Madras High Court
Gurusamy vs The State Through The Inspector Of ...
Crl.O.P(MD).No.11691 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 24.08.2023
Delivered On : 22.09.2023
CORAM:
THE HONOURABLE MR. JUSTICE P. DHANABAL
Crl.O.P(MD).No.11691 of 2021
Gurusamy ...Petitioner
Vs
1.The State through the Inspector of Police,
Mallanginaru Police Station,
Virudhunagar District.
In Crime No.60 of 2016
2.Muthuselvi ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, praying this Court to call for the records in C.C.No.47 of
2021 pending on the file of the Judicial Magistrate No.I, Virudhunagar and to
quash the same as against the petitioner/accused No.1 is concerned.
For Petitioners : Mr.C.M.Arumugam
For Mr.R.Rajamohan
For 1st Respondent : Mr.M.Sakthikumar
Government Advocate (Crl.)
For 2nd Respondent : No Appearance
ORDER
This petition is filed to quash the charge sheet in C.C.No.47 of 2021 pending on the file of the learned Judicial Magistrate No.I, Virudhunagar. https://www.mhc.tn.gov.in/judis 1/10 Crl.O.P(MD).No.11691 of 2021
2.According to the petitioner, the second respondent has given complaint before the first respondent. Based on the complaint, the first respondent registered FIR in Crime No.60 of 2016 for the offence under Sections 147, 148, 447, 427, 341, 324, 506(ii) of IPC. Thereafter, the first respondent filed charge sheet and the same was taken on file in C.C.No.47 of 2021 by the Judicial Magistrate No.I, Virudhunagar.
3.As per prosecution case, the petitioner developed one side love on the defacto complainant's daughter and thereby, he frequently harassed the daughter of the defacto complainant. On 12.04.2016, at about 02.00 a.m, when the defacto complainant along with daughter were sleeping in their house, A2 to A7 formed unlawful assembly with deadly weapons and entered into the house of the defacto complainant and damaged the lock worth about Rs.150/- and after seeing the accused, when the defacto complainant shouted the accused shown the knife and threatened to open the door. In the meantime, after hearing the noise, the neighbors came there. At that time, all the accused ran away from the place after causing injuries to the neighbours namely Kamala Devi and Malaisamy. A1 engaged A2 to A7 to break open the house of the defacto complainant and thereby, all the accused committed the offence under Sections 147, 148, 447, 427, 341, 324, 506(ii) of IPC. https://www.mhc.tn.gov.in/judis 2/10 Crl.O.P(MD).No.11691 of 2021
4.In fact the charge sheet has been filed without conducting proper investigation and even if the complaint and FIR 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 petitioner. Initially FIR has been registered for the offence under Sections 457, 511, 506(ii) of IPC against six unknown persons and thereafter, Sections were altered for the offences under Sections 457, 398 of IPC by implicating this petitioner as accused and thereafter, once again on 23.08.2016, the Sections have been altered under Sections 147, 148, 447, 427, 341, 324, 506(ii) of IPC by implicating 7 persons as accused. After completion of investigation, the first respondent filed charge sheet as against the petitioner as against A1 under Sections 147, 148, 447, 427, 341, 506(ii) of IPC which itself prima facie shows the filing of final report as against the petitioner is abuse of process of law.
5.As per FIR and charge sheet and statement recorded from the witnesses would prima facie shows that there is no offence made out as against the petitioner. The charge sheet does not disclose any offence as against the petitioner since there is no specific overt act attributed against the petitioner that he trespassed into house of the defacto complainant and wrongful restrained any one. The prosecution has invented three different https://www.mhc.tn.gov.in/judis 3/10 Crl.O.P(MD).No.11691 of 2021 stories in this case. In the first 161 Cr.P.C., statement, the witnesses have not disclosed any overt act against the petitioner. In the second statement, it is stated that after arrest of co-accused, he gave confession statement by implicating this petitioner. The petitioner and Thereafter, in the third invented story, there was love affair between the petitioner and defacto complainant's daughter. Therefore, the Investigating Officer has not properly investigated the case and wrongly filed final report against the petitioner and the same is abuse of process of law.
6.No counter was filed on the side of the respondents.
7.The learned counsel appearing for the petitioner has argued that in the FIR, the name of the petitioner was not find place. According to the prosecution, the defacto complainant is an opposite resident and they know very well about the identity of the petitioner. While so at the time of giving complaint, the name of the petitioner was not mentioned and the complaint was lodged as against six identifiable persons for the offence Sections 147, 148, 447, 427, 341, 324, 506(ii) of IPC. Thereafter, based on the confession of co-accused, this petitioner's name was included. Thereafter, on 27.04.2016, this petitioner was arrested by the respondent police and they recovered one iron rod from this petitioner.
https://www.mhc.tn.gov.in/judis 4/10 Crl.O.P(MD).No.11691 of 2021
8.As per prosecution case, on the date of occurrence, the accused had bill hook and crow bar but one iron rod was recovered from this petitioner who was not present in the place of occurrence on the date and the same was totally contra to the prosecution case. Further as per FIR, this petitioner was not present in the place of occurrence. As per charge sheet, this petitioner engaged A2 to A7 to commit the offence. Therefore, the prosecution case is highly improbable and this petitioner was not at all present in the place of occurrence and thereby, he is not a member of unlawful assembly. According to final report, charge against the petitioner is Sections 147, 148, 447, 427, 341, 506(ii) of IPC. This petitioner is arrayed as A1 in the charge sheet. In order to attract the provision under Sections 147, 148, 447, 427, 341, 324, 506(ii) of IPC, none of the witnesses stated about the participation of this accused in the crime and thereby, the filing of the charge sheet is abuse of process of law and the same is liable to be quashed.
