Crl.O.P(MD).No.161 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.04.2023
CORAM:
THE HONOURABLE MRS. JUSTICE R.THARANI
Crl.O.P(MD).No.161 of 2021
J.Chenthil Rajan ...Petitioner
Vs
1.The State Rep. by
The Inspector of Police,
Perumalpuram Police Station,
Tirunelveli City.
(Crime No.796 of 2020)
2.S.Vaikundarajan ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, praying this Court to call for the entire records pertaining
to the case in Crime No.796 of 2020 pending on the file of the Inspector of
Police, Perumalpuram Police Station, Tirunelveli City and quash the same as
against the petitioner.
For Petitioner : Mr.Mohamed Aslam
For M/s Ajmal Associates
For 1st Respondent : Mrs.M.Aasha
Government Advocate (Crl. Side)
For 2nd Respondent : Mr.N.Murali Kumaran Senior Counsel
For M/s/.Mccan Law Firm
ORDER
This petition is filed to quash the FIR in Crime No.796 of 2020 on the file of 1st respondent police.
https://www.mhc.tn.gov.in/judis 1/11 Crl.O.P(MD).No.161 of 2021
2.The petitioner is A1 in the case. The allegation against the petitioner is that on 18.11.2020 at about 02.45 p.m., when the defacto complainant was at the house of his advocate, he found A2 and another person roaming here and there and when he caught A2 and enquired him and he was informed that A2 was instructed by the petitioner to follow the defacto complainant and to take photographs and video clippings regarding his movements. The person, who accompanied him escaped from the spot and he told that there were other ten person, who had been employed by the petitioner to follow the defacto complainant and to finish the complainant with the help of hire links. A2 furnished the details of the said other persons and their phone numbers. When the statement was being recorded, suddenly, A2 took out a knife and he attempted to assault the defacto complainant and he threatened the defacto complainant. After recording the statement, A2 along with his mobile phone was handed over to the custody of Assistant Commissioner of Police at about 06.15 p.m., along with a complaint. But, A2 was left out by the Inspector of Police. The defacto complainant called the media and narrated that his life was under threat and hence a fresh complaint was lodged and a FIR was registered.
https://www.mhc.tn.gov.in/judis 2/11 Crl.O.P(MD).No.161 of 2021
3. On the side of the petitioner, it is stated that A2 is an employee of the petitioner's friend and that there is family dispute between the defacto complainant and the petitioner regarding the partition of the properties. When A2 was travelling with one Nagaraj. He was forcibly abducted by the hooligans. A2 was kept in confinement and he was brutally attacked. He was forced to give statement as dictated by the defacto complainant and the same has also been video graphed and later it was edited as per their convenience.
4. The said Nagaraj who accompanied A2 has made a police complaint. In order to avoid the consequences, the defacto complainant dropped A2 before the Assistant Commissioner of Police, Palayamkottai. The Commissioner put A2 in illegal confinement. The brother of A2 by name Alagu Eswaran approached the learned Judicial Magistrate No.I and filed a petition under Section 97 of Cr.P.C., to get a search warrant. An advocate by name Sekar was appointed. He approached the office of the Assistant Commissioner and he was directed to approach the Palayamkottai Police Station. But before the advocate meet the Commissioner, A2 was handed over to his counsel at about 11.00 a.m. On the next morning, he was produced before the Magistrate along with a compliance report. A2 received multiple injuries due to the assault of the defacto complainant. He took treatment in https://www.mhc.tn.gov.in/judis 3/11 Crl.O.P(MD).No.161 of 2021 Government Hospital and private hospital and his statement was recorded by the Police.
5. On the side of the petitioner, it is stated that no F.I.R. was registered on the complaint dated 18.11.2020 and that in the first complaint, nothing was alleged against this petitioner. In the first complaint, there was no ingredients to attract Sections 307 and 506(ii) of IPC. Hence, the second complaint was created under Section 162 of Cr.P.C. The knife was not collected from A2 which clearly shows that the whole allegation referred upon was false.
6. Even as per the complaint, the petitioner was not present in the scene of occurrence and no weapon was used by him and hence, Sections 448, 452, 307 and 506(ii) of IPC are not made out. The petitioner has not committed trespass. He has not attempted to commit murder. He was not roaming with deadly weapon. He has not committed criminal intimidation and the FIR to be quashed against the petitioner.
7. On the side of the second respondent, it is stated that A2 and another person were initially moving suspiciously and A2 was seen taking videos in his mobile and on suspicion, he was got hold of and the other person https://www.mhc.tn.gov.in/judis 4/11 Crl.O.P(MD).No.161 of 2021 Nagaraj fled from the scene. When A2 was enquired, he gave a statement stating that the first petitioner engaged him and 10 other persons to follow the defacto complainant and to take photographs and videographs. He has also given a statement that they have a larger plan to eliminate the defacto complainant. A2 took out a knife and attempted to attack the defacto complainant. He was handed over to the Commissioner of Police along with his mobile phone and along with a written complaint. Since no case was registered against A2, the next day, the defacto complainant made a representation before the City Commissioner and only after that a FIR was registered under Section 154 of Cr.P.C.
8. When the respondent police got an information regarding the commission of an cognizable offence, the police has no other option, but to register the FIR. A2 was got red handed and was handed over with material evidence, a mobile phone from which videographs and photos were sent, no case was registered against him on that date. Eventhough A2 was handed over to the Commissioner of Police, along with a written complaint and material evidence, no case was registered against him on that date. A2, who was produced before the Commissioner was let free by the Inspector of Police, Palayamkottai. The report of the Advocate Commissioner – Sekar reveals that A2 was not in custody at the time of his visit. The Inspector of https://www.mhc.tn.gov.in/judis 5/11 Crl.O.P(MD).No.161 of 2021 Police, Palayamkottai has no power to release the accused, who was involved in a cognizable offence, that too before registering a case.
