Madras High Court
Unknown vs The State Rep. on 20 April, 2023
Crl.O.P(MD)No.19758 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.04.2023
CORAM:
THE HON'BLE MR JUSTICE K.K.RAMAKRISHNAN
Crl.OP(MD)No.19758 of 2018
and
Crl.M.P(MD)No.9023 and 9024 of 2018
1.P.Pandi
2.R.Selvakumar
3.S.Rajasekar
4.R.Tamil Selvam
P.Sivaraja Pandian(deceased)
5.Selvam
6.M.Muthuselvam
7.T.TAmilmani Dhaj @ Tamilmani Dass
8.Dhanasekara Pandian
9.Senbagaraja
10.Sivalingam
11.Boominathan
12.Senbagaraja
13.Vimal Raja
14.Adhimannan
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15.Ayyanar
16.Panappandi
17.Pandi
18.Ravi
19.Arumugam
20.Muthusamy
21.Premkumar
22.Aravindakumar
23.Palpandi
24.Soundarapandi ... Petitioners/ Accused
vs.
1.The State rep., by
The Inspector of Police,
Thirumangalam Town Police Station,
Madurai District.
(Crime No.527 of 2015) ... 1st Respondent/Complainant
2.Manimegalai ... 2nd Respondent/Defacto Complainant
PRAYER: Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the entire records in P.R.C.No.
14/2017 on the file of the Judicial Magistrate, Thirumangalam and quash
the same.
For Petitioners : Mr.A.Shankar Ganesh
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Crl.O.P(MD)No.19758 of 2018
for P2, P4, P5, P7 to P11, P13 to P18 and
P21 to P24
For Petitioner No.6 : Mr.K.Navaneetharaja
For petitioners 1,3 &12 : No appearance
For R1 : Mr.M.Muthumanikkam
Government Advocate (Criminal side)
ORDER
This petition has been filed by the petitioners/Accused 1 to 24
to quash the proceedings in P.R.C.No.14/2017 on the file of the Judicial
Magistrate, Thirumangalam, which emanated from Crime No.527 of
2015 on the file of the respondent police registered for the offence under
Sections 147, 148, 341, 294(b), 353, 324, 506(ii) and 307 IPC and
Section 4 of THPHW Act, against the petitioners.
2. In this case, the respondent police filed the final report with
the allegation that on 04.11.2015 at 04.00 p.m, when the festival was
conducted in the petitioners' village, there was some altercation between
two set of people and hence, the officials were trying to pacify the
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Crl.O.P(MD)No.19758 of 2018
situation. At that time, the petitioners are said to have attacked the
Village Administrative Officer-Manimehalai and caused injuries to her
and hence the law enforcing agency registered a case for the alleged
offence under Sections 147, 148, 341, 294(b), 353, 324, 506(ii) and 307
IPC and Section 4 of THPHW Act and after completing the investigation,
they filed final report against the petitioners under Sections 147, 148,
341, 294(b), 353, 324, 506(ii) and 307 IPC and Section 4 of THPHW
Act.
3. The petitioners filed this quash petition stating that without
any allegation, number of petitioners implicated in the final report. Even
perusal of the final report, the injured witness and other witnesses
specifically attributed the overtact only against the petitioners 1 to 5, viz.,
P.Pandi, R.Selvakumar, S.Rajasekar, R.Tamil Selvam and Selvam. So far
as the remaining petitioners are concerned, there was no overtact
attributed by the complainant. In the said circumstances, mere formation
of unlawful assembly did not constitute any offence to lay the charge
sheet against the petitioners. Moreover, the petitioners are falsely
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Crl.O.P(MD)No.19758 of 2018
implicated merely because they are relatives of the above said accused.
In the said circumstances, the petitioners filed this petition to quash the
said proceedings.
4. Per contra, the learned Government Advocate (Criminal
side) on instructions submitted that these persons also attributed some
overtact and sufficient material is available to lay the charge sheet
against all the petitioners.
5. This Court has find some force in the submission made by
the learned counsel for the petitioners that there was no overtact
attributed against the petitioners 6 to 24. Upon the perusal of the final
report along with the material annexed with the said report, absolutely
there is no material available to direct the petitioners 6 to 24 to undergo
the ordeal of trial. Neither any overtact made by the witnesses nor any
incriminating material or documentary evidence available against the
petitioners 6 to 24 in this case.
