Madras High Court
S.Jeyalakshmi vs The Inspector Of Police on 15 September, 2023
Crl.O.P.(MD).No.19890 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.09.2023
CORAM
THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR
Crl.O.P.(MD).No.19890 of 2021
and
Crl.M.P.(MD).Nos.11192 and 11194 of 2021
1.S.Jeyalakshmi
2.S.Karthikeyan
3.S.Sanjai ... Petitioners/Accused
Vs.
1.The Inspector of Police,
Thillai Nagar Police Station,
Tiruchirappalli.
(Crime No.258/2021) ...1st Respondent/Complainant
2.S.Swaminathan ...2nd Respondent/Defacto Complainant
Prayer : Criminal Original Petition filed under Section 482 of Cr.P.C, to quash
the charge sheet filed in S.T.C.No.2871/2021 on the file of the learned Judicial
Magistrate No.IV, Tiruchirappalli.
For Petitioner : Mr.K.Mani
For R-1 : Mr.R.Meenakshi Sundaram,
Additional Public Prosecutor
For R-2 : Mr.R.Gandhi,
Senior Counsel
for Mr.J.Karthikeyan
1/14
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Crl.O.P.(MD).No.19890 of 2021
ORDER
This order has to be read in continuation and conjunction to the order
passed by this Court dated 14.09.2023, which reads as follows:
“The petitioners, who are the accused in S.T.C.No.2871 of
2021 for the offences under Sections 294(b), 323 and 506(1) IPC,
have filed this quash petition.
2. The gist of the complaint is that the petitioners and the
second respondent/defacto complainant are residing in the same
family property. The petitioners are residing in the ground floor
and the second respondent is residing in the first floor. On
09.04.2021 at about 11.30 PM, there was disconnection of power,
hence, the petitioners had come out to verify the same. At that
time, they saw the defacto complainant handling the EB board,
which was questioned and there was a wordy quarrel between
them and the second and third petitioners are said to have
assaulted the defacto complainant. Unable to bear with the pain,
he immediately called his brother, who had come there and
thereafter, they have also called the Police, who had also reached
the scene. The second respondent got admitted in the Government
Hospital because of the assault by the respondents 2 and 3. A
complaint was lodged and a case in Crime No.258/2021 was
registered for the offences under Sections 294(b), 323 and 506(1)
IPC on 10.04.2021. Charge sheet has been made ready on
10.07.2021 listing witnesses, L.W.1 to L.W.10 and documents.
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Crl.O.P.(MD).No.19890 of 2021
3. The contention of the petitioners is that there is a
dispute with regard to inheritance and enjoyment of family
property. The mother of the first petitioner had earlier settled the
property in favour of the first petitioner, which was later objected
by the second respondent, who had taken the first petitioner's
mother and cancelled the settlement deed, which was questioned
by the first petitioner and a civil suit in O.S.No.378 of 2017 has
been filed. For this motive, a false case has been projected
against the petitioners. The learned counsel for the petitioners
submitted that the second respondent, with the support of the
Police, had initiated proceedings under Section 145 CrPC and
this Court, in W.P.(MD).No.1063 of 2021 by order dated
11.11.2021, had quashed the initiation of the proceedings. He
further submitted that a civil suit had been filed by the mother of
the first petitioner along with the second respondent in O.S.No.
1413 of 2017 and the first petitioner and her sister filed a suit in
O.S.No.151 of 2020 with regard to partition of other family
properties. As regards O.S.No.378 of 2017 filed by the first
petitioner seeking for declaration of cancellation deed dated
23.09.2010 as null and void, the Civil Court by its judgment dated
29.04.2023 had rendered a judgment in favour of the first
petitioner. In this background, the above case would clearly
prove that it is only an after thought, motivated complaint made
against the petitioners for the civil suits filed by the second
respondent. The learned counsel further submitted that in this
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Crl.O.P.(MD).No.19890 of 2021
case, the Doctor, who had examined the second respondent on
10.04.2021, had clearly stated that he had found no external
injuries and the second respondent had informed the Doctor that
he was suffering with pain and nothing more. He further
submitted that the second respondent had left the hospital against
the medical advice, which would further versify that the second
respondent attempted to create medical records against the
petitioners. He further submitted that the offences under Section
294(b) and 506(i) IPC are only usage of abusive words and
threats. This Court had held in various cases that mere threat
would not suffice unless it has been followed by an action. With
these submissions, the learned counsel prayed for quashing of the
charge sheet.
