Madras High Court

S.Sambath Kumar vs The State Rep By on 8 September, 2022

                                                                           Crl.O.P.No.14001 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 08.09.2022

                                                      CORAM:

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                               Crl.O.P.No.14001 of 2022
                                         and Crl.M.P.Nos. 7634 & 7637 of 2022

                     S.Sambath Kumar                                            ...Petitioner

                                                         Vs.
                     1. The State rep by
                        The Inspector of Police,
                        R.S.Puram Police Station,
                        Coimbatore District.
                        (Cr. No.147 of 2020)

                     2. S.Ramkumar                                              ...Respondents

                     PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C.,
                     to call for the records in C.C.No.119 of 2021 pending on the file of the
                     learned Judicial Magistrate-I, Coimbatore and quash the same.
                                     For Petitioner   : Mr.T.Elumalai

                                     For Respondents
                                           For R1    : Mr.E.Raj Thilak
                                                       Additional Public Prosecutor
                                           For R2    : Mr.S.Doraiswamy




                     Page 1 of 10

https://www.mhc.tn.gov.in/judis
                                                                               Crl.O.P.No.14001 of 2022

                                                          ORDER

This Criminal Original Petition has been filed to quash the

proceedings in C.C.No.119 of 2022 on the file of the learned Judicial

Magistrate-I, Coimbatore, thereby taken cognizance for the offences

under Sections 294(b), 427, 447 and 506(1) of IPC.

2. The petitioner is arrayed as accused in the above case. The

case of the prosecution is that the petitioner, second respondent and one

Mohankumar are brothers. The property owned by their mother and they

were alloted the A,B,C schedule property by way of settlement deed by

their mother. Later, B schedule property which was alloted in favour of

another brother viz., Mohankumar was also purchased by the second

respondent/defacto complainant. While being so, on 30.11.2019, the

petitioner trespassed into his brother/defacto complainant's property and

cut down the trees. When the same was questioned by the second

respondent, the petitioner abused the defacto complainant with filthy

language and also threatened him with dire consequences. It is further

alleged that the petitioner also encroached some portion of the property.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14001 of 2022

Hence the second respondent lodged a complaint before the first

respondent and the same was registered in Crime. No.147 of 2020. After

completion of investigation, the first respondent filed final report and the

same has been taken cognizance in C.C.No.119 of 2021 on the file of the

learned Judicial Magistrate-I, Coimbatore.

3. The learned counsel appearing for the petitioner submitted

that the petitioner is a senior citizen and brother of the second

respondent. No such occurrence had taken place as alleged by the

prosecution. There was a property dispute between them as such, the

present complaint has been foisted as against the petitioner. He further

submitted that the petitioner filed suit in O.S.No.893 of 2019 on the file

of the III Additional District Judge, Coimbatore, for permanent

injunction in respect of the subject property and the same is pending.

Therefore, no offence is made out as against the petitioner and prayed for

quashment of the above proceedings.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14001 of 2022

4. Heard Mr.T.Elumalai, learned counsel appearing for the

petitioner, Mr.E.Raj Thilak, learned Additional Public Prosecutor

appearing for the first respondent and Mr.S.Doraiswamy, learned counsel

appearing for the second respondent.

5. It is seen from the statement of the second respondent that

there are specific allegations to attract the offence under Sections 294(b),

427, 447 and 506(1) of IPC. Though the petitioner and the second

respondent are brothers, the property which was allotted in favour of

another brother was purchased by the petitioner and he is in possession

and enjoyment of the property, including the portion of property, which

was alloted in his favour. While being so, the petitioner trespassed into

the property and cut down the trees. He also taken away the trees and

sold out. That apart, the petitioner encroached some portion of the

property alloted to the second respondent. The civil suit filed by the

petitioner is only for injunction and the same is pending. Hence, the civil

suit is nothing to do with the offence committed by the petitioner.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14001 of 2022

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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14001 of 2022

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.

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.”

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14001 of 2022

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

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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.14001 of 2022

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 cannot be considered by this Court 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.119 of 2022 on the file of the learned

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

the grounds before the trial Court. Considering the age of the petitioner,

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 Court at the time of

furnishing of copies, framing charges, questioning under Section 313