A.C. Shanmugam v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.06.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.12347/20061.A.C.Shanmugam2.Lalitha Lakshmi3.S.Arun Kumar4.A.Ravi Kumar ..PetitionersVsThe State of Tamil Nadu byInspector of Police T4, Maduravoyal Police Station,Maduravoyal, Ambattur Taluk, Tiruvallur District ..RespondentPrayer:- This Criminal Original Petition is filed to call for therecords in Cr.No.3163/2005 on the file of the Respondent Police andquash the same.For Petitioner : Mr.B.Sriramulu, SC Mr.R.Gandhi, SC for Mr. R.G. NarendiranFor Respondents : Mr.S.Senthil Murugan, Addl.PPORDER The Petitioners seek to quash the complaint inCr.No.3163/2005, on the file of the Respondent Police and the FIRpending before the learned Judicial Magistrate, Poonamallee. The 1stpetitioner is the Chancellor of the Dr.MGR Educational and ResearchInstitute (Deemed University) at Maduravoyal, Chennai-95 and the 2ndpetitioner is his wife, the 3rd petitioner is his son and the 4thPetitioner is her brother-in-law.2. Tmt.Kannammal Educational Trust runs four EducationalInstitutions, viz. (1) Dr.MGR.Engineering College, (2) ThaiMoogambigai Dental College, (3) Thai Moogambigai Polytechnic and (4)a School at Muduravoyal Taluk, Tiruvallur District. During December2005, due to heavy and unprecedented rain on 3.12.2005, the waterlevels in the Aeri Poramboke, river Poramboke, irrigation tanks https://hcservices.ecourts.gov.in/hcservices/ increased, as a result of which, the water level in the Coovum Riverwas also raised. The 1st Petitioner had constructed thesuperstructure of the college run by him not only in the patta land,but also encroached upon the Poramboke lands comprised inS.Nos.432/2, 435/1, 436, 442, classified as odai Poramboke, AeriUzhvoil, River Poramboke, Kulam Tank Poramboke in the MogappairVillage and due to which, the water could not flow freely in theCoovum River and consequently on 3.12.2005 at 11.00 p.m the coovumwater entered into the College premises and raised upto 10 feet andinundated the entire Ground floor of the college premises. Oninformation given by some of the hostel students at 12.00 in the midnight to the Collector, Tiruvallur District, the personnel attachedto the Fire Service Department, the Police Personnel, the ExecutiveOfficer of the Maduravoyal Municipality and the Revenue Officialrushed to the spot and undertook rescue operations and thus shiftedabout 850 students to safer places.3. One J.Arumugam, the Village Administrative Officer ofMaduravoyal had lodged a complaint on 6.12.2005 regarding the abovesaid incident with the Respondent Police, which was taken as apetition and only on 9.12.2005 at about 1.30 p.m. a case had beenregistered against the 1st petitioner in Cr.No.3163/2005 underSections 447, 427 and 336 of IPC.4. The sum and substance of the allegations made in thecomplaint is as follows:-The above said Dr.MGR.Engineering College (DeemedUniversity) represented by the 1st petitioner as Director hadencroached upon the Poramboke lands, which was classified as OdaiPoramboke, Aeri Poramboke, Aeri Uzhvoil and constructed the buildingsand superstructures over the same, thereby prevented the free flow ofwater from the Coovum river. Consequently, during the rain coovumriver water entered into the college premises and the water levelrose upto 10 feet high, causing flood in the college premises and theneighbouring area. The entire ground floor of the College premisesgot inundated and the students were left stranded. The collegeauthorities did not take any efforts to bring the students out of thepremises in spite of the worst condition. Further the Collegeproceeded with the examinations as scheduled, which caused mentalagony to the students. In the complaint, the main allegation is thatthe College authorities did not take any efforts to rescue the hostelstudents to a safer place and also by putting up the structures inthe Aeri Poramboke endangered the life of the public.5. The CD File relating to Cr.No.3163/2005 was produced bythe learned Public Prosecutor and the same was perused. It appearsthat the Sub Inspector of Police attached to T4, Maduravoyal PoliceStation had conducted the preliminary investigation and examinedeight witnesses. The first witness is the Village Administrative https://hcservices.ecourts.gov.in/hcservices/ Officer, who lodged the complaint, has reiterated the facts found inthe complaint, the witnesses 2 to 4 are the residents of theneighbourhood area, who speak about the constructions put up by thesaid Educational Institution