IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 09/12/2004
Coram
The Honourable Mr.Justice V.KANAGARAJ
Crl.OP.No.33990 of 2004
and
CRL.M.P.NO.10680 OF 2004
Vijai ...Petitioner
-vs-
1.State represented by
Inspector of Police,
District Crime branch,
Vellore.
2. C.Padmavathi,
W/o Ekambaram,
No.4/7, Taluk Office Road,
Saidapet, Chennai-15. ...Respondents
Impeading the 2nd respondent as per the order
of this Court dt.18.11.2004 in Crl.M.P.no.10852
of 2004 by VKJ.
Petition filed under section 482 of Cr.P.C. for the relief as stated
therein.
!For Petitioner : Mr.K.Srinivasan
^For Respondent No.1: Mr. A.N.Thambidurai
Government Advocate (Crl.Side)
For Respondent No.: Mr.Venkatesh
:ORDER
The petitioner has filed the Criminal original petition
praying to call for the records relating to the investigation in Crime No.9 of
2 004 on the file of the Inspector of Police, District Crime Branch, Vellore
and quash the FIR as against the petitioner herein.
2.The case of the petitioner is that the father of the
petitioner is the Managing Life Trustee of ‘Jai Bharat Charitable Trust”; that
the trust is running educational Institutions including Priyadarshini
Engineering College at Chettiappanur Village, Vaniyampadi; that the trust
consists of the Managing Trustee and 13 other life trustees; that due to the
difference of opinion among the trustees, dispute arose between them following
which Thiru K.T.Anbazhagan, Life Trustee joining with seven other life
trustees have filed C.S.No.294 of 2003 before this Court seeking change of
administration of the trust from the hands of A1; that pending suit, the
trustees have sought for production of accounts and appointment of an
Administrator to run the college; that A1, the father of the petitioner herein
had consented for the appointment of an Administrator and this Court appointed
Mr.Justice V. Rengaswamy, a retired Judge as Administrator pending disposal
of the suit.
3. It is the further case of the petitioner that
K.T.Anbazhagan along with seven other trustees preferred a false complaint to
the Administrator alleging that the first accused is going on collecting a sum
of Rs.3500/- from each student towards the Development fees and the said
amount was not brought on record;that the Accountant denied that every payment
is made only through bank and therefore the Administrator concluded that the
allegation is not supported by any material; that the said K.T.Anbazhagan once
again preferred a complaint addressed to the Deputy Inspector General of
Police, Vellore levelling similar allegations; that the respondent police
registered a case in Crime No.9 of 2004 for the offences under Sections 403
and 406 IPC against 4 persons ;that the sum and substance of the complaint is
(1) that without authorisation of the Board, a sum of Rs.25 lakhs has been
collected towards development charges and the same has been misappropriated by
the Managing Trustee(A1) ;(2) that the second allegations is that a sum of
Rs.15 lakhs was collected as fine towards late attendance by the students
which is also without the authorisation of the Board and the said sum has also
been misappropriated by the managing Trustee (3) that the third allegation is
that the Internet and browsing equipments and computers are missing from the
college and it is alleged that the petitioner(A2) who is the son of the
Managing Trustee(A1) is in possession of all those equipments.
4.Heard the learned counsel for the petitioner, learned
Government Advocate (Crl.Side) as well as learned counsel for the intervenor,
the second respondent herein.
5. During arguments, learned counsel for the petitioner would
submit that by no stretch of imagination, it can be said that the ingredients
of the offence of criminal breach of trust has been made out against the
petitioner. Once the ingredients of the offence under Section 405 IPC is not
made out, then automatically 403 IPC and 406 are not attracted. It is also
further submitted that an offence under Section 403 IPC is non-cognizable and
bailable offence . The police officer has got a right to act in accordance
with law as per Section 154 Cr.P.C. only if he received information in
cognizable cases. In case, the police officer receives information with
regard to non-cognizable cases, then as per Section 155 Cr.P.C., he has to
necessarily refer the informant to the Magistrate. Sub-Section 2 of Section
155 Cr.P.C. specifically says “No police officer shall investigate a
noncognizable case without the order of a Magistrate having power to try such
cases or commit the case for trial”. Therefore, even assuming that an offence
under Section 403 IPC is made out against the petitioner, the bar under
Sub-clause 2 of Section 155 Cr.P.C. will apply and the police have no power
to investigate as against the petitioner herein. It is further submitted that
Sub-Clause 4 of section 155 of Cr.P.C. will not apply as far as the
petitioner is concerned since no cognizable offence is made out against him.
