Dr.K.Makudamudi v. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.07.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.6667/2006Cr.MP.Nos.1685/2006 & 135/20071.Dr.K.Makudamudi2.Dr.M.Anugayathri3.M.PadminiPetitionersVsState by 1.The Commissioner of PoliceCoimbatore.2.The Inspector of PoliceB4 Race Course Police Station Coimbatore.3.Dr.T.P.KalanithiRespondents(R3 impleaded as per order of this Court dated 6.2.2007 in M.P.No.13/2007)Prayer:- This Criminal Original Petition is filed to call for therecords in Cr.No.249/2006 on the file of the 2nd Respondent andquash the proceedings in so far as the Petitioners are concerned. For Petitioner:Mr.S.AnanthanarayananFor Respondent :Mr.S.Senthil Murugan for PP-RR1&2Mr.M.Rahamath Ali-R3O R D E R This Criminal Original Petition is filed to quash the FIRin Cr.No.249/2006 on the file of the learned Judicial MagistrateIII, Coimbatore.2.Few material facts, which are necessary for the disposalof this Criminal Original Petition, are given below:-The Petitioners 1 and 3 are the parents of the 2ndpetitioner. The 2nd Petitioner was married to Dr.Karthikeyan, son ofthe defacto complaint on 22.2.2004 and it is alleged that she wastortured mentally and physically by her husband and in laws with ademand of dowry and sent out of the matrimonial home. The 2ndPetitioner had given a complaint against the defacto complainant https://hcservices.ecourts.gov.in/hcservices/ Dr.Kalanidhi, his wife K.Kowsalya and son Dr.Karthikeyan and oneHari for dowry harassment before the Commissioner of Police,Chennai on 7.4.2005 and after investigation, CBCID Metro Wing hasfiled a final report on 8.2.2006 in CC.No.113/2006.3.The defacto complainant, Dr.Kalanidhi has given thepresent complaint against the Petitioners herein before theCommissioner of Police, alleging that some posters were foundpasted in various places within the Coimbatore Medical CollegeHospital Campus and outside, depicting certain false complaints,personal derogatory remarks and baseless allegations against thedefacto complainant. It appears that the said posters were in thename of a registered social organisation and said to have beenprinted at M/s.Mani Offset Printers, Kallakurichi under the bannerof District Consumer Welfare Protection Peravai by its PresidentV.Ramanatha Adigalar. The defacto complainant has alleged in thecomplaint that he has every reason to believe that the 2ndPetitioner and her father, the 1st petitioner are instrumental andhave instigated such cowardly acts of defamation and mud slingingagainst the defacto complaint. On the basis of the said complaint,FIR had been registered in Cr.No.249/2006, as against which, thePetitioners have come forward with this Criminal Original Petitionto quash the said FIR.4.Mr.S.Ananthanarayanan, the learned counsel for thePetitioners would contend that the FIR does not disclose anyoffence on the part of the Petitioners and it is gross abuse ofprocess of law, as it is made out of vindictiveness and to harassthe Petitioners, since they have set the law in motion for dowryharassment against the defacto complainant and his son. He wouldfurther contend that the offences under Sections 188, 500 and 501of IPC are clearly covered by the prohibition contained in Section195(1) and 199 of Code of Criminal Procedure respectively, which ismandatory in nature and the complaint being given in violation ofthose provisions is liable to be quashed. 5.Before adverting to the aforesaid contentions of thelearned counsel for the petitioners, the nature of allegations madeagainst the petitioners in the FIR has to be looked into. Therelevant portion in the complaint is extracted below:"The posters and notices are said to have been printedat Mani Offset Kallakurichi under the banner ofDistrict Consumer Welfare Protection Peravai 28/3Rajanagar Kallakurichi Villupuram District thePresident of which is mentioned as Mr.V.RamanathaAdigalar B.A. My son Dr.K.Karthikeyan was married inFebruary 2004 to Dr.M.Anugayathri D/o K.Magudamudibailing from Vadakanandal Kanchipuram KallakurichiTaluk Villupuram District My son developed brain cancerin November 2004 and his wife left him in February 2005she had levelled false and baseless complaints against https://hcservices.ecourts.gov.in/hcservices/ him and our family alleging dowry harassment and theabove complaint is under police investigation. In theabove situation, I have every reason to believe thatDr.M.Anugayathri and her father Dr.K.Magudamudi areinstrumental and instigating such cowardly acts ofdefamation and mud slinging. I request you to kindlyregister a criminal complaint against the following forabuse of personality and character assassination aimedat tarnishing the image and vent only defaming myposition spoiling the reputation which I have earned sofar in service and profession."Based on the above said allegations, the FIR is registeredfor the offences under Sections 188, 500 and 501 of IPC and 15(1)of the Press and Registration of Books Act, 1867 and 4(1) of theTamil Nadu Open Places (Prevention of Disfigurement) Act, 1959against the petitioners and one V.Ramanatha Adigalar and M/s.ManiOffset Printers.6.When a complaint is sought to be quashed, it ispermissible to look into the materials to assess as to what thecomplainant has alleged and whether any offence is made out even ifthe allegations are accepted in toto. The allegations against thePetitioners are that the defacto complainant had reason to believethat the Petitioners