in the Aeri Poramboke, thus preventingfree flow of water and inundating the entire college premises andthe neighbourhood areas and witness 5 is a Police Constable attachedthe Armed Reserve Police, who is said to have rescued the studentsfrom the flooded college premises with the help of fire servicepersonnel, revenue officials. He would further state that due to theheavy rain, one of the wall collapsed in the premises and he gotinjured, for which he had taken treatment in the hospital. Thewitness 6 is a Trainee Sub Inspector and the witness 7, who isanother armed reserve Police, spoke in terms of the statement givenby the witness 5. Witness 8 is the Sub Inspector of Police, who ledthe team to the spot and undertook rescue operations. The statementsof those witnesses appears to have been recorded on 9.12.2005. TheSub Inspector of Police attached to the T4 Maduravoyal Police Stationhad completed the preliminary investigation and placed it before theInspector of Police for his perusal.6. Thereafter, the Inspector of Police appears to haverecorded the statements of few more witnesses from the neighbourhoodareas, who had repeated the statements, as given to the Sub Inspectorof Police. Strangely, two Head Constables viz. Janaki Raman andChandrasekar of Maduravoyal Police Station have stated in theirstatements that the Petitioners 1 to 4 were present inside thecollege premies on 3.12.2005 with lethal weapons like wooden logs andiron pipes and threatened the rescue team and prevented them fromentering into the premises.7. On a close scrutiny of the entire case file, it is seenthat only the above two witnesses, who are the Police officialsattached to the T4 Maduravoyal Police Station, have stated that thePetitioners were present and prevented and also threatened the rescueteam. None of the other witnesses have stated anything about the saidfact either to the Sub Inspector of Police, who conducted thepreliminary investigation or to the Inspector of Police, whoconducted further investigation. It is also pertinent to point outthat none of the hostel students in the premises have givenstatements regarding the above said fact.8. Now coming to the averments made in the complaint, theonly allegation made is that the buildings were constructed in theAeri Poramboke, which is the main cause for inundation of the collegepremises and the College authorities did not take any efforts toshift the students to safer places. Though the complaint is said tohave been lodged on 6.12.2005 i.e. after delay of 3 days from thedate of the incident, the same has been registered only on 9.12.2005.Barring the delay, even if the allegations made in the complaint begiven a face value and taken to be correct in its entirety, they do https://hcservices.ecourts.gov.in/hcservices/ not disclose any offences alleged as against the Petitioners. Thereis absolutely no allegation in the complaint that the Petitionerswere present in the premises at the time of occurrence and despitegiving information to the 1st Petitioner, he failed to take necessarysteps to shift the students from the college premises.9. Based on the complaint, the Police have registered thecase against the 1st Petitioner under Sections 447, 427 and 336 ofIPC. To attract the offence under Section 336 of IPC, it must beshown that the accused did the act rashly and negligently,endangering to the life of the public. The allegation in thecomplaint must have a reasonable nexus with the result caused.Admittedly, the constructions were put by the said Dr.MGR EducationalInstitution years back and the Officials have never objected to thesaid constructions made on the Poramboke lands and not even initiatedany proceedings for such unauthorised construction in the Porambokeland. No material is there to evidence the same. Till 3.12.2005, whenthe natural havoc caused due to heavy rain, there was no suchcomplaint or objection from any part of the public or from theauthorities concerned. Hence, it cannot be said that the allegationsconstituted the ingredients for the offence under Section 336 of IPC. 10. Next coming to the Offence under Section 427 of IPC,the complaint does not show any material. If a person, against whomallegation is made, cause loss or damage with a criminal intent, onlythen an offence under Section 447 would be attracted. There should beaverments so as to attract the definitions made in Section 441 andthey are (1) entry into or upon property in possession of another (2)if such entry is lawful then unlawful remaining upon such propertyand (3) such entry or unlawful remaining must be with an intent (i)to commit the offence and (ii) to intimidate, insult or annoy theperson in possession of the property. In order to attract theoffences punishable under Sections 427, 336 and 447 of IPC, criminalintention of the offender is the main criteria. 