{"id":109521,"date":"2010-10-06T00:00:00","date_gmt":"2010-10-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-rajagopala-thondaiman-vs-a-ashok-on-6-october-2010"},"modified":"2015-07-12T10:49:03","modified_gmt":"2015-07-12T05:19:03","slug":"r-rajagopala-thondaiman-vs-a-ashok-on-6-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-rajagopala-thondaiman-vs-a-ashok-on-6-october-2010","title":{"rendered":"R.Rajagopala Thondaiman vs A.Ashok on 6 October, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
R.Rajagopala Thondaiman vs A.Ashok on 6 October, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 06\/10\/2010\n\nCORAM\nTHE HONOURABLE MS.JUSTICE R.MALA\n\nCrl.O.P.No.4385 of 2002\nand\nCrl.O.P.No.23963 of 2003\n\n1. R.Rajagopala Thondaiman\n2. Sarubala R.Thondaiman\n3. K.R.Govinda Raja\n4. K.Sathyanathan\n5. Duraikannan\n6. Rajalingam\t\t       ..  Petitioners in Crl.O.P.No.4385 of 2002\n\n\n1. Karthik V.R.Thondaiman\n2. V.R.Thirumalai Dorairaja\n3. V.R.Ramachandra Dorairaja\n4. S.Thanuskodi\t\t\t.. Petitioners in Crl.O.P.No.23963 of 2003\n\nVs\n\t\t\t\t\t\nA.Ashok\t\t\t.. Respondent in Crl.O.P.No.4385 of 2002\n\nState By Inspector of Police,\nContonment Police Station\nThiruchirappalli\t\t.. Respondent in Crl.O.P.No.23963 of 2003\n\n\tCriminal Original Petitions under Section 482 Cr.P.C. for the reliefs as\nstated therein.\n\n!For Petitioners in  Crl.O.P.No.4385\/2002 ...\n\t                                    Mr.R.Shanmugasundaram, Senior Counsel\n\t\t\t                    for Mr.A.Ahamath Bathusha\n\nFor Petitioners in Crl.O.P.No.23963\/2003... Mr.Ramani Natarajan\n^For Respondent in Crl.O.P.No.4385\/2002 ... Mr.R.Venkateswaran\nFor Respondent in Crl.O.P.No.23963\/2003 ... Mr.R.M.Anbunithi,\n    \t                         \t    Government Advocate (Crl. Side)\n\n:ORDER\n<\/pre>\n
\tThe petitioners in Crl.O.P.No.4385 of 2002 have approached this Court with
\na prayer to call for the records in C.C.No.265 of 2001 on the file of the
\nJudicial Magistrate No.II, Trichy and to quash the proceedings.\n<\/p>\n
\t2. The petitioners in Crl.O.P.No.23963 of 2003 have approached this Court
\nwith a prayer to direct the learned Judicial Magistrate No.II, Trichy, to try
\nC.C.No.640 of 2000 and C.C.No.265 of 2001, pending on his file, in quick
\nsuccession and render judgment on the same day.\n<\/p>\n
\t3. Since the dispute involved in both the Crl.O.Ps., are inter-connected,
\nthey are decided together and disposed of by this common order.\n<\/p>\n
\t4. The case of the respondent-complainant-Ashok (in Crl.O.P.No.4385 of
\n2002), is as follows:\n<\/p>\n
\t(a) The complainant (Ashok) in C.C.No.265 of 2001 on the file of the
\nlearned Judicial Magistrate No.II, Trichy, is working under one Karthick
\nV.R.Thondaiman, S\/o Vijayaraghava Thondaiman. A.1 Rajagopala Thondaiman  is the
\nadopted son of Late “Raja” Rajagopala Thondaiman, the Ex-Ruler of the then
\nPudukkottai State; the said Karthick V.R.Thondaiman and his family were residing
\nin the Guest House within the Pudukkottai Palace Compound, within the limits of
\nCantonment Police Station, Trichy and since A.1 Rajagopala Thondaiman himself
\nvacated the premises with the garden land, hoardings and gave the possession
\nvoluntarily, because the said Karthick Thondaiman was in peaceful possession of
\nthe property with access through the main gate on the road, which leads from the
\nmain gate of the Palace; it is further alleged that the family members and
\ninmates of Chinna Bungalow  (Guest House) were using the main gate on the main
\nroad in the Palace to go to the house without any interruption from time
\nimmemorial, particularly, during the life-time of “Raja” of Pudukkottai and also
\nafter his death; it is further alleged that the said Karthick V.R.Thondaiman was
\nenjoying the entire stretch of the land peacefully and was collecting rents for
\nthe hoardings put up abetting the compound wall.\n<\/p>\n
\t(b) On 23.2.2000 at about 9.00 a.m., when the complainant-Ashok was in the
\nhouse, A.1 to A.5, i.e. the petitioners 1 to 5 in Crl.O.P.No.4385 of 2002 and
\nA.8 trespassed into the land and surveyed the entire space and discussed about
\noccupying the said area and so the complainant-Ashok questioned the fourth
\npetitioner\/A.4\/K.Sathyanathan, for which he told that they intended to sell the
\nproperties to A.8 and when the complainant-Ashok asked that how they could sell,
\nwhen the property belonged to Karthick V.R.Thondaiman and they were in
\npossession and enjoyment, Sathyanathan\/A4 replied that they had already planned
\nto take possession by force and Karthick V.R.Thondaiman could do nothing, since
\nthe Government and all functionaries are on their side and A.8 said that he
\ncould do wonders by using his position as a Member of Parliament and A.1 and
\nA.2, i.e. the petitioners 1 and 2 in Crl.O.P.No.4385 of 2002 also told that they
\nhad already decided and nobody could stop them. A.3 to A.5, i.e. the petitioners
\n3 to 5 in Crl.O.P.No.4385 of 2002 threatened and told the complainant-Ashok
\n(respondent in Crl.O.P.No.4385 of 2002) to mind his own business.\n<\/p>\n
\t(c) It is further alleged that on 24.2.2000 at about 10.00 a.m., A.2 to
\nA.5  trespassed into Karthick Thondaiman’s property along with some ten persons