4. The learned Additional Public Prosecutor appearing for
the first respondent submitted that based on the complaint given
by the second respondent, FIR has been registered and the
respondent Police visited the scene of occurrence, collected the
documents, prepared mahazars, examined the witnesses and
recorded their statements. After collecting the documents, charge
sheet has been filed against the petitioners even as early as on
10.07.2021 itself and thereafter, the petitioners had approached
this Court immediately and for this reason, the trial could not be
progressed. He further submitted that the points raised by the
petitioners can be decided by the Trial Court during trial.
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Crl.O.P.(MD).No.19890 of 2021
5. The learned Senior Counsel appearing for the second
respondent submitted that this case is not as simple as projected
by the learned counsel for the petitioners. It is not in dispute that
the petitioners and the second respondent are residing in the same
address. The petitioners are causing threat and regularly using
abusive words, whenever the second respondent enters his house,
not only against the second respondent but also against his family
members. On the fateful day, since there was a disconnection of
power, to find out the reason for disconnection, the second
respondent had inspected the EB board and taking this as an
excuse, the petitioners had assaulted the second respondent and
beat him black and blue. The second respondent called the police
immediately and they had visited the scene of occurrence and
advised the second respondent to lodge a complaint to the
jurisdictional police and further unable to bear the pain, the
second respondent had called his brother for help and with his
aid, the second respondent was admitted in the Government
Hospital and the second respondent had complained about the
pain all over his body due to the assault of the petitioners 2 and 3.
The learned Senior Counsel further submitted that the petitioners,
though projected the case as a civil dispute which resulted in
suits, earlier, for the same incident, the first petitioner attempted
to give a counter complaint as though she was not at fault, which
the police had enquired and only C.S.R was assigned and further
no action was taken. The petitioners have also not taken any
action and left the case as it is. He would further submit that the
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Crl.O.P.(MD).No.19890 of 2021
first petitioner had lodged a complaint against her own brothers
including the second respondent alleging forgery of an
unregistered Will. There are several civil cases pending between
the petitioners and the second respondent and his brother. The
learned Senior Counsel further submitted that all the cases have
been initiated by the first petitioner claiming right over the
property. The second respondent and his brother had also filed
civil suits. Be that as it may. The learned Senior Counsel for the
second respondent submitted that if the first petitioner is willing
to withdraw the criminal complaint earlier filed by her against the
second respondent and his brother, the second respondent has got
no objection in quashing of the charge sheet, otherwise on merits,
this case is not sustainable and it ought to be decided only during
trial.
6. At this stage, the learned counsel for the petitioners
seeks for a short accommodation to get instructions from his
client and report back to this Court.
7. Post the matter for orders on 15.09.2023.”
2. Today, the learned counsel for the petitioners submitted that there is no
possibility of withdrawing the criminal complaint filed by the first petitioner
against the defacto complainant and another brother and further argued on
merits of this case. The learned counsel for the petitioners relied upon the
following decisions of this Court:
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Crl.O.P.(MD).No.19890 of 2021
i) Crl.O.P.No.20228 of 2019 dated 04.09.2020 (G.Selvamoorthy and
others Vs. The State and another):
“6. There are totally four accused persons in which the
petitioners in Crl.O.P.No.20228 of 2019 have been arrayed as A1
to A3. Since the petitioner in Crl.O.P.No.2795 of 2020 was minor
at the time of occurrence, separate proceeding has been initiated
and he is the sole accused in J.C.No.29 of 2019. Admittedly, all
the petitioners and the second respondent are close relatives and
there is a dispute between them in respect of partition in the
property. Already the first petitioner filed suit in O.S.No.130 of
2012 as against the second respondent on the file of the Sub
Court, Cheyyar and subsequently, the said suit was withdrawn.