11. In the case of Sinnasamy Selvanayagam Vs. The King(1951-MWN-Crl-117], ingredients of Section 441 has been dealt withand it is held as under:-"Intention, which is a state of mind, can never be provedas a fact; it can only be inferred from facts which areproved. Hence it is a question of law.To bring a case within the section the intentionspecified in the section must be the dominant intention.Entry upon land made under a bona fide claim of right,however ill-founded in law the claim may be, does notbecome criminal merely because a foreseen consequence ofthe entry is annoyance to the occupant. To establishcriminal trespass the prosecution must prove that the https://hcservices.ecourts.gov.in/hcservices/ real or dominant intent of the entry was to commit anoffence or to insult, intimidate or annoy the occupantand that any claim of right was a mere cloak to cover thereal intent or at any rate constituted no more than asubsidiary intent."In the case of S.Vullappa and four others Vs. S.Bheema Row (ILR-41-Mad-156-FB), it was held as under:-"Trespass is an offence under Section 441, Indian PenalCode, only if it is committed with one of the intentsspecified in the section and proof that a trespasscommitted with some other object was known to the accusedto be likely or certain to cause insult or annoyance isinsufficient to sustain a conviction under Section 448,Indian Penal Code.A mere knowledge that the trespass is likely to causeinsult or annoyance does not amount to an intent toinsult or annoy within section 441, Indian Penal Code;but where the trespasser knows that his trespass ispractically certain in the natural course of events tocause insult or annoyance, it is open to the court toinfer an intent to insult or annoy. It is a question offact whether this presumption of intent is displaced byproof of any independent object of the trespass." On a careful analysis, none of the ingredients of the above saidoffences are attracted, even if the averment made in thecomplaint is taken in its entirety to be correct. 12. In the case of S.W.Palanitkar and others Vs. Stateof Bihar and another (2002-1-SCC-241), the Apex Court afterreferring to its earlier pronouncement in the case of MadhavraoJiwajirao Scindia Vs. Sambhajirao Chandrojirao Agre (1988-1-SCC-692), has held that exercise of power under Section 482 Cr.PCshould be consistent with the scope and ambit of the same in thelight of the decisions of the Supreme Court. It further held thatin appropriate cases, to prevent judicial process from being aninstrument of oppression or harassment in the hands of frustratedor vindictive litigants, exercise of inherent power is not onlydesirable but necessary also, so that the judicial forum of courtmay not be allowed to be utilised for any oblique motive. 13. In Madhavrao Jiwajirao Scindia's case, theHonourable Supreme Court has emphasised the said principle asunder:-"7. The legal position is well settled that when aprosecution at the initial stage is asked to be quashed, https://hcservices.ecourts.gov.in/hcservices/ the test to be applied by the court is as to whether theuncontroverted allegations as made prima facie establishthe offence. It is also for the court to take intoconsideration any special features which appear in aparticular case to consider whether it is expedient andin the interest of justice to permit a prosecution tocontinue. This is so on the basis that the court cannotbe utilised for any oblique purpose and where in theopinion of the court chances of an ultimate conviction isbleak and therefore no useful purpose is likely to beserved by allowing a criminal prosecution to continue,the court may while taking into consideration the specialfacts of a case also quash the proceedings even though itmay be at a preliminary stage."14. In the case of Punjab National Bank and others Vs.Surendra Prasad Sinha (1993-SCC-Cri-149), the same view has beenreiterated by the Honourable Supreme Court and the same is extractedbelow:-"The judicial process should not be an instrument ofoppression or needless harassment. There liesresponsibility and duty on the Magistracy to find whetherthe concerned accused should be legally responsible forthe offence charged for. Only on satisfying that the lawcasts liability or creates offence