9. The co accused Nagaraj gave a complaint after A2 was handed over to the Commissioner of Police. In the complaint lodged by the said Nagaraj, only a wordy quarrel was mentioned. Kidnapping was not mentioned in the complaint. The Advocate Commissioner filed a report stating that there was no such person detained. No statement of attack or kidnap was recorded in this statement. Only after three days, they approached the learned Judicial Magistrate and got a direction in Cr.M.P.No.6689 of 2020 and a FIR was registered against the defacto complainant.
10. Though A2 was handed over to the Commissioner, with mobile phone from which videographs and photos were sent, no case was registered against him on that date, the Inspector of Palayamkottai Police Station let the accused free and suppressing all these facts, he registered a case against the defacto complainant without any materials.
11. The learned counsel for the second respondent would rely upon the following judgments of the Hon'ble Supreme Court https://www.mhc.tn.gov.in/judis 6/11 Crl.O.P(MD).No.161 of 2021
(i) Ex.Constable Ram kumar v. Union of India reported in 2010 SCC Online Del 3030.
(ii) State of Haryana and others v. Bhajan Lal and others reported in 1992 SUPP (1) Supreme Court Cases 335.
(iii) Ramesh Kumari v. State and others reported in (2006) 2 Supreme Court Cases 677.
(iv) Lalitha Kumari v. Government of Uttar Pradesh reported in (2014) 2 Supreme Court Cases 1.
(v) Ramveer Upadhyay and another v. State of UP and another reported in 2022 SCC Online SC 484.
(vi) Central Bureau of Investigation and another v. Thommandru reported in 2021 SCC Online SC 923.
12.The learned counsel for the second respondent would rely upon a judgment of this Court in the case of K.Neelamegam v. State rep. reported in 2011 SCC Online Mad 1986.
13. On the side of the second respondent, it is stated that when A2, who involved in a cognizable offence was got red handed and was handed over to the Commissioner of Police with material evidence, the Investigation Officer, Palayamkottai, released him with out even registering a F.I.R. But, https://www.mhc.tn.gov.in/judis 7/11 Crl.O.P(MD).No.161 of 2021 suppressing the above facts the Investigation Offcier, Palayamkottai Police Station, has registered a false case in Crime No.402 of 2021 against the complainant without any materials. The action of the Investigation Officer clearly reveals that he is colluding with the petitioner. An enquiry in this regard is necessary . The second respondent reserve his right to initiate proceedings against the Investigation Office, who is colluding with the Accused.
14. On the side of the second respondent, it is stated that when there is a counter case pending, there is no necessity to stall the proceedings in this case. After receiving a complaint regarding the cognizance offence, the police have no other go but to register a FIR and that FIR cannot be stalled by invoking the proceedings under Section 482 of Cr.PC.
15.On the side of the prosecution, it is stated that nine witnesses were examined. The investigation was almost over. Only due to the stay order, the prosecution could not file the chargesheet. There are materials available against the petitioner-A1. The case is fit for trial. A counter case is registered in Crime No.402 of 2021 on the file of the Palayamkottai Police Station. https://www.mhc.tn.gov.in/judis 8/11 Crl.O.P(MD).No.161 of 2021
16. This case was listed before me on 06.03.2023, 10.03.2023, 13.03.2023 and on 20.03.2023. The learned counsel for the petitioner Mr.Anand was not ready for arguments and on 20.03.2023, on the consent of the petitioner counsel, the arguments on the side of the respondents 1 and 2 were heard and the case was adjourned to 29.03.2023 for the arguments on the side of the petitioner. On 29.03.2023, another learned Counsel Mr. Ajmal Khan filed change of vakalth and on his request, the case was adjourned to 30.03.2023. On 30.03.2023, this case was adjourned to 03.04.2023. On 03.04.2023, the written arguments was filed on the side of the second respondent. On 31.03.2023, the learned counsel for the petitioner filed a memo before the Registry to permit him to withdraw the petition.
17. On the side of the second respondent, it is stated that the Criminal Original petition was filed on 05.01.2021 and a stay order was granted on 08.01.2021 and the petitioner is enjoying the stay order for the past 2 ½ years and due to the stay order, there is no progress in the criminal case and after allowing the respondent to argue the case and to file a written submission, the petitioner has come forward to withdraw the case and he prayed for a direction to fix a time frame, for the filing of the charge sheet. https://www.mhc.tn.gov.in/judis 9/11 Crl.O.P(MD).No.161 of 2021
18. From the representation of the learned Government Advocate, it is clear that the investigation was almost over and only due to the stay order, the final report could not be filed.
19. In view of the above situation, on the basis of the memo filed by the learned counsel for the petitioner, this Criminal Original Petition is dismissed with a direction to the respondent police to complete the investigation and to file a final report within a period of two months from the date of receipt of copy of this order.
03.04.2023 NCC : Yes/No Internet : Yes/No Index : Yes/No Mrn/Ls To
1.The Inspector of Police, Perumalpuram Police Station, Tirunelveli City.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 10/11 Crl.O.P(MD).No.161 of 2021 R. THARANI,J.
Mrn Crl.O.P(MD).No.161 of 2021 03.04.2023 https://www.mhc.tn.gov.in/judis 11/11