Madras High Court
S.Ahamed Rafeesyed Isamily Gori … vs State Represented By Inspector Of ... on 16 June, 2021
Crl.O.P.(MD)No.1103 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE :16.06.2021
CORAM
The Hon’ble Justice Mr.G.ILANGOVAN
Crl.O.P.(MD).No.11468 of 2017
and
Crl.MP(MD)No.7877 & 7878 of 2017
S.ahamed Rafeesyed Isamily Gori … Petitioner/Accused No.1
Vs.
1.State represented by Inspector of Police,
Palani Police Station,
Palani District,
Dindigul District. … Respondent/Complainant
(Crime No.165 of 2015)
2.S.K.K.K.Hakeem … Respondent No.2/Defacto
Complainant
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., to call
for the records pertaining to the Charge Sheet in C.C.No.406 of 2015 on the
file of the learned Judicial Magistrate, Palani, Dindigul District in Crime
No.165 of 2015, dated 14.02.20215, on the file of the first respondent and
quash the same as illegal as against this petitioner.
For Petitioner : Mr.T.Lajapathi Roy
For Respondents : Mr.M.Ganesan for R1
Government Advocate (Crl. Side)
1/10
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1103 of 2021
ORDER
This petition has been filed to quash the Charge Sheet in C.C.No.406
of 2015 on the file of the learned Judicial Magistrate, Palani, Dindigul
District, in Crime No.165 of 2015, dated 14.02.20215, on the file of the first
respondent.
2.The brief facts are as follows:
The second respondent is the defacto complainant before the first
respondent. He made a complaint on 09.12.2014 with the following
allegations:-
He is running a Madhina Masjid Educational Institute for Muslim
Children. There was a dispute between the defacto complainant and the
Accused Nos.1 to 14 regarding the administration of the said Educational
Institute. On 09.12.2014, at about 08.00 p.m., all the accused persons had
trespassed into the Office and broke open the lock with hammer and by
using the dangerous weapon, stolen the money and also threatened the
defacto complainant, when he questioned the activity of the accused person.
When the complaint was not properly enquired and investigated by the first
respondent police, he approached this Court by way of filing Crl.O.P(MD)
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1103 of 2021
No.23436 of 2014 for a direction and by an order dated 25.12.2014, this
Court directed the first respondent to register a complaint and investigate
the same. On that basis, the complaint was registered on 14.02.2015, in
Crime No.165 of 2015 for the offence under Sections 147, 148, 457, 380
and 506(i) of IPC. Based upon the complaint given by the second
respondent, investigation was undertaken by the first respondent and he
recorded the statement of the witnesses and collected the materials. After
concluding the investigation, he filed a final report stating that all the
accused persons have committed the offence punishable under Sections147,
148, 427 and 5069 (i) of IPC.
3. Seeking quashment of the final report, the accused No.1 is before
this Court by way of filing this quash petition on the ground that the dispute
arose between the members of the Jamath and the defacto complainant,
since they changed the Masjid into waqf land for the purpose of securing the
private person intervention into the Masjid. The defacto complainant was
also one of the private intervener in that Masjid and his intention is to
occupy the Masjid into his own property and later it was converted into
waqf property. So he had vengeance to wreak upon the accused persons.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1103 of 2021
4. At the time of alleged occurrence, the petitioner was attending
Ramjan festival. So, he was not at all present in the alleged place of
occurrence. Further, the complaint was registered, after two months of the
alleged occurrence. One of the accused is the Muthavalli of Madhina
Masjid. So, the question of trespass into his own land, does not arise. There
is no prima facie ground for proceeding the trial and WOP.No.2 of 2015 is
pending before the Sub Court, Dindigul District. One Abdul wahab is the
Muthavalli in that mosque till now and he is in a possession and performing
the day-to-day affairs of the Masjid.
5. Here both sides.
6. One point that was urged by the learned counsel for the petitioner
at the time of argument is that on the date of alleged occurrence namely,
09.12.2014, the second respondent, who is the the defacto complainant
herein, was not in a possession of the Madhina Masjid. But, it was in
possession of the management of one M.Abdul Wahab, who was appointed
as Muthavalli. So, the question of trespass, theft and criminal intimidation
will not arise.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1103 of 2021
7. In the complaint, the second respondent stated that he was the
founder of Madhina Masjid Arabic Pada Salai and was managing the affairs.
Due to the personal enmity, the accused persons interfered with the affairs
and W.O.P.No.2/2014 was filed by the petitioner before the Sub Court,
Dindigul District, wherein, interim injunction was also granted. Against the
injunction order, the accused persons damaged the compound wall and
inscription boards. In respect of which, a case in Crime No.712 of 2014 for
the offences under Sections 147, 148, 427, 380 and 506 (i) of IPC was
registered and it was pending investigation. During the pendency of this
criminal case, he requested some of the persons namely, M.S.Mohammed
Ali, Y.Basheer Ahemed, Nasartheen and Mohammed Kani to make
compromise. He also kept various registers in the room used by Imam. He
also kept Rs.45,000/- and those things were stolen on 09.12.2014, by the
accused persons by broke open the lock.