against the juristicperson or the persons impleaded then only process wouldbe issued. At that stage, the court would be circumspectand judicious in exercising discretion and should takeall the relevant facts and circumstances intoconsideration before issuing process lest it would be aninstrument in the hands of the private complaint asvendetta to harass the persons needlessly."15. In the case of Kunstocom Electronic (I) Pvt LimitedVs. Gilt Pack Limited and another (2002-SCC-Cri-336), theHonourable Supreme Court has held that there is no hard and fast rulethat the objection as to cognizability of the offence andmaintainability of the complaint should be allowed to be raised onlyat the time of framing the charge. 16. In the very recent judgement of the Honourble SupremeCourt rendered in the case of All Cargo Movers (India) PrivateLimited and others Vs. Dhanesh Badrmal Jain and another (2009-1-SCC-Cri-947), it is held that though the criminal proceedings should notbe encouraged, when it is found to be mala fide or otherwise an abuseof process of law, superior courts while exercising this power shouldalso strive to serve the ends of justice, while exercising inherentpower under Section 482 of Code of Criminal Procedure. https://hcservices.ecourts.gov.in/hcservices/

17. Keeping in mind the above principles enunciated by theApex Court, it is no doubt true, that the scope of Section 482 ofCode of Criminal Procedure has been reiterated and upheld by theHonourable Supreme Court that High Court is not supposed to embarkupon to enquire as to whether the allegations in the FIR and thecharge sheet are reliable or not and thereupon to render a definitefinding about the frivolous or veracity of the allegations. Itshould limit its consideration to explain as to whether theallegations made in the FIR taken on its face value and accepted inits entirety would prima facie constitute the offence for making outa case against the petitioners.18. As already pointed out, the complaint and the thestatements of the witnesses recorded on 9.12.2005 by the SubInspector of Police do not disclose anything to implicate or to speakabout the involvement of the Petitioners in any manner in theincident occurred on 3.12.2005. They are the persons, who had gone tothe spot on the same day and rescued the students to safer placesalong with the fire Department personnel, revenue officials and thepolice officials. They have not whispered anything about thepresence of the petitioners in the place of occurrence. The SubInspector of Police, who is said to have led the police team to thespot, also did not say anything about the presence of thepetitioners and the alleged commission of act by them. Surprisinglytwo Head Constables attached to the Maduravoyal Police Station, whosestatements have been recorded by the Inspector of Police on10.12.2005, who were not examined by the Sub Inspector of Police,though they were very much available in the Police Station havealleged that all the Petitioners were present in the place ofoccurrence. It is pertinent to point out that the said policeofficials have made only a general statement that they were preventedby the Petitioners with lethal weapons. The Village AdministrativeOfficer, who had given the complaint at the earliest point of timethough after a delay of 3 days has not whispered about the said factin the complaint. If really the Petitioners were present andthreatened them, then the witnesses, who were examined during thepreliminary investigation, could not have missed to aver the saidfacts in their statements, that too when the allegations are serious.So it is obvious that the said allegations were introduced at a laterpoint of time with a view to implicate the Petitioners in the crimewith some ulterior motive. 19. The Police Officer is invested with the powers ofinvestigation of the crime to secure punishment for the criminal andit is in the interest of the society that the investigating agencymust act honestly and fairly and not resort to fabricating falseevidence or creating false clues only with a view to secureconviction because such act shakes the confidence of the common mannot only in the investigating agency but also in the ultimateanalysis in the system of dispensation of criminal justice. Although https://hcservices.ecourts.gov.in/hcservices/ the powers of the Police to investigate cognisable offence areunfettered, yet a mala fide exercise of powers of investigation isliable to be quashed. In the case of SN Sharma Vs. Bipin KumarTiwari (AIR-1970-SC-786), the Honourable