\nwith  deadly weapons in a Truck bearing Registration No.TN-45-F-1766 and
\nKarthick  V.R.Thondaiman, along with the complainant-Ashok, questioned them as
\nto why they were trespassing into his property, A.3 and A.4 replied that they
\nintended to sell the property to A.8 and hence, they have come to take
\npossession and when Karthick V.R.Thondaiman and the complainant-Ashok objected,
\nthey threatened to kill Karthick V.R.Thondaiman and so, he rushed out, escaped
\nand went to the Police Station and therefore, all the persons immediately
\nvacated the premises. The said Karthick V.R.Thondaiman gave complaint and the
\nreceipt also having been furnished, the Police did not take any action, and
\nhence, on 26.2.2000, he moved the Revenue Divisional Officer through his Power
\nof Attorney for proceeding against Sarubala R.Thondaiman\/A.2, the second
\npetitioner in Crl.O.P.No.4385 of 2002, under Section 145 Cr.P.C, for which the
\nRevenue Divisional Officer and the Deputy Commissioner with Inspector of Police,
\nContonment visited the spot and asked to maintain status-quo.\n<\/p>\n
\t(d) It is further alleged in the said complaint that on 27.2.2000 at about
\n3.30 p.m., A.2 to A.5, the petitioners 2 to 5 in Crl.O.P.No.4385 of 2002 and A.6
\nto A.8  along with about 10 more Goondas and henchmen, armed with deadly weapons
\nviz., aruval, spade, crow-bar, etc., came in vehicles and started destroying the
\ngarden;  A.2, namely the petitioner No.2 in Crl.O.P.No.4385 of 2002, i.e.
\nSarubala R.Thondaiman, gave directions to cut the grass and plants and all the
\ngoondas cut off and uprooted the plants and A.3 to A.5, i.e. the petitioners 3
\nto 5 in Crl.O.P.No.4385 of 2002, gave directions to remove the land-marks; A6
\nand A7  destroyed the existing land-marks; immediately, one Renganathan, who is
\nthe Personal Assistant to Karthick Thondaiman informed the Police officials, who
\ncame and just asked them to go away and in a few minutes, the Inspector of
\nPolice came and took away the said Renganathan and others for the alleged
\nenquiry; after sometime, all the accused with the entire henchmen, came again
\nand indiscriminately cut and removed the remaining trees and plants and removed
\nall the land-marks and also cleared the entire garden; A.2 Sarubala R.Thondaiman
\nand A.3 K.R.Govinda Raja directed and A.4 K.Sathyanathan, A.5 Duraikannan, A.6
\nto A.9 helped others to fence the main gate with barbed wires, obstructing the
\naccess to the house of Karthik V.R.Thondaiman through the main gate and thereby
\nwrongfully restrained all the people who intended to go to the house of Karthick
\nV.R.Thondaiman through the main gate and the complainant could do nothing as a
\nsingle man; but it was witnesses by the witnesses. It is the case of the
\ncomplainant-Ashok (respondent in Crl.O.P.No.4385 of 2002) in C.C.No.265 of 2001
\nthat the Police did not take any action on the complaint given by Mr.Karthick
\nV.R.Thondaiman and refused to register any case for the continuing offences on
\n27.2.2000.\n<\/p>\n
\t(e) It is further submitted by the complainant-Ashok that on 27.2.2000,
\nthe above accused persons gave a false complaint against the complainant-Ashok
\nand others and detained them in the Police Station on that night and the said
\ncomplaint was given by A.2 Sarubala R.Thondaiman, i..e the second petitioner in
\nCrl.O.P.No.4385 of 2002 and A.8 used all his influence and with the help of A.8,
\non that night, all the accused further trespassed into the land and constructed
\na well around the vacant garden area, restraining them, their men, Karthik
\nV.R.Thondaiman, for which the complainant-Ashok and his master, have been taking
\naction separately.\n<\/p>\n
\t(f) It is further stated by the complainant-Ashok in C.C.No.265 of 2001
\nthat all the accused have conspired and in furtherance of the said conspiracy,
\nthey trespassed into the property of the complainant’s master, wrongfully
\nrestrained the complainant and others and caused damage to the garden, as stated
\nabove, worth about Rs.1 lakh and permanently restrained the people using the
\ngate by laying barbed wire fencing obstructing the main gate and thereby
\ncommitted the offences  under Sections 120-B, 143, 147, 148, 342, 434, 447, 448
\nand 506 (Part -2) read with Section 109 IPC.\n<\/p>\n
\t(g) Since the Inspector of Police, Cantonment Police Station, Trichy, did
\nnot register a case in respect of the complaint given by Karthick V.R.Thondaiman
\nfor the alleged occurrence said to have taken place on 24.2.2000, the said
\nKarthick V.R.Thondaiman preferred Crl.O.P.No.6601 of 2000 before this Court for
\na direction and accordingly, based on the direction of this Court, the Inspector
\nof Police registered a case and issued a referred notice on him on 18.2.2001. It
\nis further  alleged by the complainant-Ashok that the Police did not investigate
\nall the continuing offences properly and the counter case filed by the Inspector
\nof Cantonment Police Station on the complaint of the said K.Sathyanathan\/A.4,
\nthe fourth petitioner in Crl.O.P.No.4385 of 2002, against the complainant-Ashok
\nand 33 others, is pending before Court and numbered as C.C.No.640 of 2000.\n<\/p>\n
