A.Chandran v. State Represented By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 08.08.2023 Coram:

The Hon'ble Mr.Justice V.SIVAGNANAM Crl.O.P.No.1050 of 2021 and Crl.M.P.No.665 of 2021 and Crl.M.P.No.668 of 2021 1.Dr.A.Chandran 2.C.John Kamalesh 3.N.Prince Ernest 4.P.Thiyagarajan 5.C.Andrew Alex 6.S.Johnny

...Petitioners

Versus

1.State Represented by Inspector of Police, C-2, Race Course Police Station, Coimbatore.

2.Charles Samraj.N

...Respondents

This Criminal Original Petition is filed under Section 482 of Cr.P.C praying to call for the records and quash the proceedings in C.C.No.1898 of 2019 on the file of the learned Judicial Magistrate No.III, Coimbatore. For Petitioners :

Ms.Kaavya Silambanan For Respondent - 1 :

Mr.L.Baskaran Government Advocate (Crl.Side) For Respondent - 2 :

Mr.S.V.Karthikeyan 1/18

ORDER

This criminal original petition has been filed by the petitioners seeking to quash the criminal proceedings against them in C.C.No.1898 of 2019 on the file of learned Judicial Magistrate No.III, Coimbatore.

2. The case of the prosecution is that on 28.02.2019, at about 4.00 p.m, the 2nd respondent/de-facto complainant heard the shouting noise in the office of the Bishop at Kovai Race Course. Hence, the 2nd respondent/defacto complainant went to the Bishop's office where he saw the petitioners and some unknown persons were arguing with Bishop Mr.Thimothy Ravinder with an intention to create problem. When the 2nd respondent/defacto complainant asked them as to why they are arguing with the Bishop, 1st petitioner scolded the 2nd respondent/de-facto complainant in abusive language; 2nd petitioner had hit the 2nd respondent/de-facto complainant on his head & stomach with a PVC Pipe; petitioners 3 & 4 held the hands of 2nd respondent/de-facto complainant from behind and petitioners 6 & 7 hit the 2nd respondent/de-facto complainant on his back. At that time, when one 2/18

Mr.Arul Prabhu attempted to safeguard the 2nd respondent/de-facto complainant, petitioners 3 & 4 had hit the said Arul Prabhu on his face and injured him. Hence, the aggrieved 2nd respondent/de-facto complainant lodged a complaint against the petitioners and other unknown persons. After the receipt of said complaint, the 1st respondent police registered a case in Crime No.148 of 2019 against the petitioners and other unknown persons for the offences under Sections 147, 148, 323, 324, 341 & 506(ii) of I.PC & 75(1)(e) of Tamil Nadu City Police Act, 1888. After the completion of investigation in Crime No.148 of 2019, the 1st respondent police filed the final report before the learned Judicial Magistrate - III, Coimbatore and the same was taken on file in C.C.No.1898 of 2019. Hence, this petition has been filed by the petitioners.

3. The learned counsel for the petitioners submitted that this is a case of counter complaint. Initially, there was a dispute between the 1st petitioner and 2nd respondent/de-facto complainant in regard to the constitution of interview committee for selection of teachers at CSI Trust Higher Secondary School, Coimbatore, as a result of which, 1st petitioner lodged a 3/18

complaint against the 2nd respondent/de-facto complainant. On the basis of the complaint given by the 1st petitioner, the 1st respondent police registered a case in Crime No.150 of 2019 against the 2nd respondent/de-facto complainant and 3 others for the offence under Sections 75(1)(C) of Tamil Nadu City Police Act, 1888 r/w. Sections 323 & 506(ii) of I.P.C and after the completion of investigation, the 1st respondent police filed a Charge Sheet before the learned Judicial Magistrate No.III, Coimbatore which was taken on file in C.C.No.1897 of 2019. Hence, the 2nd respondent/de-facto complainant and 3 others filed a Crl.O.P.No.29748 of 2019 before this Court seeking to quash the proceedings against them in C.C.No.1897 of 2019 on the file of learned Judicial Magistrate No.III, Coimbatore, however, the said Crl.O.

P came to be dismissed on 16.09.2022. 3.1. The petitioners have been falsely implicated in this case and they have not committed any offence as alleged by the prosecution. Actually, the petitioners were not present at the place of occurrence when the alleged incident was happened.

registered a case against the petitioners for the offences under Sections 147, 148, 323, 324, 341 & 506(ii) of I.PC & 75(1)(e) of Tamil Nadu City Police Act, 1888 and also, filed the final report against them. 3.2. Further, the learned counsel drew the attention of this Court to the statement given by L.W.13 (Dr.Thenmozhi who gave treatment to 2nd respondent/de-facto complainant), wherein, L.W.13 had stated that on 28.02.

2019, after giving first-aid to the injured 2nd respondent/de-facto complainant, when she asked the 2nd respondent/de-facto complainant about the injury caused to him, he said that 3 identifiable persons and 7 unidentifiable persons had attacked him with iron pipes and hence, he had sustained injury on his head; the 2nd respondent/de-facto complainant was admitted as an in-patient in the Coimbatore Medical College Hospital on 28.02.2019 and he was discharged from the Hospital on 01.03.2019 and she also stated that the head injury caused to the 2nd respondent/de-facto complainant was a simple injury. Therefore, the learned counsel prayed this Court to quash the criminal proceedings in C.C.No.1898 of 2019 on the file of the learned Judicial Magistrate No.III, Coimbatore.

