High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.11.2007CORAMTHE HONOURABLE MR. JUSTICE K.MOHAN RAMCriminal Original Petition No.34592 of 2007and Miscellaneous Petition No.1 of 20071. Vijayalakshmi2. Kandasamy3. Viswanathan4. Ammasai Gounder... Petitioners-Vs-1. Mylsamy @ Palanisamy2. The State of Tamil Nadu Rep. by its Public Prosecutor... RespondentsPrayer:- Criminal Original Petition filed under Section 482 of theCriminal Procedure Code against the order dated 11.06.2007 inCrl.R.C.No.32 of 2007 on the file of the Additional District SessionsJudge, Fast Track Court No.1, Coimbatore, preferred against the orderdated 12.12.2006 in Crl.M.P.No.5851 of 2006 in C.C.No.1049 of 2004 on thefile of the Judicial Magistrate, Coimbatore.For Petitioners: Mr. C.R.PrasananFor Respondents: Mr. Hasan Mohamed Jinnah Govt. Advocate (Crl.Side), for R-2.O R D E RThe petitioners in the above criminal original petition are theaccused in C.C.No.1049 of 2004 on the file of the Judicial MagistrateNo.I, Coimbatore. The first respondent herein had filed a privatecomplaint against the petitioners herein and the said private complainthad been taken on file for the offence under Sections 147, 447, 506 (ii)and 379 of the Indian Penal Code. On 18.02.2006 the learned Magistratehad framed charges against petitioners 1 to 4 for the offence underSections 147 and 379 of the Indian Penal Code and under Section 148 of theIndian Penal Code against petitioners 2 to 4 and under Section 447 of theIndian Penal Code against petitioners 1 to 4 and under Section 506 (ii)against the first petitioner. At that stage the petitioners have filed a https://hcservices.ecourts.gov.in/hcservices/ petition under Section 245 of the Criminal Procedure Code seekingdischarge on the ground that civil suits are pending between thepetitioners and the first respondent in O.S.Nos.1323 of 1988 and 1230 of1995 and C.R.P.No.555 of 2002 is also pending before the High Court and insuch circumstances, according to the petitioners, the charges should nothave been framed. The said petition came to be dismissed by the learnedMagistrate by observing that the case is pending right from the year 2004and the case is posted for 'further proceedings', the complainant haslodged that on 25.04.2004 the accused unlawfully entered into the land ofthe complainant and the complainant was threatened by the accused and theveracity of the allegations can be gone into only after taking evidenceand at this stage the petition cannot be allowed as there is a prima faciecase against the accused.2. Being aggrieved by that the petitioners filed a criminal revisioncase No.32 of 2007 before the Fast Track Court No.I, (Additional SessionsJudge), Coimbatore. The revisional court has upheld the order of thelearned Magistrate and dismissed the revision. Being aggrieved by thatthe petitioners have filed the above criminal original petition invokingthe jurisdiction of this Court under Section 482 of the Criminal ProcedureCode.3. Heard Mr. C.R.Prasanan learned counsel for the petitioners.4. Learned counsel for the petitioners submitted that admittedlycivil suits are pending between the petitioners and the first respondentherein and a civil revision petition is also pending before this Court andthe dispute between the petitioners and the first respondent relates tothe land in question in respect of which the offence of trespass is saidto have been committed. According to the learned counsel when the verypossession is in question before the civil Court, the criminal case oughtnot to have been entertained and the same amounts to abuse of process ofCourt. Except the above said submissions no other submissions have beenmade by the learned counsel for the petitioners.5. I have carefully considered the above said submissions made by thelearned counsel for the petitioners. At the outset it has to be pointedout that already the petitioners have filed a revision before the SessionsCourt against the order of the learned Magistrate dismissing the dischargepetition filed by the petitioners and as such a second revision at theinstance of the accused / petitioners is barred under Section 399(3) ofthe Criminal Procedure Code. To get over the said statutory bar thepetitioners have filed the above petition invoking the powers of thisCourt under Section 482 of the Criminal Procedure Code. 6. In the decision reported in (1995) 5 SCC 751 (Deepti v. AkhilRai), the Honourable Apex Court has laid down as follows:-"The High Court also should have taken care to verify therecord before accepting the concession made by thelearned Government Advocate. It should have also applied https://hcservices.ecourts.gov.in/hcservices/ its mind to the aspect that second revision application,after dismissal of the first one by Sessions Court is notmaintainable and that inherent power under Section 482 ofthe Code cannot be utilised for exercising powers whichare expressly barred by the Code. As we find that theorder passed by the High Court is not legal and just itwill have to be set aside".7. In yet another decision of the Apex Court reported in (1995) 4 SCC41 (Ganesh Narayan Hegde v. S. Bangarappa), the Honourable Apex Court hasobserved in paragraph 12 as under:- "12. While it is true that availing of the remedy of therevision to the Sessions Judge under Section 399 does notbar a person from invoking the power of the High Court underSection 482, it is equally true that the High Court shouldnot act as a Second Revisional Court under the garb ofexercising inherent powers. While exercising its inherentpowers in such a matter it must be conscious of the factthat the learned Sessions Judge has declined to exercise hisrevisory power in the matter. The High Court shouldinterfere only where it is satisfied that if the complaintis allowed to be proceeded with, it would amount to abuse ofprocess of court or that the interests of justice otherwisecall for quashing of the charges."8. Thus it is clear that a second revision is not maintainable. If aparty was unsuccessful in the revision filed by him, by invoking theextraordinary inherent power of this Court under Section 482 of theCriminal Procedure Code, this Court can interfere with, when it issatisfied that if the complaint is allowed to be proceeded with, it wouldamount to abuse of process of court or that the interests of justiceotherwise call for quashing of the charges. The case on hand is not onesuch case where if the further proceedings are allowed to be continued itwill amount to abuse of process of Court. Both the learned Magistrate andthe Sessions Judge have considered the contentions put forth by thepetitioners herein and have come to the conclusion that a prima facie caseis made out and the trial has to be conducted on the charges framedagainst the petitioners.9. The main contention of the learned counsel for the petitioners isthat since civil proceedings are pending between the petitioners and thefirst respondent, the continuance of the criminal case will amount toabuse of process of the Court. It is settled law that if prima facie acase is made out on the complaint filed by the complainant and offencesare made out, there is no bar for continuing with the criminal caseinspite of the fact that a civil case is pending between the complainantand the accused. Therefore the said contention of the learned counsel forthe petitioners is liable to be rejected and accordingly rejected. It ismade clear that this Court has not expressed its opinion on the merits ofthe case. https://hcservices.ecourts.gov.in/hcservices/

10. For the above said reasons, the criminal original petition failsand the same is dismissed. Consequently the connected MP is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsrkTo1. The Additional District Sessions Judge, Fast Track Court No.1, Coimbatore,2. The Judicial Magistrate, Coimbatore3. The Public Prosecutor, High Court, Madras.1 cc To Mr.C.R.Prasanan, Advocate, SR.70848.Crl.O.P.No.34592 of 2007 and M.P.No.1 of 2007 MA(CO)RVL 06.12.2007