\t 5. The case of the petitioners\/accused in Crl.O.P.No.4385 of 2002, is as
\nfollows:\n<\/p>\n
\t(a) Originally Karthick V.R.Thondaiman, filed a petition before this Court
\nin Crl.O.P.No.6601 of 2000 for directing the Inspector of Police, Cantonment
\nPolice Station, Trichy to register a case in respect of his complaint relating
\nto the alleged occurrence said to have taken place on 24.2.2000, as the police
\noriginally chose not to register a case and this Court directed the Inspector of
\nPolice to register the case and accordingly, the case was registered in Crime
\nNo.842 of 2000 and during the investigation, Karthik V.R.Thondaiman again
\napproached this Court in Crl.O.P.No.18156 of 2000 for transfer of investigation
\nand this Court directed the Commissioner of Police, Trichy to transfer the
\ninvestigation to some other police officer, instead of Inspector of Police,
\nContonment Police Station and accordingly, the case in Crime No.842 of 2000 was
\ntransferred to the Inspector of Police, Ponmalai Police Station, who completed
\nthe investigation and filed the final report stating that the complaint is one
\nof “mistake of fact” and the Referred Charge Sheet Notice, i.e. RCS Notice was
\nalso served to that effect on 22.4.2000 and thereafter, the present private
\ncomplaint had been filed by the respondent-complainant-Ashok (in Crl.O.P.No.4385
\nof 2002).\n<\/p>\n
\t(b) It is the further case of the petitioners\/accused in Crl.O.P.No.4385
\nof 2002 that on 9.10.2001, the learned Judicial Magistrate directed the
\nInspector of Police, Contonment Police to conduct an enquiry and to report to
\nthe Court regarding the complaint filed by the complainant-Ashok and reminders
\nwere issued to the Enquiry Officer on 12.11.2001 and 13.12.2001 and hence, on
\n17.01.2002, the Inspector of Police, Contonment Police Station filed his report
\nstating that the alleged occurrence has not taken place and the complainant had
\nexaggerated the issue; on 6.2.2002, the learned Judicial Magistrate No.2,
\nTrichy, rejected the report of the Inspector of Police, Contonment Police
\nStation, Trichy, and took the case in C.C.No.265 of 2001 on file as against A.1
\nto A.7 and A.9 alone for the offences under Sections 120-B, 143, 147, 148, 342,
\n434, 447, 448 and 506 (Part 2) read with 109 IPC and observed that there is no
\ndirect evidence regarding the involvement of A.8 in criminal trespass or any
\nother criminal acts, and that the documents filed will not connect A.8 with any
\ncriminal acts and his involvement in any criminal act is not materially
\ncorroborated and no prima-facie is made out against A.8 and hence, the complaint
\nwas dismissed as against A.8 alone under Section 203 Cr.P.C. Therefore, the
\nlearned Judicial Magistrate-2, Trichy, issued summons to A.1 to A.7 and A.9 and
\ndirected them to appear on 8.3.2002; aggrieved by the order of issuing processes
\nand taking cognizance of the private complaint, the petitioners\/accused have
\napproached this Court for quashing the complaint in C.C.No.265 of 2001.\n<\/p>\n
\t6. The learned counsel appearing for the petitioners\/accused submitted
\nthat the cognizance taken by the learned Judicial Magistrate and the issuance of
\nthe summons to them, is illegal; based on extraneous materials and absolutely,
\nthere is no sufficient ground to proceed further in the case and the learned
\nJudicial Magistrate ought not to have taken cognizance of  the complaint based
\non the RDO report, dated 17.10.2001, since it does not form part of the same
\ntransactions; the allegations that the accused conspired with respect to the
\noccurrence took place on 23.2.2000, 24.2.2000 and 27.2.2000 are independent and
\ncannot be clubbed together; the offences under Sections 342, 447 and 448 IPC,
\ncannot be illegally sustained, in view of the pendency of the civil case in
\nO.S.No.646 of 1999 pending before the Subordinate Judge’s Court, Trichy; the
\npetition filed by the complainant-Karthick V.R.Thondaiman and another therein,
\nto pass an order of interim injunction, pending suit, restraining the first
\npetitioner herein, namely Rajagopala Thondaiman and his relatives, from
\nobstructing him from using the passage, which is the subject matter of this
\ncase, had been dismissed by the Sub-Court on 12.12.2001 in I.A.No.437 of 1999 in
\nO.S.No.646 of 1999 and therefore, the order of the Magistrate in taking
\ncognizance in the present C.C.No.265 of 2001 and rejecting the negative final
\nreport (referred charge sheet) on the same day will be in violation of Section
\n300 Cr.P.C. and amounts to double jeopardy.\n<\/p>\n
\t7. It is further submitted by the learned counsel for the
\npetitioners\/accused that neither the respondent\/complainant, nor the said
\nKarthick V.R.Thondaiman, had filed any application protesting the earlier
\nrecording of RCS as “mistake of fact” \/ closing the FIR as a “mistake of fact”,
\nbut the present respondent-complainant, namely Ashok, who is the Manager of the
\nsaid Karthick V.R.Thondaiman, preferred the said private complaint with false
\nallegations. When once the earlier complaint had  been referred to as a ‘mistake
\nof fact’, instead of filing protest application, the present respondent-Manager
\nAshok has preferred a private complaint and so, it is against law and not