are instrumental in such publication of handbills containing defamatory matters against the defactocomplainant. There is no positive allegation or averment to showthat the same has been printed or published only at the instigationof the Petitioners. Neither there is any averment to the effectthat there is some material to link between the Petitioners on theone hand and the printer and the publisher on the other hand inpublishing the said posters and handbills.7.The learned counsel for the Petitioners would contendthat when the basic ingredients of the offence are missing in thecomplaint, then permitting such a complaint to continue and tocompel the Petitioners to face the criminal trial would be totallyunjustified, which would lead to the abuse of process of law. Insupport of his contentions, he drew the attention of this court tothe decision rendered by the Honourable Supreme Court in the caseof Gorige Pentaiah Vs. State of AP and others [2009-1-SCC-Cri-446],wherein in paragraph 12, the Honourable Supreme Court has held asunder:-"12. This court in a number of cases has laid down thescope and ambit of courts' powers under Section 482 ofCode of Criminal Procedure. Every High Court hasinherent power to act ex debito justitiae to do realand substantial justice for the administration of whichalone it exists, or to prevent abuse of process of thecourt. Inherent power under Section 482 of Code ofCriminal Procedure can be exercised. https://hcservices.ecourts.gov.in/hcservices/ (i)to give effect to an order under the Code:(ii)to prevent abuse of process of court and(iii)to otherwise secure the ends of justice.Inherent powers under Section 482 of Code of CriminalProcedure though wide have to be exercised sparingly,carefully and with great caution and only when suchexercise is justified by the tests specifically laiddown in this section itself. Authority of the courtexists for the advancement of justice. If any abuse ofthe process leading to injustice is brought to thenotice of the court, then the court would be justifiedin preventing injustice by invoking inherent powers inabsence of specific provisions in the statute."8.In an another decision rendered in the case of R.P.KapurVs. State of Punjab [AIR-1960-SC-866], the Honourable Supreme Courtsummarized some categories of cases where inherent power can andshould be exercised to quash the proceedings:-i.where it manifestly appears that there is a legal baragainst the institution or continuance of theproceedings;ii.where the allegations in the first informationreport or complaint taken at their face value andaccepted in their entirety do not constitute theoffence alleged.iii.Where the allegations constitute an offence, butthere is no legal evidence adduced or the evidenceadduced clearly or manifestly fails to prove thecharge."9.The Honourable Supreme Court has held in a catena ofdecisions that a court proceedings ought not to be permitted todegenerate into a weapon of harassment or persecution. The legalposition is thus well settled that the court cannot be utilised forany oblique purpose and where in the opinion of the court chancesof an ultimate conviction are bleak and no useful purpose is likelyto be served by allowing criminal Prosecution to continue, thecourt may while taking into consideration of the special facts ofthe case also, quash the proceedings even though it may be at apreliminary stage. 10.To constitute an offence under Section 188 of IPC, thefollowing ingredients to be satisfied:(i)Firstly, it requires that there must be an orderpromulgated by a public servant who is lawfully empowered to https://hcservices.ecourts.gov.in/hcservices/ promulgate such an order.(ii)Secondly, a person having knowledge of such an orderwith certain property in his possession or under his management haddisobeyed such direction.(iii)Thirdly, such disobedience has caused or tend to causeobstruction, annoyance or injury or risk of it to any personlawfully employed or danger to human life, health or safety andfurther the impugned order should be in writing and dulypromulgated to the accused concerned. It is obvious that thissection applies to orders of public functionaries for publicpurpose and not to an order between the party to party.11.On a bare perusal of the complaint, I am unable to findany of the ingredients stated supra so to constitute an offenceunder Section 188 of IPC. There is absolutely no averment makingout an offence under Section 188 of IPC. That apart, Section 195(1)of the Code of Criminal Procedure bars cognizance by any Court ofthe offence above mentioned except upon a proper complaint. Asregards the offence under Section 500 of IPC is concerned, Section199 of Code of Criminal Procedure is mandatory, inasmuch as thecomplaint should be given to the Magistrate concerned by anaggrieved person. Absence of such complaint would render theProsecution as void and without jurisdiction. 