4. The learned Government Advocate (Crl.Side) appearing for the 1st respondent police as well as the learned counsel appearing for the 2nd respondent/de-facto complainant contended that on the date of occurrence, the 2nd respondent/de-facto complainant was assaulted by the petitioners and due to which, the 2nd respondent/de-facto complainant had sustained head injury. They further contended that only after the completion of investigation in Crime No.148 of 2019, the 1st respondent police filed the final report before learned Judicial Magistrate - III, Coimbatore. The prosecution cited 15 witnesses, out of which, L.W.1 is the injured 2nd respondent/de-facto complainant, L.W.2 (Arul Pravin), L.W.3 (Bishop Thimothy Ravinder), L.W.4 (Samuel David), L.W.5 (A.S.Rajasekaran), L.W.6 (David Suresh) and L.W.

7 (David Barnabas) are eyewitnesses to the incident occurred on 28.02.2019 and L.W.13 is the Doctor who gave treatment to injured 2nd respondent/de-facto complainant. They further submitted that the case in C.C.No.1898 of 2019 has been posted to 01.09.2023 and hence, in order to prove the charge against the petitioners, the prosecution has to let in evidence before the trial Court. Therefore, they prayed for dismissal of this criminal original petition.

5. Heard the learned counsel on either side and perused the materials placed before this Court.

6. The issue involved in the present case is that the 2nd respondent/defacto complainant was assaulted by the petitioners and some unknown persons, due to which, the 2nd respondent/de-facto complainant had sustained injury. Aggrieved over the same, the 2nd respondent/de-facto complainant lodged a complaint against the petitioners, on the basis of his complaint, the 1st respondent police had registered a case in Crime No.148 of 2019 against the petitioners and thereafter, filed a Charge Sheet against them which was taken on file in C.C.No.1898 of 2019. Hence, this criminal original petition.

7. From a perusal of the aforesaid Charge Sheet, it is seen that the prosecution had cited 15 witnesses. Out of the said witnesses, during investigation, L.W.1 (2nd respondent/de-facto complainant) has stated about the incident as well as the injuries sustained by him; L.W.2 to L.W.7 (eyewitnesses to the incident) have stated about the incident occurred on 7/18

28.02.2019 and how the 2nd respondent/de-facto complainant was assaulted by the petitioners and L.W.13 (Doctor who gave treatment to the injured 2nd respondent/de-facto complainant) has stated that on 28.02.2019, she gave first-aid to the injured 2nd respondent/de-facto complainant and when she asked the 2nd respondent/de-facto complainant about the injury caused to him, he said that 3 identifiable persons and 7 unidentifiable persons had assaulted him with iron pipes and due to which, he had sustained injury on his head. She also stated that the nature of injury caused to the 2nd respondent/de-facto complainant is a simple injury.

8. As far as this case is concerned, though the petitioners are denying that they have been falsely implicated in this case and they have not committed any offence as alleged by the prosecution, the eye-witnesses viz., L.W.2 to L.W.7 gave a statement that the 2nd respondent/de-facto complainant was assaulted by the petitioners and some unknown persons.

9. Now, the two major issues to be decided in the present case are as follows:

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(i) Whether the petitioners were present at the place of occurrence when the incident was happened?

(ii) Whether the 2nd respondent/de-facto complainant was truly assaulted by the petitioners & some unknown persons?

10. Considering the facts and circumstances of the case and having regard to the submissions made by the learned counsel on either side, this Court is of the opinion that it is inappropriate to quash the criminal proceedings against the petitioners when the case is at the initial stage of trial. Further, the dispute between the petitioners and the 2nd respondent/defacto complainant has to be adjudicated by the trial Magistrate only after the parties let in evidence before the trial Court.

11. At this juncture, it is pertinent to point out that the Hon'ble Supreme Court has discussed in detail about the inherent powers of the High Courts under Section 482 Cr.P.C in the following cases: (i) R.P.Kapur Vs. The State of Punjab reported in AIR 1960 SC 866 9/18

(ii) State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors. reported in AIR 1992 SC 604 (iii) M/s.Neeharika Infrastructure Pvt. Limited Vs. State of Maharashtra & Ors. reported in 2021 SCC Online SC 315 11.1. In the case of R.P.Kapur Vs. The State of Punjab reported in AIR 1960 SC 866, the Hon'ble Supreme Court has held as follows: "6. It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage.

It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice.

If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category.

information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise.

In cases falling under this category the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not.

That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained."

11.2. Further, in the case of State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors. reported in AIR 1992 SC 604, the Hon'ble Supreme Court issued seven guidelines to be followed by the High Courts in the exercise of its inherent power vested by Section 482 Cr.P.C to quash the FIR/complaint, which are as follows:

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"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 11.3. Similarly, in the case of M/s.Neeharika Infrastructure Pvt. Limited Vs. State of Maharashtra & Ors. reported in 2021 SCC Online SC 315, the Hon'ble Apex Court has observed as follows: 12/18

"80. ............, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

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viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the selfrestraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under 14/18

Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically.

Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

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xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

12. It is to be noted that the present case does not meet the parameters laid down by the Hon'ble Supreme Court in the decisions cited supra. Further, I do not find any merit in the present case.

13. For the foregoing reasons, this criminal original petition is dismissed. Consequently, connected miscellaneous petitions are closed. 08.08.2023 mrr Index: Yes/No Speaking Order (or) Non-Speaking Order 16/18

To 1.The Judicial Magistrate No.III, Coimbatore.

2.The Inspector of Police, C-2, Race Course Police Station, Coimbatore.

3.The Public Prosecutor, High Court, Madras.

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V.SIVAGNANAM, J.

mrr Crl.O.P.No.1050 of 2021 08.08.2023 18/18