BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06/10/2010
CORAM
THE HONOURABLE MS.JUSTICE R.MALA
Crl.O.P.No.4385 of 2002
and
Crl.O.P.No.23963 of 2003
1. R.Rajagopala Thondaiman
2. Sarubala R.Thondaiman
3. K.R.Govinda Raja
4. K.Sathyanathan
5. Duraikannan
6. Rajalingam .. Petitioners in Crl.O.P.No.4385 of 2002
1. Karthik V.R.Thondaiman
2. V.R.Thirumalai Dorairaja
3. V.R.Ramachandra Dorairaja
4. S.Thanuskodi .. Petitioners in Crl.O.P.No.23963 of 2003
Vs
A.Ashok .. Respondent in Crl.O.P.No.4385 of 2002
State By Inspector of Police,
Contonment Police Station
Thiruchirappalli .. Respondent in Crl.O.P.No.23963 of 2003
Criminal Original Petitions under Section 482 Cr.P.C. for the reliefs as
stated therein.
!For Petitioners in Crl.O.P.No.4385/2002 ...
Mr.R.Shanmugasundaram, Senior Counsel
for Mr.A.Ahamath Bathusha
For Petitioners in Crl.O.P.No.23963/2003... Mr.Ramani Natarajan
^For Respondent in Crl.O.P.No.4385/2002 ... Mr.R.Venkateswaran
For Respondent in Crl.O.P.No.23963/2003 ... Mr.R.M.Anbunithi,
Government Advocate (Crl. Side)
:ORDER
The petitioners in Crl.O.P.No.4385 of 2002 have approached this Court with
a prayer to call for the records in C.C.No.265 of 2001 on the file of the
Judicial Magistrate No.II, Trichy and to quash the proceedings.
2. The petitioners in Crl.O.P.No.23963 of 2003 have approached this Court
with a prayer to direct the learned Judicial Magistrate No.II, Trichy, to try
C.C.No.640 of 2000 and C.C.No.265 of 2001, pending on his file, in quick
succession and render judgment on the same day.
3. Since the dispute involved in both the Crl.O.Ps., are inter-connected,
they are decided together and disposed of by this common order.
4. The case of the respondent-complainant-Ashok (in Crl.O.P.No.4385 of
2002), is as follows:
(a) The complainant (Ashok) in C.C.No.265 of 2001 on the file of the
learned Judicial Magistrate No.II, Trichy, is working under one Karthick
V.R.Thondaiman, S/o Vijayaraghava Thondaiman. A.1 Rajagopala Thondaiman is the
adopted son of Late “Raja” Rajagopala Thondaiman, the Ex-Ruler of the then
Pudukkottai State; the said Karthick V.R.Thondaiman and his family were residing
in the Guest House within the Pudukkottai Palace Compound, within the limits of
Cantonment Police Station, Trichy and since A.1 Rajagopala Thondaiman himself
vacated the premises with the garden land, hoardings and gave the possession
voluntarily, because the said Karthick Thondaiman was in peaceful possession of
the property with access through the main gate on the road, which leads from the
main gate of the Palace; it is further alleged that the family members and
inmates of Chinna Bungalow (Guest House) were using the main gate on the main
road in the Palace to go to the house without any interruption from time
immemorial, particularly, during the life-time of “Raja” of Pudukkottai and also
after his death; it is further alleged that the said Karthick V.R.Thondaiman was
enjoying the entire stretch of the land peacefully and was collecting rents for
the hoardings put up abetting the compound wall.
(b) On 23.2.2000 at about 9.00 a.m., when the complainant-Ashok was in the
house, A.1 to A.5, i.e. the petitioners 1 to 5 in Crl.O.P.No.4385 of 2002 and
A.8 trespassed into the land and surveyed the entire space and discussed about
occupying the said area and so the complainant-Ashok questioned the fourth
petitioner/A.4/K.Sathyanathan, for which he told that they intended to sell the
properties to A.8 and when the complainant-Ashok asked that how they could sell,
when the property belonged to Karthick V.R.Thondaiman and they were in
possession and enjoyment, Sathyanathan/A4 replied that they had already planned
to take possession by force and Karthick V.R.Thondaiman could do nothing, since
the Government and all functionaries are on their side and A.8 said that he
could do wonders by using his position as a Member of Parliament and A.1 and
A.2, i.e. the petitioners 1 and 2 in Crl.O.P.No.4385 of 2002 also told that they
had already decided and nobody could stop them. A.3 to A.5, i.e. the petitioners
3 to 5 in Crl.O.P.No.4385 of 2002 threatened and told the complainant-Ashok
(respondent in Crl.O.P.No.4385 of 2002) to mind his own business.
