IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.06.2009
CORAM:
THE HONOURABLE MR.JUSTICE ARUNA JAGADEESAN
Crl.OP.No.12347/2006
1.A.C.Shanmugam
2.Lalitha Lakshmi
3.S.Arun Kumar
4.A.Ravi Kumar Petitioners
Vs
The State of Tamil Nadu by Inspector of Police
T4, Maduravoyal Police Station, Maduravoyal
Ambattur Taluk, Tiruvallur District Respondent
Prayer:- This Criminal Original Petition is filed to call for the records in Cr.No.3163/2005 on the file of the Respondent Police and quash the same.
For Petitioner : Mr.B.Sriramulu, SC
Mr.R.Gandhi, SC
For Respondents : Mr.S.Senthil Murugan, PP
ORDER
The Petitioners seek to quash the complaint in Cr.No.3163/2005, on the file of the Respondent Police and the FIR pending before the learned Judicial Magistrate, Poonamallee. The 1st petitioner is the Chancellor of the Dr.MGR Educational and Research Institute (Deemed University) at Maduravoyal, Chennai-95 and the 2nd petitioner is his wife, the 3rd petitioner is his son and the 4th Petitioner is her brother-in-law.
2. Tmt.Kannammal Educational Trust runs four Educational Institutions, viz. (1) Dr.MGR.Engineering College, (2) Thai Moogambigai Dental College, (3) Thai Moogambigai Polytechnic and (4) a School at Muduravoyal Taluk, Tiruvallur District. During December 2005, due to heavy and unprecedented rain on 3.12.2005, the water levels in the Aeri Poramboke, river Poramboke, irrigation tanks increased, as a result of which, the water level in the Coovum River was also raised. The 1st Petitioner had constructed the superstructure of the college run by him not only in the patta land, but also encroached upon the Poramboke lands comprised in S.Nos.432/2, 435/1, 436, 442, classified as odai Poramboke, Aeri Uzhvoil, River Poramboke, Kulam Tank Poramboke in the Mogappair Village and due to which, the water could not flow freely in the Coovum River and consequently on 3.12.2005 at 11.00 p.m the coovum water entered into the College premises and raised upto 10 feet and inundated the entire Ground floor of the college premises. On information given by some of the hostel students at 12.00 in the mid night to the Collector, Tiruvallur District, the personnel attached to the Fire Service Department, the Police Personnel, the Executive Officer of the Maduravoyal Municipality and the Revenue Official rushed to the spot and undertook rescue operations and thus shifted about 850 students to safer places.
3. One J.Arumugam, the Village Administrative Officer of Maduravoyal had lodged a complaint on 6.12.2005 regarding the above said incident with the Respondent Police, which was taken as a petition and only on 9.12.2005 at about 1.30 p.m. a case had been registered against the 1st petitioner in Cr.No.3163/2005 under Sections 447, 427 and 336 of IPC.
4. The sum and substance of the allegations made in the complaint is as follows:-
The above said Dr.MGR.Engineering College (Deemed University) represented by the 1st petitioner as Director had encroached upon the Poramboke lands, which was classified as Odai Poramboke, Aeri Poramboke, Aeri Uzhvoil and constructed the buildings and superstructures over the same, thereby prevented the free flow of water from the Coovum river. Consequently, during the rain coovum river water entered into the college premises and the water level rose upto 10 feet high, causing flood in the college premises and the neighbouring area. The entire ground floor of the College premises got inundated and the students were left stranded. The college authorities did not take any efforts to bring the students out of the premises in spite of the worst condition. Further the College proceeded with the examinations as scheduled, which caused mental agony to the students. In the complaint, the main allegation is that the College authorities did not take any efforts to rescue the hostel students to a safer place and also by putting up the structures in the Aeri Poramboke endangered the life of the public.
5. The CD File relating to Cr.No.3163/2005 was produced by the learned Public Prosecutor and the same was perused. It appears that the Sub Inspector of Police attached to T4, Maduravoyal Police Station had conducted the preliminary investigation and examined eight witnesses. The first witness is the Village Administrative Officer, who lodged the complaint, has reiterated the facts found in the complaint, the witnesses 2 to 4 are the residents of the neighbourhood area, who speak about the constructions put up by the said Educational Institution in the Aeri Poramboke, thus preventing free flow of water and inundating the entire college premises and the neighbourhood areas and witness 5 is a Police Constable attached the Armed Reserve Police, who is said to have rescued the students from the flooded college premises with the help of fire service personnel, revenue officials. He would further state that due to the heavy rain, one of the wall collapsed in the premises and he got injured, for which he had taken treatment in the hospital. The witness 6 is a Trainee Sub Inspector and the witness 7, who is another armed reserve Police, spoke in terms of the statement given by the witness 5. Witness 8 is the Sub Inspector of Police, who led the team to the spot and undertook rescue operations. The statements of those witnesses appears to have been recorded on 9.12.2005. The Sub Inspector of Police attached to the T4 Maduravoyal Police Station had completed the preliminary investigation and placed it before the Inspector of Police for his perusal.