6. The Hon'ble Supreme Court in Manjit Singh vs. The State
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Crl.O.P(MD)No.19758 of 2018
of Punjab, reported in 2009 (8) SCC 529 stating that the implications of
Sections 149 as well as 141 as follows:
“14.3. ..... In the case of Sikander Singh (supra), this
Court observed as under:
“15. The provision has essentially two ingredients
viz. (i) the commission of an offence by any member of
an unlawful assembly, and (ii) such offence must be
committed in prosecution of the common object of the
assembly or must be such as the members of that
assembly knew to be likely to be committed in
prosecution of the common object. Once it is
established that the unlawful assembly had common
object, it is not necessary that all persons forming the
unlawful assembly must be shown to have committed
some overt act. For the purpose of incurring the
vicarious liability for the offence committed by a
member of such unlawful assembly under the provision,
the liability of other members of the unlawful assembly
for the offence committed during the continuance of the
occurrence, rests upon the fact whether the other
members knew beforehand that the offence actually
committed was likely to be committed in prosecution of
the common object.
*** *** ***
17. A "common object" does not require a prior concert
and a common meeting of minds before the attack. It is
enough if each member of the unlawful assembly has
the same object in view and their number is five or
more and that they act as an assembly to achieve that
object. The "common object" of an assembly is to be
ascertained from the acts and language of the members
composing it, and from a consideration of all the
surrounding circumstances. It may be gathered from the
course of conduct adopted by the members of the
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assembly. For determination of the common object of
the unlawful assembly, the conduct of each of the
members of the unlawful assembly, before and at the
time of attack and thereafter, the motive for the crime,
are some of the relevant considerations. What the
common object of the unlawful assembly is at a
particular stage of the incident is essentially a question
of fact to be determined, keeping in view the nature of
the assembly, the arms carried by the members, and the
behaviour of the members at or near the scene of the
incident. It is not necessary under law that in all cases
of unlawful assembly, with an unlawful common object,
the same must be translated into action or be
successful.
14.4. In the case of Subal Ghoral (supra), this Court,
after a survey of leading cases, summed up the
principles as follows:
“53. But this concept of constructive liability
must not be so stretched as to lead to false implication
of innocent bystanders. Quite often, people gather at
the scene of offence out of curiosity. They do not share
common object of the unlawful assembly. If a general
allegation is made against large number of people, the
court has to be cautious. It must guard against the
possibility of convicting mere passive onlookers who
did not share the common object of the unlawful
assembly. Unless reasonable direct or indirect
circumstances lend assurance to the prosecution case
that they shared common object of the unlawful
assembly, they cannot be convicted with the aid of
Section 149 Indian Penal Code. It must be proved in
each case that the person concerned was not only a
member of the unlawful assembly at some stage, but at
all the crucial stages and shared the common object of
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the assembly at all stages. The court must have before it
some materials to form an opinion that the Accused
shared common object. What the common object of the
unlawful assembly is at a particular stage has to be
determined keeping in view the course of conduct of the
members of the unlawful assembly before and at the
time of attack, their behaviour at or near the scene of
offence, the motive for the crime, the arms carried by
them and such other relevant considerations. The
criminal court has to conduct this difficult and
meticulous exercise of assessing evidence to avoid
roping innocent people in the crime. These principles
laid down by this Court do not dilute the concept of
constructive liability. They embody a Rule of caution.
14.5. We need not expand on the other cited
decisions because the basic principles remain that the
important ingredients of an unlawful assembly are the
number of persons forming it i.e., five; and their
common object. Common object of the persons
composing that assembly could be formed on the spur
of the moment and does not require prior deliberations.
The course of conduct adopted by the members of such
assembly; their behaviour before, during, and after the
incident; and the arms carried by them are a few basic
and relevant factors to determine the common object.”