(c) It is further alleged that on 24.2.2000 at about 10.00 a.m., A.2 to
A.5 trespassed into Karthick Thondaiman’s property along with some ten persons
with deadly weapons in a Truck bearing Registration No.TN-45-F-1766 and
Karthick V.R.Thondaiman, along with the complainant-Ashok, questioned them as
to why they were trespassing into his property, A.3 and A.4 replied that they
intended to sell the property to A.8 and hence, they have come to take
possession and when Karthick V.R.Thondaiman and the complainant-Ashok objected,
they threatened to kill Karthick V.R.Thondaiman and so, he rushed out, escaped
and went to the Police Station and therefore, all the persons immediately
vacated the premises. The said Karthick V.R.Thondaiman gave complaint and the
receipt also having been furnished, the Police did not take any action, and
hence, on 26.2.2000, he moved the Revenue Divisional Officer through his Power
of Attorney for proceeding against Sarubala R.Thondaiman/A.2, the second
petitioner in Crl.O.P.No.4385 of 2002, under Section 145 Cr.P.C, for which the
Revenue Divisional Officer and the Deputy Commissioner with Inspector of Police,
Contonment visited the spot and asked to maintain status-quo.
(d) It is further alleged in the said complaint that on 27.2.2000 at about
3.30 p.m., A.2 to A.5, the petitioners 2 to 5 in Crl.O.P.No.4385 of 2002 and A.6
to A.8 along with about 10 more Goondas and henchmen, armed with deadly weapons
viz., aruval, spade, crow-bar, etc., came in vehicles and started destroying the
garden; A.2, namely the petitioner No.2 in Crl.O.P.No.4385 of 2002, i.e.
Sarubala R.Thondaiman, gave directions to cut the grass and plants and all the
goondas cut off and uprooted the plants and A.3 to A.5, i.e. the petitioners 3
to 5 in Crl.O.P.No.4385 of 2002, gave directions to remove the land-marks; A6
and A7 destroyed the existing land-marks; immediately, one Renganathan, who is
the Personal Assistant to Karthick Thondaiman informed the Police officials, who
came and just asked them to go away and in a few minutes, the Inspector of
Police came and took away the said Renganathan and others for the alleged
enquiry; after sometime, all the accused with the entire henchmen, came again
and indiscriminately cut and removed the remaining trees and plants and removed
all the land-marks and also cleared the entire garden; A.2 Sarubala R.Thondaiman
and A.3 K.R.Govinda Raja directed and A.4 K.Sathyanathan, A.5 Duraikannan, A.6
to A.9 helped others to fence the main gate with barbed wires, obstructing the
access to the house of Karthik V.R.Thondaiman through the main gate and thereby
wrongfully restrained all the people who intended to go to the house of Karthick
V.R.Thondaiman through the main gate and the complainant could do nothing as a
single man; but it was witnesses by the witnesses. It is the case of the
complainant-Ashok (respondent in Crl.O.P.No.4385 of 2002) in C.C.No.265 of 2001
that the Police did not take any action on the complaint given by Mr.Karthick
V.R.Thondaiman and refused to register any case for the continuing offences on
27.2.2000.
(e) It is further submitted by the complainant-Ashok that on 27.2.2000,
the above accused persons gave a false complaint against the complainant-Ashok
and others and detained them in the Police Station on that night and the said
complaint was given by A.2 Sarubala R.Thondaiman, i..e the second petitioner in
Crl.O.P.No.4385 of 2002 and A.8 used all his influence and with the help of A.8,
on that night, all the accused further trespassed into the land and constructed
a well around the vacant garden area, restraining them, their men, Karthik
V.R.Thondaiman, for which the complainant-Ashok and his master, have been taking
action separately.
(f) It is further stated by the complainant-Ashok in C.C.No.265 of 2001
that all the accused have conspired and in furtherance of the said conspiracy,
they trespassed into the property of the complainant’s master, wrongfully
restrained the complainant and others and caused damage to the garden, as stated
above, worth about Rs.1 lakh and permanently restrained the people using the
gate by laying barbed wire fencing obstructing the main gate and thereby
committed the offences under Sections 120-B, 143, 147, 148, 342, 434, 447, 448
and 506 (Part -2) read with Section 109 IPC.
(g) Since the Inspector of Police, Cantonment Police Station, Trichy, did
not register a case in respect of the complaint given by Karthick V.R.Thondaiman
for the alleged occurrence said to have taken place on 24.2.2000, the said
Karthick V.R.Thondaiman preferred Crl.O.P.No.6601 of 2000 before this Court for
a direction and accordingly, based on the direction of this Court, the Inspector
of Police registered a case and issued a referred notice on him on 18.2.2001. It
is further alleged by the complainant-Ashok that the Police did not investigate
all the continuing offences properly and the counter case filed by the Inspector
of Cantonment Police Station on the complaint of the said K.Sathyanathan/A.4,
the fourth petitioner in Crl.O.P.No.4385 of 2002, against the complainant-Ashok
and 33 others, is pending before Court and numbered as C.C.No.640 of 2000.
