@JUDGMENTTAG-ORDER
G.M. Akbar Ali, J.@mdashThe petition is filed seeking a direction to call for the records in Cr. No. 636/2009 on the file of the first Respondent and quash the same.
2. On a complaint given by the third Respondent, the first Respondent has registered a case in Cr. No. 636 of 2009 dated 28.10.2009 for the offences under Sections 147, 447, 506(i) r/w 3(1)(x) of SC and ST Act 1989. The allegations in the first information report is that the deface to-complainant was a security guard appointed by one Beemaraja to take care of the land at Padur Village and the deface to-complainant was residing there by putting up a hut and guarding the property.
3. According to the complaint, On 28.10.2009 around 9.00 am, five persons from Chennai came in a car and claimed that the property belonged to them and asked the deface to-complainant to get out of the place. It is further alleged that when the deface to-complainant replied that the land belong to one Beemaraja and he has been appointed as watchman, one of the persons identified himself as Mohan Renganathan and claimed that the property belonged to him. In the quarrel that followed between the deface to-complainant and others, it is alleged that the said Mohan Renganathan abused the deface to-complainant by referring to his caste name.
4. Based on this allegation, a case has been registered by the first Respondent and being investigated by the second Respondent. Aggrieved by registration of the first information report, the Petitioner is before this Court.
5. Notice was served on the Respondents and the Respondents 2 and 3 have filed their respective counters.
6. The second Respondent who is the investigating officer would submit that a case has been registered in Cr. No. 636 of 2009 dated 28.10.2009 for the offences under Sections 147, 447, 506(i) r/w 3(1)(x) of SC and ST Act 1989 and the Superintendent of Police has nominated this Respondent to investigate as the crime includes the offence u/s 3(1)(X) of S.C and S.T. Act. According to the second Respondent, he took up investigation and enquired the deface to-complainant and recorded his statement u/s 161(3) of Code of Criminal Procedure He has also examined 20 witnesses and four of the witness have given statement before the learned J.M. II, Cheng leper u/s 164 Code of Criminal Procedure The case is under investigation.
7. The third Respondent would submit that on 18.10.2009, the Petitioner and his associates trespassed into his property, in which, he was appointed as watchman by one Beemaraj and the Petitioner abused the deface to-complainant by using the humiliating word. The third Respondent would further submit that he being an illiterate and also being threatened by the Petitioner, he did not make the complaint immediately and only after some time, he lodged a complaint. The Respondent would submit that he has been abused by the Petitioner by using the humiliating words.
8. Since the present petition is filed for quashing of the first information report at the investigation stage, the only point to be considered is whether the allegations in the First Information Report, if treated to be correct, prima-facie make out any offence against the Petitioner.
9. Miss. Mai Moona Badsha, the learned Counsel who appeared on behalf of Mr. Anand Venkatesh, the counsel for the Petitioner, took this Court through the dates and events in respect of a property situated in S. No. 223/2 of Padur Village, Cheng leper.
10. According to the counsel, the brief facts leading to foisting of a false case against the Petitioner is as follows:
11. The Petitioner, who is a practicing advocate, has purchased the said property by virtue of two sale deeds dated 18.4.2006 and 19.4.2006 from one C.A. Kabeer who has derived title through a judgment in O.S. No. 8667 of 1985 and took possession of the property and fenced the same. One Beemaraja also purchased the same property from one Kasturiammal by a sale deed dated 20.10.2006. The Petitioner has applied for a patta. The said Beemaraja has also applied for patta. On 7.5.2007, a patta has been issued in favour of Beemaraja and on 12.5.2007 the said Beemaraja bulldozed the fence and the Petitioner lodged a complaint before Kelambakkam Police Station and an enquiry was initiated in CS R No. 162 of 2007. On 15.5.2007 the Tahsildar, Cheng lepet cancelled the patta issued in favour of Beema Raja. On 5.6.2007, on the complaint given by Beemaraja, the District Crime Branch registered a case in Cr. No. 16 of 2007 against the Petitioner and others for the offence of forgery and criminal trespass. After investigation, the case was referred as ''mistake of fact'' and on 18.7.2008, a referred charge sheet was filed. The Petitioner filed W.P. No. 21450 of 2008 for a direction to issue patta and also filed MP No. 1 of 2008 for an injunction and an order of status quo was granted. The said Beemaraja filed a writ petition in WP No. 15851 of 2009. He has also filed a protest application before the learned Magistrate, Cheng letpet. Meanwhile, the deface to-complainant has alleged that on 18.10.2009, the Petitioner and others have trespassed into the property, threatened him with dire consequences and also humiliated him by using his caste name and the present First Information Report has been registered. The complaint was given on 28.10.2009 and on the same day, the above said protest petition has also been filed. On 17.12.2009, the writ petitions were disposed of by a common order and the court dismissed the writ petition filed by Beemaraja and allowed the writ petition filed by the Petitioner and remanded back the matter to Revenue Divisional Officer for re-enquiry.
