Madras High Court
D.Yogarajan vs Inspector Of Police on 15 March, 2007
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/03/2007 CORAM: THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR CRL.O.P.(MD)No.1076 of 2007 and M.P.(MD).Nos.1 and 2 of 2007 D.Yogarajan .. Petitioner Vs. Inspector of Police, Central Crime Branch Unit-I, Madurai. .. Respondent Criminal Original Petition filed under Section 482 Cr.P.C., praying to call for the entire records in C.C.No.176 of 2006 on the file of the learned Judicial Magistrate No.I, Madurai and quash the same. For Petitioner : Mr.Mathew Moses For Respondent : Mr.L.Murugan Government Advocate (Crl.side) :ORDER
The accused in C.C.No.176 of 2006 now pending on the file of the learned Judicial Magistrate No.I, Madurai has filed this criminal original petition under Section 482 Cr.P.C., for quashing the above said criminal proceedings.
2. M.P.No.1 of 2007 is for stay and M.P.No.2 of 2007 is for dispensing with the personal appearance of the petitioner herein before the trial Court pending disposal of the quash petition.
3. The learned Government Advocate (Criminal side) has entered appearance on behalf of the State.
4. The submissions made on both sides have been heard and the documents produced by the petitioner in the form of typed-set have been perused.
5. It appears that a case was registered in Crime No.29 of 2004 on the file of the Central Crime Branch, Madurai for alleged offences punishable under Sections 468,471,420 and 506(i) IPC based on the complaint of one Palanisamy allegedly submitted on 24.07.2002 to the Joint Commissioner of Police, Madurai City. In the said complaint, allegations had been made against the petitioner herein and one A.M.R.Ganesan, as if they were collecting exorbitant and usurious interest for the amount borrowed by the above said de facto complainant in the year 1996. The further allegations found in the said complaint are that the petitioner herein abducted the above said de facto complainant with the help of rowdy elements and obtained a power of attorney and title deeds concerning his immovable properties measuring 6 acres situated in Pannial Village, as a security for the repayment of the loan with exorbitant interest; that the petitioner also forcibly took possession of the shop allotted to the de facto complainant in Madurai Central Market and sold it to the above said A.M.R.Ganesan for Rs.7,00,000/- and that as a culmination of the same, the petitioner herein and the above said A.M.R.Ganesan with their henchmen caused intimidation to kill the de facto complainant and his family members, when he asked about the propriety of their act. Even though the complaint contained allegations capable of attracting Sections 364(A), 506(ii) and 381 IPC, the police had not chosen to register the First Information Report, immediately after receiving the complaint, but kept it as a petition assigning C.No.190 of 2002 and conducted a preliminary enquiry.
6. According to the case of the respondent, after preliminary enquiry, the said complaint was registered on 04.08.2004 as Crime No.29 of 2004 on the file of the Central Crime Branch unit-I, Madurai for alleged offences punishable under Sections 468,471,420 and 506(i) IPC. Subsequently, on completion of investigation, the respondent has laid a charge sheet against the petitioner alone alleging commission of an offence punishable under Section 506(ii) IPC r/w Section 4 of Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003. The learned Judicial Magistrate No.I, Madurai seems to have taken the same on his file as C.C.No.176 of 2006, after taking cognizance of the above said offences. Aggrieved by the same, the petitioner/accused has come forward with this petition under Section 482 Cr.P.C., for quashing the above said criminal proceeding.
7. The learned counsel for the petitioner contended that the learned Judicial Magistrate No.I, Madurai had committed an error in taking cognizance of the case for an offence punishable under Section 4 of Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 in respect of an act allegedly committed by the petitioner herein long before the said statute making such an act a punishable offence came into force and hence the proceedings in C.C.No.176 of 2006 on the file of the trial Court is liable to be quashed. All the acts alleged by the de facto complainant in his complaint, according to the prosecution case, were committed between 1996 and 1999. The complaint itself was purportedly given on 24.07.2002 much earlier than the date on which Tamil Nadu Prohibition of Charging Exorbitant Interest Act came into force. The said Act came into force only in the year 2003. Section 4 of the above said Act does not have any retrospective effect. No penal provision can have retrospective effect so as to make an act a punishable offence, whereas such an act had not been made a punishable offence on the date of its commission. Any provision making an act a punishable offence retrospectively will be violative of the fundamental right guaranteed in Article 20(1) of the Constitution of India. Therefore, this Court is convinced that the initiation of the criminal proceedings before the Court of the Judicial Magistrate No.I, Madurai for an offence under Section 4 of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 is without jurisdiction and illegal and hence the same is liable to be quashed.