\nmaintainable. To substantiate his arguments, learned counsel for the
\npetitioners\/accused, relied upon a decision of this Court reported in 1998 (1)
\nCTC 329 (Krishna Rao.A. Vs. L.S.Kumar).\n<\/p>\n
\t8. Learned counsel for the petitioners\/accused in Crl.O.P.No.4385 of 2002
\nfurther contended that the property in question was originally owned by “Raja”
\nRajagopala Thondaiman, the Ex-Ruler of Pudukkottai State (as it was formerly
\ncalled). He bequeathed the piece and parcel of immovable property comprised in
\nand forming part of his residence called as “Pudukkottai Palace”, situated in
\nCantonment, Tiruchirapalli, usually referred to as “Guest House” together with
\nportion–vacant site as demarcated in the sketch, attached to the Will and
\nmarked   red in the said Will, dated 10.8.1990 and that portion has been sub-
\ndivided as T.S.Nos.1\/1.A, 1\/1.B and 1\/1.C with 17.90 cents, 1.29 cents and 0.87
\ncents respectively in Trichy Town Ward K, Block No.5, Pudukkottai Palace, of the
\nsketch\/plan bequeathing to respective relatives of “Raja” Rajagopala Thondaiman,
\nnamely Kamalambal Rajayaee, Karthik V.R.Thondaiman and others. Because of the
\ndispute, Karthick V.R.Thondaiman and another filed the suit in O.S.No.646 of
\n1999 on the file of the Sub-Court, Trichy, for partition of their respective
\nshare and also for separate possession and also for permanent injunction
\nrestraining the defendants and their men from in any way interfering with the
\nplaintiff’s (Karthick V.R.Thondaiman’s) peaceful possession of the property and
\nalong with the said suit, the said Karthick V.R.Thondaiman and another, also
\nfiled an interim injunction application in I.A.No.437 of 1999 in O.S.No.646 of
\n1999 and the said I.A. was dismissed on 12.12.2001. It is further stated that by
\nthe learned counsel for the petitioners\/accused that since a civil dispute is
\npending, the complaint of trespass and mischief filed against the owner of the
\nneighbouring property, is a ground for quashing the criminal proceedings. In
\nsupport of this contention, learned counsel for the petitioners\/accused relied
\nupon the decision of this Court reported in 1981 L.W. (Crl) 251
\n(Subramanian,M.N. Vs. S.Pasupathy), stating that because of the previous enmity,
\na false private complaint had been filed and the learned Judicial Magistrate-2,
\nTrichy, has not considered this aspect in proper perspective and hence, he
\nprayed for quashing the criminal proceedings in C.C.No.265 of 2001 and allowing
\nCrl.O.P.No.4385 of 2002.\n<\/p>\n
\t9. The learned counsel appearing for the respondent-complainant-Ashok, in
\nquash petition in Crl.O.P.No.4385 of 2002 and also the learned counsel for the
\npetitioners-accused in Crl.O.P.No.23963 of 2003, submitted that the civil suit
\nin O.S.No.78 of 2004, filed by Karthick Thondaiman and another against
\nRajagopala Thondaiman (first petitioner herein) and others, had been dismissed
\non 13.9.2005, and as against the said dismissal, it is stated by the counsel
\nthat an appeal has been filed in A.S.No.12 of 2006, which is pending before this
\nCourt. It is further stated by the counsel that the complaint filed by the
\npetitioners\/accused is a case in counter; the respondent-Ashok had filed a
\nprivate complaint, since he is also one of the injured persons; the master of
\nthe complainant-Ashok, namely Karthick V.R.Thondaiman, i.e. the 1st petitioner
\nin Crl.O.P.No.23963 of 2003 also had filed a private complaint dated 23.6.2001
\nand subsequently, he did not press the same; the fourth petitioner in
\nCrl.O.P.No.4385 of 2002, namely K.Sathyanathan, has also given a complaint and
\nthe proceedings under Section 144 Cr.P.C. have also been initiated.\n<\/p>\n
\t10. Learned counsel for the respondent-complainant-Ashok in
\nCrl.O.P.No.4385 of 2002 and learned counsel for the petitioners-accused in
\nCrl.O.P.No.23693 of 2003, further submitted that since the petitioners in
\nCrl.O.P.No.4385 of 2002 have  removed the survey markings and cut the trees and
\nassaulted the people, and the respondent-complainant-Ashok was also injured, he
\nis also a competent person to give a private complaint. He further submitted
\nthat after receipt of the Referred Charge Sheet (RCS) notice, the said Karthick
\nV.R.Thondaiman also filed a private complaint, in which he was also examined as
\na witness and another Sathyanathan (fourth petitioner in Crl.O.P.No.4385 of
\n2002)  was also examined on the basis of the statement recorded from the
\nwitnesses and the said complaint has been taken on file and hence, there is no
\nreason for quashing the proceedings.\n<\/p>\n
\t11. Learned counsel for the respondent-complainant in Crl.O.P.No.4385 of
\n2002 and the learned counsel for petitioners-accused in Crl.O.P.No.23693 of
\n2003, further submitted that on the basis of the complaint given by the fourth
\npetitioner in Crl.O.P.No.4385 of 2002, namely Sathyanathan, the case has been
\nregistered in Cr.No.237 of 2000, in respect of the incident alleged to have
\ntaken place on 27.2.2000 at 11.45 p.m., for the offences under Sections 147,
\n148, 427, 506 (Part 2), 451 read with 114 IPC and Section 9(b)(1)(b)(g) of the
\nExplosives Act. After investigation, the charge sheet has also been filed, which