5. The case of the petitioners/accused in Crl.O.P.No.4385 of 2002, is as
follows:
(a) Originally Karthick V.R.Thondaiman, filed a petition before this Court
in Crl.O.P.No.6601 of 2000 for directing the Inspector of Police, Cantonment
Police Station, Trichy to register a case in respect of his complaint relating
to the alleged occurrence said to have taken place on 24.2.2000, as the police
originally chose not to register a case and this Court directed the Inspector of
Police to register the case and accordingly, the case was registered in Crime
No.842 of 2000 and during the investigation, Karthik V.R.Thondaiman again
approached this Court in Crl.O.P.No.18156 of 2000 for transfer of investigation
and this Court directed the Commissioner of Police, Trichy to transfer the
investigation to some other police officer, instead of Inspector of Police,
Contonment Police Station and accordingly, the case in Crime No.842 of 2000 was
transferred to the Inspector of Police, Ponmalai Police Station, who completed
the investigation and filed the final report stating that the complaint is one
of “mistake of fact” and the Referred Charge Sheet Notice, i.e. RCS Notice was
also served to that effect on 22.4.2000 and thereafter, the present private
complaint had been filed by the respondent-complainant-Ashok (in Crl.O.P.No.4385
of 2002).
(b) It is the further case of the petitioners/accused in Crl.O.P.No.4385
of 2002 that on 9.10.2001, the learned Judicial Magistrate directed the
Inspector of Police, Contonment Police to conduct an enquiry and to report to
the Court regarding the complaint filed by the complainant-Ashok and reminders
were issued to the Enquiry Officer on 12.11.2001 and 13.12.2001 and hence, on
17.01.2002, the Inspector of Police, Contonment Police Station filed his report
stating that the alleged occurrence has not taken place and the complainant had
exaggerated the issue; on 6.2.2002, the learned Judicial Magistrate No.2,
Trichy, rejected the report of the Inspector of Police, Contonment Police
Station, Trichy, and took the case in C.C.No.265 of 2001 on file as against A.1
to A.7 and A.9 alone for the offences under Sections 120-B, 143, 147, 148, 342,
434, 447, 448 and 506 (Part 2) read with 109 IPC and observed that there is no
direct evidence regarding the involvement of A.8 in criminal trespass or any
other criminal acts, and that the documents filed will not connect A.8 with any
criminal acts and his involvement in any criminal act is not materially
corroborated and no prima-facie is made out against A.8 and hence, the complaint
was dismissed as against A.8 alone under Section 203 Cr.P.C. Therefore, the
learned Judicial Magistrate-2, Trichy, issued summons to A.1 to A.7 and A.9 and
directed them to appear on 8.3.2002; aggrieved by the order of issuing processes
and taking cognizance of the private complaint, the petitioners/accused have
approached this Court for quashing the complaint in C.C.No.265 of 2001.
6. The learned counsel appearing for the petitioners/accused submitted
that the cognizance taken by the learned Judicial Magistrate and the issuance of
the summons to them, is illegal; based on extraneous materials and absolutely,
there is no sufficient ground to proceed further in the case and the learned
Judicial Magistrate ought not to have taken cognizance of the complaint based
on the RDO report, dated 17.10.2001, since it does not form part of the same
transactions; the allegations that the accused conspired with respect to the
occurrence took place on 23.2.2000, 24.2.2000 and 27.2.2000 are independent and
cannot be clubbed together; the offences under Sections 342, 447 and 448 IPC,
cannot be illegally sustained, in view of the pendency of the civil case in
O.S.No.646 of 1999 pending before the Subordinate Judge’s Court, Trichy; the
petition filed by the complainant-Karthick V.R.Thondaiman and another therein,
to pass an order of interim injunction, pending suit, restraining the first
petitioner herein, namely Rajagopala Thondaiman and his relatives, from
obstructing him from using the passage, which is the subject matter of this
case, had been dismissed by the Sub-Court on 12.12.2001 in I.A.No.437 of 1999 in
O.S.No.646 of 1999 and therefore, the order of the Magistrate in taking
cognizance in the present C.C.No.265 of 2001 and rejecting the negative final
report (referred charge sheet) on the same day will be in violation of Section
300 Cr.P.C. and amounts to double jeopardy.
7. It is further submitted by the learned counsel for the
petitioners/accused that neither the respondent/complainant, nor the said
Karthick V.R.Thondaiman, had filed any application protesting the earlier
recording of RCS as “mistake of fact” / closing the FIR as a “mistake of fact”,
but the present respondent-complainant, namely Ashok, who is the Manager of the
said Karthick V.R.Thondaiman, preferred the said private complaint with false
allegations. When once the earlier complaint had been referred to as a ‘mistake
of fact’, instead of filing protest application, the present respondent-Manager
Ashok has preferred a private complaint and so, it is against law and not
maintainable. To substantiate his arguments, learned counsel for the
petitioners/accused, relied upon a decision of this Court reported in 1998 (1)
CTC 329 (Krishna Rao.A. Vs. L.S.Kumar).