Again the first petitioner filed a suit in O.S.No.128 of 2013 on the
file of the Sub Court, Cheyyar, challenging the Will executed by
the second respondent. In fact on the complaint lodged by the first
petitioner a case has been registered in Crime No.373 of 2013 as
against the second respondent and other family members.”
(ii) Crl.O.P.No.4451 of 2020 dated 28.06.2022 (P.Nakkeeran Vs. State
and another):
“12. Therefore, no specific averments and allegations are
made to attract any of the offences as alleged by the prosecution.
Therefore, the entire proceedings is nothing but a clear abuse of
process of law and it cannot be sustained as against the
petitioners. The proceedings is nothing but only to wreak
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Crl.O.P.(MD).No.19890 of 2021
vengeance as against the petitioners, for the reason that the
petitioners initiated the proceedings as against the encroachers
by the temple authorities in the Government Poramboke land.”
(iii) Crl.O.P.(MD).No.1748 of 2013 dated 02.07.2015 (G.Paramasivam
and another Vs. The Deputy Commissioner of Police and others):
“9. Coming to the alleged offence under Section 506(ii)
I.P.C., is concerned, as rightly submitted by the learned Senior
Counsel, a mere threat p e r s e would not attract the said
provision. The allegation is that the petitioners went to the house
of the fourth respondent and threatened orally by showing their
hands. A mere outburst would not attract Section 506(ii)IPC.”
3. On the contrary, the learned Senior Counsel for the second respondent
relied upon the following decisions of the Hon'ble Supreme Court:
i) Central Bureau of Investigation Vs.Aryan Singh reported in 2023
LiveLaw (SC) 292:
''4.1 From the impugned common judgment and order passed
by the High Court, it appears that the High Court has dealt with the
proceedings before it, as if, the High Court was conducting a mini
trial and/or the High Court was considering the applications against
the judgment and order passed by the learned Trial Court on
conclusion of trial. As per the cardinal principle of law, at the stage
of discharge and/or quashing of the criminal proceedings, while
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Crl.O.P.(MD).No.19890 of 2021
exercising the powers under Section 482 Cr.P.C., the Court is not
required to conduct the mini trial. The High Court in the common
impugned judgment and order has observed that the charges against
the accused are not proved. This is not the stage where the
prosecution / investigating agency is/are required to prove the
charges. The charges are required to be proved during the trial on
the basis of the evidence led by the prosecution / investigating
agency. Therefore, the High Court has materially erred in going in
detail in the allegations and the material collected during the course
of the investigation against the accused, at this stage. At the stage of
discharge and/or while exercising the powers under Section 482
Cr.P.C., the Court has a very limited jurisdiction and is required to
consider “whether any sufficient material is available to proceed
further against the accused for which the accused is required to be
tried or not”.
4.2 One another reason pointed by the High Court is that the
initiation of the criminal proceedings / proceedings is malicious. At
this stage, it is required to be noted that the investigation was
handed over to the CBI pursuant to the directions issued by the High
Court. That thereafter, on conclusion of the investigation, the
accused persons have been chargesheeted. Therefore, the High
Court has erred in observing at this stage that the initiation of the
criminal proceedings / proceedings is malicious. Whether the
criminal proceedings was/were malicious or not, is not required to
be considered at this stage. The same is required to be considered at
the conclusion of the trial. In any case, at this stage, what is required
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Crl.O.P.(MD).No.19890 of 2021
to be considered is a prima facie case and the material collected
during the course of the investigation, which warranted the accused
to be tried.
