. A learned Judge of this Court in the decision reported in (2015) 4 MLJ (Crl) 13-(M.Kalyani Mathivannan and others Vs. M.Parthasarathi). before quashing the proceeding observed as follows:-
?31.This Court has called for the records from the learned Judicial Magistrate. A perusal of the complaint given to the Superintendent of Police would show that the allegations made therein is only to the effect that the petitioner No.1, has insulted the respondent. However, a perusal of the copy of the complaint filed before the Magistrate would show that certain new facts have been added. Though in the earlier complaint given to the police the allegations are only made against the first petitioner, in the private compliant given, all the others have been implicated. It has been given with respect to the action taken against him and his residential premises. Curiously the alleged action taken against the brother-in-law was not mentioned in the complaint though he has deposed so before the Court. Except the petitioner, there is no named eye-witness stated in the alleged occurrence as against the first petitioner herein. Even here there is an improved version. In the complaint given to the Police, it has been stated that he was insulted before the others. Whereas in the complaint given before the Court, it has been stated that the alleged occurrence has happened within the chambers of the petitioner No.1. It was further stated as the door was opened, sound was heard by the other employees. ?
9. When new facts are added in the Protest Petition which were not there in the original complaint, the Court taking cognizance of the case must bestow closer attention. In this case, there has been non application of mind on the part of the courts below. Therefore, this Court is of the view that if the impugned prosecution continues it would only amount to abuse of process of law. Though only two of the accused have come to this Court, this Court is of the view that the order quashing the proceedings can enure to the benefit of all the accused. The impugned proceedings stands quashed.
10. This Criminal Original petition is allowed accordingly. Consequently, the connected miscellaneous petitions are closed.
To
1.The Inspector of Police, Ayioor Police Station, Kariapatti Taluk, Virudhunagar District.
2.The Deputy Superintendent of Police, Aruppukottai Sub-Division, Virudhunagar District.
3.The Principal Sessions Court, Srivilliputhur.
4.The Judicial Magistrate Court No.II, Virudhunagar.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.