\nwas taken on file in C.C.No.640 of 2000 on the file of the learned Judicial
\nMagistrate-II, Trichy. It is a case in counter. So, the  petitioners-accused in
\nCrl.O.P.No.23693 of 2003 have sought for joint trial, since the incident has
\ntaken place as early as on 27.2.2000 and hence, learned counsel prayed for
\ndismissal of the other Crl.O.P.No.4385 of 2002 and requested for ordering joint
\ntrial of both C.C.Nos.265 of 2001 and 640 of 2000 and allowing Crl.O.P.No.23693
\nof 2003.\n<\/p>\n
\t12. Considering the rival submissions made by learned counsel on either
\nside as also on the side of the respondent-Police in Crl.O.P.No.23963 of 2003
\nand the materials available on record, it is admitted that the property in
\ndispute was originally owned by one Ex-Ruler of Pudukkottai State (formerly so
\ncalled as State). Furthermore, “Raja” Rajagopala Thondaiman has executed a Will,
\ndated 10.8.1990, as stated above and bequeathed his properties in favour of his
\nsister, niece and nephew and since he was a Bachelor, he adopted the first
\npetitioner in Crl.O.P.No.4385 of 2002, namely Rajagopala Thondaiman, as his
\nadopted son. “Raja” Rajagopala Thondaiman bequeathed his properties to his near
\nrelatives and as per the plan\/sketch annexed to the said Will, dated 10.8.1990,
\nit is shown that the testator bequeathed T.S.1\/1.B, i.e. 0.52 ares=1.29 acres to
\nKarthick V.R.  Thondaiman (first petitioner in Crl.O.P.No.23693 of 2003), the
\nnephew of the testator-“Raja” Rajagopala Thondaiman; likewise, the testator also
\nbequeathed the property in T.S.1\/1.C in 0.35.0 ares=0.87 acres in favour of his
\nanother nephew, i.e. Thirumalai Dorairaja i.e., the testator’s another sister
\nKamalambal Rajayee’s elder son, and after he made so many bequest, in page 4 of
\nthe said Will, the said testator–“Raja” Rajagopala Thondaiman observed that his
\nadopted Yuvaraj Rajagopala Thondaiman shall take the rest of the properties,
\nsubject to the payment and disbursement of the various legacies mentioned above
\nform and put up is estate after his lifetime. In respect of the remaining
\nportion, the first petitioner is entitled to get in T.S.No.1\/1.A, 7.25.31
\nSq.Meters=17.91 acres, and all these bequeathment in the Will shows that
\nKarthick V.R.Thondaiman and the first petitioner-Rajagopala Thondaiman, are
\ncousin brothers.\n<\/p>\n
\t13. There was a civil dispute pending between both the parties, i.e.
\nKarthick V.R. Thondaiman and his mother filed a suit in O.S.No.646 of 1999 on
\nthe file of Sub-Court, Trichy, against A.1 Rajagopala Thondaiman and others.
\nAlong with the said suit for partition of their 1\/3 share, against the said
\nRajagopala Thondaiman, Ramadevi, Vijayakumar Thondaiman and Janaki Manokari
\nJaganmohan Seshadri,  claiming 1\/3 share in the property, they have also filed
\ninterim injunction application, which was also dismissed on 12.12.2001 in
\nI.A.No.437 of 1999 in O.S.No.646 of 1999. The counter affidavit filed by the
\nfirst petitioner-Rajagopala Thondaiman in the said I.A.No.437 of 1999 shows that
\neven in the year 1999, there was a property dispute between the first
\npetitioner-Rajagopala Thondaiman and the said Karthick V.R.Thondaiman and their
\nfamily members. While perusing the description of the property in the petition
\nfiled in I.A.No.437 of 1999 in O.S.No.646 of 1999, it shows that it is the
\nsubject matter of the complaint filed by the respondent-complainant-Ashok in
\nC.C.No.265 of 2001.  Thus, it is clearly proved that there has been a civil
\ndispute in respect of the property, subject to the alleged trespass by the
\npetitioners\/accused in Crl.O.P.No.4385 of 2002, which has resulted in preferring
\nthe private complaint by the complainant-Ashok. The said Karthick V.R.Thondaiman
\nand his mother Rajkumari Meenambal Rajayee initially filed O.S.No.646 of 1999
\nbefore the Sub-Court, Trichy and it was transferred to District Court, Trichy
\nand re-numbered as O.S.No.78 of 2004 before I Additional District Court, Trichy,
\nwhich was admittedly dismissed on 13.9.2005, after the filing of the private
\ncomplaint by the complainant-Ashok in C.C.No.265 of 2001.\n<\/p>\n
\t 14. At this juncture, it is appropriate to consider the decision of this
\nCourt reported in 1981 L.W. Crl. 251 (Subramanian,M.N. Vs. S.Pasupathy), in
\nwhich, it was held as follows:\n<\/p>\n
\t“In this case the complaint itself had been filed in the lower Court after
\na long delay of 10 days and there is no explanation offered for this delay.
\nThere can be no doubt there is a bona-fide dispute with regard to the passage in
\nquestion. The inherent jurisdiction of the High Court to pass orders necessary
\nto prevent abuse of the process of any Court cannot be questioned, and indeed it
\nhas been clearly expressed in S.482, Crl.P.C. Though the High Court ought not to
\ninterfere ordinarily by way of quashing criminal proceedings, yet, as the
\nmaterials available in the instant case show a bona-fide claim of civil right
\nand as the matter is pending in a civil Court, it is an obvious duty to
\ninterfere in these proceedings, without causing unnecessary harassment of
\nsubjecting to face a criminal proceeding, since prevention is better than cure.