8. Learned counsel for the petitioners/accused in Crl.O.P.No.4385 of 2002
further contended that the property in question was originally owned by “Raja”
Rajagopala Thondaiman, the Ex-Ruler of Pudukkottai State (as it was formerly
called). He bequeathed the piece and parcel of immovable property comprised in
and forming part of his residence called as “Pudukkottai Palace”, situated in
Cantonment, Tiruchirapalli, usually referred to as “Guest House” together with
portion–vacant site as demarcated in the sketch, attached to the Will and
marked red in the said Will, dated 10.8.1990 and that portion has been sub-
divided as T.S.Nos.1/1.A, 1/1.B and 1/1.C with 17.90 cents, 1.29 cents and 0.87
cents respectively in Trichy Town Ward K, Block No.5, Pudukkottai Palace, of the
sketch/plan bequeathing to respective relatives of “Raja” Rajagopala Thondaiman,
namely Kamalambal Rajayaee, Karthik V.R.Thondaiman and others. Because of the
dispute, Karthick V.R.Thondaiman and another filed the suit in O.S.No.646 of
1999 on the file of the Sub-Court, Trichy, for partition of their respective
share and also for separate possession and also for permanent injunction
restraining the defendants and their men from in any way interfering with the
plaintiff’s (Karthick V.R.Thondaiman’s) peaceful possession of the property and
along with the said suit, the said Karthick V.R.Thondaiman and another, also
filed an interim injunction application in I.A.No.437 of 1999 in O.S.No.646 of
1999 and the said I.A. was dismissed on 12.12.2001. It is further stated that by
the learned counsel for the petitioners/accused that since a civil dispute is
pending, the complaint of trespass and mischief filed against the owner of the
neighbouring property, is a ground for quashing the criminal proceedings. In
support of this contention, learned counsel for the petitioners/accused relied
upon the decision of this Court reported in 1981 L.W. (Crl) 251
(Subramanian,M.N. Vs. S.Pasupathy), stating that because of the previous enmity,
a false private complaint had been filed and the learned Judicial Magistrate-2,
Trichy, has not considered this aspect in proper perspective and hence, he
prayed for quashing the criminal proceedings in C.C.No.265 of 2001 and allowing
Crl.O.P.No.4385 of 2002.
9. The learned counsel appearing for the respondent-complainant-Ashok, in
quash petition in Crl.O.P.No.4385 of 2002 and also the learned counsel for the
petitioners-accused in Crl.O.P.No.23963 of 2003, submitted that the civil suit
in O.S.No.78 of 2004, filed by Karthick Thondaiman and another against
Rajagopala Thondaiman (first petitioner herein) and others, had been dismissed
on 13.9.2005, and as against the said dismissal, it is stated by the counsel
that an appeal has been filed in A.S.No.12 of 2006, which is pending before this
Court. It is further stated by the counsel that the complaint filed by the
petitioners/accused is a case in counter; the respondent-Ashok had filed a
private complaint, since he is also one of the injured persons; the master of
the complainant-Ashok, namely Karthick V.R.Thondaiman, i.e. the 1st petitioner
in Crl.O.P.No.23963 of 2003 also had filed a private complaint dated 23.6.2001
and subsequently, he did not press the same; the fourth petitioner in
Crl.O.P.No.4385 of 2002, namely K.Sathyanathan, has also given a complaint and
the proceedings under Section 144 Cr.P.C. have also been initiated.
10. Learned counsel for the respondent-complainant-Ashok in
Crl.O.P.No.4385 of 2002 and learned counsel for the petitioners-accused in
Crl.O.P.No.23693 of 2003, further submitted that since the petitioners in
Crl.O.P.No.4385 of 2002 have removed the survey markings and cut the trees and
assaulted the people, and the respondent-complainant-Ashok was also injured, he
is also a competent person to give a private complaint. He further submitted
that after receipt of the Referred Charge Sheet (RCS) notice, the said Karthick
V.R.Thondaiman also filed a private complaint, in which he was also examined as
a witness and another Sathyanathan (fourth petitioner in Crl.O.P.No.4385 of
2002) was also examined on the basis of the statement recorded from the
witnesses and the said complaint has been taken on file and hence, there is no
reason for quashing the proceedings.
11. Learned counsel for the respondent-complainant in Crl.O.P.No.4385 of
2002 and the learned counsel for petitioners-accused in Crl.O.P.No.23693 of
2003, further submitted that on the basis of the complaint given by the fourth
petitioner in Crl.O.P.No.4385 of 2002, namely Sathyanathan, the case has been
registered in Cr.No.237 of 2000, in respect of the incident alleged to have
taken place on 27.2.2000 at 11.45 p.m., for the offences under Sections 147,
148, 427, 506 (Part 2), 451 read with 114 IPC and Section 9(b)(1)(b)(g) of the
Explosives Act. After investigation, the charge sheet has also been filed, which
was taken on file in C.C.No.640 of 2000 on the file of the learned Judicial
Magistrate-II, Trichy. It is a case in counter. So, the petitioners-accused in
Crl.O.P.No.23693 of 2003 have sought for joint trial, since the incident has
taken place as early as on 27.2.2000 and hence, learned counsel prayed for
dismissal of the other Crl.O.P.No.4385 of 2002 and requested for ordering joint
trial of both C.C.Nos.265 of 2001 and 640 of 2000 and allowing Crl.O.P.No.23693
of 2003.
