H.Haja Nibasudeen v. P.M.Pasith

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.04.2019

CORAM

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN Crl.O.P.No.8814 of 2019 and Crl.M.P.No.4661 of 2019

1. H.Haja Nibasudeen

2. K.Abdul Rahman

3. B.Rijwan ... Petitioners/A1 to 3 Vs.

1. P.M.Pasith .. 1st Respondent/Defacto Complanant

2. State by The Inspector of Police, Mayiladuthurai Police Station Nagapattinam District.

Crime No.2 of 2019 ... 2nd Respondent/Complaint Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records pertaining to the case in Cr.No.2/2019 on the file of the respondent police and quash the same.

For Petitioners : Mr.S.Mahendran For R2 : Mr.M.Mohamed Riyaz Additional Public Prosecutor

ORDER

This Criminal Original Petition has been filed seeking to quash the Crime No.2/2019 on the file of the respondent police.

2. The learned counsel appearing for the petitioners would submit that the petitioners are innocent persons and they have not committed any offence as alleged by the prosecution. Without any base, the respondent police registered a case in Crime No.2/2019 for the offences under Sections 294 (b), 324, 447, 506 (2), 3(1) IPC, as against the petitioners. Hence, they prayed to quash the same.

3. The learned Additional Public Prosecutor would submit that the investigation is almost completed and the respondent police have only to file final report.

4. Heard Mr.S.Mahendran, learned counsel appearing for the petitioners and Mr.M.Mohamed Riyaz, learned Additional Public Prosecutor appearing for the second respondent.

5. It is seen from the First Information Report that there is a specific allegation as against the petitioners, which has to be investigated. Further the FIR is not an encyclopedia and it need not contain all facts. Further, it cannot be quashed in the threshold. This Court finds that the FIR discloses prima facie commission of cognizable offence and as such this Court cannot interfere with the investigation. The investigating machinery has to step into investigate, grab and unearth the crime in accordance with the procedures prescribed in the Code.

6. Further, in the case of Sau. Kamal Shivaji Pokarnekar vs. the State of Maharashtra & ors. in Crl.A.No.255 of 2019 dated 12.02.2019, the Hon'ble Supreme Court of India has held as follows:

"4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.

5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive.

If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case

should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere.

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9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."

7. In view of the above discussion, this Court is not inclined to quash the Cr.No.2/2019 as against the petitioners. Hence, the second respondent is directed to complete the investigation in Crime No.2 of 2019 and file a final report within a period of three months from the date of receipt of a copy of this order, before the jurisdiction Magistrate, if not already filed.

8. With the above directions, this Criminal Original Petition is dismissed. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CS-III) //True copy// Sub Assistant Registrar raja

To

1. The Inspector of Police, Mayiladuthurai Police Station Nagapattinam District.

2. The Public Prosecutor, High Court, Madras.

+1cc to Mr.S.Mahendran, Advocate SR.No.32928 Crl.O.P.No.8814 of 2019 and Crl.M.P.No.4661 of 2019 SV(CO) GMY(22/05/2019)