Velusamy v. The State Rep By Its,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07-08-2023

CORAM

HONOURABLE MR JUSTICE V.SIVAGNANAM CRL OP. Nos.28380 & 29935 of 2018 & Crl.M.P.Nos.16503 & 17597 of 2018

1. Velusamy

2. Palanisamy

3. Ganeshan .. Petitioners in Crl.O.P.No.28380 of 2018 Senthil Prabhu .. Petitioner in Crl.O.P.No.29935 of 2018 Vs.

1. State, represented by the Inspector of Police, Perianaickenpalayam Police Station, Coimbatore.

2. Mrs.Prema .. Respondents in both Crl.O.Ps.

Crl.O.P.No.28380 of 2018: Criminal Original Petition filed under section 482 Cr.P.C., to quash the proceedings in PRC.No.20 of 2018 on the file of the Judicial Magistrate No.VI, Coimbatore in Cr.No.303 of 2017 on the file of the 1/14

respondent.

Crl.O.P.No.29935 of 2018 :

Criminal Original Petition filed under section 482 Cr.P.C., to call for the records and quash the proceedings in S.C.No.216 of 2018 on the file of the learned Principal Judge, Sub Court, Coimbatore in Cr.No.303 of 2017 on the file of the first respondent. For Petitioner in both OPs. : Mr. M. Krishnamoorthy For Respondents in both OPs. : Mr. L. Baskaran, GA (crl.side) - R1 Mr.S.Kolandasamy for R2 in Crl.O.P.No.29935/2018 R2-No Appearance in Crl.O.P.No.28380 of 2018 C O M M O N O R D E R Crl.O.P.No.28380 of 2018 is filed to call for the records and quash the proceedings in S.C.No.216 of 2018 on the file of the learned Principal Judge, Sub Court, Coimbatore in Cr.No.303 of 2017 on the file of the first respondent.

2. Crl.O.P.No.29935 of 2018 is filed to call for the records and quash the proceedings in S.C.No.216 of 2018 on the file of the learned Principal Judge, Sub Court, Coimbatore in Cr.No.303 of 2017 on the file of the first respondent.

3. The petitioner in Crl.O.P.No.29935 of 2018 is A3 and the petitioners 2/14

in Crl.O.P.No.28380 of 2018 are A4 to A6 in S.C.No.216 of 2018 pending on the file of the learned Principal Sub Court, Coimbatore.

4. The respondent police registered a case against the petitioners herein along with two other persons viz., Maragadhamani/A1, Sivasami/A2 and Arvindh Thiaro/A6 in Cr.No.303 of 2017 for the offence under section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1988 in pursuance of the complaint given by one Prema for the death of her mother Chandramani, who committed suicide. After the death of Chandramani, the section was altered to 306 IPC. On completion of investigation, final report was filed against A1 to A7 before the learned Judicial Magistrate VI, Coimbatore alleging abetment of committing suicide by the deceased and subsequently, the case was taken on file in S.C.No.216 of 2018 by the learned Principal Sub Court, Coimbatore.

5. The learned counsel for the petitioners submitted that they were prosecuted by the respondent police along with A1, A2 and A6. In the materials filed by prosecution, tagging the petitioners herein with the alleged offence, no allegation is attributed against these petitioners for instigating the deceased Chandramani for committing suicide. Under these circumstances, 3/14

continuing criminal proceedings against these petitioners is abuse of process of court. Hence the criminal proceedings pending in SC.No.216 of 2018 on the file of learned Principal Sub Court, Coimbatore is liable to be quashed . Thus he seeks to quash the proceedings against the petitioners.

6. The learned counsel for the defacto complainant/2nd respondent submitted that the complaint and other statement of the witnesses discloses that the allegations are attributed only against A1 and A2.

7. The learned Govt. Advocate (crl.side) appearing for the 1st respondent also conceded that all the allegations contained in the complaint and the statements recorded from the witnesses under section 161(3) Cr.P.C., are attributed only against A1 and A2 and not against these petitioners.

8. Heard the learned counsel appearing for the petitioners, learned Govt. Advocate (crl.side) appearing for the 1st respondent and the learned counsel appearing for the 2nd respondent and considered the materials and documents available on record.

9. On perusal of records, the fact reveals that the respondent police registered a case in Cr.No.303 of 2017 for the offence under section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 198 in pursuance of a 4/14

complaint given by one Prema for the suicide committed by her mother Chandramani. After the death of Chandramani, the case was altered to Section 306 IPC.

10. Perusal of records would further reveal that there is a civil dispute between the deceased and A1 and A2 with regard to settlement of properties situated at Veerapandi Kamarajar Street. In this connection, a civil case is also pending before the District Munisf Court, Coimbatore in O.S.No.1036 of 2017. Under these circumstances, on 22.07.2017 at morning A1 and A2 namely Maragathamani and Sivasami went to complainant's house and threatened the deceased Chandramani. Subsequently at about 3.30 p.m., the deceased Chandramani by purchasing petrol in a petrol bunk, went to the house of A1 and A2 and reported their torture and so that she is going to commit suicide and for that A1 and A2 replied that you go ahead with your proposal. Immediately she committed suicide by pouring petrol upon her and set fire on herself. Thereafter, a case has been registered and the respondent police filed final report enclosing the statements of 20 witnesses viz., LW1 to LW20.

11. Perusal of final report reveals that among the 20 witnesses, LW1 is the complainant, LW2-Balamurugan, LW3-Mohan and LW4-Sathish are eyewitnesses to the incident and the remaining witnesses LW5-Subramani and 5/14

LW6- Suraj Kumar are hearsay witnesses, LW7 and 8 are witnesses to observation and seizure mahazar. Lws.9, 10, 11 and 12 are witnesses to the inquest and remaining witnesses LW13 to 20 spoke about the other aspects.

12. I have gone through the statements of all the witnesses. All these witnesses do not speak about the petitioners in connection with the suicide committed by the deceased Chandramani. Under these circumstances, in the absence of any material and evidence against these petitioners, this court is of the view that continuing the criminal proceedings against these petitioners is misusing the process of criminal court.

13. 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 (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 6/14

13.1. 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.

Cases may also arise where the allegations in the first 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.

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."

13.2. 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:

"(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 8/14

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."

13.3. 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: "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 9/14

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;

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;

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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 Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence 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.

"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."

14. It is to be noted that the present case meets the parameters laid down by the Hon'ble Supreme Court in the decisions cited supra Therefore, the criminal proceedings in SC.No.216 of 2018, pending on the file of the Principal Sub Court, Coimbatore is unwarranted.

15. In view of the foregoing discussions, the criminal case in S.C.No.216 of 2018 pending on the file of learned Principal Sub Court, Coimbatore against the petitioners/A3, A4, A5 and A6 are hereby quashed and both the Criminal Original Petitions are allowed. Consequently, the connected miscellaneous petitions are closed.

16. The trial court is directed to proceed against A1 and A2 alone and complete the trial within a period of four months from the date of receipt of a copy of this order.

07-08-2023 msr V. SIVAGNANAM, J.

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msr To

1. The Principal Sub Court, Coimbatore.

2. The Public Prosecutor, High Court, Madras.

CRL OP. Nos.28380 & 29935 of 2018 & Crl.M.P.Nos.16503 & 17597 of 2018 07.08.2023 14/14