12. Considering the rival submissions made by learned counsel on either
side as also on the side of the respondent-Police in Crl.O.P.No.23963 of 2003
and the materials available on record, it is admitted that the property in
dispute was originally owned by one Ex-Ruler of Pudukkottai State (formerly so
called as State). Furthermore, “Raja” Rajagopala Thondaiman has executed a Will,
dated 10.8.1990, as stated above and bequeathed his properties in favour of his
sister, niece and nephew and since he was a Bachelor, he adopted the first
petitioner in Crl.O.P.No.4385 of 2002, namely Rajagopala Thondaiman, as his
adopted son. “Raja” Rajagopala Thondaiman bequeathed his properties to his near
relatives and as per the plan/sketch annexed to the said Will, dated 10.8.1990,
it is shown that the testator bequeathed T.S.1/1.B, i.e. 0.52 ares=1.29 acres to
Karthick V.R. Thondaiman (first petitioner in Crl.O.P.No.23693 of 2003), the
nephew of the testator-“Raja” Rajagopala Thondaiman; likewise, the testator also
bequeathed the property in T.S.1/1.C in 0.35.0 ares=0.87 acres in favour of his
another nephew, i.e. Thirumalai Dorairaja i.e., the testator’s another sister
Kamalambal Rajayee’s elder son, and after he made so many bequest, in page 4 of
the said Will, the said testator–“Raja” Rajagopala Thondaiman observed that his
adopted Yuvaraj Rajagopala Thondaiman shall take the rest of the properties,
subject to the payment and disbursement of the various legacies mentioned above
form and put up is estate after his lifetime. In respect of the remaining
portion, the first petitioner is entitled to get in T.S.No.1/1.A, 7.25.31
Sq.Meters=17.91 acres, and all these bequeathment in the Will shows that
Karthick V.R.Thondaiman and the first petitioner-Rajagopala Thondaiman, are
cousin brothers.
13. There was a civil dispute pending between both the parties, i.e.
Karthick V.R. Thondaiman and his mother filed a suit in O.S.No.646 of 1999 on
the file of Sub-Court, Trichy, against A.1 Rajagopala Thondaiman and others.
Along with the said suit for partition of their 1/3 share, against the said
Rajagopala Thondaiman, Ramadevi, Vijayakumar Thondaiman and Janaki Manokari
Jaganmohan Seshadri, claiming 1/3 share in the property, they have also filed
interim injunction application, which was also dismissed on 12.12.2001 in
I.A.No.437 of 1999 in O.S.No.646 of 1999. The counter affidavit filed by the
first petitioner-Rajagopala Thondaiman in the said I.A.No.437 of 1999 shows that
even in the year 1999, there was a property dispute between the first
petitioner-Rajagopala Thondaiman and the said Karthick V.R.Thondaiman and their
family members. While perusing the description of the property in the petition
filed in I.A.No.437 of 1999 in O.S.No.646 of 1999, it shows that it is the
subject matter of the complaint filed by the respondent-complainant-Ashok in
C.C.No.265 of 2001. Thus, it is clearly proved that there has been a civil
dispute in respect of the property, subject to the alleged trespass by the
petitioners/accused in Crl.O.P.No.4385 of 2002, which has resulted in preferring
the private complaint by the complainant-Ashok. The said Karthick V.R.Thondaiman
and his mother Rajkumari Meenambal Rajayee initially filed O.S.No.646 of 1999
before the Sub-Court, Trichy and it was transferred to District Court, Trichy
and re-numbered as O.S.No.78 of 2004 before I Additional District Court, Trichy,
which was admittedly dismissed on 13.9.2005, after the filing of the private
complaint by the complainant-Ashok in C.C.No.265 of 2001.
14. At this juncture, it is appropriate to consider the decision of this
Court reported in 1981 L.W. Crl. 251 (Subramanian,M.N. Vs. S.Pasupathy), in
which, it was held as follows:
“In this case the complaint itself had been filed in the lower Court after
a long delay of 10 days and there is no explanation offered for this delay.
There can be no doubt there is a bona-fide dispute with regard to the passage in
question. The inherent jurisdiction of the High Court to pass orders necessary
to prevent abuse of the process of any Court cannot be questioned, and indeed it
has been clearly expressed in S.482, Crl.P.C. Though the High Court ought not to
interfere ordinarily by way of quashing criminal proceedings, yet, as the
materials available in the instant case show a bona-fide claim of civil right
and as the matter is pending in a civil Court, it is an obvious duty to
interfere in these proceedings, without causing unnecessary harassment of
subjecting to face a criminal proceeding, since prevention is better than cure.