\nTo allow the present proceedings in this case to continue will not in any way
\nadvance the course of justice. Proceedings quashed.”\n<\/p>\n
\t15. In the present case, the alleged occurrence took place as early as on
\n23.2.2000 at 9 a.m.; on 24.2.2000 at 10 a.m. and also on  27.2.2000 at 3.30 p.m.
\nIn the complaint, it is stated that on 23.2.2000 at 9 a.m., when the
\ncomplainant-Ashok was in the house, the petitioners 1 to 5 in Crl.O.P.No.4385 of
\n2002, i.e. A.1 to A.5 and A.8 trespassed into the land and surveyed the entire
\nspace and discussed about the occupying the said area. Admittedly, on 23.2.2000,
\nno complaint had been preferred.\n<\/p>\n
\t16. It is also alleged that on 24.2.2000 at 10 a.m., A.2 to A.5 trespassed
\ninto the property of Mr.Karthick Thondaiman along with some ten persons, whom
\nthe complainant-Ashok stated in the complaint that he could  identify.
\nAdmittedly, on 24.2.2000 also, no complaint had been immediately given. On a
\nperusal of the private complaint filed by the complainant-Ashok, it has revealed
\nthat only at a later point of time after 24.2.2000, the said Karthick Thondaiman
\nhas given the complaint to Police, in which, it is stated that he has given the
\nsaid complaint and receipt was also furnished. But the Police did not take any
\naction and hence, on 26.2.2000, Karthik Thondaiman’s Power of Attorney moved the
\nRevenue Divisional Officer for proceeding under Section 145 Cr.P.C.\n<\/p>\n
\t17. On 27.2.2000 at 3.30 p.m., A.2 to A.8, along with ten  or more
\ngoondas\/henchmen, armed with aruvals, spade, crow-bar, etc., came in vehicles
\nand started destroying the garden. It is pertinent to note that in respect of
\nthis incident, Sathyanathan, the fourth petitioner\/A.4 has given a complaint
\nbefore the Cantonment Police Station in respect of the alleged occurrence which
\ntook place on 27.2.2000 at 11.45 p.m. A.1 Rajagopala Thondaiman, along with his
\nassociates A.2 to A39 formed themselves into an unlawful assembly with the
\ncommon object of trespass and entered into exclusive possession of Karthick V.R.
\nThondaiman to commit mischief  and caused damages to the Wall of the Palace and
\ncommitted other offences. On that basis, case has been registered in Cr.No.237
\nof 2009 and after investigation, the charge sheet has been filed, which was
\ntaken on file in C.C.No.640 of 2000 by the learned Judicial Magistrate-II,
\nTrichy, for the offences under Sections 147, 148, 427, 506 (Part 2), 451 read
\nwith 114 IPC and Section 9(b)(1)(b)(g) of the Explosives Act.\n<\/p>\n
\t18. As stated supra, there was a Will executed by “Raja” Rajagopala
\nThondaiman, who bequeathed some portion of his property to Karthick
\nV.R.Thondaiman. Admittedly, he was in possession of the said “Guest House”.\n<\/p>\n
\t19. At this juncture, it is appropriate to consider the argument advanced
\nby learned counsel for the petitioners\/accused that earlier, on the basis of the
\ncomplaint given by Karthick Thondaiman on 24.2.2000, no case had been registered
\nand hence, he filed Crl.O.P.No.6601 of 2000, for direction to the respondent(s)
\ntherein to register a case, in pursuance of which, Crime No.842 of 2000 was
\nregistered. On a perusal of pages 1 and 2 of the typed set of papers filed along
\nwith Crl.O.P.No.4385 of 2002, it is evidenced that only on the basis of the
\ndirection given by this Court  in Crl.O.P.No.6601 of 2000 on 18.8.2000, a case
\nhas been registered under the provisions of Sections 147, 148, 448 and 506 (Part\n<\/p>\n
2) IPC in Cr.No.842 of 2000, in which, it is stated that the date of occurrence
\nof the crime in question was 24.2.2000, and in the said FIR\/complaint, it is
\nfairly conceded that Karthick Thondaiman has given a complaint on 24.2.2000 at
\n14.15 hours and receipt has been given in C.S.R.No.51 of 2000 and in the said
\ncomplaint itself, he has categorically stated that, “I am the owner of the above
\nnoted Guest House in Pudukkottai, Palace Campus. There is dispute in property
\nand I have filed a case in Trichy Sub-Court (O.S.No.646\/99) and the case is
\npending in the Court. My cousin Rajagopalan Thondaiman is  residing in the main
\nPalace along with his wife Saru Bala. Both of them are attempting to trespass
\ninto my property with the help of some hired more than 10 goondas with deadly
\nweapons at about 10.00 a.m.”\n<\/p>\n
\t20. It is also to be noted that in respect of the alleged incident that
\nhad taken place on 24.2.2000, after transfer of investigation as noted below,
\nadmittedly, referred charge sheet has been filed and that has been evidenced by
\nthe RCS notice indicating the same as ‘mistake of fact’. It is stated by the
\ncounsel for the petitioners\/accused that during investigation, Karthick
\nThondaiman has filed Crl.O.P.No.18156 of 2004 for transfer of investigation,
\nwhich was ordered by this Court and investigation was transferred from Trichy
\nCantonment Police Station to Ponmalai Pollice Station. The investigating officer
\ninvestigated the case and filed the charge sheet, stating that it is referred to
\nas “mistake of fact” on 22.4.2001 and this was not questioned by the complainant
\nKarthick V.R. Thondaiman.\n<\/p>\n
\t21. The present respondent-complainant Ashok filed the present private
\ncomplaint on 23.5.2001 under Section 200 Cr.P.C. and he has narrated the
\nincidents alleged to have taken place on 23.2.2000, 24.2.2000 and 27.2.2000  and
\nthe learned Judicial Magistrate-2, Trichy, has taken the sworn statement of the
