K.Neelambal v. Solaman Reddy

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8.07.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.27557/20061.K.Neelambal2.Govindasamy3.G.Arokiasamy4.Selvam5.Charles6.Victor Jayaraj7.G.Raja8.D.Lurduraj9.Rock Arokiyaraj10.Rajiis11.G.RAfel12.D.Peter..Petitioners/Accused 1 to 12 VsSolaman Reddy..Respondent/ComplainantPrayer:- This Criminal Original Petition is filed to call for therecords in CC.No.64/2005 on the file of the Judicial Magistrate I,Chengalput and quash the same. For Petitioner:Mr.K.SukumaranFor Respondents:Mr.R.VijayakumarORDER This Criminal Original Petition is filed to quash the complaintin CC.No.64/2005 on the file of the Judicial Magistrate I,Chengalput. 2. The brief facts, which are necessary for the disposal ofthis Criminal Original Petition, are as follows:-The Petitioners herein are A1 to A12 and the complaint has beenfiled by the Respondent against them for the offences under Sectios147, 447, 427 and 506(i) of IPC. The Petitioners 1 and 2 are thewife and husband and the Petitioners 3 to 12 are the natives ofThachur Village. According to the Respondent/complainant, he isthe owner of the property to an extent of 30 cents in S.No.475/1A2and he is in possession and enjoyment of the said property andusing it as Kulathu Medu. On 9.1.2005, at about 1.00 p.m. all thePetitioners trespassed into the said property of the Respondent andcaused damage to the hayrick worth about Rs.3000/- and damage to https://hcservices.ecourts.gov.in/hcservices/ the brick wall, causing loss to the tune of Rs.6,000/-. The saidincident was witnessed by one Markpeter, Son of the Respondent,Arokiyasamy, the brother's son of the Respondent and oneChinnammal. The Respondent is said to have filed a suit inOS.No.74/2003 before the Sub Court, Maduranthagam, against theRevenue Officials and the Village President and in IA.No.423/2003filed in the said suit, interim injunction is said to have beengranted.3. The Petitioners challenge the complaint on the grounds thatthe ingredients of offence of rioting and criminal intimidation areabsent in the complaint and the Respondent is giving a criminalcolour to the civil dispute and that the Respondent is not theowner of S.No.475/1A-2 of Budur Natham and on the hand, there is apucca road to Sahaya Nagar through S.No.475/1A-2 and that the civilsuit filed by the Respondent in OS.No.74/2003 only relates toS.No.475/1A1 and that there is nothing to show that he is the ownerof the property comprised in S.No.475/1A2 and in the said factsand circumstances, the criminal proceedings should not beentertained, when it is found to be mala fide or otherwise an abuseof process of court.4. The learned counsel for the Petitioners would vehementlycontend that the matter, which essentially involves the dispute ofa civil nature, should not be allowed to be the subject matter of acriminal offence and in the present case, no case has been made outagainst the Petitioners, so as to held that they should face acriminal trial. The learned counsel relied on on the decision ofthe Honourable Supreme Court rendered in the case of Inder MohanGowswami and another Vs. State of Uttaranchal and others (2007-5-CTC-614) and contended that the criminal Prosecution should not beused as an instrument of harassment or for certain privatevendetta or with an ulterior motive to pressurise the Petitionersto part with the property. 5. This court may, in exercise of its inherent power underSection 482 of Code of Criminal Procedure, interfere in categoriesof cases viz. proceedings relating to cognizable offence to preventabuse of process of any court or otherwise to secure the ends ofjustice. However, the power should not be exercised sparingly andthat too in the rarest of rare cases, as has been held by theHonourable Supreme Court in the case of State of Haryana and othersVs. Ch.Bhajan Lal and others (AIR-1992-SC-604). 6. In the case of The Janata Dal Vs. H.S.Chowdharay andothers (AIR-1993-SC-892), it is held that it would not be properfor the High court to analyse the case of the complainant in thelight of probabilities in order to determine as to whether theconviction should be sustainable and on such premises arrive at aconclusion that the proceedings are to be quashed. It is furtherheld that it would be erroneous to assess the materials before itand conclude that the complaint cannot be proceeded with. https://hcservices.ecourts.gov.in/hcservices/

7. In the case of Dhanalakshmi Vs. R.Prasanna Kumar and others(AIR-1990-SC-494), it is held by the Honourable Supreme Court thatwhen an information is lodged at the Police Station and an offenceis registered, then the mala fides of the informant would be ofsecondary importance. It is the material collected during theinvestigation and the evidence let in court, which decides the fateof the accused person.8. Barring in mind the above said principles enunciated by theHonourable Supreme Court, now we have to analyse the facts in thiscase.9. The allegation contained in the complaint is that theRespondent is the owner of the property in S.No.475/1A2 to anextent of 30 cents and he is in possession and enjoyment of thesaid property, by storing hayrick and constructed the compound wallwith bricks and also put up a thatched shed in the property.According to the complainant, the incident took place on 9.1.2005at about 1.00 p.m. The Petitioners trespassed into the property ofthe complainant and caused damage to the hayrick worth aboutRs.3000/- and also demolished the brick wall and dismantled thethatched shed, causing loss to the property of the complainant. Itis alleged that the occurrence was witnessed by three persons andtwo of them are relatives of the complainant and one is anindependent witness by name Chinnammal. It is also alleged thatthey have resisted the act committed by the Petitioners.10. The aforesaid allegations prima facie fulfill theingredients of the offence under Section 427, 147 and 447 of IPC.Undisputedly, the question, whether the Respondent is the owner ofthe property is essentially a civil dispute. The Respondent hasgot a decree in respect of S.No.475/1A1, whereas he claims that thesurvey number is wrongly mentioned in the decree. However, thiscourt cannot embark upon an enquiry as to whether the claim ofownership made by the Respondent is proved, as it is a matter ofevidence at the time of trial. This court, at this stage, wouldnot embark upon appreciation of evidence.11. For the purpose of establishing the trespass and the actof mischief, the complainant is required to show that thePetitioners with an criminal intention trespassed into theproperty, which is in possession and enjoyment of the Respondentcommitted acts as alleged. In the instant case, the complainanthas alleged in the complaint that he was in possession of theproperty and thePetitioners have trespassed with an intention tocause damage and loss to the property.12. The allegations made in the complaint thus disclose thecognizance offence justifying the initiation of criminalproceedings. Whether the material already in existence and to beadduced in the course of the proceedings would be sufficient forholding the Petitioners guilty has to be considered only at thetime of trial. There are prima facie materials showing thecommission of crime by the Petitioners and that being so, an https://hcservices.ecourts.gov.in/hcservices/ interference at the threshold with the FIR is not desirable. Theacceptability of the material produced to fasten the culpability onthe Petitioner is a matter of trial and therefore, it is not properto quash the complaint at this stage. 13. For the reasons stated above, this Criminal OriginalPetition is dismissed. Consequently connected MP is closed.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarSrcm To:1 The Judicial Magistrate No.IChengalpat2 -do- Thro Chief Judicial Magistratekancheepuram+1 CC to Mr.R.Vijayakumar SR.29551+1CC to Mr.K.Sukumaran Advocate Sr.29393Crl.OP.No.27557/2006CO RSYSRA 27/07/2009