Madras High Court

S.Shanmugam vs The State Rep.By on 5 July, 2022

                                                                         Crl.O.P.No.20292 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 05.07.2022

                                                       CORAM:

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                               Crl.O.P.No.20292 of 2020
                                              and Crl.M.P.No.8494 of 2020

                     1.S.Shanmugam
                     2.A.Sri Ramu                                              ...Petitioners

                                                         -Vs-

                     1.The State Rep.by
                     The Inspector of Police,
                     Tindivanam Police Station,
                     Villupuram District.

                     2.P.Gopinath                                             ... Respondents



                     Prayer: Criminal Original petition filed under Section 482 of Code of
                     Criminal Procedure, to call for the records of C.C.No.85 of 2020 pending
                     on the file of the learned Judicial Magistrate No.I, Tindivanam and quash
                     the same.
                                     For Petitioners   : No appearance

                                     For R1            : Mr.A.Gopinath
                                                         Government Advocate (Crl.Side)




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                                                                             Crl.O.P.No.20292 of 2020

                                                             ORDER

This petition has been filed to quash the proceedings in C.C.No.85

of 2020 on the file of the learned Judicial Magistrate No.I, Tindivanam,

thereby taken cognizance for the offences under Sections 294(b), 427,

447 and 506(2) of IPC in Crime No.85 of 2020, as against this

petitioners.

2. The case of the prosecution is that both the petitioners

trespassed into the property belonging to the second respondent

comprised in Survey No.287/2 ad-measuring 52 cents and damaged the

paddy. They also damaged the pipe line. When it was questioned by the

second respondent and other witnesses, the accused person threatened

them with dire consequences and damage caused to the paddy and

pipeline is to the value of Rs.25,000/-. The grounds raised by the

petitioners to quash the entire proceedings is that the first petitioner

purchased a property comprised in Survey No.293/5 ad-measuring 0.65

cents situated at Kidangal Village by way of sale deed vide document

No.1386 of 2017 dated 08.12.2017 from one Rajeswari. He also

purchased another property comprised in Survey No.159/5, 160/1, 166/4

totally measuring 0.66 ½ cents in the year 2018 from the said Rajeswari.

3. Originally, the said Rajeswari's mother has filed a suit in

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Crl.O.P.No.20292 of 2020

O.S.No.84 of 2006 on the file of the Sub Court, Tindivanam for partition

from the second respondent's father and others and got a final decree. No

one challenged the said decree and it became final. Thereafter, the

shareholder executed a settlement deed in favour of her daughter

Rajeswari. On the strength of the settlement deed, the said Rajeswari

sold out the property. In fact, the patta granted in favour of the second

respondent and also it was challenged before the revenue authorities.

4. In the meanwhile, the second respondent's relative filed a suit in

O.S.No.6 of 2018 on the file of the Principal District Munsif Court,

Tindivanam, for declaration declaring the sale deed and settlement deed

executed by the vendors of first petitioner is void, which is pending. In

fact, the first petitioner also filed a suit in O.S.No.198 of 2018 on the file

of the Principal District Munsif, Tindivanam, for declaration declaring

that the partition deed, which is claimed by the defacto complainant

family members, as null and void and the said suit is also pending.

Though all the civil suits are pending, the petitioners trespassed into the

subject property and committed the offence, alleged

5. A perusal of the statement recorded by the defacto complainant

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Crl.O.P.No.20292 of 2020

and other witnesses shown that there are material to attract the offence

under Sections 294(b), 427, 447 and 506(2) of IPC. That apart, the

grounds raised by the petitioners is mixed questions of fact and which

cannot be gone into in this quash the petition.

6. In this regard, 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:-

" 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 https://www.mhc.tn.gov.in/judis

Crl.O.P.No.20292 of 2020

aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.

7. 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 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.

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Crl.O.P.No.20292 of 2020

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.”

8. 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 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. ..............

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Crl.O.P.No.20292 of 2020

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 petitioner are mixed question of facts and it cannot

be considered in quash petition under Section 482 Cr.P.C.

9. In view of the above discussion, this Court is not inclined to

quash the proceedings in C.C.No.85 of 2020 on the file of the learned

Judicial Magistrate, I, Tindivanam. The petitioner is at liberty to raise all

the grounds before the trial Court. The personal appearance of the

petitioner is dispensed with and he shall be represented by a counsel after

filing appropriate application. However, the petitioner shall be present

before the Trial Court at the time of furnishing of copies, framing

charges, questioning under Section 313 Cr.P.C. and at the time of

passing judgment. The trial Court is directed to complete the trial within