7. In this case, after completion of investigation, the
respondent police filed the final report against 24 persons for the alleged
offence punishable under Sections 147, 148, 341, 294(b), 353, 324,
506(ii) and 307 IPC and Section 4 of THPHW Act. Even as per the final
report and also the statements of the injured witnesses and other
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eyewitnesses, the accused Nos.1 to 5 alone alleged to be abused,
assaulted the injured persons and the remaining petitioners 6 to
24/accused Nos.6 to 24 were alleged to be merely present in the scene of
occurrence. Further, there was no allegation that the petitioners 6 to
24/accused Nos.6 to 24 have shared the common object before and
during the course of occurrence. In the said circumstances, by applying
the law laid down by the Hon'ble Supreme Court, if the entire material on
record annexed with the final report is taken as truth, this Court does not
find any material to constitute the offence against the accused Nos.6 to
8. The law enforcing agency without any specific overtact,
merely because they are relatives of the above said accused, filed final
report against all the accused. Further, it is not the case of the prosecution
that the petitioners were carrying any weapon and assaulted the L.W.1.
From the available materials, this Court only find that they are supposed
to be present in the occurrence place.
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9. Further, in this case, this Court finds no material
circumstances even to infer the offence stated supra against the
petitioners 6 to 24 either from the course of their conduct adopted by
them or by their behaviour before, during and after the incident. From
the fact that they assembled without carrying any weapon and without
exhorting the petitioners 1 to 5/accused Nos.1 to 5, it is clear that they
were not member of unlawful assembly and they assembled without any
beforehand knowledge of occurrence as innocent bystanders. Hence, this
Court is inclined to quash the above proceedings insofar as the
petitioners 6 to 24 are concerned on the above said reasoning. Insofar as
the petitioners 1 to 5 are concerned, there is a specific overtact attributed
each other. Hence, at this stage, this Court prima facie satisfied that some
material is available against the petitioners 1 to 5 herein alone to frame
the charges and proceed with trial.
10. This Court directs the trial Court to decide the involvement
of the accused Nos.1 to 5 in the occurrence independently without any
influence of the above findings in this case.
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Crl.O.P(MD)No.19758 of 2018
11. In the result, this Criminal Original Petition is dismissed as
against the petitioners 1 to 5 and allowed as against the petitioners 6 to
24 and the proceedings in P.R.C.No.14/2017 on the file of the Judicial
Magistrate, Thirumangalam, is quashed as against the petitioners 6 to 24
alone. Consequently, connected miscellaneous petitions are closed.
12. Considering the facts and circumstances of the case and
also considering the request of the petitioners that they are facing the
criminal prosecution from the year 2015 onwards and they all are
working as Coolie, the personal appearance of the petitioners 1 to 5
before the trial Court is ordered to be dispensed with on the following
conditions:
(i) The petitioners shall appear at the time of furnishing copies, at
the time of committal and on the hearings, specifically directed by the
trial Court.
(ii) The petitioners are directed to give an undertaking in the form
of affidavit that they will be duly represented by a counsel on all hearing
dates.
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Crl.O.P(MD)No.19758 of 2018
(iii) The petitioners shall not dispute the identity of the witnesses.
(iv) The petitioners shall appear before the Court in the event
their presence is insisted by the trial judge for the purpose of
identification.
(v) If the petitioners adopt any dilatorial tactics, it is open to the
Trial Court to insist for their appearance and deal with the petitioners in
accordance with the judgment of Supreme Court of India, in State of
Uttar Pradesh Vs. Shambunath Singh, reported in 2001 (4) SCC 667.
13. The learned Judicial Magistrate, Thirumangalam, is
directed to complete the committal proceedings within a period of one
month from the date of receipt of a copy of this order and the concerned
jurisdictional Sessions Judge shall complete the trial within a period of
three months from the date of committal without influenced by this order
with regard to the dismissal of the case against the petitioners 1 to 5
herein.
20.04.2023
Index : Yes/No
NCC: Yes/No
PJL
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Crl.O.P(MD)No.19758 of 2018
To
1.The Judicial Magistrate,
Thirumangalam.
2.The Inspector of Police,
Thirumangalam Town Police Station,
Madurai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P(MD)No.19758 of 2018
K.K.RAMAKRISHANAN, J.
PJL
Crl.O.P(MD)No.19758 of 2018
20.04.2023
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