5. In view of the above and for the reasons stated above, when
the High Court has exceeded in its jurisdiction in quashing the entire
criminal proceedings and applying the law laid down by this Court
in catena of decisions on exercise of the powers at the stage of
discharge and/or quashing the criminal proceedings, the impugned
common judgment and order passed by the High Court quashing the
criminal proceedings against the accused is unsustainable and the
same deserves to be quashed and set aside.''
ii) Mohd.Allauddin Khan Vs. State of Bihar and others reported in
(2019) 6 SCC 107:
“11.The High Court failed to see that mere pendency of a
civil suit is not an answer to the question as to whether a case
under Sections 323, 379 read with Section 34 IPC is made out
against respondent Nos. 2 and 3 or not.
12. The High Court should have seen that when a specific
grievance of the appellant in his complaint was that respondents
2 and 3 have committed the offences punishable under Sections
323, 379 read with Section 34 IPC, then the question to be
examined is as to whether there are allegations of commission of
these two offences in the complaint or not. In other words, in
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Crl.O.P.(MD).No.19890 of 2021
order to see whether any prima facie case against the accused
for taking its cognizance is made out or not, the Court is only
required to see the allegations made in the complaint. In the
absence of any finding recorded by the High Court on this
material question, the impugned order is legally unsustainable.
...14. In our view, the High Court had no jurisdiction to
appreciate the evidence of the proceedings under Section 482 of
the Code Of Criminal Procedure, 1973 (for short “Cr.P.C.”)
because whether there are contradictions or/and inconsistencies
in the statements of the witnesses is essentially an issue relating
to appreciation of evidence and the same can be gone into by the
Judicial Magistrate during trial when the entire evidence is
adduced by the parties. That stage is yet to come in this case.”
The learned Senior Counsel vehemently opposed the contention of the
petitioners and submitted that the Hon'ble Apex Court had time and again
reiterated that once a charge sheet is filed, it is for the accused to appear before
the Court, participate in the trial and put forth his defence. At the stage of 482
CrPC proceedings, a mini trial cannot be conducted. At this stage, it has to be
seen that whether there is a prima facie case made out to proceed with the trial
and not to consider whether the case would end in conviction. The learned
Senior Counsel submitted that now the charge sheet has been filed and there are
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Crl.O.P.(MD).No.19890 of 2021
statements clearly stating about the petitioners' overt act and hence, he opposed
the quash petition.
4. The learned Additional Public Prosecutor appearing for the respondent
Police submitted that in this case, investigation has been completed, ten
witnesses have been listed, their statements have been recorded, which
confirmed the case of the prosecution and they clearly stated about the overt act
of each of the accused. The identity of the accused are not disputed and the
assault of the accused have been clearly spoken by the victim. In this case, the
doctor has also confirmed the same. The pendency of the civil suit between
them will not give a licence for the accused to assault the victim.
5. Considering the submissions made on either side and perusal of
materials, it is seen that L.W.8, the Doctor, who had treated the second
respondent, had clearly stated that two known persons had assaulted the second
respondent on the day and he was also admitted, took treatment in the hospital.
In view of the same, this Court is not inclined to entertain the petition filed by
the petitioners except for A1 alone. Accordingly, the proceedings in
S.T.C.No.2871/2021 is quashed insofar as the first petitioner, A1 is concerned.
As regards the others, namely, A2 and A3, the Criminal Original Petition is
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Crl.O.P.(MD).No.19890 of 2021
dismissed. The Trial Court is directed to proceed with the trial against the
second and third petitioners, within a stipulated period, considering that the
case is kept pending for the past two years without any progress, not influenced
by the observations made herein. These observations are only for the limited
purpose of the dismissal of the quash petition.
6. In the result, the Criminal Original Petition is partly allowed.
Consequently, connected miscellaneous petitions are closed.
15.09.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Lm
To
1.The Judicial Magistrate No.IV,
Tiruchirappalli.
2.The Inspector of Police,
District Crime Branch Police Station,
Theni,
Theni District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD).No.19890 of 2021
M.NIRMAL KUMAR, J.
Lm
Crl.O.P.(MD).No.19890 of 2021
15.09.2023
https://www.mhc.tn.gov.in/judis