Supreme Court has held asfollows:-"It appears to us that though the Cr.PC gives to thepolice unfettered power to investigate all cases wherethey suspect that a cognisable offence has beencommitted, in appropriate cases an aggrieved person canalways seek a remedy by invoking the powers of High Courtunder Art.226 of the Constitution under which, if theHigh Court could be convinced that the power ofinvestigation has been exercised by a police officermala fide, the High Curt can always issue a writ ofmandamus restraining the police officer from misusing hislegal powers."20. The materials placed by way of complaint and thestatements recorded would clearly show that the criminal proceedingsinitiated against the Petitioners are manifestly attended with malafide with a view to involve them in the commission of crime. It hasbecome necessary to look into this material evidence, as it appearson the face of it that it is brought into existence with someulterior motive. 21. At this juncture, it is relevant to extract theguidelines laid down by the Apex Court in the case V.Y.Jose andAnother Vs. State of Gujarat and another (2009-1-SCC-Cri-996) asunder:-(1)Where the allegations made in the first informationreport or the complaint even if they are taken at theirface value and accepted in their entirety do not primafacie constitute any offence or make out a case againstthe accused.(2)Where the allegations in the first information reportand other materials, if any, accompanying the FIR do notdisclose a cognizable offence, justifying aninvestigation by police officers under Section 156(1) ofthe Code except under an order of a Magistrate withinthe purview of Section 155(2) of the Code.(3)Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of the https://hcservices.ecourts.gov.in/hcservices/ same do not disclose the commission of any offence andmake out a case against the accused.(4)Where the allegations in the FIR do Note to Office:-constitute a cognizable offence but constitute only anon cognizable offence, no investigation is permitted bya police officer without an order of a Magistrate ascontemplated under Section 155(2) of the Code.(5)Where the allegations made in the FIR or complaint areso absurd and inherently improbable on the basis ofwhich no prudent person can ever reach a just conclusionthat there is sufficient ground for proceeding againstthe accused.(6)Where there is an express legal bar engrafted in any ofthe provisions of the Code or the Act concerned (underwhich a criminal proceeding is instituted) to theInstitution and continuance of the proceedings and/orwhere there is a specific provision in the Code or theAct concerned, providing efficacious redress for thegrievance of the aggrieved party.(7)Where a criminal proceedings is manifestly attendedwith mala fides and/or where the proceedings ismaliciously instituted with an ulterior motive forwreaking vengeance on the accused and with a view tospite him due to private and personal grudge."22. The Apex Court has held that when the allegations madein the FIR or the Complaint are so absurd and inherently improbableon the basis of which no prudent person can ever reach a justconclusion that there is sufficient ground for proceeding against theaccused, the court is justified in exercising the power under Section482 of Code of Criminal Procedure. The Honourable Supreme Court hasalso emphasised that Section 482 of the Code of Criminal Procedureserves a salutary purpose viz. a person should not undergo harassmentof litigation for a number of years although no case has been madeout against him.23. In the instant case, on consideration of theallegations made in the complaint and also in the light of thestatements given by the witnesses, it is seen that the criminalprosecution is mala fide and vexatious and therefore, there is everyjustification for interference by this court to quash the complaint. https://hcservices.ecourts.gov.in/hcservices/

24. For the above said reasons, the complaint cannot besustained and the same is liable to be quashed and accordingly, it isquashed and this Criminal Original Petition is allowed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarSrcm To1. The Judicial Magistrate No.2, Poonamallee.2. -do- Through The Chief Judicial Magistrate, Thiruvallur District.3. The Inspector of Police, T4, Maduravoyal Police Station, Maduravoyal, Ambattur Taluk, Thiruvallur District.4. The Public Prosecutor, High Court, Madras.+ 2 c.cs. to Mr. R.G. Narendiran, Advocate. S.R.No.27156. Order inCrl.OP.No.12347/2006MSM (CO)GSK 20.07.2009.