6. Thereafter, the Inspector of Police appears to have recorded the statements of few more witnesses from the neighbourhood areas, who had repeated the statements, as given to the Sub Inspector of Police. Strangely, two Head Constables viz. Janaki Raman and Chandrasekar of Maduravoyal Police Station have stated in their statements that the Petitioners 1 to 4 were present inside the college premies on 3.12.2005 with lethal weapons like wooden logs and iron pipes and threatened the rescue team and prevented them from entering into the premises.
7. On a close scrutiny of the entire case file, it is seen that only the above two witnesses, who are the Police officials attached to the T4 Maduravoyal Police Station, have stated that the Petitioners were present and prevented and also threatened the rescue team. None of the other witnesses have stated anything about the said fact either to the Sub Inspector of Police, who conducted the preliminary investigation or to the Inspector of Police, who conducted further investigation. It is also pertinent to point out that none of the hostel students in the premises have given statements regarding the above said fact.
8. Now coming to the averments made in the complaint, the only allegation made is that the buildings were constructed in the Aeri Poramboke, which is the main cause for inundation of the college premises and the College authorities did not take any efforts to shift the students to safer places. Though the complaint is said to have been lodged on 6.12.2005 i.e. after delay of 3 days from the date of the incident, the same has been registered only on 9.12.2005. Barring the delay, even if the allegations made in the complaint be given a face value and taken to be correct in its entirety, they do not disclose any offences alleged as against the Petitioners. There is absolutely no allegation in the complaint that the Petitioners were present in the premises at the time of occurrence and despite giving information to the 1st Petitioner, he failed to take necessary steps to shift the students from the college premises.
9. Based on the complaint, the Police have registered the case against the 1st Petitioner under Sections 447, 427 and 336 of IPC. To attract the offence under Section 336 of IPC, it must be shown that the accused did the act rashly and negligently, endangering to the life of the public. The allegation in the complaint must have a reasonable nexus with the result caused. Admittedly, the constructions were put by the said Dr.MGR Educational Institution years back and the Officials have never objected to the said constructions made on the Poramboke lands and not even initiated any proceedings for such unauthorised construction in the Poramboke land. No material is there to evidence the same. Till 3.12.2005, when the natural havoc caused due to heavy rain, there was no such complaint or objection from any part of the public or from the authorities concerned. Hence, it cannot be said that the allegations constituted the ingredients for the offence under Section 336 of IPC.
10. Next coming to the Offence under Section 427 of IPC, the complaint does not show any material. If a person, against whom allegation is made, cause loss or damage with a criminal intent, only then an offence under Section 447 would be attracted. There should be averments so as to attract the definitions made in Section 441 and they are (1) entry into or upon property in possession of another (2) if such entry is lawful then unlawful remaining upon such property and (3) such entry or unlawful remaining must be with an intent (i) to commit the offence and (ii) to intimidate, insult or annoy the person in possession of the property. In order to attract the offences punishable under Sections 427, 336 and 447 of IPC, criminal intention of the offender is the main criteria.
11. In the case of Sinnasamy Selvanayagam Vs. The King (1951-MWN-Crl-117], ingredients of Section 441 has been dealt with and it is held as under:-
“Intention, which is a state of mind, can never be proved as a fact; it can only be inferred from facts which are proved. Hence it is a question of law.
To bring a case within the section the intention specified in the section must be the dominant intention. Entry upon land made under a bona fide claim of right, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant and that any claim of right was a mere cloak to cover the real intent or at any rate constituted no more than a subsidiary intent.”
In the case of S.Vullappa and four others Vs. S.Bheema Row (ILR-41-Mad-156-FB), it was held as under:-
“Trespass is an offence under Section 441, Indian Penal Code, only if it is committed with one of the intents specified in the section and proof that a trespass committed with some other object was known to the accused to be likely or certain to cause insult or annoyance is insufficient to sustain a conviction under Section 448, Indian Penal Code.
A mere knowledge that the trespass is likely to cause insult or annoyance does not amount to an intent to insult or annoy within section 441, Indian Penal Code; but where the trespasser knows that his trespass is practically certain in the natural course of events to cause insult or annoyance, it is open to the court to infer an intent to insult or annoy. It is a question of fact whether this presumption of intent is displaced by proof of any independent object of the trespass.”
On a careful analysis, none of the ingredients of the above said offences are attracted, even if the averment made in the complaint is taken in its entirely to be correct.
12. In the case of S.W.Palanitkar and others Vs. State of Bihar and another (2002-1-SCC-241), the Apex Court after referring to its earlier pronouncement in the case of Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Agre (1988-1-SCC-692), has held that exercise of power under Section 482 Cr.PC should be consistent with the scope and ambit of the same in the light of the decisions of the Supreme Court. It further held that in appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of court may not be allowed to be utilised for any oblique motive.