9.The learned Government Advocate appearing for the first respondent would contend that on the date of occurrence, A2 to A7 entered into the house of the defacto complainant and criminally intimidated by showing weapons and they raised alarm. After hearing alarm, the neighbours Malaisamy and Kamala devi rushed to the spot and at that time, the A2 to A7 caused injuries https://www.mhc.tn.gov.in/judis 5/10 Crl.O.P(MD).No.11691 of 2021 on the hands of neighbours and ran away from the spot. Thereafter, the second respondent gave a complaint before the first respondent and after enquiry, at the time of investigation, the first respondent came to know that this petitioner only engaged other accused to make threat to the defacto complainant since the defacto complainant deprecated the one side love of the petitioner with her daughter. Therefore, this petitioner has been arrayed as A1 and only at the instigation of this petitioner, the other accused involved in the occurrence. According to the prosecution, there are prima facie materials available as against the petitioner and he has to face the trial. Thereby, this petition is liable to be dismissed.
10.Heard both sides and perused the materials available on records.
11.On perusal of records, it is observed that the defacto complainant has given complaint alleging that on the date of occurrence, some six identifiable persons entered into house with crow bar and bill hook and damaged the lock worth about Rs.150/-. When they shouted, the accused attempted to escape. At that time, the neighbours were also rushed to the spot, the accused assaulted the neighbours and they sustained injuries.
12.On perusal of complaint and FIR, it reveals that no name of the https://www.mhc.tn.gov.in/judis 6/10 Crl.O.P(MD).No.11691 of 2021 petitioner mentioned in the FIR and thereafter, based on the confession given by the co accused, this petitioner was arrayed as accused. After arrest of the petitioner, the witnesses identified the accused. But none of the witnesses have spoken about the presence of the petitioner on the date of occurrence. It is not the prosecution case that the petitioner conspired with the other accused to commit the offence. Per contra the petitioner along with others formed unlawful assembly with deadly weapons and trespassed into the house of the defacto complainant and then damaged the lock and wrongfully restrained and caused injuries to the witness. Even as per the final report, there is no specific overt act against this petitioner and the final report reveals that A1 developed one side love with the daughter of defacto complainant and the same was deprecated by the defacto complainant. Due to that, A1 engaged A2 to A7 to break open the doors of the defacto complainant and on 27.04.2016, A2 to A7 formed unlawfully assembly with deadly weapon and entered into the house of the defacto complainant and damaged the lock worth Rs.150/- and then after hearing noise, when the neighbours Kamala Devi and Malaisamy came there, they assaulted them with knife and thereby, they sustained injuries. This is a charge.
13.There is no any averments or no piece of material to show that this petitioner has participated in the occurrence and thereby, without any material, https://www.mhc.tn.gov.in/judis 7/10 Crl.O.P(MD).No.11691 of 2021 the petitioner need not face the ordeal of trial. The charges mentioned in the final report are Sections 147, 148, 447, 427, 341, 324, 506(ii) of IPC.
14.As against A1, Sections 147 and 148 of IPC simultaneously would not attract. If the petitioner being member of unlawfully assembly caused any riot, Section 147 of IPC would attract. If the riot caused with deadly weapon, Section 148 of IPC would attract. But here no body have stated about the presence of the petitioner on the date of occurrence. In the final report also, the prosecution stated that A2 to A7 formed unlawfully assembly and participated in the occurrence. There is no whisper about the presence of the petitioner.
15.In so far as Sections 447, 341 and 506(ii) of IPC are concerned, no material is available to show that this petitioner trespassed into the house of the defacto complainant and wrongfully restrained some body and caused criminal intimidation. Therefore, without any material, the respondent police have filed final report by including the name of the petitioner. Therefore, the filing of charge sheet without any material is abuse of process of Court. Thereby, the charge sheet is liable to be quashed. https://www.mhc.tn.gov.in/judis 8/10 Crl.O.P(MD).No.11691 of 2021
16.Therefore as discussed supra, this Criminal Original Petition is allowed and the impugned charge sheet in C.C.No.47 of 2021 pending on the file of the learned Judicial Magistrate No.I, Virudhunagar District is hereby quashed.
22.09.2023 NCC : Yes/No Internet : Yes/No Index : Yes/No Mrn To
1.The Judicial Magistrate No.I, Virudhunagar District.
2.The Inspector of Police, Mallanginaru Police Station, Virudhunagar District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 9/10 Crl.O.P(MD).No.11691 of 2021 P. DHANABAL,J.
Mrn Crl.O.P(MD).No.11691 of 2021 22.09.2023 https://www.mhc.tn.gov.in/judis 10/10