To allow the present proceedings in this case to continue will not in any way
advance the course of justice. Proceedings quashed.”
15. In the present case, the alleged occurrence took place as early as on
23.2.2000 at 9 a.m.; on 24.2.2000 at 10 a.m. and also on 27.2.2000 at 3.30 p.m.
In the complaint, it is stated that on 23.2.2000 at 9 a.m., when the
complainant-Ashok was in the house, the petitioners 1 to 5 in Crl.O.P.No.4385 of
2002, i.e. A.1 to A.5 and A.8 trespassed into the land and surveyed the entire
space and discussed about the occupying the said area. Admittedly, on 23.2.2000,
no complaint had been preferred.
16. It is also alleged that on 24.2.2000 at 10 a.m., A.2 to A.5 trespassed
into the property of Mr.Karthick Thondaiman along with some ten persons, whom
the complainant-Ashok stated in the complaint that he could identify.
Admittedly, on 24.2.2000 also, no complaint had been immediately given. On a
perusal of the private complaint filed by the complainant-Ashok, it has revealed
that only at a later point of time after 24.2.2000, the said Karthick Thondaiman
has given the complaint to Police, in which, it is stated that he has given the
said complaint and receipt was also furnished. But the Police did not take any
action and hence, on 26.2.2000, Karthik Thondaiman’s Power of Attorney moved the
Revenue Divisional Officer for proceeding under Section 145 Cr.P.C.
17. On 27.2.2000 at 3.30 p.m., A.2 to A.8, along with ten or more
goondas/henchmen, armed with aruvals, spade, crow-bar, etc., came in vehicles
and started destroying the garden. It is pertinent to note that in respect of
this incident, Sathyanathan, the fourth petitioner/A.4 has given a complaint
before the Cantonment Police Station in respect of the alleged occurrence which
took place on 27.2.2000 at 11.45 p.m. A.1 Rajagopala Thondaiman, along with his
associates A.2 to A39 formed themselves into an unlawful assembly with the
common object of trespass and entered into exclusive possession of Karthick V.R.
Thondaiman to commit mischief and caused damages to the Wall of the Palace and
committed other offences. On that basis, case has been registered in Cr.No.237
of 2009 and after investigation, the charge sheet has been filed, which was
taken on file in C.C.No.640 of 2000 by the learned Judicial Magistrate-II,
Trichy, for the offences under Sections 147, 148, 427, 506 (Part 2), 451 read
with 114 IPC and Section 9(b)(1)(b)(g) of the Explosives Act.
18. As stated supra, there was a Will executed by “Raja” Rajagopala
Thondaiman, who bequeathed some portion of his property to Karthick
V.R.Thondaiman. Admittedly, he was in possession of the said “Guest House”.
19. At this juncture, it is appropriate to consider the argument advanced
by learned counsel for the petitioners/accused that earlier, on the basis of the
complaint given by Karthick Thondaiman on 24.2.2000, no case had been registered
and hence, he filed Crl.O.P.No.6601 of 2000, for direction to the respondent(s)
therein to register a case, in pursuance of which, Crime No.842 of 2000 was
registered. On a perusal of pages 1 and 2 of the typed set of papers filed along
with Crl.O.P.No.4385 of 2002, it is evidenced that only on the basis of the
direction given by this Court in Crl.O.P.No.6601 of 2000 on 18.8.2000, a case
has been registered under the provisions of Sections 147, 148, 448 and 506 (Part
2) IPC in Cr.No.842 of 2000, in which, it is stated that the date of occurrence
of the crime in question was 24.2.2000, and in the said FIR/complaint, it is
fairly conceded that Karthick Thondaiman has given a complaint on 24.2.2000 at
14.15 hours and receipt has been given in C.S.R.No.51 of 2000 and in the said
complaint itself, he has categorically stated that, “I am the owner of the above
noted Guest House in Pudukkottai, Palace Campus. There is dispute in property
and I have filed a case in Trichy Sub-Court (O.S.No.646/99) and the case is
pending in the Court. My cousin Rajagopalan Thondaiman is residing in the main
Palace along with his wife Saru Bala. Both of them are attempting to trespass
into my property with the help of some hired more than 10 goondas with deadly
weapons at about 10.00 a.m.”
20. It is also to be noted that in respect of the alleged incident that
had taken place on 24.2.2000, after transfer of investigation as noted below,
admittedly, referred charge sheet has been filed and that has been evidenced by
the RCS notice indicating the same as ‘mistake of fact’. It is stated by the
counsel for the petitioners/accused that during investigation, Karthick
Thondaiman has filed Crl.O.P.No.18156 of 2004 for transfer of investigation,
which was ordered by this Court and investigation was transferred from Trichy
Cantonment Police Station to Ponmalai Pollice Station. The investigating officer
investigated the case and filed the charge sheet, stating that it is referred to
as “mistake of fact” on 22.4.2001 and this was not questioned by the complainant
Karthick V.R. Thondaiman.