Therefore the inclusion of the petitioner along with others in Crime No.9 of
2004 is illegal and without any jurisdiction.
6.Learned Government Advocate on the Criminal Side filed a
counter affidavit and would submit that because of the fact that the
Administrator was pleased to forward the complaints to the respondent only
after verification of the facts and circumstances. The petitioner being
the son of the first accused, has actively involved in the affairs of the
trust and now the petitioner cannot claim that he is in no way connected with
the affairs of the trust. It is also further submitted that the averment that
the offence under Section 403 is not attracted against the petitioner in
unsustainable because the petitioner herein had throughout aided and abetted
the other accused to indulge in illegal activities. It is also further
submitted that even admitting for the sake of argument that Section 406 IPC is
not attracted, the case is only under investigation and during the course of
investigation, if further evidence come to light, the section can be altered
accordingly either before the filing of the charge sheet or at the time of
filing charge sheet. Learned Government Advocate(Crl.Side) would further
submit that if the above petition is allowed, the petitioner would go scot
free inspite of committing the offences and the respondent is not able to
verify the records because of the fact that the petitioner along with other
accused is absconding and attempting to destroy the available records and
further involving themselves in intimidating the staff members and HOD’s not
to give any statement implicating them. Hence, he would pray to dismiss the
above Criminal Original Petition.
7.Learned counsel appearing on behalf of the intervenor/ the
second respondent herein would submit that due to difference of opinion among
the trustees, K.T.Anbazhagan along with seven others have filed the suit in
C.S.No.294 of 2003 before this Court; that pending suit, the trustees have
sought for production of accounts and appointment of an Administrator to run
the college; that Justice Mr.V.Rengaswamy has been appointed as Administrator;
in spite of appointment of Administrator, the Managing Trustee has collected
several lakhs and the same has been misappropriated by them. The
Administrator has filed a contempt petition and the same is pending. Inspite
of pendency of the contempt petition, the Internet and browsing equipments and
computers are missing from the college and it is alleged that the petitioner
who is the son of the Managing trustee is in possession of all those
equipments.
8.Inspite of all the above arguments advanced both on the part
of the learned counsel for the petitioner and the State and on the part of the
Intervenor, the second respondent herein it could be seen that the
investigation in the registered case is not yet over and during the course of
investigation as per the Judgments of the Hon’ble Apex Court including very
recent judgments, the field is entirely occupied by the investigating officer
and the Courts are not supposed to cause interference into such an
investigation being undertaken by the prosecuting authority in exercise of the
powers conferred on them by the Court and therefore it is undesirable for the
Courts to cause interference and on this legal dictum this Court does not see
any cause to make interference in compliance of the requirements made on the
part of the petitioner and therefore the petitioner has to necessarily wait
for the investigation to come to a close, since even the investigating officer
who has to go into all the aspects of the position of the facts and
circumstances and in consideration of the aspects which are brought forth in
the above application it has to arrive at its own conclusion in conceding the
request of the petitioner which cannot be ruled out at this stage and
therefore it is only proper on the part of this Court not to cause its
interference thus causing any disturbance to the investigation that is
undertaken by the first respondent/ appellant and hence the following order:
9.In result,
(i) for the reasons assigned above, this Court is of the view
that it is unnecessary to cause its interference as it is prayed for and the
only course that is open for this Court is to dismiss the above criminal
Original Petition and the same is ordered accordingly.
(ii)Consequently, Crl.M.P.No.10680 of 2004 is also dismissed.
Index : Yes
Internet : Yes
VJY
To
1. Inspector of Police,
District Crime branch,
Vellore.
2. The Public Prosecutor,
Madras.