\nrespondent-complainant Ashok on 30.5.2001. The learned Magistrate also examined
\nthe Private Secretary of Karhik Thondaiman, on 19.7.2001 and Mr.Karthick
\nThondaiman on 21.9.2001 and the learned Magistrate thereafter referred the case
\nto the concerned Police Station to investigate the case on the facts alleged in
\nthe said private complaint and directed him to send a report within two weeks,
\nas evidenced from page 28 of the typed set of papers filed in suport of
\nCrl.O.P.No.4385 of 2002, which is the order of the learned Magistrate, dated
\n9.10.2001 in the Memo. The Court reminders were issued on 12.11.2001 and
\n13.12.2001 respectively. Only after those reminders, after investigation, the
\nconcerned Police filed a report, stating that no such occurrence took place and
\nthe Police report is found in pages 32 to 38 of the typed set of papers filed
\nalong with Crl.O.P.No.4385 of 2002. On considering the report, the learned
\nMagistrate has passed an order on 6.2.2002, rejecting the final report and the
\nprivate complaint filed by the complainant-Ashok under Section 200 Cr.P.C. was
\ntaken on file as against A-1 to A-7 and A-9, by taking cognizance of the
\noffences under Sections 120-B, 143, 147, 148, 342, 434, 447, 448 and 506 (Part-\n<\/p>\n
2) IPC read with 109 IPC in C.C.No.265 of 2001.\n<\/p>\n
\t22. At this juncture, it is appropriate to consider the decision of this
\nCourt,  relied upon by the learned counsel for the petitioners-accused, reported
\nin 1998 (1) CTC 329 (Krishna Rao.A. Vs. L.S.Kumar), which shows that when once
\nthe second complaint has been taken cognizance of, after the previous complaint
\nwas referred to as “mistake of fact”, and when no steps have been taken for
\nsetting aside the earlier order passed by the learned Magistrate in the referred
\ncharge sheet as “mistake of fact”, the subsequent complaint in respect of the
\nvery same occurrence is not maintainable without setting aside the earlier order
\npassed by the learned Magistrate.\n<\/p>\n
\t23. There is no quarrel over the said proposition of law laid down in the
\nsaid judgment of this Court reported in 1998 (1) CTC 329 (cited supra). In the
\npresent case, the earlier complaint given by the said Karthick Thondaiman was
\nonly in respect of the incident alleged to have taken place on 24.2.2000,
\nwhereas the private complaint which was now filed by the respondent-Ashok
\nrelated to all the three days, namely 23.2.2000, 24.2.2000 and 27.2.2000. In
\nsuch circumstances, the said citation in 1998 (1) CTC 329, is not applicable to
\nthe facts of the present case, as the subsequent complaint was filed by another
\nperson.\n<\/p>\n
\t24. It is appropriate to consider the decision of the Delhi High Court
\nreported in MANU\/DE\/0719\/2008 (Harpal Singh Aror and others Vs. State and
\nanother), in which, the Delhi High Court relied on the decision of the Supreme
\nCourt reported in MANU\/SC\/0126\/1980 (H.S.Bains Vs. State (Union Territory of
\nChandigarh) ) in which it was held by the Apex Court that it was open to the
\nlearned Magistrate to reject the closure report and proceed with the complaint
\nin terms of Section 200 Cr.P.C. i.e. by recording the statement of complainant
\nand taking further steps thereafter in accordance with law. In the said
\ndecision, the Delhi High Court, while adverting to the facts and relying on
\nvarious other decisions of the Supreme Court, further held that the learned
\nMagistrate is not bound by conclusions drawn by the Police and he may decide to
\nissue process even if the Police recommend that there is no sufficient ground
\nfor proceeding further; the mere fact that he had earlier ordered an
\ninvestigation under Section 156(3) Cr.P.C. and received a report under Section
\n173 Cr.P.C., will not have the effect of total effacement of the complaint and
\ntherefore, the Magistrate will not be barred from proceeding under Sections 200,
\n203 and 204 Cr.P.C; the learned Magistrate may decide that there is no
\nsufficient ground for proceeding further and drop action; he may take cognizance
\nof the offence under Section 190(1)(b) of Cr.P.C. on the basis of the Police
\nreport and issue process; he may take cognizance of the offence under Section
\n190(1)(a) of Cr.P.C. on the basis of the original complaint and proceed to
\nexamine upon oath the complaint and his witnesses under Section 200 Cr.P.C.\n<\/p>\n
\t25. So, the above decision of the Delhi High Court which was decided based
\non the decision of the Apex Court, would go to show that, even in the present
\ncase, even though the investigating officer has given a closure report, the
\nlearned Magistrate has every right to proceed in accordance with law, as per
\nSection 190 Cr.P.C.\n<\/p>\n
\t26. Another limb of argument is that no material is available to show that
\nthe offence under Sections 342, 447 and 448 IPC are made out.  Furthermore, the
\nrespondent-Ashok-complainant, only on 23.5.2001, belatedly stated the three
\ndifferent causes of actions that the alleged occurrences are said to have taken
\nplaces, i.e. on 23.2.2000, 24.2.000 and 27.2.2000 and so, the single private
\ncomplaint for all the three alleged incidents, is not maintainable, and that
\ntoo, at a belated stage. Admittedly, Karthick V.R.Thondaiman has also not filed
\nany protest application and he also has not filed any private complaint, after
\nthe RCS notice indicating the ‘mistake of fact’ of the earlier complaint was
\nserved.\n<\/p>\n
\t27. At this juncture, it is appropriate to consider the argument advanced
