Madras High Court

Mr.Pandiyaraj @ Pandiaraja vs State Rep. By on 8 February, 2022

Crl.O.P.(MD)No.2658 of 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 08.02.2022

CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.(MD)No.2658 of 2022

Mr.Pandiyaraj @ Pandiaraja ... Petitioner
Vs

1. State Rep. by
The Sub Inspector of Police,
Alangulam Police Station,
Tirunelveli District.

2. Mr. Poosaipandian ... Respondents

Prayer: Criminal Original Petition filed under Section 482 Cr.P.C. to call for the
records pertaining to the Charge Sheet in P.R.C.No. 63 of 2017 on the file of the
Learned Judicial Magistrate Court, Alangulam in Crime No. 579 of 2015 on the
file of the 1st Respondent Police and quash the same.

For Petitioner : Mr.G.Anto Prince

For Respondents : Mr.R.M.Anbunithi
No.1 Additional Public Prosecutor

ORDER

This Criminal Original Petition has been filed to call for the records

pertaining to the Charge Sheet in P.R.C.No. 63 of 2017 on the file of the Learned

Judicial Magistrate Court, Alangulam in Crime No. 579 of 2015 on the file of the

1st Respondent Police and quash the same.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.2658 of 2022

2. The defacto complainant is working as a Supervisor of the Tamil Nadu

tasmac shop No.10913, Kidarikulam Panchayat and one Mariappan was also

working in the same shop as salesman. The case of the prosecution is that the

said shop opens at morning 10.00am., and closes by night at 10.00 pm.,

everyday and the entire sales amount was under the custody of the defacto

complainant and it will be deposited by him on the very next working day. On

13.12.2015 since it was Sunday the sale was so high at about 8.00p.m the sales

amount arrived to tune of Rs.80,000/- was bundled and separated. Before

closing the shop at 9.45pm., while the sales amount was being counted three

persons came to the shop and asked brandy. The salesman asked them what

kind of brandy do you want ? The three persons while discussing together,

pulled the door of the shop and two persons entered into the shop with deadly

weapons, threatened the defacto complainant and they also demanded them to

surrender the entire amount or otherwise they will kill them.Another person took

the sales amount of Rs.55,000/- which was on the table, snatched mobile phone

and bike key of the defacto complainant and two full bottles of liquor . When all

the three persons came out of the shop, the defacto complainant and salesman

shouted for which the accused persons threatened them with dire consequences

and throwed one mobile phone and bike key. The defacto complainant informed

the same to his superior and went to the police station along with sales man

on the very next day and gave complaint.

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3. The learned counsel for the petitioner would submit that after filing final

report the case is pending committal from the year 2017 on the file of the

learned Judicial Magistrate, Alangulam for the past five years. He would further

submit that the petitioner is doing fourth year law and due to the pendency of

the case he could not complete the decree. He would also submit that even

according to the case of prosecution the petitioner was standing outside the

tasmac shop and only watching the surveillance of the other accused which do

not attract the offence as alleged by the prosecution. He would further submit

that to attract the offence under Section 397 of IPC, the essential ingredients

are stated in the case of Dilawar Singh vs State of Delhi reported in (2007)

12 SCC 641 and accordingly the essential ingredients are as follows:

“The essential ingredients of Section 397 IPC are as follows:

1. Accused committed robbery.

2. While committing robbery or dacoity

(i) accused used deadly weapon

(ii) to cause grievous hurt to any person

(iii) attempted to cause death or grievous hurt to any person.

3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But other accused are not vicariously liable under that Section for acts of co-

accused” Therefore no offence is made out as against the petitioner.

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4. The learned Additional Public Prosecutor would submit that the

petitioner is a habitual offender and he is involved in 10 previous cases and that

cases relates to similar offence. Further perusal of the statements recorded

under Section 161(3) of cr.p.c there are specific allegations to attract the offence

under Section 397 of IPC.

5. It is seen that the petitioner is a habitual offender and he is involved in

more than ten previous cases that too for the similar offence. Further simply

saying that the petitioner was standing outside the tasmac shop and watching

the proceedings while the crime is being done by the other accused but he do

not possess any weapons, cannot be taken into account. Therefore the above

judgment is not applicable to the present case of the petitioner.

6. Heard Mr.G.Anto prince learned counsel appearing for the

petitioners and Mr.R.M.Anbunithi, learned Additional Public Prosecutor appearing

for the first respondent.

7. It is relevant to rely upon the judgment of the Hon'ble Supreme

Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the case

of Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:-

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.2658 of 2022

" 12.So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings.

13.In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.

8. Recently, the Hon'ble Supreme Court of India dealing in respect of

the very same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the case of

Central Bureau of Invstigation Vs. Arvind Khanna, wherein, it has been

held as follows:

“19. After perusing the impugned order and on hearing the submissions made by the learned senior

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.2658 of 2022

counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.

20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for.”

9. Further the Hon'ble Supreme Court of India also held in the order

dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of M.Jayanthi Vs.

K.R.Meenakshi & anr, as follows:

"9. It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.2658 of 2022

available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged.

..............

13. A look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged. The question whether the appellant will be able to prove the allegations in a manner known to law would arise only at a later stage...................."

The above judgments are squarely applicable to this case and as such, the points

raised by the petitioners cannot be considered by this Court under Section 482

Cr.P.C.

` 10. In view of the above discussion, this Court is not inclined to quash

the proceedings in P.R.C.No. 63 of 2017 on the file of the learned Judicial

Magistrate Court, Alangulam . The petitioner is at liberty to raise all the grounds

before the trial Court. The trial Court is directed to complete the committal

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proceedings within a period of four weeks from the date of receipt of copy of

this Order.

11. Accordingly, this criminal original petition is dismissed. Consequently,

connected miscellaneous petitions are also closed.