12.At this juncture, it is relevant to refer to thedecision by Honourable Supreme Court rendered in the case of PatelLaljibhai Somabhai Vs. The State of Gujarat [AIR-1971-SC-1935],wherein it is held thus:-"The purpose and object of the Legislature in creatingthe bar against cognizance of private complaints inregard to the offences mentioned in Section 195(1)(b)and (c) is both to save the accused person fromvexatious or baseless prosecutions spited by feelingsof vindictiveness on the part of the privatecomplainants to harass their opponents and also toavoid confusion which is likely to arise on account ofconflicts between findings of the courts in whichforged documents are produced or false evidence is ledand the conclusions of the criminal courts dealing withthe private complaint. It is for this reason that theLegislature has entrusted the Court, whose proceedingshad been the target of the offence of perjury toconsider the expediency in the larger public interestof a criminal trial of the guilty party."13.In the instant case, for Prosecution of an offence underSection 188 of IPC, there is no complaint by the public servant.Section 195 of Code of Criminal Procedure operate as a bar inlaunching the Prosecution against the Petitioners, unless there is https://hcservices.ecourts.gov.in/hcservices/ a complaint by the Officer who is supposed to have issued thepromulgation order if any. Like wise, for an offence under Section500 of IPC, the complaint ought to have been filed before theMagistrate and the FIR registered in contravention of the abovestatutory provisions is illegal and unsustainable in law. 14.Mr.M.Rahamath Ali, the learned counsel for the 3rdRespondent would submit that at this stage, this court in itsjurisdiction under Section 482 of Code of Criminal Procedure is notcalled upon to embark upon the enquiry as to whether theallegations in the FIR is reliable or not and thereupon to renderdefinite finding about the frivolous or veracity of theallegations. In support of his contention, he relied on thedecision rendered in the case of Central Bureau of InvestigationVs. K.M.Sharan [CDJ-2008-SC-1544]. His submission cannot becountenanced as there is a legal bar against the institution of theproceedings in this case. Further, the allegations in the FirstInformation Report if taken at their face value and accepted intheir entirety do not constitute the offences alleged.15.Mr.S.Senthil Murugan, representing the learned PublicProsecutor would submit that there are other offences such asoffence under Sections 15(1) of the Press and Registration ofBooks Act, 1867 and 4(1) of the Tamil Nadu Open Places (Preventionof Disfigurement) Act, 1959, which are cognizable offences and theydo not require any such complaint to the learned Magistrate.Therefore, he would submit that it is open to the investigatingagency to launch Prosecution in respect of those offences. 16.It has been held by this court in the case of Murugesanand Others Vs. State of Tamil Nadu [1989-Crl.LJ-1833] that a partyshould not be allowed to evade the provisions of Section 195 ofCode of Criminal Procedure by bringing a charge under anotherSection of Penal Law. The principle is that the facts should beconsidered as a whole without splitting them up and when theydisclose a specific charge of graver offence requiring a complaint,then Section 195 cannot be evaded by electing to prosecute for ageneral or lesser offence for which no complaint is necessary. 17.In the case cited supra, the proceedings were commencedagainst the Petitioners for the offences under Sections 188, 143,147, 341 and 309 of IPC and the provisions under City Police Act.It was alleged that the Petitioners assembled in front of PoliceStation and did not disperse when ordered. It was also allegedthat order under Section 30(2) of the City Police Act waspromulgated and there was non compliance with that order, but nocomplaint was filed by the officer who had issued the order. Insaid view of the matter, the learned single Judge of this Courtheld that it is a case of resorting to devices or camouflage ofclubbing other cognizable offences actually not made out along withoffence under Section 188 and hence, the proceedings were liable tobe quashed. https://hcservices.ecourts.gov.in/hcservices/

18.I am in total agreement with the view expressed by thelearned Single Judge of this court. In cases where in the course ofthe same transaction, an offence for which no complaint by a publicservant is necessary under Sections 195(1) of Code of CriminalProcedure and an offence for which such complaint is necessary arecommitted, it is not possible to split up and hold that theProsecution of the accused for the offences not mentioned inSection 195(1) of Code of Criminal Procedure should be upheld.Therefore, it is not possible to agree with the contentions of thelearned Public Prosecutor that the complaint given by the 3rdRespondent for the offences under Sections 15(1) of the Press andRegistration of Books Act, 1867 and 4(1) of the Tamil Nadu OpenPlaces (Prevention of Disfigurement) Act, 1959 which are cognizableoffences could be proceeded with as Section 195(1) or Section 199of the Code of Criminal Procedure is not attracted in so far asthose offences are concerned. If the criminal prosecution initiatedagainst the petitioners are allowed to continue, then it would bean abuse of process of law and hence, the same is liable to bequashed.19.In view of the reasons stated above, the FIR inCC.No.113/2006 deserves to be quashed and accordingly, it isquashed in so far as the petitioners are concerned and thisCriminal Original Petition is allowed. Consequently, the connectedMPs are closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSrcm/sriTo:1.The Commissioner of Police,Coimbatore.2.The Inspector of Police,B4, Race Course Police Station, Coimbatore.3.The Public Prosecutor High Court, Madras.2 cc To M/s.For & Fair Associates, Advocate, SR.331791 cc To M/s.H.Rajasekar, Advocate, SR.33981Crl.OP.No.6667/2006mdr(co)pmk.11.8.2009.