\nby learned counsel for the respondent-complainant-Ashok that the complainant-
\nAshok also has sustained injuries. But he has not filed any document to show
\nthat he has sustained injuries. Furthermore, he has not assigned any reason as
\nto why he has not given a complaint as soon as the incident took place. He kept
\nquiet all along till Crime No.842 of 2000 was referred as ‘mistake of fact’ and
\nthen only he has come forward with the present private complaint. Under such
\ncircumstances, I am of the opinion that the present private complaint in
\nC.C.No.265 of 2001 has been given at the instigation of the said Karthick
\nV.R.Thondaiman with the enmity due to the property dispute between the first
\npetitioner-Rajagopala Thondaiman and Karthick Thondaiman, which is evidenced by
\nthe civil dispute in O.S.No.646 of 1999 and that too, he filed an injunction
\napplication and that no interim order had been granted and the interim
\ninjunction application was dismissed on 12.12.2001.\n<\/p>\n
\t28. It is appropriate to consider as to whether the proposed second
\ncomplaint is maintainable. Even though it was not filed by the said Karthick
\nV.R.Thondaiman, but the present private complaint has also been referred to as
\nincident alleged to have been taken place on 24.2.2000.\n<\/p>\n
\t29. Considering the facts and in the circumstances of the case that the
\nbringing the fresh complaint, after a lapse of long delay of one year with a
\nfresh case, was a gross abuse of the process of the Court and was not with the
\nobject of furthering the interest of justice.\n<\/p>\n
\t30. The second complaint can be laid only on new facts or even on previous
\nfacts, only if a special case is made out. As already stated, even though
\nKarthick Thondaiman has given a complaint, the same had been referred to as
\n‘mistake of fact’ and subsequently his Manager, Ashok, who is alleged to be  the
\ninjured, has given the present private complaint in C.C.No.265 of 2001, only at
\nthe belated stage. In such circumstances, I infer that due to the civil dispute
\nbetween the first petitioner-Rajagopala Thondaiman and Karthick Thondaiman, the
\nManager-Ashok (respondent-complainant) was directed to file a private complaint
\nafter Crime No.842 of 2000, dated 30.8.2000 has been referred to as “mistake of
\nfact”.\n<\/p>\n
\t31. It is further stated by learned counsel for the petitioners\/accused in
\nCrl.O.P.No.4385 of 2002 that after forwarding the private complaint to the
\nlearned Magistrate, as per the directions of the learned Magistrate, the
\nconcerned Police also have filed a report, stating that it is a mistake of fact,
\nbut the learned Magistrate has rejected the report by taking cognizance of the
\nprivate complaint for the offences alleged and in such circumstances, taking
\ncognizance of the offence and proceeding further would prejudice the accused
\nunder Section 300 Cr.P.C., and it also a double jeopardy. This contention is not
\napplicable to the facts of the present case, since neither the accused are
\nearlier acquitted, nor convicted in respect of the alleged incident mentioned in
\nthe private complaint.\n<\/p>\n
\t32. In the above facts and circumstances, on a perusal of the private
\ncomplaint filed by the said Ashok-complainant, and the order passed by the
\nlearned Judicial Magistrate-2, Trichy, and considering the civil dispute, and
\nthe delay in preferring the complaint by the respondent-complainant-Ashok on
\n23.5.2001, the criminal proceedings in C.C.No.265 of 2001, are liable to be
\nquashed against the petitioners-accused in Crl.O.P.No.4385 of 2002 alone.
\nAccordingly, they are quashed. Crl.O.P.No.4385 of 2002 is allowed.\n<\/p>\n
\t33. In respect of Crl.O.P.No.23963 of 2003 filed on the basis of the
\ncomplaint given by the fourth petitioner in Crl.O.P.No.4385 of 2002, namely
\nSathyanathan, the case has been registered and charge sheet has also been filed,
\nwhich was taken on file as C.C.No.640 of 2000, the trial Court is directed to
\ndispose of the same, as expeditiously as possible, in accordance with law and
\nthe direction sought for by the petitioners in Crl.O.P.No.23693 of 2003, for
\njoint trial, has become infructuous, as the criminal proceedings in C.C.No.265
\nof 2001 are quashed as indicated above, in Crl.O.P.No.4385 of 2002 and
\ntherefore, Crl.O.P.No.23963 of 2003 is dismissed as having become infructuous
\nwith the above direction.\n<\/p>\n
\t34. In fine:\n<\/p>\n
\t(a) Crl.O.P.No.4385 of 2002 is allowed and the criminal proceedings in
\nC.C.No.265 of 2001 are quashed;\n<\/p>\n
\t(b) Crl.O.P.No.23963 of 2003 is dismissed as having become infructuous,
\nwith a direction to the trial Court to dispose of C.C.No.640 of 2000 as
\nexpeditiously as possible, in accordance with law.\n<\/p>\n
arul \/ cs<\/p>\n
To<\/p>\n
1. The Inspector of Police, Contonment Police Station
\n     Thiruchirappalli.\n<\/p>\n
2.  The Judicial Magistrate No2,  Trichy.\n<\/p>\n
3. The Additional Public Prosecutor,
\n    Madurai Bench of Madras High Court, Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court R.Rajagopala Thondaiman vs A.Ashok on 6 October, 2010 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-109521","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nR.Rajagopala Thondaiman vs A.Ashok on 6 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-rajagopala-thondaiman-vs-a-ashok-on-6-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.Rajagopala Thondaiman vs A.Ashok on 6 October, 2010 - 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