21. The present respondent-complainant Ashok filed the present private
complaint on 23.5.2001 under Section 200 Cr.P.C. and he has narrated the
incidents alleged to have taken place on 23.2.2000, 24.2.2000 and 27.2.2000 and
the learned Judicial Magistrate-2, Trichy, has taken the sworn statement of the
respondent-complainant Ashok on 30.5.2001. The learned Magistrate also examined
the Private Secretary of Karhik Thondaiman, on 19.7.2001 and Mr.Karthick
Thondaiman on 21.9.2001 and the learned Magistrate thereafter referred the case
to the concerned Police Station to investigate the case on the facts alleged in
the said private complaint and directed him to send a report within two weeks,
as evidenced from page 28 of the typed set of papers filed in suport of
Crl.O.P.No.4385 of 2002, which is the order of the learned Magistrate, dated
9.10.2001 in the Memo. The Court reminders were issued on 12.11.2001 and
13.12.2001 respectively. Only after those reminders, after investigation, the
concerned Police filed a report, stating that no such occurrence took place and
the Police report is found in pages 32 to 38 of the typed set of papers filed
along with Crl.O.P.No.4385 of 2002. On considering the report, the learned
Magistrate has passed an order on 6.2.2002, rejecting the final report and the
private complaint filed by the complainant-Ashok under Section 200 Cr.P.C. was
taken on file as against A-1 to A-7 and A-9, by taking cognizance of the
offences under Sections 120-B, 143, 147, 148, 342, 434, 447, 448 and 506 (Part-
2) IPC read with 109 IPC in C.C.No.265 of 2001.
22. At this juncture, it is appropriate to consider the decision of this
Court, relied upon by the learned counsel for the petitioners-accused, reported
in 1998 (1) CTC 329 (Krishna Rao.A. Vs. L.S.Kumar), which shows that when once
the second complaint has been taken cognizance of, after the previous complaint
was referred to as “mistake of fact”, and when no steps have been taken for
setting aside the earlier order passed by the learned Magistrate in the referred
charge sheet as “mistake of fact”, the subsequent complaint in respect of the
very same occurrence is not maintainable without setting aside the earlier order
passed by the learned Magistrate.
23. There is no quarrel over the said proposition of law laid down in the
said judgment of this Court reported in 1998 (1) CTC 329 (cited supra). In the
present case, the earlier complaint given by the said Karthick Thondaiman was
only in respect of the incident alleged to have taken place on 24.2.2000,
whereas the private complaint which was now filed by the respondent-Ashok
related to all the three days, namely 23.2.2000, 24.2.2000 and 27.2.2000. In
such circumstances, the said citation in 1998 (1) CTC 329, is not applicable to
the facts of the present case, as the subsequent complaint was filed by another
person.
24. It is appropriate to consider the decision of the Delhi High Court
reported in MANU/DE/0719/2008 (Harpal Singh Aror and others Vs. State and
another), in which, the Delhi High Court relied on the decision of the Supreme
Court reported in MANU/SC/0126/1980 (H.S.Bains Vs. State (Union Territory of
Chandigarh) ) in which it was held by the Apex Court that it was open to the
learned Magistrate to reject the closure report and proceed with the complaint
in terms of Section 200 Cr.P.C. i.e. by recording the statement of complainant
and taking further steps thereafter in accordance with law. In the said
decision, the Delhi High Court, while adverting to the facts and relying on
various other decisions of the Supreme Court, further held that the learned
Magistrate is not bound by conclusions drawn by the Police and he may decide to
issue process even if the Police recommend that there is no sufficient ground
for proceeding further; the mere fact that he had earlier ordered an
investigation under Section 156(3) Cr.P.C. and received a report under Section
173 Cr.P.C., will not have the effect of total effacement of the complaint and
therefore, the Magistrate will not be barred from proceeding under Sections 200,
203 and 204 Cr.P.C; the learned Magistrate may decide that there is no
sufficient ground for proceeding further and drop action; he may take cognizance
of the offence under Section 190(1)(b) of Cr.P.C. on the basis of the Police
report and issue process; he may take cognizance of the offence under Section
190(1)(a) of Cr.P.C. on the basis of the original complaint and proceed to
examine upon oath the complaint and his witnesses under Section 200 Cr.P.C.
25. So, the above decision of the Delhi High Court which was decided based
on the decision of the Apex Court, would go to show that, even in the present
case, even though the investigating officer has given a closure report, the
learned Magistrate has every right to proceed in accordance with law, as per
Section 190 Cr.P.C.