12. According to the learned Counsel for the Petitioner, the entire allegations in the first information given by the deface to-complainant are nothing but false. The learned Counsel would submit that as on 18.10.2009, on the date of alleged occurrence, the Petitioner was enjoying an interim order of injunction and thereby his possession is confirmed by this Court and the allegation that he has trespassed into the property and has committed an offence u/s 447 IPC is absurd and is against the order of this Court. The learned Counsel further submitted that when the Petitioner is the absolute owner of the property by virtue of two sale deeds dated 18.4.2006 and 19.4.2006 , the deface to-complainant claiming that he is a watchman, appointed by the said Beemaraja cannot be true. The learned Counsel also pointed out that when the alleged occurrence has taken place on 18.10.2009, the complaint was given only on 28.10.2009 and on the same day, the said Beemaraja has filed the protest application against the referred charge sheet, which would show that the first information report is nothing but an attempt by the said Beemaraja to wreak vengeance against the Petitioner.
13. The learned Counsel submitted that when the complaint which is attended by malafide and has been initiated with ulterior motive for wreaking vengeance and when the complaint is read as it is, makes it improbable of such an occurrence and it is liable to be quashed.
14. In support of her contentions the learned Counsel relied on the following decisions:
1
2 Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. 1998 1 SCC 692
3 State of Orissa v. Dabendra Nagh Padhi 2005 (1) CTC 134
4
5 Purshotam Saini and Other vs State of Haryana and another 2010 (1) Law Herald (P&H) 610
6. Moosa Ahmed v. The Inspector of Police 2010 (2) CTC 153
15. On the contrary, Mr. N. Chandrasekaran for Mr. Rajaram, learned Counsel for the third Respondent would submit that the allegations made in the first information report even if they are taken at their face value would prima-facie constitute an offence u/s 147, 442, 506(ii) IPC and Section 3(1)(x) of S.C and S.T. Act. The learned Counsel further submitted that the complainant and the witnesses were already examined by the investigating officer and their statements would disclose cognizable offences justifying an investigation by the police and therefore, the proceedings need not be interfered with by invoking the jurisdiction u/s 482 Code of Criminal Procedure
16. The learned Counsel for the Respondent also submitted that in the preliminary stage of investigation, this Court cannot look into and consider the materials relied on by the accused to quash the proceedings.
17. The learned Counsel further submitted that the inherent powers of the High Court u/s 482 Cr.P.C has to be exercised sparingly and in rare cases. He relied on a decision reported in Hamida v. Rashid Alias Rasheed and Ors. 2008 (1) SCC 234 wherein the Hon''ble Supreme Court held as follows:
7. It is well-established principle that inherent power conferred on the High Courts u/s 482 Cr.P.C has to be exercised sparingly with circumspection and in rare cases and that too correct patent illegalities or when some miscarriage of justice is done. The content and scope of power u/s 482 Cr.P.C were examined in considerable detail in Madhu Limaye v. State of Maharashtra and it was held as under The following principles may be stated in relation to the exercise of the inherent power of the High Court:
(1) that the power is not to be restored to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) that it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice;
(3) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
18. The learned Counsel also relied on an order passed by the Apex Court in Crl. M.P. No. 1287 of 2008 (Indian Kanoon) , in a similar case involving an offence u/s 3(1)(x) of S.C and S.T. Act, the Hon''ble Supreme Court held as follows:
8. It may be noted that the trial has still to be held and the Appellants will have an opportunity of establishing their innocence in the trial. At this stage all that the High Court can see in the petition u/s 482 Cr.P.C or in a writ petition, is whether on a perusal of the FIR, treating the allegations to be correct, a criminal offence is prima facie made out or not or whether there is any statutory bar vide
19. He also relied on a judgment passed by Apex Court in Criminal Appeal No. 688 of 2005 dated 20.10.2001, in which, it is observed as follows:
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.
20. Mr. Hassan Mohammed Jinnah, learned Additional Public Prosecutor submitted that the case has been registered, statements were recorded and it is pending investigation. Therefore, there is no question of quashing the First information report at this stage.
21. Heard and perused the materials available on record.
22. According to the petitioner, there are civil and criminal proceedings pending between the Petitioner and one Beemaraja in respect of a property situated in S. No. 223/2, Padur Village, Cheng lepet. The Petitioner claims the property by way of two sale deeds and the said Beemaraja seem to have raised a counter claim over the property. From 2006 to 2009, there are civil and criminal proceedings between them.
23. According to the Petitioner, the said Beemarraja having failed to succeed in a criminal complaint given against the Petitioner for forgery and criminal trespass, has allegedly set up the deface to-complainant to give a false complaint against the Petitioner. According to the learned Counsel for the Petitioner, where a criminal proceeding is manifestly attended with malafides and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge the proceedings could be quashed. (as illustrated by Bhajanlal''s case cited supra).