8. The learned counsel for the petitioner would draw the attention of
this Court with regard to the order passed by the District Revenue
Officer/Chief Executive Officer, Tamil Nadu Waqf Board, Chennai, dated
02.08.2014 in R.C.No.9420/14/E3/CC recognizing and registering the
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1103 of 2021
Madhina Masjid Arabic Pada Salai in the Waqf Registry by the Reg No.
319/Mdu. On 25.06.2014, the name of the Muthavalli is mentioned as Janab
M.Abdul Wahab, Thiru Nagar, Palani. The properties are mentioned as
S.Nos.152/4, & 152/5 measuring 6450 sq.ft situated in Sivagiripatti Village,
Dindigul Taluk.
9. The above said documents clearly show that the disputed Pada
Salai was registered as a Waqf Property and Muthavalli was one Janab
M.Abdul Wahab. So, on the date of the alleged occurrence namely,
09.12.2014, it appears that the property was in possession of the Waqf
represented by the Muthavalli, namely, Janab M.Abdul Wahab. So, the
question of trespass and theft of the property will not arise.
10. For that purpose, the learned counsel for the petitioner would rely
upon the judgment of this Court in Sterling Holiday Resorts (India)
Limited and Others Vs. Mr.Murli Khemchand In Crl.OP.No.26938 of
2012 & MP.Nos.1 & 3 2012, wherein, a similar issue also arose.
Admittedly, the disputed property was not in a possession of the defacto
complaint. So, when that was being so, the question of trespass and theft of
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1103 of 2021
the property did not arise and so, no offence was made out against the
accused in that case. So, when we apply this principle to the facts of the
case, it is clear that on the date of alleged occurrence namely, 09.12.2014,
the Madhina Masjid Arabic Pada Salai was not in a possession of the
defacto complainant. So, the question of trespass and theft of property as
mentioned earlier will not arise.
11. Another aspect is that the interim ex-parte order granted by the
Waqf Tribunal namely, the Sub Judge, Dindigul, in I.A.No.57 of 2014 in
WOP.No.2 of 2014, came to be vacated, subsequently, when the respondent
in that petition, appeared before the Court and made objection with regard
to the maintainability of the petitioner. So, the defacto complainant, cannot
be permitted to say that on the date of the alleged occurrence, his possession
was protected by the competent Civil Court. It appears that by supressing
these material facts, the defacto complainant appears to have filed the above
said WOP.No.2 of 2014. On 03.07.2014, Janab M.Abdul Wahab has sent a
petition to the District Revenue Officer/Chief Executive Officer, Tamil
Nadu Waqf Board, Chennai for registering the Madhina Masjid Arabic Pada
Salai as a Waqf property. WOP.No.2 of 2014 has been filed on 11.07.2014,
and the order was vacated subsequently.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1103 of 2021
12. Next point is that with regard to the offence under Section 506 (i)
IPC, no ingredients are mentioned in the complaint. It has been vaguely
stated that the accused persons are threatening him. Where, when and how
the criminal intimidation was committed, is not mentioned. So, mere verbal
utterances will not attract an offence under Section 506 (i) IPC. Similarly,
the offences under Sections 147 and 148 will not also attract. The discharge
application filed by the petitioner was dismissed at the hands of the Trial
Court, since the points which have raised in this petition were not argued
before the Trial Court. So, dismissal of the application may not stand in the
way of considering this petition filed under Section 482 Cr.P.C.
13. So, for the reason stated above, I am of the considered view that
this is a clear case of abuse of process of the Court and so, the final report in
C.C.No.406 of 2015, pending on the file of the learned Judicial Magistrate,
Palani, is liable to be quashed. Even though the eleventh accused has
preferred this petition, I am of the considered view that the entire final
report is liable to be quashed and the same is quashed.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1103 of 2021
14. In the result, the Criminal Original Petition stands allowed.
Consequently, the connected miscellaneous petitions are closed.
16.06.2021
Internet:Yes
Index:Yes/No
Speaking order/Non-Speaking order
dss/cp
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Judicial Magistrate, Palani,
Dindigul District.
2.The Inspector of Police,
Palani Police Station,
Palani District,
Dindigul District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.1103 of 2021
G.ILANGOVAN,J.
dss/cp
Crl.O.P.(MD).No.11468 of 2017
and
Crl.MP(MD)No.7877 & 7878 of 2017
16.06.2021
https://www.mhc.tn.gov.in/judis/