13. In Madhavrao Jiwajirao Scindia’s case, the Honourable Supreme Court has emphasised the said principle as under:-
“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 uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and therefore no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage.”
14. In the case of Punjab National Bank and others Vs. Surendra Prasad Sinha (1993-SCC-Cri-149), the same view has been reiterated by the Honourable Supreme Court and the same is extracted below:-
“The judicial process should not be an instrument of oppression or needless harassment. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage, the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly.”
15. In the case of Kunstocom Electronic (I) Pvt Limited Vs. Gilt Pack Limited and another (2002-SCC-Cri-336), the Honourable Supreme Court has held that there is no hard and fast rule that the objection as to cognizability of the offence and maintainability of the complaint should be allowed to be raised only at the time of framing the charge.
16. In the very recent judgement of the Honourble Supreme Court rendered in the case of All Cargo Movers (India) Private Limited and others Vs. Dhanesh Badrmal Jain and another (2009-1-SCC-Cri-947), it is held that though the criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of process of law, superior courts while exercising this power should also strive to serve the ends of justice, while exercising inherent power under Section 482 of Code of Criminal Procedure.
17. Keeping in mind the above principles enunciated by the Apex Court, it is no doubt true, that the scope of Section 482 of Code of Criminal Procedure has been reiterated and upheld by the Honourable Supreme Court that High Court is not supposed to embark upon to enquire as to whether the allegations in the FIR and the charge sheet are reliable or not and thereupon to render a definite finding about the frivolous or veracity of the allegations. It should limit its consideration to explain as to whether the allegations made in the FIR taken on its face value and accepted in its entirety would prima facie constitute the offence for making out a case against the petitioners.
18. As already pointed out, the complaint and the the statements of the witnesses recorded on 9.12.2005 by the Sub Inspector of Police do not disclose anything to implicate or to speak about the involvement of the Petitioners in any manner in the incident occurred on 3.12.2005. They are the persons, who had gone to the spot on the same day and rescued the students to safer places along with the fire Department personnel, revenue officials and the police officials. They have not whispered anything about the presence of the petitioners in the place of occurrence. The Sub Inspector of Police, who is said to have led the police team to the spot, also did not say anything about the presence of the petitioners and the alleged commission of act by them. Surprisingly two Head Constables attached to the Maduravoyal Police Station, whose statements have been recorded by the Inspector of Police on 10.12.2005, who were not examined by the Sub Inspector of Police, though they were very much available in the Police Station have alleged that all the Petitioners were present in the place of occurrence. It is pertinent to point out that the said police officials have made only a general statement that they were prevented by the Petitioners with lethal weapons. The Village Administrative Officer, who had given the complaint at the earliest point of time though after a delay of 3 days has not whispered about the said fact in the complaint. If really the Petitioners were present and threatened them, then the witnesses, who were examined during the preliminary investigation, could not have missed to aver the said facts it in their statements, that too when the allegations are serious. So it is obvious that the said allegations were introduced at a later point of time with a view to implicate the Petitioners in the crime with some ulterior motive.
19. The Police Officer is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such act shakes the confidence of the common man not only in the investigating agency but also in the ultimate analysis in the system of dispensation of criminal justice. Although the powers of the Police to investigate cognisable offence are unfettered, yet a mala fide exercise of powers of investigation is liable to be quashed. In the case of SN Sharma Vs. Bipin Kumar Tiwari (AIR-1970-SC-786), the Honourable Supreme Court has held as follows:-
“It appears to us that though the Cr.PC gives to the police unfettered power to investigate all cases where they suspect that a cognisable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the powers of High Court under Art.226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Curt can always issue a writ of mandamus restraining the police officer from misusing his legal powers.”
20. The materials placed by way of complaint and the statements recorded would clearly show that the criminal proceedings initiated against the Petitioners are manifestly attended with mala fide with a view to involve them in the commission of crime. It has become necessary to look into this material evidence, as it appears on the face of it that it is brought into existence with some ulterior motive.
21. At this juncture, it is relevant to extract the guidelines laid down by the Apex Court in the case V.Y.Jose and Another Vs. State of Gujarat and another (2009-1-SCC-Cri-996) as under:-
(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 Note to Office:- 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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceedings is manifestly attended with mala fides 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.”
22. The Apex Court has held that when the allegations made in the FIR or the 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, the court is justified in exercising the power under Section 482 of Code of Criminal Procedure. The Honourable Supreme Court has also emphasised that Section 482 of the Code of Criminal Procedure serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him.
23. In the instant case, on consideration of the allegations made in the complaint and also in the light of the statements given by the witness, it is seen that the criminal prosecution is mala fide and vexatious and therefore, there is every justification for interference by this court to quash the complaint.
24. For the above said reasons, the complaint cannot be sustained and the same is liable to be quashed and accordingly, it is quashed and this Criminal Original Petition is allowed.
Srcm
To:
The Public Prosecutor, High Court,
Madras