26. Another limb of argument is that no material is available to show that
the offence under Sections 342, 447 and 448 IPC are made out. Furthermore, the
respondent-Ashok-complainant, only on 23.5.2001, belatedly stated the three
different causes of actions that the alleged occurrences are said to have taken
places, i.e. on 23.2.2000, 24.2.000 and 27.2.2000 and so, the single private
complaint for all the three alleged incidents, is not maintainable, and that
too, at a belated stage. Admittedly, Karthick V.R.Thondaiman has also not filed
any protest application and he also has not filed any private complaint, after
the RCS notice indicating the ‘mistake of fact’ of the earlier complaint was
served.
27. At this juncture, it is appropriate to consider the argument advanced
by learned counsel for the respondent-complainant-Ashok that the complainant-
Ashok also has sustained injuries. But he has not filed any document to show
that he has sustained injuries. Furthermore, he has not assigned any reason as
to why he has not given a complaint as soon as the incident took place. He kept
quiet all along till Crime No.842 of 2000 was referred as ‘mistake of fact’ and
then only he has come forward with the present private complaint. Under such
circumstances, I am of the opinion that the present private complaint in
C.C.No.265 of 2001 has been given at the instigation of the said Karthick
V.R.Thondaiman with the enmity due to the property dispute between the first
petitioner-Rajagopala Thondaiman and Karthick Thondaiman, which is evidenced by
the civil dispute in O.S.No.646 of 1999 and that too, he filed an injunction
application and that no interim order had been granted and the interim
injunction application was dismissed on 12.12.2001.
28. It is appropriate to consider as to whether the proposed second
complaint is maintainable. Even though it was not filed by the said Karthick
V.R.Thondaiman, but the present private complaint has also been referred to as
incident alleged to have been taken place on 24.2.2000.
29. Considering the facts and in the circumstances of the case that the
bringing the fresh complaint, after a lapse of long delay of one year with a
fresh case, was a gross abuse of the process of the Court and was not with the
object of furthering the interest of justice.
30. The second complaint can be laid only on new facts or even on previous
facts, only if a special case is made out. As already stated, even though
Karthick Thondaiman has given a complaint, the same had been referred to as
‘mistake of fact’ and subsequently his Manager, Ashok, who is alleged to be the
injured, has given the present private complaint in C.C.No.265 of 2001, only at
the belated stage. In such circumstances, I infer that due to the civil dispute
between the first petitioner-Rajagopala Thondaiman and Karthick Thondaiman, the
Manager-Ashok (respondent-complainant) was directed to file a private complaint
after Crime No.842 of 2000, dated 30.8.2000 has been referred to as “mistake of
fact”.
31. It is further stated by learned counsel for the petitioners/accused in
Crl.O.P.No.4385 of 2002 that after forwarding the private complaint to the
learned Magistrate, as per the directions of the learned Magistrate, the
concerned Police also have filed a report, stating that it is a mistake of fact,
but the learned Magistrate has rejected the report by taking cognizance of the
private complaint for the offences alleged and in such circumstances, taking
cognizance of the offence and proceeding further would prejudice the accused
under Section 300 Cr.P.C., and it also a double jeopardy. This contention is not
applicable to the facts of the present case, since neither the accused are
earlier acquitted, nor convicted in respect of the alleged incident mentioned in
the private complaint.
32. In the above facts and circumstances, on a perusal of the private
complaint filed by the said Ashok-complainant, and the order passed by the
learned Judicial Magistrate-2, Trichy, and considering the civil dispute, and
the delay in preferring the complaint by the respondent-complainant-Ashok on
23.5.2001, the criminal proceedings in C.C.No.265 of 2001, are liable to be
quashed against the petitioners-accused in Crl.O.P.No.4385 of 2002 alone.
Accordingly, they are quashed. Crl.O.P.No.4385 of 2002 is allowed.
33. In respect of Crl.O.P.No.23963 of 2003 filed on the basis of the
complaint given by the fourth petitioner in Crl.O.P.No.4385 of 2002, namely
Sathyanathan, the case has been registered and charge sheet has also been filed,
which was taken on file as C.C.No.640 of 2000, the trial Court is directed to
dispose of the same, as expeditiously as possible, in accordance with law and
the direction sought for by the petitioners in Crl.O.P.No.23693 of 2003, for
joint trial, has become infructuous, as the criminal proceedings in C.C.No.265
of 2001 are quashed as indicated above, in Crl.O.P.No.4385 of 2002 and
therefore, Crl.O.P.No.23963 of 2003 is dismissed as having become infructuous
with the above direction.
34. In fine:
(a) Crl.O.P.No.4385 of 2002 is allowed and the criminal proceedings in
C.C.No.265 of 2001 are quashed;
(b) Crl.O.P.No.23963 of 2003 is dismissed as having become infructuous,
with a direction to the trial Court to dispose of C.C.No.640 of 2000 as
expeditiously as possible, in accordance with law.
arul / cs
To
1. The Inspector of Police, Contonment Police Station
Thiruchirappalli.
2. The Judicial Magistrate No2, Trichy.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.