24. On the other hand the argument of the third Respondent is that the power of quashing the first information report should be exercised very sparingly and the High Court should normally refrain from giving a pre-mature decision in a case wherein the entire facts are extremely incomplete and the issues involved are very serious and that too involving an offence against persons belonging to S.C/S.T Act. The counter point is that court should refrain from exercising such power and allow the investigation to continue to come to a logical conclusion. It is also contended that investigation being at the initial stage the defence materials can not be looked into.
25. In the celebrated case of
102. 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 u/s 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 channel is ed and inflexible guidelines or rigid formulae 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 u/s 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 uncontroversial 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 u/s 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 malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
26. In the case of Madhavrao Jiwajirao Scindia and Other''s v. Sambhajirao Chan drojirao Angre and others, reported in 1998 1 SCC 692 (cited Supra), the Apex Court has held as follows:
7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroversial allegations as made prima facie establish the offence...
27. In
22. Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case 6, there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.
28. This is followed in Moosa Ahmed v. The Inspector of Police, reported in 2010 2 CTC 153 by the learned Single Judge of this Court.
29. In Purshotam Saini and Ors. v. State of Haryana and Anr. 2010 (1) Law Herald (P&H) 610 involves a case filed for quashing of FIR under Sections 147, 148, 149, 323, 452, 448, 506 and 511 IPC. A learned single Judge of the Punjab and Haryana Court at Chandigarh had quashed the First Information Report holding that in view of sequence of events and past history the filing of First Information Report and initiating proceedings is a malafide exercise by the complainant.
30. In Moosa Ahmed v. The Inspector of Police, reported in 2010 2 CTC 153 the learned Single Judge of this Court had quashed the proceedings on the ground that when a complaint is driven by malafides and matter in issue is civil in nature the court can exercise its power u/s 482 Code of Criminal Procedure
31. Therefore, where a criminal proceedings is manifestly attended with malafide and where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance against the accused, the High Court can and should interfere and quash the same. But at the same time, while exercising the power u/s 482 Cr.P.C of the court, the High Court has to see, whether 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. More particularly, when there is an allegation for an offence against the weaker section of the society the court has to be very cautious. The court may also venture to look into defence materials which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.
32. On the basis of the legal position let us consider the case on hand which is said to have taken place on 18.10.2009. The complaint has been given on 28.10.2009. There is enormous delay in lodging the complaint. However, delay in FIR is not a ground for quashing. The allegation is that the deface to-complainant was appointed as Watchman by one Beemaraja and he has put up a hut and residing there. It is said that the Petitioner and others trespassed into the property and tried to dismantle the hut and threatened the deface to-complainant with criminal intimidation and the Petitioner used the humiliating word.
33. On 1.9.2008 in M.P. No. 1 of 2008 in W.P. No. 21450 of 2008 this Court has passed an order of status-quo. On 14.12.2008 again the court passed an order "interim order to continue until further orders". By its order dated 21.1.2009, this Court directed the Revenue Divisional Officer, Cheng leper to re-hear the parties in the matter of issuance of patta.
34. The learned Counsel for the Petitioner forcibly argued that the possession of the Petitioner is safeguarded by this Court and the patta issued in the name of one Beemaraja has been set aside and therefore, the Petitioner was in possession of the property and the allegation that he has trespassed into the property is against the finding of this Court.
35. In Para 5 of the affidavit filed in support of the petition by the Petitioner, he would allege that the said Beemaraja had given two more complaints against the Petitioner on the ground of criminal trespass in CSR Nos. 165 of 2007 dated 12.5.2007 and CSR No. 220 of 2007 on 12.5.2007.
36. Therefore, there is some force in the argument of the learned Counsel for the Petitioner that the Petitioner was in possession of the property on the date of alleged occurrence.
37. There are disputes between the Petitioner and the said Bheemaraja. Civil and criminal proceedings are pending. As per the allegations in the complainant, some persons came to the property; commanded the watchman to vacate; when he objected, the stranger said '' tell your boss, I am Mohan Ranganathan '' and utters the humiliating word. It is evident that the Petitioner and the deface to complainant are strangers to each other. Then how does the Petitioner know that the deface to complainant belong to the particular caste? Ten days there after the complainant was given and that too after consulting the said Beemaraja.
38. In the counter filed by the third Respondent in paragraph-4, it is stated as follows:
This Respondent further submits that this Respondent being an illiterate, he does not know the procedures how to give police complaint. As this Respondent''s life was also in danger as threatened by the Petitioner, this Respondent had gone away without even informing his owner Mr. Bimaraj. Only upon the instructions of his owner Mr. Bimaraj he gave complaint.
39. The crime against the member of the oppressed society is heinous and can not be tolerated. But at the same time such member of the society cannot be used as a weapon to wreak vengeance. In my considered view the case on hand is one such case where a criminal proceedings is manifestly attended with malafide and where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance against the accused, and this Court can and should interfere and quash the same.
40. In the result, the criminal original petition is allowed and the proceedings in Cr. No. 636/2009 on the file of the first Respondent is hereby quashed.