8. The charge sheet was laid not only for an offence punishable under Section 4 of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 but also for an offence punishable under Section 506(ii) IPC reading both the sections together. So far as the offence punishable under Section 506(ii) IPC is concerned, the learned counsel for the petitioner argued that a consideration of the records would show concoction by the police regarding the date of complaint and that the same would nevertheless amount to abuse of process of law. The discrepancies pointed out by the learned counsel for the petitioner are:
(i) the complaint was stated to be received on 24.07.2002, but the case was registered two years later i.e. On 04.08.2004;
(ii) though the case was registered on 04.08.2004 after the Tamil Nadu Prohibition of Charging Exorbitant Interest Act came into force, Section 4 of the said Act was not cited in the first information report as one of the penal provisions attracted by the allegations made by the complainant;
(iii) the first information report was registered for offences punishable under Sections 468,471,420 and 506(i) IPC. While filing charge sheet on completion of investigation, the said penal provisions have been omitted and Section 506(i) IPC has been altered into Section 506(ii) IPC keeping in mind that the bar of limitation may come in the way of taking cognizance of the offence;
(iv) there was enormous delay (nearly two years) from the date of first information report in submitting the final repot;
(v) as per the contents of the first information report, the alleged intimidation was committed on 23.07.2002, a date prior to the date of complaint, but as per the statement of the de facto complainant under Section 161 Cr.P.C., it was on 24.09.1999 and 07.10.1999 the alleged intimidation was committed and not on 23.07.2002; and
(vi) the inbuilt improbability of the prosecution case is writ large in the light of the fact that except the complainant, no other person has been cited as a prosecution witness to speak about the alleged intimidation and the statements of the witness cited regarding the alleged intimidation also contradict with the allegations found in the first information report.
9. The learned counsel for the petitioner, pointing out the above said discrepancies, argued that the proceedings in C.C.No.176 of 2006 should be quashed in its entirety, since prima facie case for an offence under Section 506(ii) IPC should be ruled out, in view of the inbuilt improbability pointed out above and that the cumulative effect of all the discrepancies pointed out would undoubtedly prove the misuse of the process of Court.
10. This Court, after giving its anxious considerations to the submissions made on both sides and upon perusing the records, is of the considered view that the submission of the final report for an offence punishable under Section 4 of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 in respect of an act committed before the said Act came into force, whereas such an act had not been made a criminal offence on the date of its alleged commission, will show the attempted abuse of process of Court with ulterior motive. It is the well known principle that the High Court, while dealing with a petition under Section 482 Cr.P.C. for quashing the proceedings, should not make an attempt to weigh the evidence and that the proceedings can be quashed only, if no prima facie case for the offences alleged has been made out, even if the statements of the witnesses recorded by the Investigating Officer are accepted on their face value. But at the same time, when there are inbuilt improbabilities which will go to show that no conviction could be possible even if the statements of the witnesses are taken on their face value, then the Court dealing with the quash petition under Section 482 Cr.P.C. cannot shut its eyes to the same and direct the accused to stand the ordeal of trial. The inbuilt improbabilities pointed out in this case can also be an additional ground to support the argument that the proceedings against the petitioner is mala fide and hence a clear case of abuse of process of Court to put the petitioner's liberty in jeopardy has been made out.
11. The Honourable Supreme Court in State of Haryana v. Bhajan Lal (1992 AIR SCW 237) made the following observations and listing of circumstances in which the First Information Report or complaint can be quashed.
" In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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.
(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 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 wrecking vengeance on the accused and with a view to spite him due to private and personal grudge."
In R.P.Kapur v. State of Punjab (AIR 1960 SC 866), the Honourable Supreme Court has made the following observation:
"Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice."
In Rupan Deol Bajaj V. K.P.S.Gill (AIR 1996 SC 309), the Honourable Supreme Court, after listing out some of the circumstances in which a complaint or first information report could be quashed, has also made the following observation:
" Of course, as has been pointed out in Bhajan Lal's case an FIR or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused."
12. When the facts of the case are taken into consideration in the light of the above said principles laid down by the Honourable Supreme Court, one can easily come to a conclusion that the filing of the charge sheet in this case itself will amount to an abuse of process of Court and that it is a fit case in which, this Court has to exercise its inherent power under Section 482 Cr.P.C. to quash the proceedings in C.C.No.176 of 2006 on the file of the Judicial Magistrate No.I, Madurai.
13. For all the reasons stated above, this Court comes to a conclusion that the petitioner has made out a clear case for quashing the criminal proceedings pending against him on the file of the Judicial Magistrate No.I, Madurai in C.C.No.176 of 2006.
14. In the result, this Criminal Original Petition is allowed. Consequently, connected M.P.Nos.1 and 2 of 2007 are closed.
To
1.The Judicial Magistrate No.I, Madurai.
2.The Inspector of Police, Central Crime Branch Unit-I, Madurai.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.